Borderwall’s Weblog

July 13, 2008

Waived on the Border: The National Environmental Policy Act

View toward Mexico from the Rio Grande

View toward Mexico from the Rio Grande

While rationale for the Homeland Security secretary’s waiver of the Administrative Procedure Act remains open to speculation, his motive to waive the National Environmental Policy Act is clear: enforcement of the so-called “Magna Carta” of environmental law could have prevented border barriers by exposing the problems with current plans and identifying alternatives.

Proposed by Senator Henry Jackson, NEPA resulted from growing ecological concern through the 1950s and 1960s. Smog had caused car accidents in Los Angeles. DDT had endangered the American Bald Eagle. Unregulated industrial dumping in Cleveland had rendered the Cayuhoga River flammable.

Federal agency objectives had often competed without guidance from environmental statutes, as in Florida where the Department of Interior had pursued Everglades preservation near where the Department of Transportation lobbied for an airport. Furthermore, planning for agency projects required little analysis of predictable adverse consequences, and provided few opportunities for public participation.

This became evident as Interstate Highway construction sparked dissent coast to coast. Calling for a moratorium in Hartford, historian Lewis Mumford lamented that research for the Federal-Aid Highway Act of 1956, “jammed through Congress so blithely and lightly,” had not involved “study of the real problems.”

In Boston, where neighborhoods had been razed with little notice for a 12 lane Southwest Expressway, citizens protested what they dubbed the “Chinese Wall.”

Reflecting Aldo Leopold’s view of the world as “one humming community of cooperations and competitions,” and President Kennedy’s notice of “Americans seizing, using, squandering and belatedly protecting their natural heritage,” the National Environmental Policy Act was signed by President Nixon in 1970 to “prevent or eliminate damage to the environment and biosphere.”

NEPA codified environmental policies for federal agencies, and required Environmental Impact Statements — including consideration of possible alternatives — for projects likely to cause ecological or cultural harm. Though unpopular with many industrialists, and weak-kneed to many conservationists, NEPA was revolutionary for recognizing that natural resource protection yields both cultural and economic protections.

Comprehensive compliance with the National Environmental Policy Act for border barrier construction would have required a San Diego-to-Brownsville Environmental Impact Statement, along with site-specific assessments for particular actions in discrete ecosystems along the border.
Instead, despite adverse impacts anticipated by DHS, and protests from border residents that echo Mr. Mumford’s lament, all NEPA requirements are now waived.

Please support HR 2593, The Borderlands Conservation and Security Act. Full text of HR 2593 can be found here:

July 2, 2008

Waived: The Administrative Procedure Act

Filed under: Uncategorized — borderwall @ 7:03 pm

 The Administrative Procedure Act of 1946

Wary of New Deal-era government expansion, and after costly brushes with fascism under Nazi Germany and Imperial Japan, in 1946 Congress passed the Administrative Procedure Act to protect United States citizens from abuses by federal agencies.

As President Roosevelt had observed during the decade-long process of negotiating the APA, to entrust federal agencies with legislative, executive, and judicial powers was also to risk corrupting these powers, and “to develop a fourth branch of government for which there is no sanction in the Constitution.”

The Administrative Procedure Act authorizes and standardizes the procedures of 55 federal agencies responsible for implementing and enforcing federal laws. A manual for governance, APA requires transparency in agency rulemaking, opportunity for citizen participation, and protection of individual privacy.

Further buttressing the foundation of American civil rights, these among many provisions of the Administrative Procedure Act require that:

  • Agencies shall “give interested persons an opportunity to participate in the rule making…”
  • Agencies shall “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized.”
  • Agencies shall “establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records…”
  • Whenever any agency fails to comply…in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency…”
  • A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel…”
Under authority of Section 102 of the 2005 REAL ID Act, The Administrative Procedure Act is one of 36 federal laws now waived, without explanation, by the Department of Homeland Security for border wall construction.
Left unchecked, the unprecedented vagueness of Section 102 waiver authority, and the unjustified muting of the Administrative Procedure Act, may be repeated for other federal projects elsewhere in the nation.

For true collaboration between DHS and local agencies for appropriate border management, and to check Section 102 waiver authority, please support HR 2593, The Borderlands Conservation and Security Act.

The full text of HR 2593 can be found here:




July 1, 2008

Pandora’s Border Fence Box

Filed under: Section 102 Waiver — borderwall @ 9:34 pm

On April 1, the Homeland Security secretary waived 36 federal acts for construction of southern border walls and fences.

First built in 1978, such obstacles have mainly detoured traffic.

For more than a year, border residents have protested barrier expansion, especially along the Rio Grande. Our nation’s third longest river, representing nearly two thirds of the southern boundary, is bridged by extended families and sibling river towns older than the Treaty of Guadalupe Hidalgo.

Private citizens and public officials argue that fences and walls damage diplomacy, degrade environment, and stunt economy. Combined, these effects threaten long-term national security.

For all the debate over border barriers, however, a potentially larger issue lies in the unprecedented waiver authority behind their construction. Section 102 of the REAL ID Act delegates waiver power so vaguely as to blur the separation of powers, and to enable an executive appointee to nullify basic civil rights.

For construction of barriers and access roads, “the Secretary of Homeland Security shall have the authority to waive…all laws such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction…”

Further, use of this authority is subject to “no judicial review.”

There is ample precedent for the delegation of waiver authority to federal agencies, but with strict limits. Normally Congress specifies the laws (or just sections) to be waived, as well as waiver purpose and duration. Federal agents granted waiver powers normally are experts in the subjects of the waived laws, and delegation presumes compliance oversight and availability of judicial review.

But with mere ‘necessity’ for guidance, and with “sole discretion” for rationale, Secretary Chertoff’s April 1 waiver, without expiration, muted 36 federal acts along the southern border, as well as any relevant federal or state statutes.

Among the laws now waived are the Administrative Procedure Act, the National Environmental Policy Act, and the Religious Freedom Restoration Act.

Where border walls are rising, legal fences protecting civil rights have fallen.

Where else in the nation, and for what other purposes, will this precedent lead?
Text of HR 2593, The Borderlands Conservation and Security Act:


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