Critics turn to law to block border wall


Environmentalists and opposition lawmakers in the United States have launched a raft of legal challenges to U.S. President Donald Trump’s plans for a “big, beautiful wall” along the U.S.-Mexico border, which they warn will wreak further havoc on fragile ecosystems. Opponents have filed federal lawsuits against the Trump administration in California and Arizona, claiming violations of the National Environmental Policy Act and the Endangered Species Act. There are also several state and local legislative measures underway against the wall in California. And a Mexico-based petition before Unesco seeks to halt construction of the wall at the northern edge of an internationally recognized Mexican biosphere reserve and through traditional tribal territory that straddles the border.

The legal challenges, a majority of them being pursued in the United States, have taken on new urgency since the Trump administration announced plans to waive 37 different environmental laws and regulations in building the next phase of the wall. The Aug. 1 announcement by the U.S. Department of Homeland Security (DHS) invokes a section of the 2005 Real ID Act. That law authorized the federal government to turn a blind eye to environmental laws in constructing the first major expansion of border wall under then-President George W. Bush. Congress at the time called for more than 550 miles (900 kms) of concrete and steel barriers to be erected along the most popular illegal crossing points on the 2,000-mile (3,200-km) U.S-Mexico border.

The Bush administration invoked the waiver at least 5 times to ease wall construction in the 2000s, says Brian Segee, lead attorney for the Tucson-based Center for Biological Diversity, which has filed two suits against the federal government. Segee argues that by authorizing the DHS to ignore environmental laws in 2005, “Congress unconstitutionally delegated its legislative authority to an unelected authority.”

The recent order, signed by then Homeland Security Secretary and current presidential Chief of Staff John Kelly in late July, seeks to pave the way for construction of 15 miles (24 kms) of wall prototypes along the San Diego border, among other projects. The San Diego border area “remains an area of high illegal entry for which there is an immediate need to improve current infrastructure and construct additional border barriers and roads,” DHS said in the Aug. 1 statement.

Conservationists argue that further construction along the shared border would spell environmental disaster for endangered animals and their ecosystems, while providing little or no benefit in terms of domestic security.
“The impacts are going to be horrific,” says Kim Delfino, California program director for Defenders of Wildlife, a Washington D.C.-based advocacy group.

Conservationists have identified dozens of endangered or threatened species that are currently affected by the partitioning of their border-straddling habitat and the invasive effects of other border security infrastructure such as road construction and surveillance lights, says Delfino. Among priority species are the jaguar (Panthera onca), the peninsular desert bighorn sheep (Ovis Canadensis nelsoni), the Mexican wolf (Canis lupus baileyi), the ocelot (Leopardus pardalis) and the northern pygmy owl (Glaucidium californicum).

Defenders of Wildlife has joined with the San Francisco-based Sierra Club in backing a bill in the California Senate that would prohibit the state government from awarding funding to contractors involved in border-barrier construction. State Sen. Ricardo Lara, a Democrat from Bell Gardens, introduced the legislation, known as SB-30, in December. Delfino says that if the bill makes it through the full Senate, it should come up for a vote in the State Assembly in or near Feb. 2018.

Similar measures are also pending at the local government level. Officials in Los Angeles are drafting a law that would require companies seeking to do business with the city to disclose contracts in which they have participated in designing, building or providing supplies for “any proposed border wall between Mexico and the United States.” Meanwhile, city officials in Berkeley and Oakland have voted to avoid awarding contracts to participating businesses, according to the Los Angeles Times.

Opponents of those measures say they constitute legal overreach by local and state governments and unfairly discriminate on partisan grounds. However, conservationists argue that economic sanctions are the only way to call attention to border-wall environmental impacts that have gone largely ignored in Washington.

The legislation “is intended to send a message for those who would benefit financially for the construction of the border wall,” says Delfino. “California is using its pocketbook to defend core values.”

