As the immigration debate continues to roil Congress, some House Republicans want to make it easier for President Trump’s proposed border wall to circumvent a number of cornerstone environmental laws, including the Endangered Species Act and the Clean Water Act.
Two bills currently before Congress — one introduced by Rep. Michael McCaul (R-TX), the other by Rep. Bob Goodlatte (R-VA) — would allow the Department of Homeland Security’s Customs and Border Patrol to construct physical barriers and conduct border patrols on federal or tribal land without regard to 36 different laws.
These include the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, the Endangered Species Act, the Safe Drinking Water Act, and the National Historic Preservation Act. Federal or tribal land constitutes more than one-third of the southern border.
“We need to ensure that our environmental laws do not compromise border patrol’s ability to track, identify, and respond to cross-border violations,” Rep. Bruce Westerman (R-AR), chairman of the House Committee on Natural Resources’ Subcommittee on Oversight and Investigations, said during a hearing on Thursday regarding Goodlatte’s bill.
But Democrats argued that the bill would give the department free rein to conduct all of its activities without taking into consideration their impact on the environment, describing the bill as “unacceptable” and “dangerous for communities and public lands” along the border.
“The Secretary of Homeland Security already has sole authority to waive all laws and legal requirements that potentially get in the way of building fences, walls, and roads along the border,” Rep. Donald McEachin (D-VA), ranking member of the Subcommittee on Oversight and Investigations, said. “If this sounds like an overreach of power, that’s because it is.”
The Department of Homeland Security (DHS) has already announced its intention to waive several cornerstone environmental laws in its construction of the border wall, citing a 2005 anti-terror law that gives the federal agency broad leeway in construction projects that are matters of national security. The law allows DHS to begin construction of the wall without considering its effect on the environment, and without consulting with local, state, and tribal communities that could be impacted by the wall.
The border wall would stretch thousands of miles across the southern border, crossing some particularly ecologically sensitive areas like the Santa Ana Wildlife Refuge in South Texas. The refuge is currently home to at least 400 species of migratory birds, 450 types of plants, and half of the butterfly species in North America.
In July, the Texas Observer reported that U.S. Customs and Border Patrol had already begun taking soil samples from the refuge in preparation for construction of the wall. A federal official told the Observer that construction of the wall — which would require building a road through the refuge and clearing land on either side of the wall’s proposed route — would essentially “destroy the refuge.”
But it’s not just the Santa Ana refuge that could be at risk from Trump’s border wall — according to a 2016 report from U.S. Fish and Wildlife, construction of the wall could threaten more than 100 species that are currently listed as endangered, threatened, or in need of protection under the Endangered Species Act.
The administration’s decision to waive various environmental laws is already being challenged in court, facing lawsuits from both the Center for Biological Diversity and Rep. Raúl Grijalva (D-AZ), and another from California Attorney General Xavier Becerra.
Both lawsuits argue that the counter-terrorism law on which the administration’s waiver relies is outdated and pertains only to projects constructed before 2009. California’s lawsuit also claims that the waiver violates the due process clause of the U.S. Constitution, which prohibits government officials from unilaterally and arbitrarily waiving laws.
Either of the two bills currently before Congress, if passed, would throw cold water on those lawsuits by updating the statute to give the Department of Homeland Security contemporary legal authority to ignore a slew of environmental laws that would normally dictate their actions on federal lands. The bills would not only allow DHS to widely waive environmental laws for construction projects, but for any kind of infrastructure or patrolling activity conducted at the border.
“It’s disturbing that House Republicans are willing to undermine environmental laws to help Trump build his destructive border wall,” Paulo Lopes, public lands policy specialist at the Center for Biological Diversity, said in a press statement. “They’re willing to waste billions of taxpayer dollars on Trump’s warped campaign promise and gut crucial protections for people and wildlife along our borders.”