Border Wall May Affect Wildlife but Likely Unstoppable in Court

Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...

By Alan Kovski

The Trump administration’s plan to build a wall along the 2,000-mile U.S. border with Mexico may have harmful effects on wildlife and habitat but appears to have legal clearance, environmental advocates told Bloomberg BNA.

They described the wall plan, pushed forward by a Jan. 25 executive order from President Donald Trump, as being far from cost-effective, especially when compared to the idea of a “virtual fence” of monitoring systems, such as cameras, sensors and aerial observation, combined with vehicle barriers.

But can the wall plan be stopped in court? That seems unlikely, they said.

The Real ID Act of 2005 (Pub. L. No. 109-13) gave the secretary of homeland security the authority to waive any legal requirements that, in the secretary’s judgment, would impede the expeditious construction of barriers and roads along the border.

“It is possible that a constitutional challenge to the waiver itself could arise,” Randy Serraglio, a Tucson, Ariz.-based Southwestern conservation advocate for Center for Biological Diversity, told Bloomberg BNA. But he noted that a challenge already had been taken to the U.S. Supreme Court, which refused to rule on it.

Environmental Laws Waived

The Secure Fence Act of 2006 (Pub. L. No. 109-367) mandated development of physical infrastructure and surveillance “necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.”

Defenders of Wildlife, worried about impacts on wildlife from fencing and roads, sued over compliance with a number of environmental laws. That led Michael Chertoff, secretary of homeland security from 2005 to 2009, to use the waiver authority to waive compliance with more than 35 federal and state laws.

“So we then challenged the constitutionality of that waiver process,” said Bob Dreher, senior vice president of conservation programs at Defenders of Wildlife.

His group, joined by the Sierra Club, lost in the U.S. District Court for the District of Columbia in 2007. The groups then sought Supreme Court review, because the Real ID Act (which amended a 1996 immigration law) didn’t allow appellate courts to have a role, but the Supreme Court would not take the case.

So if there is going to be another constitutional challenge, it will not come from Defenders of Wildlife, Dreher told Bloomberg BNA.

Arguments Against Waivers

The Real ID Act amended an earlier law, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Pub. L. No. 104–208). The essence of the constitutional challenge mounted by Defenders of Wildlife was that the law delegated too much authority to an administration official.

A delegation of such a waiver authority bypasses the Constitution’s process for amending or repealing a law and instead empowers an administration official to void any federal law, the challenge said.

Property owners along the border can challenge wall construction as a constitutionally illegal “taking” of property, and some have tried to do so over the fencing and roads already built or planned.

But Dreher said the only illegal taking is an uncompensated taking, and the government can resolve such claims by paying the property owners. He said that as far as he knew, that was how the government had resolved the lawsuits over “taking” so far.

Serraglio, recognizing the difficulty of a legal challenge, said his group has pushed for Congress to repeal the waiver authority.

Fears for Many Species

About 700 miles of fence segments have been built along the border so far. Unfortunately, a barrier for humans can be just as effective as a barrier for wildlife, said Bryan Bird, Southwest program director at Defenders of Wildlife.

Conservationists have been concerned about animals that range widely across the landscape, such as deer, antelope and peccaries, and especially worried about Mexican gray wolves and jaguars, because they are stealthy animals and hard to monitor for species health.

Another species of special concern is the Sonoran pronghorn, listed as endangered. Conservationists worry that fencing will subdivide its population, reducing exchange of genetic material that would help keep the species healthy, Bird said.

The Border Patrol, Defense Department and U.S. Fish and Wildlife Service haven’t been ignoring conservationists’ concerns. Bird said they have tried to accommodate those concerns in some ways, such as using vehicle barriers to reduce the ability of people crossing the border to enter protected wildlife habitat.

The Sonoran pronghorn is one of the species where federal agencies have made some accommodations to reduce border security impacts, Bird said.

Cost Estimates Questioned

A common cost estimate for completing a 2,000-mile wall has been $8 billion to $14 billion, an estimate endorsed this week by House Speaker Paul Ryan (R-Wis.).

The real cost will be at least twice much, more likely in the range of $20 billion to $25 billion, said Serraglio at the Center for Biological Diversity.

The easier parts of the border fencing have already been built, he said. The costs will be higher for the more rugged and remote parts of the border, he said. And that doesn’t count maintenance costs, which are outrageous, Serraglio said.

The costs are added reasons for a less heavy-handed approach, Dreher said. The nation can save money while reducing the impact on wildlife by relying more on monitoring and sensor technologies rather than a wall, he said.

To contact the reporter on this story: Alan Kovski in Washington, D.C., at akovski@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The executive order from President Trump on border security is available at http://ow.ly/9SNz308ojvE

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.