Waived on the Border: The National Environmental Policy Act

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: www.govtrack.us/congress/billtext.xpd?bill=h110-2593.