The President Should Create a New Position on the Council of Environmental Quality Dedicated to Immigration

By Julie Axelrod on November 2, 2018

The Trump administration is now reviewing public comments on several proposals to update environmental regulations. These proposals include updates to two of our toughest environmental laws, the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The president should take this opportunity to remedy the longstanding neglect of federal immigration agencies to assess the population impacts of immigration policies. One way would be to appoint an environmental official to take the lead of this mandated oversight.

NEPA, commonly referred to as the "Magna Carta" of American environmental law, requires all federal agencies to evaluate the environmental impact of all potentially environmentally significant actions before making decisions. ESA, which the Supreme Court called "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation," directs all federal agencies to take positive action to conserve endangered and threatened species. (See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).) One requirement under ESA is that every agency that takes an action that might threaten a protected species must consult with the U.S. Fish and Wildlife Service before executing the action that might threaten its habitat.

The implementation of these two laws, both passed in the early 1970s during the height of public concern over the environmental effects of population growth, has in some ways been quite robust. However, effective agency implementation has suffered one great blind spot: The mass entrance and long-term settlement of foreign nationals into our country results in environmental impacts, including serious hazards to our nation's biodiversity, throughout the country because of national population growth, and also at the border itself because of the degradation caused by mass illegal entry. But the agencies that regulate immigration, the Departments of Homeland Security, State, Justice, Health and Human Services, and Labor, have completely failed to take into account the manifold effects created by this mass entrance and long-term settlement of foreign nationals.

Yet population growth and the mass movement and settlement of people constitute one of the most environmentally consequential phenomena of the modern world, and 21st century American population growth is almost entirely driven by immigration. These agencies operate as though immigration is exempt from NEPA and ESA, when no such exemption exists.

The blind spot of these agencies is particularly egregious when it comes to NEPA, which specifically cites congressional concern over population growth. Through NEPA, Congress mandated federal agencies to inject environmental considerations into their decisions at the earliest time possible, when they can still let these considerations influence policy choices. The intention of this mandate is that, if the government is informed, it will be more likely to refrain from making choices that will lead to avoidable environmental harms. Under NEPA as practiced in regard to immigration, it does the opposite.

The architects of NEPA understood that people who live in overpopulated nations inevitably find themselves constrained in their choices and freedoms, and America is no exception. Through NEPA analysis, federal agencies frequently analyze the consequences of population growth in the U.S. Yet, they never analyze the causes of U.S. population growth, despite the fact that the cause is very often government choice. Such implementation turns the purpose of NEPA on its head. NEPA was never meant to be a bureaucratic exercise that costs money and time to merely justify whatever the government planned to do anyway.

If the government applied NEPA to immigration — the primary cause of U.S. population growth — which inexorably creates environmental impacts, it would be no bureaucratic exercise, but would offer the public, at long last, the chance to make informed choices about the nation's future before population growth via immigration on autopilot takes the choice away from future generations.

Therefore, any update of the environmental laws that fails to rectify the mistake of ignoring the environmental impacts of immigration would be woefully incomplete. For further discussion, see my September 2018 report "Don't Leave Immigration Out of Our Environmental Laws".

But how would an administration know how to begin the process of reversing a decades-long failure to properly apply the environmental laws to our immigration policies? How could the Trump administration do better?

Under NEPA, agencies conduct a process known as "scoping" in order to determine the extent of the issues that must be addressed by an environmental study. During scoping, the agency solicits public input, which could take the form of public hearings across the country where American citizens can voice their experiences of how immigration has had an impact on their lives. A nationwide programmatic analysis under NEPA of immigration would identify a host of environmental, social, cultural, and economic issues to be studied. A NEPA scoping process would also help determine threats to endangered species caused by immigration-driven population growth.

The Role of the Environmental Official

Practically speaking, the first thing the Trump administration should do is create a new dedicated staff position to guide the initiation of such efforts within the Council of Environmental Quality (CEQ). The CEQ, which is an office within the Executive Office of the President, has the role of overseeing the implementation of NEPA procedures throughout all agencies. The CEQ's role is to ensure that the agencies are correctly following NEPA. There is nothing out of the ordinary for an administration to create special staff positions within CEQ for specific issues where multiple agencies are involved in creating environmental impacts that must be analyzed under NEPA. For instance, during the Obama administration, there was a position dedicated to climate change.

This staff position could be granted authority across all federal agencies to identify and review all policies and decisions that cause environmental impacts by increasing the country's population through legal and illegal immigration. This would ensure that all such policies are properly analyzed under the environmental laws. The staffer would be able to start the NEPA scoping process, and could also make recommendations to pause or reverse decisions related to legal immigration, benefits for immigrants, and amnesty-related policies – all of which are environmentally significant because they increase American population – pending the completion of environmental review. The staffer could also see to it that the new regulations promulgated by the CEQ would ensure that immigration policies are fit into a proper environmental review framework in the future.

Many dedicated environmentalists are truly afraid that the president is severely curtailing environmental protection with new regulatory changes. But this new position in CEQ could greatly strengthen environmental protection by ensuring that immigration-driven population growth no longer causes mass environmental degradation, or limits the choices of future generations of Americans, without the American public understanding that it is happening.