NEPA stands for the National Environmental Policy Act which was signed into law by President Richard Nixon on January 1, 1970.
[NEPA] requires the federal government to use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony.
On the NEPA.gov homepage it says that the legislation is the “‘Magna Carta’ of Federal environmental laws.” This all may sound like fanciful descriptions of a federal statute, but NEPA really is one of the most far-reaching pieces of legislation in American history, and as such it can cause great controversy with how and when it’s applied; and when it’s ignored by the executive branch for political or ideological reasons.
Practically speaking, NEPA:
requires federal agencies to incorporate environmental considerations in their planning and decision-making through a systematic interdisciplinary approach. Specifically, all federal agencies are to prepare detailed statements assessing the environmental impact of and alternatives to major federal actions significantly affecting the environment. These statements are commonly referred to as Environmental Impact Statements (EIS) and Environmental Assessments (EA).
This means assessing how the actions of the federal government will affect things like water or air quality, or the destruction of wildlife habitats, paying special attention to potential impacts on threatened or endangered species. And now the federal government must consider how greenhouse gases affect climate change under NEPA guidelines.
Before NEPA, the government most often chose to carry out projects, such as building roads or dams, in the most expedient way -- or in the way that most benefitted large political donors. NEPA in many respects has been effective in accomplishing what it was supposed to do, even if, as with anything the federal government does, there are legitimate criticisms to be made about how it can be better utilized; and how federal agencies should stick to the letter of the law and not their own interpretations, which vary widely and change depending on who is in charge.
However, much of the criticism can be directed at Congress. While that body does have the sole plenary power to pass legislation, it can also ensure that the executive branch carries out those laws as intended. Yet, Congress has abnegated that responsibility to bureaucrats, many of whom are highly partisan, and to the federal courts, whose composition and jurisdiction are under the control of the legislative branch. One has only to look to immigration to see an outstanding example. DHS Secretary Alejandro Mayorkas has declared that he will decide who is and who is not subject to immigration law, and only a few Members of Congress have even acknowledged this insult to their constitutional prerogative.
What Does NEPA Have to Do with Immigration?
Just as the federal government is failing to enforce laws against illegal immigration, the federal government is failing to abide by NEPA’s requirement that “all federal agencies are to prepare” an EIS to assess the “environmental impact of and alternatives to major federal actions significantly affecting the environment.” This has been the case since 1970.
Consider how immigration (through direct immigration and births to immigrants in the U.S.) is the primary driver of U.S. population growth and will contribute to almost all population growth in the coming decades. Obviously, immigration has led to greater demand for roads leading to more runoff from paved surfaces; caused much higher levels of traffic and resultant pollutants; contributed to urban sprawl and the loss of wildlife habitat; increased energy demand; strained water supplies, especially in the western states; and it has led to greater greenhouse gas emissions. All of this is because of federal actions on immigration policy. Congress has set annual limits that have led to the admission of over one million permanent residents annually since 1990, and the executive branch has failed, sometimes absolutely refused, to enforce immigration laws, resulting in an illegal alien population that was around 11 million before the current surge, which will drive that number even higher.
Not only has the federal government never prepared an EIS on immigration as required by NEPA, it has provided no adequate explanation for why it has not done so. In fact, the federal government’s position is that immigration has no effect on the U.S. environment, so NEPA doesn’t apply.
This violation of NEPA is not as obvious an the blatant disregard of immigration law, and many who are not active environmentalists are likely unaware of NEPA, but there are ongoing efforts to force the federal government to comply with the requirement set down by NEPA when it comes to immigration.
In 2016, the Immigration Reform Law Institute (IRLI) sued DHS alleging its policies failed to take into account NEPA requirements. Julie Axelrod, IRLI’s lead counsel at the time said, “Our lawsuit will demonstrate that legal and illegal immigration have a very significant impact on the environment, which DHS has spent the last 46 years ignoring.”
DHS' position in this case is that it is in the agency's discretion to decide whether NEPA applies to immigration policy. And in DHS's discretion adding tens of millions of people to the U.S. through the actions of the federal government has no significant effects on the environment. It also maintains that U.S. citizens don't have standing (meaning a party can demonstrate it has suffered sufficient harm and the case can proceed) to sue a federal agency even if that agency's failure to follow the law has caused demonstrable harm to U.S. citizens. Obviously, this is an absurd argument, legal or otherwise, but so far the Ninth Circuit Court has agreed. That court’s decision is being appealed.
