Katelyn Scott
Associate Editor
Loyola University Chicago School of Law, JD 2019 

In early January of this year, the House Committee on Armed Services granted an extension to a bill that would increase border security. An unlikely opponent of this bill is the environmental lobby, since the bill would allow the Department of Homeland Security (DHS) to waive the requirements of some of the most important environmental protection statutes. These statutes have been the basis for almost all the citizen enforcement in the environmental arena; they work to maintain protections for 73 different areas along the border, along with numerous endangered species.

History of the Threatened Statutes

Two of the major statutes affected by the waivers are National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). Both NEPA and ESA provide for the opportunity for citizen enforcement, by allowing citizens to bring suits against a government agency for failing to act (or making an improper action) in fulfilling the purpose and requirements of the statutes.

NEPA was enacted in 1969 and requires all agencies, whose actions may have a significant impact on the environment, to produce an Environmental Impact Statement (EIS). An EIS should include information about the impact of the proposed project, a breakdown of alternatives, and the potential environmental impacts of the alternatives. NEPA has been challenged in the courts since 1976 and was defeated every time until 2008. However, it still served as an important check on agency action in regard to protecting the environment by requiring a detailed weighing of alternatives.

ESA was enacted in 1973 and requires that agencies must take actions to avoid impacting animal species identified as endangered by the Fish and Wildlife Service, per conditions that must be established under the Act. ESA has been used by citizens to challenge governmental actions since 1978, in TVA v. Hill. The court in this case determined that a dam could not be built because it seriously threatened the existence of the snail darter (a small fish native to the Tennessee River). ESA has acted as a roadblock to many agency actions that would impact endangered species by requiring agencies to consult with Fish and Wildlife Service or NOAA Fisheries Service to ensure the proposed action does not jeopardize any species which have been listed as endangered.

These statutes have stood as the basis for citizen enforcement of important environmental regulations. However, waivers like the one proposed for the border wall have threatened both NEPA and ESA since their creation in the late 1960s and early 1970s. Waivers for DHS specifically in border action were first introduced in 2005 via the Real ID Act. This act allowed DHS to disregard statutes to secure the border. 37 of those waivers were reinstituted by the Trump Administration in 2017 in the preparation for a prototype of the border wall.

Potential Impact of Waivers

In granting the NEPA waiver for border wall actions, the Administration allows DHS to take whatever means necessary to construct a full block. Or to put this another way, by waiving the requirements of NEPA, the Department of Homeland Security is not required to consider alternatives that may have less impact on the environment. DHS does not have to consider any ways that the agency could mitigate harm to the environment, and instead can act as they see fit.

For example, the Mexico border has more than 100 animals that are listed under the ESA for various levels of protection. The wall across the border, as proposed by President Trump, would have a substantial impact on the habitats of these protected species by significantly altering animals’ ability to travel freely in the area. Building such a wall, could lead to the extinction of several species by changing their environment and failing to fully consider alternatives to mitigate the impact. However, with the waivers of the ESA, the Department of Homeland Security would not be required to take actions to prevent that deadly impact.

The waiver also blocks other agencies authorized to act under the statutes from commenting on the impacts of the wall, or preventing any other administrative blocks. Further, the imposition of the waiver removes the basis for citizens to bring environmental impact law suits. Since enforcement of environmental laws relies, in part, on citizen enforcement through lawsuits started when a group thinks that an agency is not fulfilling their obligations under their authorizing statutes (such as NEPA and ESA), impacts of the proposed wall are completely unchallenged.

In TVA v. Hill, the court stated that because humans are not entirely sure of the impact that animal species may have on human life, we must be particularly wary of allowing species to go extinct. Thus, the waiver of environmental statutes, such as NEPA and ESA, create a threat to human life and a significant impact on the enforcement of environmental regulations.