Homeland Security waives environmental review for California border project

The number of environmental laws bypassed is astonishing.

A U.S. Border Patrol agent drives near the U.S.-Mexico border fence. CREDIT: AP Photo/Russell Contreras
A U.S. Border Patrol agent drives near the U.S.-Mexico border fence. CREDIT: AP Photo/Russell Contreras

The Department of Homeland Security granted the federal government waivers for a long list of environmental laws in order to expedite the construction of a new barrier on the border of Mexico and California, about 85 miles east of San Diego.

In a Federal Register notice published Tuesday, Elaine Duke, acting secretary of Homeland Security, said the waiver is necessary so that the U.S. Customs and Border Protection (CPB) can take “immediate action” to upgrade barriers to prevent unauthorized people from crossing into the United States from Mexico.

With the waivers from DHS, the Calexico project will get to bypass the National Environmental Policy Act, Endangered Species Act, Clean Water Act, Clean Air Act, National Historic Preservation Act, Migratory Bird Treaty Act, Migratory Bird Conservation Act, Archaeological Resources Protection Act, Safe Drinking Water Act, Noise Control Act, Solid Waste Disposal Act, Antiquities Act, Federal Land Policy and Management Act, Administrative Procedure Act, Native American Graves Protection and Repatriation Act, and American Indian Religious Freedom Act.

“It is irresponsible for the Department of Homeland Security to waive laws that have been put in place to preserve our lands, safeguard our history, and protect our environment. The public health of our communities should be a priority for a federal agency whose mission is to keep Americans safe,” Rep. Juan Vargas (D-CA), who represents this region of California, said in a statement.

CPB is expected to award the contract for construction of this segment in November. Construction is scheduled to begin next February, CPB spokesman Carlos Diaz said in an email to ThinkProgress.

The three-mile segment is in an area that DHS calls the El Centro sector. It starts at the Calexico West port of entry in Imperial County, California, and extends westward. The project will replace the old fence with a new bollard-style fence, which is typically made of reinforced bars or slats of steel that stand about 18 feet tall, often 6-by-6 inches wide, and filled with rebar and concrete for strength. The bollard-style fence often is set 6 feet below the ground to prevent tunneling under it.

In fiscal year 2016, the CPB apprehended more than 19,000 people in the El Centro sector as they attempted to cross the border. That same year, the border patrol seized about 2,900 pounds of marijuana and about 126 pounds of cocaine in the sector, DHS said.

On January 25, President Donald Trump issued an executive order directing a wall to be built along the entire U.S.-Mexico border. However, Congress has not appropriated funds for the wall to be built and construction has not begun. Work on this three-mile section in California was funded by Congress in its fiscal year 2017 appropriations.

The wall, which Trump has promised will stretch between 700 and 900 miles, is set to cross federal and private land, cutting through wildlife refugesnational parks, towns, and farmland. Normally, any federal project of such size and reach would be subject to a number of rigorous legal requirements, from the National Environmental Policy Act, which requires agencies to conduct a study of potential environmental impacts of a particular project, to the Endangered Species Act, which outlines requirements for projects that could harm threatened species.

The Trump administration, though, appears ready to bypass laws specifically designed to protect such sensitive environments from development for the overall wall project as well as segment replacements similar to the Calexico project.

Waiving environmental laws means the Trump administration will not be required to meet with stakeholders, like community groups or local governments, in planning and executing a project that has already drawn stiff opposition from a broad coalition of local and national voices. The leaders of Imperial County, where CPB will be conducting work on the three-mile Calexico border fence, has voted to oppose construction of the entire border wall.

“While the waiver eliminates DHS’s obligation to comply with various laws with respect to covered projects, the Department remains committed to environmental stewardship with respect to these projects,” the department said Tuesday in a press release. “DHS has been coordinating and consulting — and intends to continue doing so — with other federal and state resource agencies to ensure impacts to the environment, wildlife, and cultural and historic artifacts are analyzed and minimized, to the extent possible.”

For the Calexico project, the existing 14-foot “landing mat” style fencing will be replaced with the bollard-style barrier that uses a “more operationally effective design” that will meet border patrol’s operational requirements, DHS said. The materials and name of the older fence style come from the former life of the fence panels: they were used as portable touchdown pads for military helicopters.

Last month, DHS announced a waiver that would exempt CPB from the same number of legal requirements for a 15-mile stretch of border near San Diego. Projects such as the Calexico and San Diego projects that are created in the interest of national security enjoy a wide variety of legal benefits that normal federal projects do not. It is within the legal purview of DHS to bypass environmental requirements if it is done in the interest of national security.

The Center for Biological Diversity earlier this month expanded its lawsuit against border wall and prototype projects in San Diego, challenging the Trump administration’s authority to waive environmental laws and calling for an end to the unconstitutional maneuver.

Like the waiver at issue in the Center for Biological Diversity lawsuit, the waiver in Imperial County “shows the Trump administration’s disregard for the environment and the rule of law,” Brian Segee, senior attorney with the endangered species program at the center, said in an email to ThinkProgress. “The waiver authority provided by Congress a dozen years ago in the REAL ID Act was intended to expedite border fence construction that has already been completed, not provide DHS with a roving and perpetual authority to cast aside laws.”

Article updated at 9:45 a.m. ET on Wednesday, September 13, 2017, to include new information about the Center for Biological Diversity’s lawsuit against the Trump administration.