The state has become a major flashpoint in the battle over the wall. On July 27, the U.S. House of Representatives approved $1.6 billion in funding for 60 additional miles (97 kms) of border barriers, including as many as 20 prototypes along the San Diego stretch of the international boundary. Although the funding bill is still awaiting approval in the U.S. Senate, bidding is already underway on the proposed prototypes. Construction is due to start in September, the U.S. Customs and Border Protection (CBP) announced in June.

The prototypes represent a relatively small portion of the existing barriers, which in total extend more than 670 miles (1,070 km). However, they could have an outsized impact on fragile ecosystems, conservationists say, since they are likely to cut into some of the last remaining wilderness zones in the California coastal area. The proposed extension would move further east into the Otay Mesa and mountain range. That would require new road building and highly invasive construction activity in the habitat of animal species such as the peninsular desert bighorn, which is listed as endangered by the International Union for Conservation of Nature (IUCN).

“Maybe a person cannot climb up a sheer mountaintop to move back and forth, but the peninsular bighorn sheep are moving back and forth between Mexico and the U.S.,” Delfino says. “If you build that wall, you will completely sever their movement. That’s a very big deal for that animal and would make it much more difficult for it to recover.”

The proposed border expansion would also cut through border areas with official conservation status, including several in the Rio Grande Valley in Texas, one of the country’s most biologically diverse regions. Among the sanctuaries likely to be affected by the wall construction is the highly prized Santa Ana National Wildlife Refuge near Alamo, Texas. The 2,000-acre (810-hectare) reserve is a major bird-watching center—attracting more than 165,000 visitors a year, The New York Times reported in August.

The Rio Grande Valley is home to more than 500 species of birds, more than half the total in North America, and nearly half the 700 butterfly species in the country, says Marianna Wright, executive director of the privately owned National Butterfly Center, in Mission, Texas. In July, Wright discovered survey stakes marking out a 150-foot (45-meter) swathe of land across the 100-acre (40-hectare) reserve, which is about a mile (1.6 km) north of the Rio Grande River. She says the workers said they had been hired by the CBP to prepare for construction of a section of wall that would effectively cut off 70% of the sanctuary from public use.

Wright is now preparing legal action against the government to halt construction of the wall through the butterfly reserve. “We don’t think due process is going to slow down the government in this cycle of construction,” she says. Wright adds that some 90 private landowners are currently suing the government for expropriating their land for wall construction.

Still, Wright says many local U.S. residents don’t seem to appreciate the extent of the environmental threat posed by the wall, or its lack of effectiveness in deterring illegal immigration. “We’ve gotten pushback from people saying, ‘Well, bugs versus Americans, bugs lose,’” she says. “They don’t care about the wildlife when it’s a national security issue. But this isn’t a national security issue.”

The sanctuary forms part of a “string of pearls” of conservation zones in the Rio Grande Valley comprising roughly 4,000 acres (1,600 hectares), which together account for the remaining 5% of native habitat, Wright says. However, if the government goes through with plans to construct another 28 miles (45 km) of barriers in the valley region, she says, that percentage could dwindle to 1%.

Conservationists acknowledge that the impact of the wall on border ecosystems—both now and in the future—is hard to gauge, given the lack of comprehensive environmental impact studies. The last time the federal government conducted such a study was in 2001, prior to the creation of the Department of Homeland Security and construction of the main stretch of existing border wall, says Segee, the environmental lawyer. His organization filed an intent-to-sue notice in California federal court in June, accusing DHS of violating federal environmental law in authorizing more wall construction on the San Diego border without conducting the required impact studies.

Segee is now preparing to amend that suit following the administration’s decision to invoke the 2005 waiver, which he argues is unconstitutional and outdated. “It didn’t talk about giving DHS the authority to replace the wall,” he says. “It gave DHS the authority to build the wall in certain areas in the first place, not a roving, perpetual, unchecked authority to build at will.”

Segee’s organization has also joined U.S. Rep. Raul Grijalva, an Arizona Democrat, in suing the DHS in Arizona federal district court. The suit, filed in April, seeks to force the agency to complete an updated environmental-impact assessment of all its infrastructure projects along the southern border.

