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Border Fence Overrides Environment Laws


Dept. of Homeland Security Secretary Michael Chertoff (WDCpix)

To hasten construction of the U.S.-Mexico border fence, the Bush administration announced last week that it will waive dozens of environmental, public health and cultural heritage laws it says could cripple the process. The announcement — and three like it that have come in recent years — has fanned a firestorm of criticism from environmentalists, and prompted more than a dozen House lawmakers Monday to throw their support behind a Supreme Court petition challenging the waivers’ constitutionality.

But waiver critics face a tough road ahead. Not only did Congress grant the Dept. of Homeland Security the waiver authority, it also gave the agency immunity from all judicial oversight related to its legal sidestepping.


Illustration by: Matt Mahurin

Perhaps more significantly, the congressional appetite to tackle the politically charged immigration issue in a competitive election year is all but absent. With the lines blurred between border security and immigration, opposition to the border fence has become something of a third rail in the eyes of policy-makers. Most Democrats appear reluctant to touch it, particularly when their actions could be spun on the campaign trail as protecting butterflies above Americans. Instead, party leaders seem poised to let the court take the lead.

Bolstering the point, the office of House Speaker Nancy Pelosi (D-Cal.) sidestepped questions this week about the possibility of pushing legislation to confront the White House on the waivers. Instead, a Pelosi spokesman issued a bland, one-sentence statement supporting the House lawmakers in their efforts “to address it in the courts.”

While a House bill would repeal the DHS’s sweeping waiver authority, even some environmentalists doubt the political will of Congress to tackle immigration so close to election season.

“I don’t know what kind of legs [legislation] would have,” said David Jenkins, government affairs director of Republicans for Environmental Protection. “Immigration has been one of those issues people are reluctant to touch.”

Environmentalists warn that building the fence without regard for environmental laws will disrupt hundreds of animal species, including jaguars, ocelots, mountain lions and eagles. Oliver Bernstein, a Texas-based spokesman for the Sierra Club, said the Lower Rio Grande Valley alone supports more than 500 species of birds and 300 species of butterflies. “These are landmark laws,” Bernstein said. “They should apply to every project, and this should be no exception.”

Rather than waiting around for Congress to act, several environmental organizations have filed a petition asking the Supreme Court to examine the legality of the waivers. Defenders of Wildlife and the Sierra Club charge that the DHS’s October 2007 decision to disregard 19 environmental and public health laws relating to wall construction in Arizona’s San Pedro Riparian National Conservation Area violates the constitutionally derived separation of powers.

In this sense, the conflict is not just one pitting environment concerns against those surrounding border security. Instead, waiver critics hope to prod Congress into taking back the authority it ceded to the Bush administration. “This goes well beyond the immigration debate,” said Sandra Young Purohit, government relations associate at Defenders of Wildlife.

The organizations got a boost Tuesday when 14 House Democrats, including the heads of eight committees, announced their intent to file a legal brief in support of the groups’ petition. Rep. Bennie Thompson (D-Miss.), chairman of the House Homeland Security Committee, spearheaded the effort. He issued a statement Monday calling the DHS waivers “a direct challenge to Congress’s constitutional role.” The government is expected to issue a response by Apr. 17.

At issue is a 2005 law empowering the DHS to scrap any federal, state or local laws it deems “necessary to ensure expeditious construction” of the border wall. A Republican-led Congress approved the provision as part of the Real I.D. Act, which was ensured passage after GOP leaders attached it to a supplemental military spending bill. There was no separate vote on the Real I.D. portion of the package.

On four occasions since then, the White House has invoked its right to disregard laws it says could hinder construction of the border fence. Among the waived statutes have been those designed to protect endangered species, migratory birds, drinking water, Native American graves and other areas of cultural heritage — to name a few. In the most recent instance, DHS Secretary Michael Chertoff last week waived 36 federal laws the agency fears could slow construction of 470 miles of the border wall found in parts of Texas, New Mexico, Arizona and California.

The White House has defended its waivers in the name of national security. “Criminal activity at the border does not stop for endless debate or protracted litigation,” Chertoff said in a statement. “Congress and the American public have been adamant that they want and expect border security. We’re serious about delivering it, and these waivers will enable important security projects to keep moving forward.”

The sweeping nature of the latest waiver has raised eyebrows in Congress, where an increasing number of Democrats have begun to accuse the administration of abusing its authority.

Last week, for example, Sen. Edward M. Kennedy (D-Mass.) wondered why DHS would need to waive the Religious Freedom Restoration Act, which Kennedy championed, to construct the fence. During an Apr. 2 hearing of the Senate Judiciary Committee, Kennedy asked Chertoff if the agency plans “to construct the wall through church property” without consulting the local community.

“No, no,” Chertoff replied. “This is a tribute to the fact that we have laws and creative lawyers that permit people to come up with all kinds of arguments about why you shouldn’t be able to build the fence … We would then be in court for a couple of years fighting about it, and that would delay the process.”

But environmentalists maintain that the urgency to get the fence up stems from the administration’s fear that the next president might scale back the wall’s design. “It’s a rush,” Purohit said, “but it’s a bit of an artificial rush, because there’s no change in the threat.”

More important, critics argue that no one official — particularly an unelected official like Chertoff — should have the power to dismiss long-established statutes on a whim, without the oversight of Congress or the courts.

“Existing laws,” Jenkins said, “are existing laws for a reason.”

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