Biodiversity Along the Border Wall


There is an ongoing political debate regarding the construction of a continuous border wall along the United States-Mexico border has the potential to devastate biodiversity in the wall’s path. If the wall is built, the divide of ecoregions will result in fragmented ecosystems, splitting habitats into smaller, isolated ecosystems. Fragmented ecosystems are disastrous and endanger prominent species like jaguars and bighorn sheep.[1] Such fragmentation will be created by the border wall’s obstructing-intrusion into the animals’ migration routes. The Endangered Species Act (ESA) and National Environmental Protection Act (NEPA) exist to maintain biological diversity and federally protected wildlife. However, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and the Real ID Act of 2005 could threaten one of the most bio-diversified regions in the United States.

In 1970, NEPA was enacted to require federal agencies to assess the environmental impacts of a project before they are executed.[2] Three years later, the ESA was enacted to prevent the extinction of endangered species.[3] Albeit, the ESA and NEPA are continuously disregarded by the Department of Homeland Security (DHS) by continuously waiving environmental law and continuing with the wall’s construction.

In 1996, The IIRIRA was enacted by Congress to safeguard the construction of a border wall in San Diego.[4] In 2005, Congress enacted the Real ID Act to amend a provision in the IIRIRA that would allow the DHS Secretary to waive any laws that would interfere with the construction of the San Diego border wall.[5] Under the Real ID Act, the DHS Secretary has sole discretion over its waiver decisions.[6] If any environmental groups would like to challenge the DHS Secretary’s decision, the waiver must be judicially challenged no more than 60 days after the decision. The provision also requires that judicial review be conducted through a writ of certiorari to the United States Supreme Court.[7] In the past, numerous environmental advocacy groups have constitutionally challenged the use of the IIRIRA and the Real ID Act to construct the border wall. However, courts continuously uphold the DHS Secretary’s waiver.

The DHS Secretary can waive the ESA and NEPA required procedures, rendering NEPA useless to safeguard the border’s biodiversity. Instead, independent scientific studies have to be conducted to evaluate the potential environmental disruption the border wall would create.[8] The Center for Biological Diversity (CBD) predicts that approximately 93 species will be negatively affected by the border wall. [9] At existing border fences, fragmented populations have led to depleted genetic diversity because many species’ capability to mate has been limited. Thus, the border wall’s dividing nature will force species to search for new food and hinder migration patterns crucial to many species’ continued existence.[10] Citing these scientific studies, scientists urge that the procedures of the ESA and NEPA must be followed despite waivers being upheld by the judicial court system.[11]

In a recent case, the CBD filed an injunction against the DHS to halt the construction of the border wall in New Mexico.[12] CBD asserted that the DHS Secretary’s waiver is beyond the scope of the enumerated powers granted to the executive branch by the United States Constitution. However, the IIRIRA dictates that the court is limited to only reviewing constitutional challenges. Unfortunately, courts continue not to find the DHS Secretary’s waivers unconstitutional; thus, an injunction cannot be granted. The judicial restriction that limits courts requires environmental groups to find a different way of enforcing the ESA and NEPA procedures.

As the debate continues, the border wall proceeds, presenting a threat to biodiversity. While the ESA and NEPA exist to prevent this catastrophe, their potential is hindered by the unfair executive power granted to the DHS Secretary. Despite this unnavigable burden, advocacy groups and scientists will continue pushing to nullify these waivers to protect these distinct regions of biodiversity.

[1] Guerra, Proposed Border Wall Stands to Ignore the Endangered Species Act and Cause Harm to the Wildlife of the Biologically Rich and Border Area, American Bar Association, Jan. 1, 2019.

[2] 42 U.S.C. §4321 (1970).

[3] 16 U.S.C. §1531 (1973).

[4] Ctr. for Biological Diversity v. McAleenan, 404 F.Supp.3d. 218 (D.C. Cir. 2019).

[5] Id. at 224.

[6] Id. at 239.

[7] Id. at 229.

[8] Peter et al., Nature Divided, Scientists United: US-Mexico Border Wall Threatens Biodiversity and Binational Conservation, BioScience, Oct. 2018.

[9] Guerra, Proposed Border Wall Stands to Ignore the Endangered Species Act and Cause Harm to the Wildlife of the Biologically Rich and Border Area, American Bar Association, Jan. 1, 2019.

[10] Peter et al., Nature Divided, Scientists United: US-Mexico Border Wall Threatens Biodiversity and Binational Conservation, BioScience, Oct. 2018.

[11] Id.

[12] Ctr, for Biological Diversity v. McAleenan, 404 F.Supp.3d 218, (D.C. Cir. 2019).

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