President Trump’s border wall proposal has sent his opponents rushing to courthouses as powerful environmental groups and Democrats in Congress and the states demand federal judges step in to try to derail any new construction.
The groups say that to build the wall, the administration is trying to waive many of the country’s most iconic protection laws, including the Clean Air and Endangered Species acts and the Antiquities and Native American Graves Protection acts.
If their suits succeed, the administration could be forced to halt development of the wall and undertake lengthy environmental reviews that could take years and, opponents of the project charge, would reveal the massive damage to endangered species habitat and pristine areas along the boundary.
“The process by and large in the vast majority of cases results in mitigation and [environmental] monitoring requirements. But again, you can’t mitigate or avoid what you’re not looking for,” said Brian Segee, a senior attorney with the Center for Biological Diversity, a leading environmental group that filed the first lawsuit against the border wall in the spring.
The issue is about to come to a head, with construction on prototypes for the new wall starting last week in San Diego, and with the House preparing this week to take up legislation to pave the way for wall construction, as well as more technology and manpower.
“We have been talking about border security for years. Now that we have a partner in the White House who has made this a top priority, it’s time to send a bill to President Trump’s desk so we can deliver the American people the security they have long demanded and deserve,” said Rep. Michael T. McCaul, chairman of the House Committee on Homeland Security.
Part of the new legislation would affirm the government’s right to waive environmental laws — though Republicans said they’re also confident the administration already has those powers, and the new bill would only be confirmation.
Homeland Security under Mr. Trump has already flexed the existing waivers twice, clearing the way for existing fencing to be replaced in Calexico, California, and to build the wall prototypes in San Diego.
The waivers applied to dozens of laws, using powers granted under the 2005 Real ID Act, which gave the Homeland Security secretary waivers for “expeditious” construction of border security measures.
So far lawsuits have been filed by CBD, in cooperation with Rep. Raul M. Grijalva, Arizona Democrat; the state of California; and the Sierra Club, Defenders of Wildlife and the Animal Legal Defense Fund.
Green groups say the old waivers only applied to fencing built in the past; indeed, until Mr. Trump came into office, it had been nine years since the federal government had exercised such authority, and critics argue that courts ultimately will find that the underlying legislation was never intended to serve as a broad method to circumvent environmental laws over a period of more than 10 years.
“We’re in 2017 now. Extending ‘expeditious’ that many years is stretching credulity as far as we’re concerned. We need the courts to look at whether ‘expeditiously’ lasts 12 years,” said Gloria D. Smith, a managing attorney with the Sierra Club.
During the George W. Bush administration, Homeland Security’s power to waive environmental laws was challenged in court at least four times, and each time the authority was upheld. In two cases the Supreme Court declined to review the issue.
Ms. Smith and others believe the sheer passage of time makes this particular situation far different.
On Capitol Hill Republicans are pushing back hard against both the lawsuits and the environmental groups hoping to derail the wall.
GOP lawmakers say increased border security actually will help the environment in sensitive areas along the U.S.-Mexico boundary.
“Yet again, litigation activists are tying the hands of federal agencies and preventing common-sense border protection. The irony here is that those suing under the guise of environmental protection are encouraging scores of illegal crossings that have decimated environmentally sensitive areas,” Rep. Rob Bishop, Utah Republican and chairman of the House Committee on Natural Resources, said in a statement.
“Whether it’s to build the wall or deter and apprehend those crossing the border illegally, federal law enforcement needs access to our federal lands and the necessary tools to get the job done,” he continued. “In the coming weeks and months, we will be we working in partnership with the Trump administration to ensure those tools are provided, the endless threat of obstructionist litigation is eliminated and the American people are protected.”
He is backing the waiver language in the new bill the House Committee on Homeland Security will debate next week.
The measure contains provisions that would allow Homeland Security to waive environmental laws for other aspects of border security measures, such as facilities or pieces of technology, that aren’t necessarily on the border itself.
The bill also would give Customs and Border Protection personnel carte blanche on federal lands within 100 miles of the border, eliminating restrictions on, for example, the use of motorized vehicles in some sensitive areas.
Border wall foes lobby judges to halt construction
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