Feds Sued Over Border Wall Environmental Waivers

SAN DIEGO (CN) – Three national environmental groups sued the federal government Thursday over waivers the Department of Homeland Security granted to circumvent environmental and land-management laws to expedite construction of President Donald Trump’s border wall.

The Sierra Club, Defenders of Wildlife and Animal Legal Defense Fund sued the Department of Homeland Security and its acting secretary Elaine Duke in federal court over the department’s decision last month to waive 37 laws which could delay building a wall along a 15-mile stretch from the Pacific Ocean eastward along the U.S.-Mexico border in San Diego.

Homeland Security issued a similar waiver this week covering the Border Patrol’s sector in the agricultural border town of El Centro, 115 miles east of San Diego. The wavier will allow the government to expedite the construction of barriers and roads near the city of Calexico, California.

The waivers mean the border wall can be built without having to adhere to state and federal laws protecting protect wildlife, costal zones, public lands, outdoor recreation and safe drinking water, among other protections and requirements.

Sierra Club attorney Gloria Smith said in an interview the conservation groups brought the case because “we want to stop a dangerous campaign slogan from becoming reality.”

“Were the Trump administration allowed to build a wall along the Southern border, it would have devastating impacts on our local border community, wildlife and wildlife habitat and the environment in general,” Smith said.

She pointed out the waiver indicates just how devastating the impact could be since it “rolls back every imaginable legal protection for the border lands.”

Smith said the groups are concerned Homeland Security will issue a waiver for the Rio Grande Valley and Santa Ana National Wildlife Refuge in Texas, believing a waiver could be issued “any day.”

They seek a declaration that the San Diego and El Centro waivers are unconstitutional as well as an injunction barring the department from constructing any border infrastructure in San Diego and El Centro.

The groups argue the waivers issued to spur construction of replacement sections of the current border wall or building new prototypes are not “among the activities eligible for waivers” under the Illegal Immigration Reform and Immigrant Responsibility Act, enacted by Congress in 1996.

While the statute allows for building “additional physical barriers and roads,” it does not allow for border wall replacement or the prototype border wall planned for California, according to the groups.

They also argue the statute “does not support the continued, unlimited application of waivers” beyond those specified by Congress when they enacted the statue in 1996.

The decision not to comply with consultation requirements based on acting Secretary Duke’s conclusions that both San Diego and El Centro “are areas of high illegal entry into the United States” are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” the groups claim.

Border Patrol agents have detained millions fewer undocumented immigrants in the border region since the act was passed in 1996, going from 1.5 million apprehensions in 1996 to 408,000 last year, according to the lawsuit.

In 2016, there were nearly 75 percent fewer apprehensions in San Diego than in 1996. The El Centro sector saw 71 percent fewer apprehensions in 2016 compared to 1996.

Twenty-seven species listed in the Endangered Species Act live within 150 feet of the U.S.-Mexico border in the 15-mile project zone near San Diego, and the area is designated critical habitat for five of those species. More than a dozen of the species listed are found only in Southern California, including the California gnatcatcher, Pacific pocket mouse and Riverside fairy shrimp.

The project area also encompasses the Otay Mountain wilderness, Tijuana River and estuary and Border Field State Park, all of which are home to sensitive plants, animals and ecosystems.

In El Centro, the Yuma clapper rail is listed as an Endangered Species and can be found in that project area in addition to 18 birds protected under the Migratory Bird Treaty Act and Eagle Protection Act, according to the lawsuit.

Homeland Security spokesman David Lapan said by email the department does not comment on pending litigation.


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