Will Congress Restore the Rule of Law or Build More Border Walls?

by Scott Nicol

Published by The Rio Grande Guardian, May 24, 2009


WESLACO, May 24 - The walls that are tearing through border communities and wildlife refuges have nothing to do with national security, immigration policy, or drug control.
The construction of border walls merely allows for political posturing during election cycles. Politicians and pundits decry our nation’s “broken borders,” and blame undocumented immigrants for all of our nation’s ills, from unemployment to failing schools to municipal budget shortfalls to crime.

Scapegoats are convenient, especially when they cannot vote, and scapegoating distracts voters from politicians’ inability to solve any of these problems. And so, two weeks before the 2006 mid-term election, the Secure Fence Act was signed into law. Two an a half years later the walls that it mandated are nearing completion, and we as a nation must decide what happens next.
One path forward was proposed by Representative Raul Grijalva, whose southern Arizona district is now home to mile upon mile of border wall. Last month he introduced the Border Security and Responsibility Act (HR 2076). This legislation seeks to prevent future border security measures from repeating the worst abuses that have accompanied border wall construction.

While the Secure Fence Act established walls as the primary strategy for controlling the border, the Border Security and Responsibility Act would instead, “give first priority to the use of remote cameras, sensors, removal of non-native vegetation, incorporation of natural barriers, additional manpower, unmanned aerial vehicles, or other low impact border enforcement techniques.” Border walls, which have been shown to be largely ineffective, go to the back of the line.

HR 2076 would also require the Department of Homeland Security to develop a comprehensive cost-benefit analysis, comparing the full range of possible strategies for protecting the border. Along with looking at whether border walls actually stop anyone, DHS would have to factor in land acquisition costs, construction costs, maintenance costs over 25 years, impacts on wildlife, impacts on hydrology, and the costs of mitigating adverse impacts to federal, state, local, and private lands and waters. The costs and benefits of border walls would then be compared to similar analyses of adding more Border Patrol agents, so-called “virtual” fences, natural barriers, removing non-native vegetation, and increasing cooperation with Mexican and Canadian authorities.

Rather than shutting out border residents and other stakeholders, Rep. Grijalva’s bill would require the Secretary of Homeland Security to consult with other federal agencies, tribal governments, local officials, and private property owners to minimize the negative impacts of border security measures. Real consultation that allows for meaningful input from those who live and work along the border would be a tremendous change for the better.

Most importantly, it would strike the provision of the Real ID Act that gives the Secretary of Homeland Security the power to waive any law that he or she sees fit in order to build border walls. No longer would one unelected Administration appointee have the power to sweep aside laws passed by Congress and signed by presidents. The rule of law would be restored along our nation’s southern border.

And this restoration is critical. When former Homeland Security Secretary Chertoff waived 36 federal laws last year, he was not simply cutting red tape. He knew that in building border walls he would be violating those laws. Those laws were enacted to prevent the kind of damage that we see everywhere border walls have been built.

In California’s Otay Mountain Wilderness Area, mountainsides above the Tijuana River are currently being dynamited to build the border wall. When DHS proposed building walls in these rugged mountains the Environmental Protection Agency raised concerns that the dumping of tons of rubble, and the erosion that would follow, would clog the river and violate the Clean Water Act. Normally that would be a moot point, because it is illegal to drive a motorized vehicle in a Wilderness Area, much less plant dynamite. But with the Wilderness Act and the Clean Water Act waived, blasting is occurring today, and will continue through the summer.

Texas border communities rely on the Rio Grande for irrigation and drinking water. But Secretary Chertoff waived not only the Safe Drinking Water Act and the Clean Water Act, but also “all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of” those, and 34 other, laws. So where the wall has been built, in El Paso and Eagle Pass and Hidalgo and Brownsville and other border communities that draw water from the Rio Grande, all laws “related to the subject of” water are no longer in effect. This absurd situation has prompted the El Paso County Water Improvement District No. 1 and the Hudspeth County Conservation and Reclamation District No. 1 to take part in a lawsuit challenging constitutionality of the Real ID Act’s waiver authority.

The border wall has been tremendously destructive, both to American lands, American communities and the American tradition of rule of law. But with most of the Secure Fence Act’s 670 miles of border wall close to completion, some might ask why the provisions of the Border Security and Responsibility Act are needed.

The answer came on the same day that Representative Grijalva introduced HR 2076, when Rep. Duncan D. Hunter introduced the Border Sovereignty and Protection Act. Apparently, Hunter Junior inherited the bad politics of his father along with his name and Congressional seat. His father bragged in campaign ads that he had built the border wall, and that it was a stunning success. Ignoring the question of why more walls are needed if the first walls had already done the job, Hunter Junior’s bill requires, “two layers of reinforced fencing along not fewer than 350 miles of the southwest border” in addition to all that has already been built. It also provides a blank check to pay for construction.

Grijalva’s bill requiring consultation, a cost-benefit analysis, and the restoration of the rule of law currently has 20 cosponsors. Hunter’s bill, requiring another 350 miles of double-layered border wall and providing unlimited funds to pay for them, currently has 26 cosponsors.
When the first sections of border wall were built in southern California in the mid 1990s, the Congressional Research Service found that they had “no discernible impact” on the number of undocumented immigrants who entered the United States each year. Rather than realize that the wall was a failure, border wall proponents, most notably Duncan’s dad, decided that the wall was not long enough. Now that another 600-plus miles of border wall have been built, and the Border Patrol routinely refers to them as “speed bumps,” the cry goes up for more walls. In the perverse logic of those who have tied their political careers to the border wall, if the wall is a failure, it is simply because it is too short.

