Steve Kelton

May 26, 2005

Population growth is hurting the environment in every way possible. Too much land is being lost to sprawl, too much water is being pumped from the ground -- the list of impacts goes on and on. Since most of America's population growth is through immigration,[1] the more people who come here worsen the problem. Unfortunately, the National Environmental Policy Act (NEPA)[2] -- legislation that requires our federal government to study potential consequences of its actions -- is not being followed as it should. By not applying NEPA to immigration, the government has created a bureaucratic loophole that exacerbates every environmental issue this country faces.

Immigration is erasing any environmental gains made by legislative and technological effort. For every step we take towards environmental quality, the millions of additional residents are taking us several steps backward.[3] Roy Beck, author of The Case Against Immigration, wrote: "If we were still the 203 million Americans of 1970 whose government committed itself to saving the U.S. environment, most of our environmental goals would have been met or be within reach by now. But there now are more than 265 million of us!"[4]

Immigration will continue to degrade environmental quality. Currently, about 1.4 million people per year immigrate to America.[5] The 1990s saw 11.3 million new immigrants added to our country, with the current decade on track to see 14 million.[6] Housing those additional people is equivalent to building a new city with 1.4 million residents every year! The U.S. Census Bureau is now estimating that the U.S. population will hit 420 million by 2050[7] -- 124 million above our current population of 296 million.

Let me very clearly point out that this connection between immigration and environmental destruction is one of numbers, not race or nationality -- or even of personality. Immigrants are not environmentally bad people, as Beck says, they simply are more people:

Like the Americans they join, immigrants flush toilets, drive cars, use public transportation, require land to feed, clothe, and house them, and to provide the materials (and space) for their commerce, recreation, and waste disposal. As additional people, they require more streets, parking lots, and all sorts of other asphalting of farmland and animal habitat. [8]

When viewed in the aggregate, the land requirement adds up to an astoundingly large number. America is being paved over at a rate of more than 3.2 million acres per year (about the size of Delaware), a little more than one acre for every new American.[9] Losing so much habitat directly affects wildlife and, indeed, is considered by many ecologists to be the "biggest single threat to species survival."[10]

Overall, immigration is making it harder to meet federal, state, or local environmental laws. More people are simply swallowing up technological gains. Despite much cleaner cars, the tens of millions of additional drivers mean "emissions per person must be cut another 30 percent just to make the air as clean as it would have been if our population had remained at 1970's 203 million."[11] A similar situation can be found in the Chesapeake Bay, where billions of dollars have been spent since 1970 in the effort to save the bay from pollution. Yet, "[a]t the same time that Herculean efforts were slashing the average impact on the bay of each watershed resident, congressional immigration policies were adding hundreds of thousands of new automobile-using and toilet-flushing residents."[12]

If immigration is harming our environment, why do we let it continue in such an unexamined and unchecked way? The operative words of NEPA, Section 102(2)(C), require a "detailed statement" for major Federal actions.[13] This statement, known as an environmental impact statement (EIS)[14] forces agencies "to consider environmental issues just as they consider other matters within their mandates."[15] In the statute's first legal test, Judge Skelly Wright wrote how NEPA's procedural provisions "are not highly flexible. Indeed, they establish a strict standard of compliance."[16] Yet an EIS has never been written for U.S. immigration policy.

NEPA specifically addresses population growth as an area of concern within federal policy. When Congress passed NEPA, it clearly referenced population in the statute's Declaration:

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 . . . declares that it is the continuing policy of the Federal government . . . to create and maintain conditions under which man and nature can exist in productive harmony . . . ."[17] (emphasis added).

Recognition of population continues in NEPA's next paragraph, where Congress required the federal government to "use all practicable means" in order to "achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities . . . ."[18]

Immigration is a major federal action significantly affecting the quality of the human environment and demands an EIS. The adverse effects were documented above; the federal nature of legal immigration[19] is easily shown: the Constitution empowered Congress to "establish a uniform rule of naturalization,"[20] and Congress has exercised its authority with dozens of bills that affect immigration -- the centerpiece of which is the Immigration and Nationality Act of 1952.[21]

Having satisfied the elements of "federal action" and "affecting the quality of the human environment," the next step is to establish that immigration's effect is "major" or "significant." The rules promulgated by the President's Council on Environmental Quality (CEQ), the organization that identifies and develops EIS procedures,[22] considers the two terms to be similar.[23] "Significantly" may be expressed in both context and intensity. "Context" means that "the significance of an action must be analyzed in . . . society as a whole (human, national) [and] the affected region . . . . Both short- and long-term effects are relevant."[24] "Intensity" refers to the severity of impact, and requires the agency to take a hard look at ten considerations -- every one of which is arguably relevant to, or worsened by, population growth. For example, the list[25] includes many of the negative impacts wrought by immigration:

• Unique characteristics of an area such as prime farmlands, wetlands, or ecologically critical areas.

• Environmental effects which are highly controversial.

• Actions that may have individually insignificant but cumulatively significant impacts.

• Actions that may adversely affect an endangered or threatened species.

• Actions that threaten a violation of Federal, State, or local environmental law.

