As we head toward the conclusion of the first year of the Trump presidency, do you remember how predictable his campaign rallies were? Inevitably, then-Candidate Trump would mention our southern neighbor, the nation of Mexico, and the audience would explode with chants of “Build that Wall.” With President Donald Trump in the White House, his administration has taken measures to ensure that the construction of the wall is not sidetracked by environmental laws and regulations. This article explores the legal authority that the Trump administration is relying upon to avoid the environmental protections that would normally apply to any other major federal action significantly affecting the environment.
The answer lies within the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which was amended in 2005 to authorize the secretary of the Department of Homeland Security (DHS) to waive all legal requirements, in order to expedite the construction of “barriers and roads” related to border security. The Trump administration issued Executive Order 13767 in January 2017 to improve the physical security of the Southern Border, by building a wall. In order to expedite the command of Executive Order 13767, former DHS Secretary John Kelly followed in August 2017 by asserting his authority under section 102(c) of IIRIRA and issued the waiver of environmental laws and regulations that might apply to the construction of the wall in the San Diego Sector, which spans from the Pacific Ocean to one mile east of border monument 251, approximately 15 miles.
The scope of the waiver asserted in the August 2017 determination is truly breathtaking. It includes NEPA, the Clean Water Act, the Endangered Species Act, and CERCLA, to name but a few. The waiver prevents any agency from considering the environmental impacts of the border wall on the local ecosystem, the biome and the biosphere as a whole. Further, the determination also waives key statutes addressing historic preservation and religious freedoms. Finally, for good measure, in a move that no doubt has Thomas Jefferson’s head spinning in circles, the determination also purported to waive any applicable state environmental laws and regulations, too.
Once it became clear that the wall was a serious aspect of Trump’s foreign policy, several organizations considered its environmental impact. In May 2017, the Center for Biological Diversity (CBD) issued a report on the wall’s impact on wildlife. The report found that the wall would have far-reaching “disastrous” impacts on wildlife. The CBD report concluded that a minimum of 93 endangered and threatened species will be “imperiled” by the construction of the border wall. Further, the CBD report noted that the portion of the wall subject to the waiver alone impacts numerous threatened or endangered species directly, indirectly, and cumulatively. The species impacted include large animals such as the Jaguar, Ocelot, Mexican Grey Wolf, and the Sonoran Pronghorn.
This is not the first time the DHS has waived environmental statutes to construct border protections. Since 2001, the waiver provision has been enacted five times, to exclude action from environmental statutes. Border projects in San Diego, the San Pedro Riparian National Conservation Area, Arizona, Texas and New Mexico were constructed subject to IIRIRA waivers that targeted environmental statutes. The statutes waived often include the foundational environmental statutes: NEPA, ESA, CWA, CERCLA and NFMA. This waiver issued by the Trump administration, however, as compared to the five previous waivers, applies to a far greater range of statutes.
The CBD has challenged the August 2017 waiver, and asserts that it is an ultra vires act. Further, the CBD argues that 102(c) does not apply to border wall replacement or border wall prototypes; it only applies to the initial construction. As well, the CBD argues that “expeditious construction” language in the statute requires barriers to be built as soon as possible after the law’s enactment, which has already elapsed under the 2008 deadline. Finally, the CBD argues that the rationale provided in the notice of determination is insufficient.
The CBD also challenges the waiver on constitutional grounds, arguing that the waiver violates the Take Care clause, because the executive order is failing to ensure that statutes, such as NEPA and the ESA, are “faithfully executed.” Second, the CBD argues that section 102(c) unconstitutionally delegates Congress’ power to the DHS secretary in violation of the separation of powers doctrine. Third, the CBD argues that the waiver violates the presentment clause, because the waiver authority infringes upon the procedural requirements of Article I, section seven. The CBD also challenges the waiver under NEPA, the ESA and FOIA.
Section 102(c)(2)(b), requires claims to be brought within 60 days after the determination is filed. Since the CBD is the only organization to file a claim within the 60-day requirement, the outcome of this case will determine the fate of the waiver. However, further challenges to the constitutionality of the waiver provision are possible. Given the expansive impact that the border wall may have on wildlife, biodiversity and the ecology of the West, failure to analyze the environmental issues may lead to irreversible harm to species and their habitat. The Trump administration’s waiver to expedite the building of the border wall may be both incongruent with the Constitution and section 102(c) of IIRIRA. Further, since section 102(c) allows for the waiver of all legal requirements, including those of the states, state versus federal litigation may ensue. The outcome of the CBD case, and any other challenge to the waiver, will help determine the impact the border wall will have on the biosphere.