By Ben Arnoldy, Earthjustice
The Trump administration signaled Aug. 1 that it will push forward with its border wall project regardless of environmental laws. The Department of Homeland Security (DHS) issued a waiver that exempts construction efforts near San Diego from environmental and other regulations. To understand the impact of this decision on the environment and coming legal challenges to the wall, I spoke with environmental lawyer Dinah Bear. Ms. Bear is an independent attorney and consultant in Tucson, Ariz. who spent more than 25 years working for the White House at the Council on Environmental Quality.
What are some of the environmental impacts of constructing President Trump’s border wall?
We don’t know about the design of any future wall, but we have had a little over 10 years of experience with the border wall in Arizona where I live as well as in southern California and parts of Texas.
We know that the walls block wildlife. We have photographs of mountain lions pacing, trying to get to the other side to their cubs. We have photographs of javelinas that are trying to get through the wall. We even know that there are some very rare bird species that have trouble getting over the wall because they don’t fly that high and they don’t like to fly in cleared areas.
Another very serious impact that the border wall has already had is flooding. We particularly experience this in Arizona where unfortunately when the current wall was built—without any compliance with the usual environmental laws—the contractors apparently thought it doesn’t rain. We have had massive flooding from the border wall, and in certain sections, the wall has actually fallen down because of the floods.
There was about $8 million of economic damage in Nogales, Arizona because of the floods and some people lost their lives. The border patrol is actually in the process of replacing parts of the wall because they understand that it wasn’t built correctly in the first place—in large part, I think, because of absence of compliance with environmental laws.
The DHS said it waived environmental regulations to expedite work on barriers along the border. What is the scope of this waiver?
This waiver is confined to an area that stretches from the Pacific Ocean for approximately 15 miles to the east. What we’ve seen in the past—and it looks like we are going to see something similar now—is a series of waivers that go section by section. And we expect the next one to be in the Rio Grande Valley in Texas, probably next month, where there are apparently plans to wall off the crown jewel of America’s wildlife refuge system.
The DHS cites a Bush-era law for its authority to issue these waivers. What authority does that law grant?
It was Congress, not President George W. Bush, that asked for this [kind of] waiver. In fact, I will say that there was conversation within the administration—which I was in—about the fact that this wasn’t really needed. But it was absolutely demanded by certain members of Congress and it was included in the 2005 Real ID Act. It was unfortunately passed with no end date. It provides the secretary of Homeland Security with the authority to waive all laws—and I do mean all laws, not just environmental laws—for the expeditious construction of border walls, barriers and roads in areas of high illegal entry.
Without the waiver, the administration would have had to provide environmental analysis, involve the public, and consult with expert agencies about the impacts on the environment as well as on historic and cultural sites.
Has there been any other project in American history that has been built under this type of waiver of law?
Absolutely not. Shortly after this was passed, the Congressional Research Service analyzed the situation and said that this authority to waive all laws for the border was the broadest waiver of law in American history.
What legal avenues are there for Earthjustice and others to challenge these waivers?
Unfortunately, one of the features of the Real ID Act was to limit judicial review. So any challenges to the use of the waiver first have to be brought within 60 days. The only claim that can be heard by a court is a violation of the Constitution of the United States. Then there is no right to appeal a decision from a federal district court. So it is a very narrow pathway to be able to challenge the use of the waiver. I think these waivers will be challenged.
What role can ordinary Americans play in pushing back on the wall?
In my view, the American public is the single most potent instrument we have against this. If Americans realized that this wall was not only ineffective, that real security experts have never advocated for this kind of border barrier, and that it is going to do a lot of harm to the country—and they conveyed [this message] to members of congress—things would change.
I would also like Americans to realize that they are losing their opportunities to have input into the government by waivers of laws like the National Environmental Policy Act (NEPA). And this idea of waiving all laws for big projects can rapidly spread to other kinds of actions. Somebody in Wyoming or Kansas might not feel very affected by these waivers, but this is clearly something that could be duplicated for other kinds of projects and affect people in their backyards. We have laws—and compliance with laws—as a hallmark of what it means to be an American.