If this logic is allowed to prevail, mile upon mile of new border wall will be built with no concern for the communities or ecosystems that lay in their path. That is why passage of Representative Grijalva’s Border Security and Responsibility Act is so critical. It restores a degree of sanity to border policy, forces the federal government to respect the legal rights of border residents, and gives us a seat at the table when decisions are made regarding our home.

Scott Nicol is a member of the No Border Wall coalition. A college professor, he lives in Weslaco, Texas.

EPA Faults DHS on Secure Fence Act Planning

Prior to the April 1 waivers, Environmental Protection Agency staff published their comments on Environmental Assessments produced by e2m, a DHS contractor. On a range of issues, EPA faulted DHS planning for Secure Fence Act construction.

Responding to the Marfa Sector EA, for example, EPA argued that "In some instances, it provides no information on existing conditions in the project area…In others, it draws conclusions that are unexplained…Impacts are acknowledged, but not identified…Conclusions are stated without…analysis."

EPA recommended a full Environmental Impact Statement, or a revised EA.

Among specific EPA objections to the Marfa Environmental Assessment:

1. "…limited" consideration of alternatives suggests avoidance of NEPA rules, and that the Marfa EA may have been written "to justify an earlier decision."

2. "…relative terms like minor, major, perceptible, short-term, and long-term…are not defined…to determine whether the potential impacts are significant…"

3. The effects of barriers on "…animal movements, access to water resources, or maintenance of genetic diversity" are not considered.

4. "Cumulative" impacts…from California to Texas…are not considered."

5. "There is no information indicating the type of fence that will be used…"

6. Detailed criteria are not provided to "explain the placement of the sections."

7. NEPA requires consideration of "No Action," but "current operational activities" are not described.

8. The Marfa EA argues that additional field agents in place of barriers would not meet USBP "screening criteria," but these criteria are not defined.

9. "There is no information describing the effect on flooding…into Mexico or other areas that may or may not currently be subject to flooding."

10. The Marfa EA predicts but does not describe "adverse disproportionate impacts on minority or low-income populations."

EPA comments on the Marfa Sector EA included 41 recommendations, including formation of a "Community Advisory Board" for local residents "to monitor progress and identify potential community concerns…"

DHS subsequently waived NEPA regulations for Secure Fence Act construction.

Nat Stone

Administrative Procedure Act

Wary of New Deal-era government expansion, and after costly brushes with fascism under Nazi Germany and Imperial Japan, in 1946 Congress passed the Administrative Procedure Act to protect United States citizens from abuses by federal agencies.

As President Roosevelt had observed during the decade-long process of negotiating the APA, to entrust federal agencies with legislative, executive, and judicial powers was also to risk corrupting these powers, and “to develop a fourth branch of government for which there is no sanction in the Constitution.”

The Administrative Procedure Act authorizes and standardizes the procedures of 55 federal agencies responsible for implementing and enforcing federal laws. A manual for governance, APA requires transparency in agency rulemaking, opportunity for citizen participation, and protection of individual privacy.

Further buttressing the foundation of American civil rights, these among many provisions of the Administrative Procedure Act require that:

• Agencies shall “give interested persons an opportunity to participate in the rule making…”
• Agencies shall “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized.”
• Agencies shall “establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records…”
• Whenever any agency fails to comply…in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency…”
• A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel…”

Under authority of Section 102 of the 2005 REAL ID Act, The Administrative Procedure Act is now waived by the Department of Homeland Security for border wall construction.

Nat Stone

National Environmental Policy Act

Proposed by Washington Senator Henry Jackson, the National Environmental Policy Act resulted from growing ecological concern through the 1950s and 1960s.

Smog had caused car accidents in Los Angeles. DDT had entered soil and water, endangering entire species including the American Bald Eagle. Industrial waste burning in the Cayuhoga River had blazed Cleveland’s waterfront.

Without the guidance of environmental standards, federal projects often had conflicted, as in Florida, where the Department of Interior had pursued Everglades preservation near where the Department of Transportation lobbied for an airport. Furthermore, planning for agency projects required little analysis of predictable adverse consequences, and provided few opportunities for public participation.

This became evident when Interstate Highway construction sparked dissent as it threatened neighborhoods coast to coast. Calling for a moratorium in Hartford, historian Lewis Mumford lamented that research for the Federal-Aid Highway Act of 1956, “jammed through Congress so blithely and lightly,” had not involved “study of the real problems.”

In Boston, where neighborhoods had been razed with little notice for a 12 lane Southwest Expressway, citizens protested what they dubbed the “Chinese Wall,” and stalled its construction.

Reflecting Aldo Leopold’s view of the world as “one humming community of cooperations and competitions,” and President Kennedy’s notice of “Americans seizing, using, squandering and belatedly protecting their natural heritage,” the National Environmental Policy Act was signed by President Nixon in 1970 to “prevent or eliminate damage to the environment and biosphere.”

NEPA codified environmental policies for federal agencies, and required Environmental Impact Statements — including consideration of alternatives and “No Action” — for projects likely to cause ecological or cultural harm. Though unpopular with many industrialists, and weak-kneed to many conservationists, NEPA was revolutionary for recognizing that natural resource protection yields both cultural and economic benefits.

Comprehensive compliance with the National Environmental Policy Act for border barrier construction would have required a San Diego-to-Brownsville Environmental Impact Statement, along with site-specific assessments for particular actions in discrete ecosystems along the border.

Despite adverse impacts anticipated by DHS, and protests from border residents that echo Mr. Mumford’s lament, all National Environmental Policy Act requirements are now waived.

Nat Stone