A Request for Comments by the Council of Environmental Quality on Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, CEQ 2018-0001

Response of Center for Immigration Studies

By Julie Axelrod on August 14, 2018

Edward A. Boling
Associate Director for the National Environmental Policy Act
Council on Environmental Quality
730 Jackson Place NW
Washington, DC 20503

Response of Center for Immigration Studies, a non-partisan think tank in Washington, D.C., which examines the impact of immigration on U.S. systems.


A Request for Comments by the Council of Environmental Quality on Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act, CEQ 2018-0001, by Julie Axelrod

Dear Mr. Boling:

The Council of Environmental Quality (CEQ)'s plan to update and clarify the implementing regulations for the National Environmental Policy Act (NEPA) provides the perfect opportunity to address the greatest and most consequential agency failure in the implementation of the Act. This failure is the blind spot of federal agencies to the environmental impacts of the mass movement and settlement of people from around the world to this nation. In order to "enhance and modernize" the federal environmental review process, the CEQ should address this failure in the implementation of the statute in its new regulations. Mass migration is a phenomenon which causes deeply significant impacts to the human environment in the United States, and this mass migration is primarily the result of policy choices by the U.S. government. Mass migration has directly increased the population of the United States significantly since NEPA was passed. The environmental impact of mass immigration is a significant issue relevant and useful to decision makers and the public. CEQ's NEPA regulations therefore should be revised to provide greater clarity to prevent agencies from ignoring its effects. This comment therefore addresses CEQ's Question 5.

Mass immigration's most profound environmental impact is due to population growth. According to the Pew Research Center, immigrants and their descendants accounted for 72 million in U.S. population growth between 1965 and 2015, after the Hart Cellar Immigration Act of 1965 was passed.1 The bulk of this immigration induced population growth occurred well after the passage of NEPA in 1970. Unless current policies are changed, immigration will also continue to greatly increase the national population in ever growing amounts for the foreseeable future. Not only does immigration cause national population growth, today it's the primary cause of national population growth. If immigration unfolds as the Census Bureau expects, the nation's population will increase from 325.5 million in 2017 to 403.7 million in 2060 — a 78.2 million (24 percent) increase in just four decades. If there were no net immigration the U.S. population would still be 3.4 million larger in 2060 than it is today. Therefore, 74.8 million or about 96 percent of the projected increase in the U.S. population by 2060 will be due to future immigration.2

NEPA's Specific Concern with Population Growth

The federal government has already unambiguously acknowledged the environmental significance of population growth, both at the time it passed NEPA and afterwards. NEPA itself was explicitly concerned with population growth; in fact, population growth is the first concern mentioned in NEPA's "Congressional declaration of national environmental policy":

The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

42 U.S. § 4331 (a) [Emphasis added.]

The Rockefeller Commission

Shortly after the passage of NEPA, Congress passed a law specifically calling for a study on population growth, "An Act to establish a Commission on Population Growth and the American Future." Pub. L. 91-213, §§ 1 to 9, Mar. 16, 1970, 84 Stat. 67-69. This commission, chaired by John D. Rockefeller III, (the "Rockefeller Commission") would "conduct and sponsor such studies and research and make such recommendations as might be necessary to provide information and education to all levels of government in the United States, and to our people regarding a broad range of problems associated with population growth and their implications for America's future." Id. Clearly, the consequences of population growth were of primary congressional concern when NEPA was passed. The Rockefeller Commission went on to release its report (the "Rockefeller Report") on population growth on March 27, 1972.3

In Chapter 5 of its report, the Rockefeller Commission examined population growth's effect on "Resources and the Environment." The Commission studied both the implications of population growth in "local areas" as well as in the "nation as a whole." It came to three main conclusions about domestic population growth:

  1. Population growth is one of the major factors affecting the demand for resources and the deterioration of the environment in the United States. The further we look into the future, the more important population becomes.
  2. From an environmental and resource point of view, there are no advantages from further growth of population beyond the level to which our past rapid growth has already committed us. Indeed, we would be considerably better off over the next 30 to 50 years if there were a prompt reduction in our population growth rate. This is especially true with regard to problems of water, agricultural land, and outdoor recreation.
  3. While the nation can, if it has to, find ways to solve the problems growth creates, we will not like some of the solutions we will have to adopt. With continued growth, we commit ourselves to a particular set of problems: more rapid depletion of domestic and international resources, greater pressures on the environment, greater dependence on continued rapid technological development to solve these problems, and a more contrived and regulated society. So long as population growth continues, these problems will grow and will slowly, but irreversibly, force changes in our way of life. And there are further risks: Increasing numbers press us to adopt new technologies before we know what we are doing. The more of us there are, the greater is the temptation to introduce solutions before their side effects are known. With slower population growth leading to a stabilized population, we gain time to devise solutions, resources to implement them, and greater freedom of choice in deciding how we want to live in the future.4

