Waiving Nepa to Build A Border Wall: From Conflict to Collaboration on the Arizona-Mexico Border between 1990 And 2017

Signed in 1969, the National Environmental Policy Act (NEPA) is the cornerstone of US environmental law. It requires the government to complete an environmental review for every planned action that may have a significant impact on the environment. It also requires extensive public input. Thus, NEPA enables citizens to participate in environmental decision-making. But, in 2005, Congress passed a law—called the REAL ID Act—that gave the Department of Homeland Security, which oversees the Border Patrol, the right to waive NEPA for any action taken along the border. This essentially cut border communities off from the ability to influence Border Patrol decisions. Subsequently, the Border Patrol built a network of communication towers linked by 550 miles of barriers and roads without formally consulting the public. Despite popular perceptions that the Border Patrol has overlooked environmental concerns, in one instance the Border Patrol provided funding to the Fish and Wildlife Service to build a fish barrier to prevent invasive species from entering the San Bernardino Wildlife Refuge. This action helped protect the most ecologically intact watershed, and the only undammed watershed, in the whole southwestern United States. And yet, because of the absence of NEPA, which would have required informing the public, no one seems to know about this and other steps the Border Patrol has taken to mitigate environmental damages. This study highlights some of the ways in which NEPA enhances cooperation between agencies, strengthens accountability mechanisms and facilitates public participation