Real ID Waiver Authority Compromises Our Borderlands

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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" dozens of federal laws. Although the Secretary of DHS is an 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:

1.National Environmental Policy Act [NEPA]
2.Endangered Species Act
3.Clean Water Act
4.National Historic Preservation Act
5.Migratory Bird Treaty Act
6.Clean Air Act
7.Archeological Resources Protection Act
8.Safe Drinking Water Act
9.Noise Control Act
10.Solid Waste Disposal Act
11.Comprehensive Environmental Response, Compensation, and Liability Act
12.Archaeological and Historic Preservation Act
13.Antiquities Act
14.Historic Sites, Buildings, and Antiquities Act
15.Wild and Scenic Rivers Act
16.Farmland Protection Policy Act
17.Coastal Zone Management Act
18.Wilderness Act
19.Federal Land Policy and Management Act
20.National Wildlife Refuge System Administration Act
21.Fish and Wildlife Act of 1956
22.Fish and Wildlife Coordination Act
23.Administrative Procedure Act
24.Otay Mountain Wilderness Act of 1999
25.California Desert Protection Act [Sections 102(29) and 103 of Title I]
26.National Park Service Organic Act
27.National Park Service General Authorities Act
28.National Parks and Recreation Act of 1978 [Sections 401(7), 403, and 404]
29.Arizona Desert Wilderness Act  [Sections 301(a)-(f)]
30.Rivers and Harbors Act of 1899
31.Eagle Protection Act
32.Native American Graves Protection and Repatriation Act
33.American Indian Religious Freedom Act
34.Religious Freedom Restoration Act
35.National Forest Management Act of 1976
36.Multiple Use and Sustained Yield Act of 1960
37.Military Lands Withdrawal Act of 1999
38.Sikes Act
39.Arizona-Idaho Conservation Act of 1988
40.Federal Grant and Cooperative Agreement Act of 1977
41.Migratory Bird Conservation Act
42.Paleontological Resources Preservation Act
43.Federal Cave Resources Protection Act of 1988
44.National Trails System Act
45.National Wildlife Refuge System Improvement Act of 1997
46.Reclamation Project Act of 1939 [Section 10]
47.Wild Horse and Burro Act
48.An Act of Oct 30, 2000, Pub. L. 106-398, 1, 114 Stat. 1654

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. The REAL ID Act was passed as part of the Emergency Supplemental Appropriations for Defense, the Global War on Terror, and Tsunami Relief.

DHS secretaries during the George W. Bush and Donald Trump Administrations have used the waiver in all four U.S. states along the U.S.-Mexico border to override important environmental laws such as the National Environmental Policy Act, the Clean Air Act, and the Endangered Species Act.

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.



Click the link below for more information on the waivers of law published April 24, 2019 in the Federal Register for new and replacement border wall projects in New Mexico and Arizona:

Overview of waivers in Arizona and New Mexico

For maps and lists of laws waived, see Ohio State University Professor Ken Madsen's resources posted here:

This report by the Friends of the Sonoran Desert discusses the significance of each of the 48 laws waived by the Bush and Trump Administrations.