Significantly, the Commission's conclusion wasn't that Americans couldn't live in a country with a larger and denser population, but that Americans couldn't live as freely in a country with a larger and denser population:

Population growth forces upon us slow but irreversible changes in life style. Imbedded in our traditions as to what constitutes the American way of life is freedom from public regulation — virtually free use of water; access to uncongested, unregulated roadways; freedom to do as we please with what we own; freedom from permits, licenses, fees, red tape, and bureaucrats; and freedom to fish, swim, and camp where and when we will. Clearly, we do not live this way now. Maybe we never did. But everything is relative. The population of 2020 may look back with envy on what, from their vantage point, appears to be our relatively unfettered way of life.5 [Emphasis added.]

From the vantage point of nearly 2020, this prediction is indeed prescient, when regulations, red tape, permits, and fees seem to be an inescapable part of everyday life, and the very need for this proposed revision is an attempt to reduce their burdens. Thus, for CEQ to incorporate awareness of population into its regulations would not be just more red tape but an opportunity to choose a less regulated future.

The Rockefeller Commission discussed the causes of population growth as well as the effects. In Chapter 2 of the Report, the Commission explained that three factors affect population growth: fertility, mortality, and immigration. It noted that in the 20th century, the United States had seen substantial changes in all three components, with birthrates and immigration rates being more important in the modern era than further advances in medicine affecting mortality, which at this point increase longevity primarily for those no longer having more children. Though the Commission noted that in past times, such as the first decade of the twentieth century, "40% of population growth" was "attributable to immigration, it chose to focus mostly on an analysis centering on birthrates for its projections into the future from the vantage point of March 1972.6 Notably, in early 1972, despite changes to the immigration system passed in 1965 that would many years later result in significant changes, immigrants had been declining as a share of the population for decades. Therefore this emphasis on birthrates rather than immigration in the report is not surprising, even though, with the hindsight of nearly 2020 and several decades of an ever-increasing immigrant share of the population, it appears neglectful.

The authorization and publication of the Rockefeller Report virtually contemporaneously with NEPA implies strongly that NEPA's original proponents would have never considered that policies directly accelerating population growth should be exempt from the law, even if they did not realize at the time that it was immigration in particular that should have been their main concern. NEPA was designed to promote informed decision-making, and informed decision-making about the causes and environmental effects of population growth goes to the very heart of the purpose of the Act. In the years since, it has become obvious that environmentally informed decision-making about population growth is inextricably intertwined with decisions about immigration.

President Clinton's Council on Sustainable Development

Congress' passage of NEPA and its commission of the Rockefeller Report in the 1970s may have been the high-water mark of government concern over the environmental impact of population growth, but they did not prove to be the government's last acknowledgement of the subject. President Bill Clinton formed the President's Council on Sustainable Development shortly after taking office. In May 1999, it published the report "Towards a Sustainable America: Advancing Prosperity, Opportunity, and a Healthy Environment for the 21st Century."7 This report concluded that "the impacts of human activity on the environment" can be described as the "combined influence of population, affluence, and technology."8 It also came up with ten national goals to achieve sustainable development, and the eighth was moving "toward stabilization of the U.S. population."9

Citizens Across the U.S. Feel the Environmental Impacts of Immigration

Today, the United States' population has surged past 325 million, meaning that many of the environmental effects of increased population growth contemplated in the 1970s have come to pass. Though technology has certainly ameliorated some of the worries contemplated by the Rockefeller Commission such as resource use,10 population growth, and specifically immigration-induced population growth, has still had demonstrable and significant effects on many aspects of the environment Americans inhabit. Examples include traffic congestion, energy consumption, water resources, wildlife and its habitats, our ecological footprint, urban sprawl and the loss of rural lands, carbon dioxide emissions, soil and air quality, vegetation, noise, recreation, visual resources (aesthetics), cultural and historic resources, and waste management (including hazardous and toxic wastes).11 Discussion of all of these particular impacts on particular citizens and locations are frequently found within the environmental impact studies produced by the government as part of their NEPA compliance. But even when environmentalists accurately object to the building of a new road or reservoir because of its destruction of natural habitats, proponents of these projects will often win the debate by pointing out that population growth makes these projects necessary despite their environmental downsides.12 The idea that NEPA mandates discussion of the inevitable consequences of population growth but not the causes of population growth turns the purpose of NEPA on its head. The effects of continued population growth will only grow more significant in the future if the United States remains on its current population growth trajectory, and Americans continue to feel the effects of ever-greater overcrowding in their daily lives.

