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Ocelots, Butterflies in Path of Border Wall

As DHS waives its way across Texas, Congress is rethinking a thirteen-year-old law

Barriers at the southern border. (Justin Sullivan/Getty Images file photo)
Barriers at the southern border. (Justin Sullivan/Getty Images file photo)

When rains pushed the Rio Grande River to flood stage in 2010, an existing border wall acted as a flood barrier, protecting some lowlands but also trapping some animals. A 2011 U.S. Fish and Wildlife Service report obtained through a Freedom of Information Act request by the Sierra Club noted the discovery after the flooding of shells from “hundreds” of Texas tortoise, which that state lists as a threatened species.

“Animals caught between the river and the flood wall that could not escape around the edges of the floodwalls likely perished,” said the report. Endangered species like the ocelot and jaguarundi, both small wildcats, also might have died, according to the report.

With Department of Homeland Security officials now planning to build more border walls along the river in extreme southern Texas, environmentalists and others are raising alarms. According to DHS plans sent to local residents in June, the wall would cut through the Bentsen-Rio Grande State Park and the National Butterfly Center in Mission.

Founded in 2002, the nonprofit butterfly refuge spans over 100 acres of land, receives over 35,000 visitors annually and claims to be the most biodiverse butterfly habitat in the United States with over 240 species.

The DHS plans show the center is in danger of being cut off from up to 70 percent of its land. The center is suing the department hoping to slow the construction process, though they say there’s little chance they will succeed.

“If this were happening in San Francisco, in New York City, or Charleston, S.C., or New Orleans — any other city within 25 miles of any U.S. border — there would be public outrage, there would be an uprising,” said Marianna Wright, executive director of the National Butterfly Center.

Environmentalists say the higher and more extensive a wall becomes along the U.S.-Mexico border, the more likely many species, including endangered and threatened ones, will be harmed. They have joined forces with immigration advocates to offer more reasons to oppose the construction of President Donald Trump’s border wall.

On Sept. 12, the Sierra Club and the Center for Biological Diversity joined the American Civil Liberties Union in releasing a report on environmental dangers and other issues posed by the barriers. “Border policy should be based on data, analysis, consultation and rule of law,” said Astrid Dominguez, director of the ACLU’s Border Rights Center, in a statement on the report.

The groups are targeting federal laws that permit DHS to waive legal constraints that allow Customs and Border Protection to build these barriers faster, sidestepping the expected environmental review process.

Since the Real ID Act of 2005, which gives DHS authority to bypass virtually any law not protected by the Constitution, the department has issued eight waivers exempting operations from 37 different laws, including the National Environmental Policy Act, the Clean Water Act, the Endangered Species Act and the Administrative Procedures Act.

CBP says no decision has been made yet on whether a waiver should be granted for building the next section of barrier in South Texas. But activists anticipate that it will, noting waivers have been used for much of the wall construction so far.

Rep. Henry Cuellar, a Texas Democrat who represents part of the affected district, says he’ll push to include language in the fiscal 2019 Homeland Security appropriations measure in conference to protect both the butterfly refuge and Bentsen-Rio Grande State Park from the wall. “I don’t want to see it in the Bentsen park, and I certainly don’t want to see it in the Center,” said Cuellar.

But funding to build the barrier there has already been appropriated, and Wright said in a recent meeting between DHS officials and landowners they were told construction of barriers will begin by February.

“The wall is the wall. The design and placement have been determined,” she said. 

New construction in Texas will cut through a butterfly refuge. (Courtesy Texas Parks and Wildlife Department)
New construction in Texas will cut through a butterfly refuge. (Courtesy Texas Parks and Wildlife Department)

Sweeping power

Some legal experts say the waiver authority is the broadest ever granted by Congress to a federal entity. The Congressional Research Service in 2017 noted the authority couldn’t be interpreted to allow the department to waive the Constitution, but it “potentially could be employed with respect to any other existing legal requirement” as long as they conclude complying with the requirement would “impede expeditious construction of barriers and roads.”

Kenneth Madsen, an associate professor of geography at Ohio State University, has spent the last year and a half mapping where DHS has issued waivers and tracking which laws have been affected.

He says DHS conducts environmental evaluations of its construction projects, but while the department complies with many of the laws waived, “they don’t comply with all of them, and there would be no legal repercussions” if they don’t.

“I’m sure they don’t want to come across as politically insensitive, but that doesn’t change the fact they’re not really accountable for environmental issues,” Madsen says. “In a sense, they could totally ignore them and just go full speed ahead, but then they wouldn’t be able to tell Congress and other people they are responsive.”