In 2020, the Center for Immigration Studies filed suit in the D.C. District Court on behalf of the Massachusetts Coalition for Immigration Reform and four other individual clients for “promulgating NEPA procedures…that failed to consider any aspect of USCIS’ entire mission; that is, the regulation of the conditions by which foreign nationals enter and remain in the United States.” That case has yet to be heard by a judge.
NEPA and Border Protection
Most who closely follow the immigration debate will be aware of the efforts by environmentalist to block the construction of fencing along the U.S.-Mexico border, arguing that doing so damages sensitive flora and impedes wildlife migration. Groups like the Center for Biological Diversity sued the Trump administration claiming it lacked authority to build the wall in sensitive areas of the border (unfortunately the Center completely ignores the damage caused at the border by illegal immigration and refuses to acknowledge habitat loss in U.S. due to mass immigration.)
It is true that some groups who oppose border fencing use environmental arguments to distract from the fact that their political agenda is one of open borders. But whatever one thinks about President Trump’s “wall,” or any barriers along the southern border designed to deter illegal immigration, there are serious and sincere arguments put forth by environmentalists who have genuine concerns (read the case made by a long-time environmental activist who opposes the wall and illegal immigration here.)
However, NEPA and other environmental regulations that might prevent the building of barriers have been explicitly waived by Congress because it determined that national security was of paramount concern. The courts accordingly upheld the Trump Adminstation's authority to erect a border fence.
What has not been addressed is the damage caused by illegal border crossers, which is part of the reason the lawsuits mentioned above were filed. This problem has been documented for years. In 2018, CIS discussed a report by the Arizona Department of Environmental Quality (ADEQ).
ADEQ estimates that over 2,000 tons of trash are discarded at the Arizona border every year. As a consequence, the department established a website entitled "Arizona Border Trash" in 2012 to coordinate and keep track of the state's trash cleanup operations. According to ADEQ, each ton of trash requires landfill fees of $37 to $49, which are footed by Arizona taxpayers. That does not include fees for materials, transportation, or labor. ADEQ further estimates that each border-crosser leaves an average of six to eight pounds of trash behind [emphasis added].
In May, the House Natural Resources Committee Republicans held a forum conducted by Rep. Paul Gosar (R-Ari.) on the environmental consequences of the current border crisis and discussed the accumulated effect of illegal border crossing over the last several decades. Trespassing across both public and private lands, including protected pristine areas, those seeking to cross illegally into the U.S. damage and destroy threatened plant species and wildlife habitats, and leave tons of trash along their routes.
During the hearing, Rep. Westerman (R-Ark.) said that 100 abandoned cars and 500 tons of trash were found in in the Buenos Aires National Wildlife Refuge (Arizona) in just one year. And that 30 out of 77 investigations identified illegal border crossers as responsible for starting wildfires on federal lands.
The Committee also heard from Katie Conner from the Office of the Arizona Attorney General. She discussed a lawsuit against DHS filed in April 2021 by the Arizona AG office which argues that federal officials are violating NEPA through “destructive immigration policies.”
The press release by the office Arizona AG Mark Brnovich states:
NEPA protects the environment by requiring federal agencies to carefully weigh environmental considerations before taking any major federal action. As the drafters of NEPA recognized, population growth has significant environmental impacts. In its complaint, the AGO argues that DHS and other federal officials did not provide environmental impact statements or environmental assessments when DHS abruptly halted ongoing border wall construction and also began permitting entry of additional migrants by ending the 'Remain in Mexico' policy.
This lawsuit is important because a federal court is more likely to grant a state standing in court than it would to a private party in a case like this. Also, a state attorney general’s office has the resources and legal staff to pursue the case long-term. This action is encouraging, and hopefully other state AGs will join the suit.
The effects of immigration policy are clearly covered under NEPA. With more pressure being brought to bear on the federal government, the greater the likelihood that it will eventually conform to the law and produce an immigration EIS as NEPA requires.
ERIC RUARK is the Director of Research for NumbersUSA
Updated: Fri, Jul 30th 2021 @ 7:15am EDT