Laws Waived on the Border

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Real ID Waiver Authority Compromises Our Borderlands

The unprecedented power granted to the Secretary of Homeland Security (DHS) by Section 102 of the Real ID Act has been used multiple times to "waive in their entirety" thirty-seven federal laws. Although the Secretary of DHS is unelected appointee, with the stroke of a pen one individual has the ability to dismiss decades of protective laws passed by Congress and signed by presidents, all to circumvent local, state, and federal laws when constructing border walls. The waiver provision of the Real ID Act is a grave threat to the checks and balances within the United States Constitution. Furthermore, continuing to allow this type of precedent to stand is a threat to environmental protection across the country, not only on the border.

Federal laws waived by DHS for construction of border wall include:

  • National Environmental Policy Act
  • Endangered Species Act
  • Clean Water Act
  • National Historic Preservation Act
  • Migratory Bird Treaty Act
  • Clean Air Act
  • Archaeological Resources Protection Act
  • Safe Drinking Water Act
  • Noise Control Act
  • Solid Waste Disposal Act
  • Comprehensive Environmental Response, Compensation, and Liability Act
  • Archaeological and Historic Preservation Act
  • Antiquities Act
  • Historic Sites, Buildings, and Antiquities Act
  • Wild and Scenic Rivers Act
  • Farmland Protection Policy Act
  • Coastal Zone Management Act
  • Wilderness Act
  • Federal Land Policy and Management Act
  • National Wildlife Refuge System Administration Act
  • Fish and Wildlife Act of 1956
  • Fish and Wildlife Coordination Act
  • Administrative Procedure Act
  • Otay Mountain Wilderness Act of 1999
  • California Desert Protection Act
  • National Park Service Organic Act
  • National Park Service General Authorities Act
  • National Parks and Recreation Act of 1978
  • Arizona Desert Wilderness Act
  • Rivers and Harbors Act of 1899
  • Eagle Protection Act
  • Native American Graves Protection and Repatriation Act
  • American Indian Religious Freedom Act
  • Religious Freedom Restoration Act
  • National Forest Management Act of 1976
  • Multiple Use and Sustained Yield Act of 1960
  • Federal Grants and Cooperative Agreements Act of 1977

Border wall construction damage to Otay Wilderness in California.

The Threat of Real ID:
Unprecedented power for a political appointee: the REAL ID Act waiver

Tearing through parks and refuges, the border wall is causing enormous environmental destruction. Normally, local, state, and federal laws would protect endangered species, ensure clean air and water, and allow local communities a say in new federal projects. But in 2005, Congress passed the REAL ID Act, which included an unprecedented provision that allows the Secretary of Homeland Security to waive all local, state and federal laws that the secretary deems an impediment to building walls and roads along U.S. borders.

Thanks to the REAL ID Act, DHS is now operating above the law, with zero accountability to those on the ground who have been working together for years to protect the diversity of life along the U.S.-Mexico border and to develop sensible solutions to border security. REAL ID Act was passed as part of the Emergency Supplemental Appropriations for Defense, the Global War on Terror, and Tsunami Relief.

Former Secretary Chertoff has used the waiver in all four states along the U.S.-Mexico border to override important environmental laws like the National Environmental Policy Act, the Clean Air Act, and the Endangered Species Act.

  • In California in 2005, the secretary waived environmental laws to cut away two hilltops, backfill a canyon, and build a three-tiered wall, roads, and stadium-size security lights. The canyon, Smuggler's Gulch, drains directly into the Tijuana Estuary, which is one of the last salt marshes in southern California and internationally recognized for the breeding and nesting ground it provides to over 350 bird species. Erosion from construction and backfill in the canyon threatens the health of the estuary ecosystem.
  • In 2007, former Secretary Chertoff invoked the waiver to speed up construction of a 35-mile wall along the Barry M. Goldwater Range, adjacent to the Cabeza Prieta National Wildlife Refuge, in Arizona. Many agencies have worked together on the Goldwater Range to bring the Sonoran Pronghorn back from near extinction. The wall, unwanted by local land and wildlife managers, including the U.S. Marine Commander on the Goldwater Range, could completely reverse the achievements of the multi-agency recovery efforts for the pronghorn.
  • Former Secretary Chertoff waived important environmental protections to build a 15-foot-high, impermeable steel barrier along the edge of the San Pedro River and a vehicle barrier in the river channel itself--in the San Pedro Riparian National Conservation Area in Arizona. The San Pedro, the last perennial free-flowing river in the southwest, is home to a great diversity of mammals, reptiles, insects, and plants. Its watershed is one of the most biologically diverse areas in North America.
  • The waivers in California and Arizona were bad enough, but merely portents of the most recent waivers. In April 2008, the Secretary waived more than thirty laws to complete a suite of border infrastructure projects along more than 450 miles of border in Texas, New Mexico, Arizona, and California. Simultaneously, the secretary issued a separate waiver to build barriers and roads and make levee improvements in Hidalgo County, Texas. Download Waiver, 1.2 MB pdf

This unprecedented power must not be allowed to remain on the books. No one individual should be allowed to single-handedly brush aside local, state, or federal laws.