Walls, Waivers, and What We Don’t Know

There is no shortage of studies and anecdotes about the lack of geographical knowledge in the U.S. In the case of the U.S.-Mexico border, however, it is not just the basics of states, capitals, and major physical features that should give us pause. Borders are in the news, and with a general lack of knowledge about the region, there is an imaginative and insidious othering that goes on to fill the gaps, perhaps akin to medieval maps where cartographers’ imaginations filled in the blank spaces (e.g. Van Duzer, 2013). This fundamental willingness to project the worst onto our borders and what lies beyond can be seen as an outgrowth of a greater devaluation of intellectual work in recent years.

Border regions and the people who live there face many challenges, but lacking specific knowledge of details, political posturing flattens the nuances of those experiences. Negatives (drug smuggling, undocumented entries) are portrayed as something that must be addressed at all costs. Positives (low crime rates in border cities, immigrant contributions to the U.S.) are downplayed or ignored completely. Problems elsewhere (drug consumption, inability to agree on immigration reform, crime by migrants, integration) are projected onto the border as well.

Geographic ignorance is not entirely to blame, however. From a policy perspective, the U.S. has deliberately handicapped itself by suppressing knowledge and the creation of knowledge. This is especially true in the realm of the environment. Despite legislation that mandates environmental studies and consideration of impacts and alternatives, and provides for public input, in the case of border barrier construction this information is frequently suppressed.

Drawing on authority granted by the Real ID Act of 2005 expressly for this purpose (see Sundberg, 2015), the U.S. Department of Homeland Security (DHS) to date has waived forty-eight laws in eight different proclamations. These include “all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of” those statutes (wording from the most recent waiver proclamation; Nielsen, 2018, p. 3,013). Some laws are waived for particular places, such as the Sikes Act (within and near the Barry Goldwater Range in Arizona) and the Wild Horse and Burro Act (in San Diego only), but other laws are waived more consistently. All eight waiver proclamations to date have included the Endangered Species Act, the Clean Water Act, and the Administrative Procedures Act. Among other frequently waived laws are the Native American Graves and Repatriation Act, the Solid Waste Disposal Act, the Eagle Protection Act, and the Religious Freedom Restoration Act. Each of these waived statutes has its own niche, but probably the most far-reaching for the present discussion is the National Environmental Protection Act, included in all eight waiver proclamations and the engine behind agency analyses designed to assist with informed government decision-making.

Many of these laws have stood for decades, some for over fifty or a hundred years. Most were enacted after years of discussion and development. Today, a single government official, the DHS secretary, is able to waive any law without public discussion or oversight. The waiver of laws for border barrier construction is also broadly interpreted, covering the provision of roads and other means of access, staging areas, upkeep, and other supporting elements (e.g. lighting, sensors, cameras, and watchtowers). Legal recourse to challenge these waivers is severely truncated, allowing no more than sixty days after promulgation to file in district court, with appeals allowed only on constitutional grounds directly to the Supreme Court. In practice, U.S. Customs and Border Protection (CBP) has been somewhat conservative geographically in its application of the waivers, proclaiming them only in areas where border barrier construction is imminent. Yet there are also no assurances that future interpretations of the waiver will continue to be limited in scope. Furthermore, there are no stated restrictions on how far away from the border the waivers apply and no specified limits to their duration.

Just because laws are waived does not mean that CBP is entirely oblivious to environmental concerns. The agency developed its own alternative mechanisms for...