Environmental Laws Won’t Be a Barrier to the Border Wall

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By Amena H. Saiyid

President Donald Trump’s vision of a border wall with Mexico in the San Diego area won’t be impeded by lengthy environmental reviews.

The Department of Homeland Security said Aug. 1 it is waiving compliance with 37 federal environmental and conservation laws—including the Clean Water Act, Clean Air Act, and Endangered Species Act—to start building roads and barriers leading up to the southern boundary.

The waivers will allow the department to start work on a prototype of the border wall and replace a hodgepodge of pedestrian fences and vehicle barriers within the 15-mile stretch of the border that extends westward to the Pacific Ocean.

The waivers also preclude the possibility of delays associated with litigation over environmental analysis and other related challenges, Carlos Diaz, a spokesman for the U.S. Customs and Border Protection, the largest law enforcement agency within Homeland Security, told Bloomberg BNA.

Homeland Security hasn’t yet awarded any contracts for building a prototype of a wall that it deemed would be 30-feet high and 6-feet deep to deter illegal immigrants from making their way into the U.S. from Mexico.

Wall Waiver

Groups including the Center for Biological Diversity and the Sierra Club said the environmental waivers will pose a risk to already endangered and threatened animal and plant species that are found in the San Diego area. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, founder of Bloomberg L.P. Bloomberg BNA is an affiliate of Bloomberg L.P.

“They want to use the waiver to build a replacement and to expand their interpretation of what already is the broadest waiver in U.S. history to make it perpetual,” Brian Segee, senior attorney with the Center for Biological Diversity, told Bloomberg BNA Aug. 1.

Calling it a “travesty,” Segee said the government wants to build roads, lighting, and all of the infrastructure that comes with it “without any environmental review or public input,” he said.

Segee said the government turned to Section 102 of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act to issue environmental law waivers. President George W. Bush used this waiver to start construction of a 600-mile barrier with Mexico that was completed during the Obama administration.

The Center for Biological Diversity filed a lawsuit against the DHS in a federal district court in San Diego last month over the department’s proposal to avoid a federally-mandated environmental impact analysis to rebuild the fences in the area and begin the prototype of the border wall ( Ctr. for Biological Diversity v. U.S. Dept. Homeland Security , S.D. Cal., No. 3:17-cv-1215, 7/7/17 ).

Segee said he expected the department to submit the waivers as its justification for dismissing the lawsuits.

Contractor Complaint

Homeland Security was expected to announce the winners of its bid to build the prototype of the border wall between the U.S. and Mexico in June, but its plans were thwarted when PennaGroup LLC, a Fort Worth, Texas-based construction company, protested the “rushed” bidding process with the Government Accountability Office.

“The process by which they eliminated very good small companies, such as ours, was the result of a rushed bidding process though that’s no fault of the Customs and Border Protection Agency. They are doing a fantastic job,” Michael Evangelista-Ysasaga, chief executive officer for PennaGroup, told Bloomberg BNA in an Aug. 1 interview. “It’s just that everyone is in such a rush to build this epic construction. We want to ensure the process is fair and mistakes are eliminated.” The GAO will announce its findings Oct. 7, “which would delay construction to late October or early November, which is beyond our original summer 2017 timeline,” Diaz said, adding “The CBP could resume contract consideration if the protest is resolved sooner.”

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

The Department of Homeland Security's notice of environmental waivers is available at http://src.bna.com/riP.

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