The weight and relevance of the above points make it reasonable to conclude that the environmental effects are significant. But the legal analysis in real-life never gets this far because the CEQ has determined that the environmental effects from immigration are indirect and not capable, by themselves, of being significant enough to trigger NEPA.

This difference between direct and indirect effects is crucial. Administratively, CEQ has defined "direct" effects to include those "caused by the action and occur at the same time and place," and "indirect effects" to include those "later in time or farther removed in distance, but are still reasonably foreseeable [such as] growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems."[26] One commentator believes "[t]his arbitrary division into ‘primary' and ‘secondary' impacts, which is not sanctioned by the statutory language, is probably the main reason the courts have been reluctant to take induced population growth seriously."[27]

Since the courts are not finding secondary, socioeconomic effects to trigger NEPA, NEPA should be changed directly. In 2004, Representative Tom Tancredo introduced a bill that would amend NEPA "to require preparation of statements regarding the environmental impacts of legal and illegal immigration."[28] Specifically, the bill would add the following language to the end of Section 4332:

The Secretary of Homeland Security and the Administrator of the Environmental Protection Agency shall jointly prepare and publish every 5 years a statement in accordance with subsection (a)(2)(C) with respect to the environmental impacts of legal and illegal immigration, for use in determining and setting appropriate and environmentally sustainable levels for legal immigration and the most effective measures needed to prevent illegal immigration.[29]

Such language would go a long way toward closing the immigration EIS loophole. By requiring an EIS at least every five years, Americans could discuss and choose a level of immigration -- and environmental impacts.

By allowing more people to immigrate to America, we are reducing our quality of life. The impacts from more people are real, and we need to talk openly about them. Now is the time to change NEPA by making it clear that immigration policy warrants an EIS. The alternative is one of slow destruction of the natural heritage that our nation holds dear. Hopefully, the Legislature will act before it is too late. As the Supreme Court has warned, "Nothing can destroy a government more quickly than its failure to observe its own laws . . . ."[30]

[1] Between 66 and 90 percent of the population increase will be due to immigration. See Federation for American Immigration Reform, The Population-Environment Connection, at http://www.fairus.org/ImmigrationIssueCenters/ImmigrationIssueCenters.cfm?ID=1227&c=16 (last visited Mar. 6, 2005). See also Roy Beck, The Case Against Immigration 32 (1996).

[2] National Environmental Policy Act of 1969, 42 U.S.C. § 4332 et seq.

[3] See Beck, supra note 1, at 11.

[4] Id. at 31. In 2005, nine years after Beck's book was published, the U.S. population grew by 31 million and now stands at 296 million. U.S. Census Bureau, U.S. and World Population Clocks (2005), at http://www.census.gov/main/www/popclock.html (last visited Mar. 6, 2005).

[5] Federation for American Immigration Reform, Immigration Soaring Since 2000, at http://www.fairus.org/Research/Research.cfm?ID=2331&c=54 (last visited Mar. 6, 2005).

[6] Id.

[7] U.S. Census Bureau, Projected Population of the United States, by Race and Hispanic Origin: 2000 to 2050, at http://www.census.gov/ipc/www/usinterimproj/natprojtab01a.pdf (last visited Mar. 6, 2005).

[8] Beck, supra note 1, at 31-32.

[9] Federation for American Immigration Reform, Immigration and Urban Sprawl, at http://www.fairus.org/ImmigrationIssueCenters/ImmigrationIssueCenters.cfm?ID=1237&c=16 (last visited Mar. 6, 2005). This rate works out to 365 acres per hour.

[10] Bruce A. Stein et al., editors, Precious Heritage: The Status of Biodiversity in the United States (2000).

[11] Beck, supra note 1, at 33.

[12] Id. at 230.

[13] 42 U.S.C. § 4332(2)(C).

[14] First, the agency prepares an environmental assessment (EA) to determine whether to complete the more detailed EIS. 40 C.F.R. § 1501.4(c). If the threshold is not crossed, then the agency issues a finding of no significant impact (FONSI). 40 C.F.R. § 1508.13. No EA or FONSI has ever been done by any agency involved with immigration as to the environmental impact of U.S. immigration policy.

[15] Calvert Cliffs' Coordinating Comm. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1112 (1971).

[16] Id. at 1113.

[17] 42 U.S.C. § 4331(a).

[18] 42 U.S.C. § 4331(b)(5).

[19] As compared to illegal immigration -- which means, of course, that an immigrant did not follow the law, and is not discussed here.

[20] U.S. Const. art. I, § 8.

[21] 8 U.S.C. § 1422.

[22] 42 U.S.C. § 4331(2)(B).

[23] 40 C.F.R. § 1508.18.

[24] 40 C.F.R. § 1508.27(a).

[25] See generally, 40 C.F.R. § 1508.27(a).

[26] 40 C.F.R. 1508.8.

[27] Joseph J. Brecher, Population and the "EIS", available at http://www.npg.org/forum_series/pop&eis.htm (last visited Mar. 6, 2005).

[28] See Thomas Legislative Information of the Internet, at http://thomas.loc.gov (last visited Mar. 6, 2005).

[29] This bill is currently in the Committee on Resources. See id.

[30] Mapp v. Ohio, 367 U.S. 643, 659 (1961).