Immigration is the Government Choosing Population Growth

Unlike the days when population growth was primarily a result of the free choices of Americans in planning their own families, today population growth is primarily the result of immigration, a federal government policy. The U.S. government is choosing high population growth, not the American citizenry. Many people might shy away from contemplating population "control" or stabilization measures because they envision some sort of American version of China's one-child policy and rightly reject the idea of such restrictions on American freedom. However, we would likely have natural population stabilization without any such restrictions if the government stopped choosing to import population from abroad. Opponents of such policies, the adoption of which is downright unimaginable in countries that are not overpopulated, should be the first to advocate reduction of immigration. The population stabilization that would naturally result would likely mean more freedom for Americans to choose their own destiny in the future without regulation.

Given that population growth's environmental effects are not in doubt, and that mass immigration's effect on population growth is not in doubt, the profound environmental effects of mass immigration are also not in doubt. Nor is the original intent of NEPA to promote study of population growth through government choice in doubt. Therefore, agency failure to conduct any analysis of mass immigration whatsoever amounts to a violation of NEPA. CEQ's current regulations already, in accordance with the statute, require all agencies implementing environmentally significant policies and programs to analyze those environmental consequences. But CEQ has never ensured that the agencies implementing immigration programs and policies followed through by analyzing their immigration programs' environmental impacts.

Faulty NEPA Procedures by Agencies that Regulate Immigration

Several different agencies are responsible for implementing our nation's immigration policies. The Department of Homeland Security, the Department of State, the Department of Justice, the Department of Health and Human Services, and the Department of Labor all have roles in the regulatory apparatus that implements immigration policy. Collectively, therefore, these agencies have been responsible for regulating the admission and permanent settlement of the approximately 60 million foreign nationals who have settled into the United States since NEPA was signed into law in 1970. The substantial amount of population growth caused by these foreign nationals and their descendants has completely escaped analysis under NEPA.

Agencies sometimes avoid the application of NEPA by characterizing policies and programs as "non-discretionary." However, the implementation of immigration programs is widely recognized as entailing a vast array of discretionary choices that affect immigration policy in a host of ways. For instance, Professor Richard Boswell, director of the immigration law clinic at the University of California Hastings College of the Law, proclaimed that "Congress has delegated broad, and, arguably, unchecked discretion to a myriad of government agencies to enforce the immigration statutes."13 The exact degree of agency discretion allowed by Congress in specific programs is often disputed, but immigration experts widely agree that agency policy is allowed some significant amount of variation. Therefore, discretionary choices will affect levels of immigration as well as where immigrants will settle, and these myriad decisions will have environmental impacts.

Examination of the NEPA procedures of the agencies with a significant role in immigration reveals that none of their NEPA procedures even address the issue. Immigration's potential impacts on the environment are simply not mentioned. It's not that any of these agencies explicitly find a categorical exclusion for immigration-related actions. Rather, they operate as though there were an exemption to immigration in the statute itself which not only allows them not to conduct an environmental analysis but excuses them from even considering whether they ought to conduct one before they act. Such neglect of immigration is arbitrary and capricious.

The Center for Immigration Studies is currently litigating a claim against one of these agencies, the Department of Homeland Security (DHS). Our lawsuit challenges the NEPA procedures DHS adopted in 2014, and its implementation of employment-based immigration, family-based immigration, long-term nonimmigrant visas, parole, Temporary Protected Status, refugees, asylum, and Deferred Action for Childhood Arrivals (DACA) without ever even attempting to fit their implementation into a NEPA framework of any kind. This case is Whitewater Draw Natural Resource Conservation District et al v. Kirstjen Nielsen et al, 16-cv-2583, filed in the Southern District of California. This case, the first of its kind against DHS, brings to light not only the environmental impacts caused by these programs due to population growth, but also the inevitable environmental degradation of the ecosystems in the Southwest every time the government implements an amnesty program such as DACA.

DHS is only one of the agencies which has arbitrarily and capriciously ignored immigration in its NEPA procedures, however. Other agencies, for instance, the Department of State, are involved in many immigration programs as well. The Department of State even has a more prominent role than DHS in one of the nation's immigration programs, the Diversity Visa Program. Given the interagency nature of the implementation of immigration, CEQ taking the lead in correcting this neglect of NEPA would be particularly appropriate. However, a lack of action by CEQ does not excuse the agencies' failure to perform their duties under NEPA. As the D.C. Circuit said in one of the earliest cases involving agency obstruction over compliance with NEPA: the statute's language does not provide an "escape hatch for footdragging agencies; it does not make NEPA's procedural requirements somehow 'discretionary.' Congress did not intend the Act to be a paper tiger."14