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This concern has fueled environmentalists’ efforts. Environmental groups are informally coordinating a coalition with various immigration groups to fight border construction, communicating on a weekly basis.

Since 2005 the League of Conservation Voters has included votes on wall construction in its yearly scorecard, which the group uses to try to hold lawmakers accountable for votes on environmental issues. In August, when announcing where their PAC, the LCV Victory Fund, would be spending for the midterms, the group targeted targeted two House Republicans with low LCV scores in districts on the border: Will Hurd of Texas and Steve Pearce of New Mexico.

“I don’t think it’s understood [by lawmakers], and if it is, it’s discounted. ‘Oh, it’s just wildlife, big deal, they’ll figure out a way,’ or, ‘It’s the desert, there are no animals down there,’” said Kevin Bixby, executive director of the Southwest Environmental Center. “This whole position of ignorance, it will have serious impact on wildlife populations. It will prevent jaguars from coming back to the U.S. Some subspecies will disappear from the face of the Earth.”

There have been attempts to give federal agencies funds to mitigate the environmental hazards resulting from barrier construction.

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In 2011, the Republican majority on the House Appropriations Committee included what report language described as a “narrowly tailored” authorization in its draft fiscal 2012 Homeland Security spending bill to allow previously appropriated funds to be transferred to the Interior Department for environmental mitigation “deemed necessary as a direct result of construction, operations, and maintenance activities for border security.”

Providing this funding for mitigation would have been a basic part of DHS complying in the spirit of the National Environmental Policy Act, says Scott Nicol, co-director of the Sierra Club’s borderlands campaign.

“If CBP does a project, any kind of project, and they’re going to inflict harm on U.S. Fish and Wildlife refuge lands, and they decide there is absolutely no way to avoid this harm, then they have to provide mitigation, and so funds are kind of an easy way to do it,” Nicol said.

But the committee’s attempt was killed on the House floor, where on a 238-177 vote the House struck the authorizing language through an amendment offered by then-Rep. Cynthia Lummis, a Wyoming Republican.

Lummis’ amendment was supported by House Natural Resources Chairman Rob Bishop, a Utah Republican who at the time chaired one of its subcommittees. He argued the provision would open up a “secret slush fund” from DHS to Interior.

“If we really want land acquisition, we put this money in the Interior budget, where it belongs, so we know what it is, we know why it is there, and we can track for what it is used,” Bishop said.

Bishop for years has advocated expanding DHS’ waiver authority so the Interior and Agriculture departments would not be able to enforce environmental review requirements and endangered species protections at the border, which he views as unnecessary impediments to border enforcement.

If CBP is going to be able to stop illegal immigration, he argues, it needs access to federally protected lands along the border.

“They don’t need more money, or more manpower, or more materials — they need to have access,” Bishop said in July. “If that’s not there, the world is screwed.”

Partisan divide

Prohibiting Interior and Agriculture from impeding CBP enforcement activities on federal lands was a part of the House GOP’s 2010 Pledge to America and has been included in every substantive Republican immigration proposal since the party took the House in that year’s midterm elections.

It was in the Senate’s 2013 ill-fated immigration package, the Trump-backed immigration proposal the Senate rejected in February, and in both immigration measures the House rejected in June.

“They’ve been trying to expand the waiver virtually since they passed it,” said Dinah Bear, former general counsel for the Council on Environmental Quality.

However, as Congress approaches another midterm election and polling shows Democrats may have a chance of retaking the House, Republican hopes of expanding waiver authority may be in jeopardy.

Natural Resources ranking member Raúl M. Grijalva of Arizona is likely to become chairman of the committee if Democrats take the House, and he sued Homeland Security in April over its waiver authority.

While the case was rejected in U.S. District Court, an appeal of the decision is pending in the 9th U.S. Circuit Court of Appeals and attorneys involved with the lawsuit filed a petition for a Supreme Court review last month.

Grijalva said if he becomes chairman he would push for legislation looking at “strategies other than the complete waivers,” by using the federal environmental review process under NEPA, the ESA and other statutes.

“It’s not too much to look at those waivers and ask what it means in terms of the laws being waived,” he said.

On future immigration measures, Grijalva says he would not support a package that maintains DHS’ waiver authority. “If that’s the kind of legislation we’d be crafting comprehensively, I don’t believe the waiver authority would be in there,” he says.

If Republicans do maintain control of the House, it’s unclear who will succeed Bishop once he is term-limited out of his chairmanship in his next term.

Asked in July what happens next with his waiver expansion proposal, Bishop said, “I don’t know.”

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