Construction of the first 40 miles of a new wall on the nation’s southern border is underway in California and New Mexico after U.S. District Judge Gonzalo Curiel upheld waivers to various laws, including the 1970 Clean Air Act, the 1972 Clean Water Act, and the 1973 Endangered Species Act.
Real ID Act Waivers
The Real ID Act, enacted in 2005 after the 9/11 terrorist attacks, allows the U.S. Department of Homeland Security (DHS) to waive select federal laws and regulations in order to get border barriers built and repaired in an expedited fashion without direct congressional oversight.
In early 2018 the Trump administration issued waivers to expedite the repair and expansion of border walls in parts of California and New Mexico. The Bush administration issued five waivers under the Real ID Act between 2005 and 2008 when it built more than 250 miles of fence along the border in Arizona, California, New Mexico, and Texas.
Environmental activist groups such as the Animal League Defense Fund, the Center for Biological Diversity, Defenders of Wildlife, and the Sierra Club joined with California Attorney General Xavier Becerra in suing to block the waivers. The suit argued the waivers were unconstitutional and construction of the border wall could harm endangered jaguars the plaintiffs claimed migrate across the border between Mexico and the United States. Environmental activists had previously challenged the Bush administration’s waivers, losing then as well.
Doubts Threat to Jaguars
It is unlikely a border wall would harm jaguar populations, says Ron Arnold, executive vice president at the Center for the Defense of Free Enterprise.
“It’s not clear if a fence would have any effect on them or not,” said Arnold. “Even if jaguars go back and forth across the border to find mates—and that has yet to be established—it is doubtful jaguars would have any difficulty keeping their numbers up if a border wall prevented them from crossing into the United States.”
No ‘Serious Constitutional Doubts’
Regardless of whether the waivers would harm jaguars or were wise as a matter of policy, they were legally granted, Curiel stated in his ruling.
“The Court does not have serious constitutional doubts as to the constitutionality of section 102(c) [of the Real ID Act],” wrote Curiel. “It is not our job to protect the people from the consequences of their political choices.”
More Waivers Granted
Fresh off its legal victory in California, on October 10 and 11 DHS published notices in the Federal Register announcing waivers of regulations that could interfere with the construction and repair of border walls in Cameron County and Hidalgo County, Texas.
The latest waivers would allow the construction of a 25 mile section of border wall and gates in Texas’ Rio Grande Valley. DHS says it plans to begin construction of this portion of the border wall in February 2018.
Despite their previous failed legal efforts to overturn DHS waivers, activists said they plan to sue to block these new waivers in federal court because the proposed construction would include about 17 miles of border barrier in Bentsen State Park and the National Butterfly Center and near the Santa Ana National Wildlife Refuge.
Linnea Lueken ([email protected]) writes from Laramie, Wyoming.
Linnea Lueken is a Research Fellow with the Arthur B. Robinson Center on Climate and Environmental Policy.
