Environmental Laws to Be Waived for Fence

National Guardsmen weld a section of wall being erected along the international border that separates San Luis, Mexico, and San Luis, Ariz., in this file photo.
National Guardsmen weld a section of wall being erected along the international border that separates San Luis, Mexico, and San Luis, Ariz., in this file photo. (Matt York - Associated Press)
By Juliet Eilperin
Washington Post Staff Writer
Wednesday, April 2, 2008

The Bush administration will waive more than 30 environmental and land-management laws in order to finish building 470 miles of border fence in the Southwest by the end of the year, officials said yesterday.

The move, permitted under an exemption granted by Congress, will be the most sweeping use of the administration's waiver authority since it started building the fence to curb illegal immigration. It will affect environmentally sensitive areas in California, Arizona, New Mexico and Texas.

In a statement, Secretary of Homeland Security Michael Chertoff said the agency has no choice but to bypass the standard environment reviews required of the federal government.

"Criminal activity at the border does not stop for endless debate or protracted litigation," Chertoff said. "Congress and the American public have been adamant that they want and expect border security. We're serious about delivering it, and these waivers will enable important security projects to keep moving forward. At the same time, we value the need for public input on any potential impact of our border infrastructure plans on the environment -- and we will continue to solicit it."

However, Rep. Bennie Thompson (D-Miss.), who chairs the House Homeland Security Committee, said the administration has exceeded what Congress intended when it granted the department added flexibility under the Real ID Act. "Today's waiver represents an extreme abuse of authority," he said in a statement. "Waiver authority should only be used as a last resort, not simply because the Department has failed to get the job done through the normal process. It was meant to be an exception, not the rule."

The use of the waiver authority means that the agency will not have to conduct detailed reviews of how the fence's components will affect wildlife, water quality and vegetation in the area where it is to be built. Some environmentalists have complained that the fence will disrupt the migrations of various species, including imperiled ones such as jaguars.

Two environmental advocacy organizations, Defenders of Wildlife and the Sierra Club, have filed a petition asking the Supreme Court to review the constitutionality of the waiver provision. Rodger Schlickeisen, Defenders of Wildlife's president, said yesterday's announcement bolsters his group's argument.

"Thanks to this action by the Bush administration, the border is in a sense more lawless now than when Americans first started moving West," Schlickeisen said in a statement. "Laws ensuring clean water and clean air for us and our children -- dismissed. Laws protecting wildlife, land, rivers, streams and places of cultural significance -- just a bother to the Bush administration. Laws giving American citizens a voice in the process -- gone. Clearly this is out of control."

James L. Connaughton, who chairs the White House Council on Environmental Quality, said his aides have been working with the Department of Homeland Security to assess the environmental impact of the fence construction even if it does not meet the strict requirements of the law.

In a telephone interview yesterday, Connaughton said the administration is trying "to comply to the extent possible while meeting the deadline" for the fence's construction.

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