Feds Waive Environmental Rules for New Border Fence

  • Published on April 3rd, 2008

Ecosystem will be severely fragmented by fence

U.S. - Mexico border, fence, wildlife habitat

The Bush administration has announced it will wave more than thirty federal laws to finish building a wall along the Mexican border by the end of this year. The Washington Post calls the move the most sweeping use of the administration’s waiver authority during the wall’s construction. The waivers allow the Bush administration to bypass mandatory reviews on how the wall will affect ecological areas in California, Arizona, New Mexico and Texas. House Homeland Security Committee chair Bennie Thompson called the waiver “an extreme abuse of authority.”

Environmental groups have filed petitions challenging the waivers before the Supreme Court siting several potential ecological hazards that would be created by the fence. Biologists are especially concerned about a handful of extremely rare jaguars that prowl up from Mexico over mountain trails in some of the wildest country in the southwest.

Homeland Security Secretary Michael Chertoff issued two waivers covering 470 miles of the border from California to Texas where the department plants to build fencing into a flood-control levee in a wildlife refuge. In a statement issued on Tuesday, Chertoff warned, “Criminal activity at the border does not stop for endless debate or protracted litigation.”

Like it or not, what Secretary Chertoff refers to as, “endless debate” and “protracted litigation,” have become central components of our democratic system. Issuing a waiver of environmental impact studies for a controversial border fence threatens the very underpinnings of our democratic processes and sets a very dangerous precedent for future incursions. Slippery slope anyone?

Photo: Daquella Manera

About the Author

is the founder of ecopolitology and the executive editor at LiveOAK Media, a media network about the politics of energy and the environment, green business, cleantech, and green living. When not reading, writing, thinking or talking about environmental politics with anyone who will listen, Tim spends his time skiing in Colorado's high country, hiking with his dog, and getting dirty in his vegetable garden.


  • Why don’t the fence makers design the fences with hinged tops so that it collapses when trying to climb, but wouldn’t hurt anyone. Also maybe a top curved toward the Mexico side, which would make it very difficult to hold on to. The way it is now, they can just climb right over.

  • Obeying the law is not voluntary, it is mandatory, and Secretary Chertoff cannot claim that he is sweeping aside a host of laws on the border in defense of immigration laws. In a nation of laws all laws must be respected, not just those that are convenient.

    Equal protection under the law is meant to be a fundamental right shared by every American, but the Real ID Act makes the legal rights of citizens who live near the border conditional on Secretary Chertoff’s whims. Section 102 of the Real ID Act of 2005 states, “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.” No one else is granted this extreme power under any circumstance. The president cannot waive our nation’s laws even in times of national crisis, and Secretary Chertoff cannot waive the laws that protect citizens who live away from the border. Only border residents may have their legal protections waived.

    Secretary Chertoff claims that the Secure Fence Act mandates walls along the border, and he therefore has no choice but to build border walls no matter the cost. The walls that are scheduled for construction in 2008 will destroy homes, businesses, and farms, will slice through communities, parks, and wildlife refuges, and will cost tens of billions of dollars. Border walls will not stop anyone from entering the United States, and in July 2007 the Congressional Research Service concluded that the California border wall “did not have a discernible impact on the influx of unauthorized aliens coming across the border in San Diego.” Recognizing this fact language was inserted into the 2007 Omnibus Spending bill that allowed Secretary Chertoff to decide whether or not walls would be built in a given area based on tactical considerations, and required that he consult with local stakeholders. Despite the fact that his hands are no longer tied, Secretary Chertoff prefers to act as though the Secure Fence Act is still the law of the land, and it is apparently the only law that he continues to respect.

    In announcing the Real ID waivers Secretary Chertoff said, “Criminal activity at the border does not stop for endless debate or protracted litigation.” The waivers are essentially an admission that the border wall will itself violate up to 36 federal laws, making construction of the wall a criminal act. If Chertoff is genuinely concerned with criminal activity he should ensure that the agency that he oversees complies with the law.

    The only reason for Secretary Chertoff to waive these laws is because he knows that the border wall will violate them. In setting these 36 federal laws aside Secretary Chertoff sets himself above the law. If congress allows unchecked power to remain in the hands of an unelected administration appointee they are complicit in fundamentally undermining the rule of law. Leaving the Real ID Act on the books and allowing Chertoff’s waivers to stand sets a precedent that should outrage the American people. If our nation’s laws can be set aside to build a border wall today, they may be similarly set aside for whatever crisis politicians discover in the next election cycle.

  • JR- thanks for your comments. I'll try to respond to them in turn (accept the first one!)

    I agree with you, in so far as, endless debate and protracted litigation may not have been what the framers intended with their democratic experiment (perhaps Madison notwithstanding), but they have become central components of it, or until there are substantive changes in how we practice our version of democracy.

    However, there is also a very influential law passed in 1946 called the Administrative Procedures Act. This act created particular protocols and boundaries for administrative agencies to operate within. There are certain allowances within the APA for waivers and they are generally related to 'security issues.'

    Then about 25 years later, there was another well known law passed, called the Environmental Policy Act which mandated that agencies undertake environmental reviews of any large scale government action (construction, road building, reservoirs, etc). I am not necessarily opposed to the wall per se, but I would like to see more discussion about how ecological issues could be mitigated. I want just want the discussion and proper procedures take place as they should and not just use tools of fear to make Americans believe that this is the only way to make them safe.

    Both of these acts (APA and NEPA) were designed to check the power of the presidency and the powers given to her and her administration. My concern is that President Bush has been ignoring a lot of what the other branches (as well as the American people) consider lawful behavior.

    As far as you're claim about the American people making their voice heard, I'm afraid I'm not exactly clear. Do you mean because of who was in office when these laws were passed in 2005? Or do you mean public hearings? I'm just not sure.

    In light of how things have gone since 2004/2005 (a slowing economy and in turn a reduction in illegal border crossings, a drawn out Iraq war, and an increased public awareness of environmental issues), it seems that the 'right' thing to do would be to let this process play out as it it was intended to play out.

  • FYI – we did debate it. In the house and senate. The American people made their voice heard and twice congress was forced to scuttle plans that didn't match the people's intent, and they were forced to put through legislation that built this fence.

    "Endless debate" and "protracted litigation" are not central components of our democratic system. They are the tools used by the obstructionist minority to wear down the people's will through expense and frustration.

    Bush is doing this to fulfill the intent of the people. It isn't the solution he wanted, or nearly anyone in congress wanted. It's the solution the people demanded.

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