NEPA Must Give the People a Voice in Immigration Matters

Congress enacted NEPA to "promote environmentally sensitive decision-making."15 NEPA was intended to ensure that the agency reaching a decision on an action that will have an environmental impact "will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision-making process and the implementation of that decision."16 This "audience includes the President, who is responsible for the agency's policy, and Congress, which has authorized the agency's actions."17 The president and Congress may use the environmental information to decide "larger issues of policy that may include matters outside the scope of a single agency's discretion."18 The "'larger audience' also includes the public," and NEPA analysis provides "a springboard for public comment."19 As one court put it: "At the very least, NEPA is an environmental full disclosure law."20 In enacting NEPA, Congress "may not have intended to alter the then existing decision-making responsibilities or to take away any then existing freedom of decision-making, but it certainly intended to make such decision-making more responsive and more responsible."21

NEPA aims to give the public a voice in governmental decisions that impact their daily lives and the environment they live in. It was designed to prevent policies with an environmental cost to the public at large and to future generations being thoughtlessly imposed by distant bureaucrats in the capital and those with the resources and connections to influence them. In the words of the Democratic members of the House Committee on Natural Resources in their report on the activities of the Committee during the 114th Congress: "Before NEPA, a disproportionate share of heavily polluting projects ended up being sited in poor and minority communities that lacked political connections… No NEPA could mean more unintended consequences such as pollution or damage to fish and wildlife and their habitats from hastily conceived, poorly reasoned government projects or permits. ... NEPA is an important environmental justice tool that levels the playing field and saves taxpayer dollars. It helps people to maintain and improve their quality of life by ensuring that they have a voice in decisions that impact their communities."22

Today, there is no government program or project with a greater impact on the environment of present and future generations of Americans that has become more disconnected and uninfluenced by the needs of everyday American citizens than immigration. The public could be given the opportunity to weigh in on the impact immigration has had on their communities through hearings across the nation under NEPA, but it has never happened. Furthermore, due to the neglect of the CEQ in allowing agencies to sidestep the environmental impacts of immigration completely, it is the government program whose environmental effects are most avoided in public debate on the issue. In order that NEPA may fulfill its mandate in promoting environmentally sensitive decision-making, CEQ in its new regulations should explicitly tell agencies to stop ignoring immigration in their NEPA procedures, and the public must receive the transparency it deserves on immigration at last.


Julie B. Axelrod
The Center for Immigration Studies
1629 K Street, NW, Suite 600
Washington, DC 20006
[email protected]

End Notes

1 "Modern Immigration Wave Brings 59 Million to U.S., Driving Population Growth and Change Through 2065: Views of Immigration's Impact on U.S. Society Mixed", Pew Research Center, September 2015.

2 Steven Camarota, "Projecting the Impact of Immigration On the U.S. Population", Center for Immigration Studies, 2018. Forthcoming.

3 "Population and the American Future, The Report of the Commission on Population Growth and the American Future", March 1972.

4 Id., Chapter 5.

5 Id.

6 Id., Chapter 2.

7 "Towards a Sustainable America, Advancing Prosperity, Opportunity, and a Healthy Environment for the 21st Century", The President's Council on Sustainable Development, May 1999.

8 Id. at 32.

9 Id. at 2.

10 Biologist Paul Ehrlich famously lost a bet regarding the price of five metals to economist Julian Simon in 1990, showing that not all concerns about overpopulation do pan out, at least in the medium term. See, eg. David Kestenbaum, "A Bet, Five Minerals, and the Future of the Planet", "NPR's Morning Edition", January 2, 2014. The technological capacity to continually find new ways to exploit natural resources is certainly real but also does not capture every impact on the human environment of increased population and increased population density.

11 See Leon Kolankiewicz, "Immigration, Population Growth, and the Environment", Center for Immigration Studies, April 2015.

12 See e.g. Philip Cafaro, How Many is Too Many? The Progressive Argument for Reducing Immigration Into the United States, Chicago: The University of Chicago Press, 2015, at 105-107.

13 Richard Boswell, Essentials of Immigration Law, Second Edition, Washington, D.C.: American Immigration Lawyers Association, 2009, at 1.

14 Calvert Cliffs' Coordinating Comm., Inc. v. U.S. Atomic Energy Comm'n, 449 F. 2d 1109, 1114 (D.C. Cir. 1971).

15 Anderson v. Evans, 314 F. 3d 1006, 1016 (9th Cir. 2002).

16 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

17 Sierra Club v. Watkins, 808 F. Supp. 852, 858, (D.D.C. 2006).

18 Id.

19 Id.

20 Environmental Defense Fund, Inc v. Corps of Engineers, 325 F.Supp. 749, 759 (E.D.Ark. 1971).

21 Id.

22 "Report on the Activities of the Committee on Natural Resources during the 114th Congress", December 2, 2016, at p. 124.