Waving goodbye to laws at the border…again

Seems like all we do lately when it comes to our government is contemplate the unprecedented. So it’s almost a relief to find familiar ground. Almost.

The Department of Homeland Security says it will bypass environmental and other laws to “ensure the expeditious construction of barriers and roads” near San Diego, prototypes and a first step towards the border wall that President Trump has declared to be a major goal of his first term.  Walls, roads and structures could go up this fall, before November.

We already did this. Five times.

After 9/11, the federal government asserted the need to override environmental, labor, contracting and other laws when it came to national security interests, particularly at the border. In 2005, Congress helped DHS out, passing the REAL ID Act, and granting federal agencies the right to waive 37 laws through Section 102.  Big ones like the Endangered Species Act, the National Environmental Policy Act, Clean Air and Clean Water Acts. Regional and powerful ones, like the California Desert Protection Act, championed by Democratic Dianne Feinstein. Narrow ones, like the Otay Mountain Wilderness Act (passed in 1999 just to protect some wildlands in San Diego County) and laws that protect tribal interests, like the Native American Graves Protection and Repatriation Act.

As that was happening, I went to Arizona, to public lands below and around Tuscon, to report a story for Living on Earth.

After that story, the federal government issued waivers five times, between 2005 and 2008:

  • In San Diego County, California, at Smuggler’s Gulch (2005)
  • Near where I reported in Arizona, at the Barry M. Goldwater Range adjacent to the Cabeza Prieta National Wildlife Refuge (2007)
  • Arizona again, along the edge of the San Pedro River and in the riverbed itself (2007)
  • For “border infrastructure projects” along 450 miles in Texas, New Mexico, Arizona, and California (2008)
  • And, at the same time, for 22 miles of fence and roads in Hidalgo County, Texas (2008).

(The actual waivers used to be archived at DHS’s site, but they aren’t anymore.)

Environmental groups, including the Center for Biological Diversity, Defenders of Wildlife and the Sierra Club, sued to block the use of the waiver power in 2007. But the federal government successfully defended the suit, and the Supreme Court didn’t hear an appeal on the question.

After these waivers, and with the additional pressures of development and climate change, wildlife remain at risk.

Some state lawmakers have agitated in California to try to create legal obstacles toward border-related construction. NGOs and environmental groups have again announced interest in litigating questions related to the waiver.

It’s not yet clear whether this latest waiver – #6 – will permit work in the same area as the first one did, 12 years ago.

But I’m reminded of one scene I witnessed, way back in 2005, in Organ Pipe National Monument. Six to seven hundred miles of the nearly-2000-mile US-Mexico border are already fenced off, including some in Arizona. When I was roaming the borderlands back then, the federal government had added sections of uneven fencing – some posts high, alternating with some posts low – in an effort to control the flow of cars somewhat.

It didn’t appear to be working. And park rangers were using GPS to track new and changing human encroachment into off-limits areas. That information – that documentation about the destruction of the desert – was said to be secure. (I filed a FOIA about it, but then I moved to New Orleans, where I would file other FOIAs, and I didn’t follow up.) I know that, regarding the present waiver and project, environmental groups including the Center for Biological Diversity have filed FOIAs related to the project, and been told that the response would take 3 to 6 months – probably longer than the beginning of construction would take.

I wonder whether and how, between 2008 and 2016, the federal government documented environmental degradation and harm, irreparable or otherwise, to border wildlands. Scientific understanding of border degradation and the value of these lands has changed dramatically since the power to waive environmental laws was first granted. I wonder whether those records, if they exist, would be in any way useful to parties who may wish to challenge the use of waivers now.



Organ Pipe Cactus National Monument by Trevor Huxham via Flickr

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