In a notice posted to the federal registry on Wednesday, Homeland Security Secretary Alejandro Mayorkas said he would waive 26 federal statutes in order to fast-track the construction of up to 20 miles of border walls and roads through a sleepy, biodiverse stretch of the Rio Grande Valley. “There is presently an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States in the project areas,” Mayorkas wrote, arguing that waiving laws—including the National Environmental Protection Act, Endangered Species Act, and Clean Water Act—in the area was necessary to “ensure the expeditious construction of barriers and roads.”
It’s the first time a Democrat has invoked the REAL ID Act of 2005, a section of which grants the secretary of homeland security authority to “waive in their entirety” federal statutes so as to build border walls and roads. After that law’s passage, it was used five times during the George W. Bush administration and 27 times by the Trump administration.
The move is also a stark reversal of a campaign promise and early-days proclamation from the Biden administration, which in 2021 called border wall construction pushed by the Trump administration “a waste of money that diverts attention from genuine threats to our homeland security,” paused ongoing construction along the Southern Border, and sought to prevent federal funds from being diverted to border wall construction. Mayorkas contends in the text of the notice that expediting construction is consistent with the proclamation.
Biden argued at the White House on Thursday that the decision was out of the administration’s hands, as it had a mandate from Congress to spend more than a billion dollars allocated for border wall construction in 2019 before the end of the fiscal year on September 30. “I tried to get them to reappropriate it, to redirect that money,” Biden said. “They didn’t. They wouldn’t,” he added. Asked if he thought the border wall works, he said, “No.”
Following through on a congressional mandate and fast-tracking construction are two different things, though. “It’s clear, based on the way the appropriations bill is written, that there’s absolutely no need to waive these laws in order to speed construction, even if you concede that the White House needs to use those funds,” says Laiken Jordahl, Southwest conservation advocate at the Center for Biological Diversity. “He could follow the law,” Jordahl said, and go through the normal processes outlined by the National Environmental Protection Act and Endangered Species Act, for instance.
An estimated 95 percent of native habitat in the Rio Grande Valley has already been lost to development. Construction could threaten plans to recover populations of endangered ocelots, as well as endangered plants.
In the notice, Mayorkas describes the Rio Grande Valley as an area of “high illegal entry,” noting that had been 245,000 apprehensions there in 2023. Jordahl told me that figure is “extremely misleading” in the context of the filing, as it refers to apprehensions throughout the entirety of the 20 counties that comprise the Rio Grande Valley. The stretch where construction is slated to occur is “overwhelmingly peaceful and serene,” he said.
If the administration is indeed building the wall against its will, that hasn’t stopped the White House from attempting to broadcast that it’s taking a more hard-line stance on border security than Republicans. In a briefing on Thursday, White House press secretary Karine Jean-Pierre said that the “most extreme House Republicans have sought to eliminate thousands of Border Patrol folks,” boasting that Biden has added 25,000 Border Patrol agents during his time in office. “And that is something that no other president has been able to do,” she said, noting also that the administration has “removed or returned more than 250,000 people since May 12th.”
Many of the people fleeing their homes in Central America—where many recent migrants have come from—were forced to leave as a result of ongoing impacts of the climate crisis, such as droughts and hurricanes, as well as U.S. policies like the brutal sanctions imposed in Venezuela and interventions that have destabilized several Latin American countries over the last century. “Addressing the climate crisis is the most important thing we can do in order to allow people to stay in their home countries, where they overwhelmingly would love to remain,” Jordahl told me when asked about the millions likely to be displaced by climate change over the coming decades. He also referenced long-standing calls for wealthier countries to provide climate finance for poorer states to be able to mitigate, adapt to, and recover from the climate crisis.
As the administration defended its decision to fast-track a new section of border wall, countries met in Bonn, Germany, to pledge funds to the U.N. Green Climate Fund, designed to distribute funds raised by richer governments for climate adaptation and mitigation projects located largely in the global south. The U.S.—the world’s richest country, and the largest historical emitter of greenhouse gases—declined to announce a contribution, citing “uncertainty in our budget processes.”