Officials in the CBP, part of the Department of Homeland Security, did not respond to repeated requests for comment on the various lawsuits and on the legislation proposed in California. When asked to comment on the suit in April, the DHS told The Guardian it does not typically comment on pending lawsuits or legislation.

Meanwhile, in Mexico, green advocates are primarily relying on information campaigns to galvanize international opinion against the wall. One exception is the petition filed before Unesco in May by several conservation groups and Mexican members of the Tohono O’odham Nation, an indigenous group living on both sides of the border. The groups petitioned for the El Pinacate and Gran Desierto de Altar Biosphere Reserve, in Mexico’s northern Sonora state, to be included on the list of World Heritage sites “in danger”.

The reserve, which was declared a Unesco World Heritage Site in 2013, spans 7,140 square kilometers (2,760 square miles) between the northern tip of the Sea of Cortez and the Sonora-Arizona border. It is home to 560 species of vascular plants, over 230 types of birds, 42 reptiles, and 37 mammals. Priority species include the endangered pronghorn (Antilocapra americana), the golden eagle (Aquila chrysaetos), and the gila monster (Heloderma suspectum), José García Lewis, the governor general of the Tohono O’odham in Sonora, wrote in a statement accompanying the petition. Construction of a wall across the reserve would constitute an “act of ecocide for species living in the El Pinacate and its perimeter, and commit cultural genocide against the O’odham in Mexico,” the statement said.

There are about 2,000 members of the tribe living in Sonora, many inside the reserve, and another 30,000 in Arizona, making them the only indigenous group spanning the border. Until very recently, the O’odham were semi-nomadic. “Like the deer or the animals, when the grazing went bad, we moved to another place,” García said in a telephone interview with EcoAméricas.

While the group shares a common cultural heritage, U.S. immigration laws make it extremely difficult for members from both countries to participate in ceremonies at sacred sites, he said. That includes the centuries-old salt pilgrimage to the Sea of Cortez, which could become virtually impossible under current plans to build a wall on the northern edge of the Pinacate bioreserve.

Despite such threats to Mexico’s environmental and cultural patrimony, the country’s National Commission for Protected Natural Areas (Conanp) declined to join in the Unesco complaint, says Alejandro Olivera, Mexico representative for the Center for Biological Diversity. Conanp officials did not respond to repeated interview requests from EcoAméricas on the border wall.

Olivera speculates that the Mexican government was reluctant to confront the Trump administration over environmental issues, given the highly charged political climate. However, he says Washington’s reasons for ignoring the environmental impacts were less understandable. “They’re shooting themselves in the foot,” he says, “because in the end, the ecosystems and species under threat are shared by both countries.”

- Marion Lloyd

Kim Delfino
Defenders of Wildlife
Sacramento, CA, United States
Tel: (916) 201-8277
Carlos Díaz
Chief, Southwest Border Branch
U.S. Customs and Border Protection
Washington, D.C., United States
Tel: (202) 325-3018
Ricardo Lara
California state Senator
Sacramento, CA, United States
Tel: (916) 651-4033
José Martín García Lewis
Tohono O’odham Tribe
Sonoyta, Sonora, Mexico
Tel: +(520) 324-4883
Sayanna Molina
Office of Rep. Raul Grijalva
Washington, D.C., United States
Tel: (202) 225-2435
Alejandro Olivera
Mexico Representative
Center for Biological Diversity
La Paz, Mexico
Tel: +(521 61) 2104-0604
Emilio Peralta García
National Commission for Protected Natural Areas (Conanp)
Mexico City, Mexico
Tel: +(52 55) 5449-7000
Brian Segee
Center for Biological Diversity
Ojai, CA, United States
Tel: (805) 750-8852
Marianna Wright
Executive Director
National Butterfly Center
Mission, TX, United States
Tel: (956) 583-5400