Fighting the Border Fence

The reaction was swift and angry. After Homeland Security Secretary Michael Chertoff announced Tuesday that he would speed up construction of the wall along the U.S.-Mexican border by sidestepping three dozen federal environmental laws, House Homeland Security Committee chair Bennie Thompson denounced the move as "an extreme abuse of authority." Defenders of Wildlife president Rodger Schlickeisen lamented that "laws protecting wildlife, land, rivers, streams … (were) just a bother to the Bush administration." The Sierra Club's Carl Pope broadly suggested that rushing the fence to keep out illegal aliens might spell environmental disaster, even "the destruction of the borderlands region."

Public outrage was the easy part. Fighting back effectively will be more difficult. In the wake of Chertoff's announcement, which he hopes will lead to the erection of 370 miles of border fence before the end of George W. Bush's final year in office, environmental groups and their congressional allies are scrambling to fight the Homeland Security plan to speed the project along. They are hoping the Supreme Court will take up a case, filed last year, in which environmental groups challenged the constitutionality of the section of the 2005 immigration law that Chertoff used this week to waive compliance with "all legal requirements" that might slow border security improvements. At the same time, activists are hoping to persuade Congress to curb Chertoff—through political pressure, or by repealing the section of the law that established his authority to do so in the first place. "We expect Chertoff's decision will galvanize opposition to the wall and to the waiver," says Oliver Bernstein, a Sierra Club spokesman.

In announcing the waiver Chertoff said that Homeland Security would not compromise "its commitment to responsible environmental stewardship" while speeding up construction designed to slow the flow of illegal immigrants across the U.S.-Mexican border. But environmental leaders opposed to the wall don't believe him. They say that what's at stake are thousands of square miles of wildlife habitat from Texas to California. A border fence would cut off small American populations of threatened or endangered species like the jaguar, the ocelot and the jaguarundi, or weasel cat, which live mostly in Mexico but have tiny ranges in this country, says Brian Segee, staff attorney for the Defenders of Wildlife. The separation would cut off breeding between the two countries' populations and might drive some species to extinction in the United States. Even birds could be affected. In wetland areas, activists say, the building of border barriers would harm birds by silting up wetland oases or shifting the flow of seasonal rivers away from water-loving cottonwood and willow trees that provide crucial habitat areas to dozens of bird species.

Advocates of the fence praised Chertoff's move. Illegal immigration degrades the environment by trampling vegetation and littering border areas with "tons of trash," says Ira Mehlman, spokesman for the Federation for American Immigration Reform (FAIR). "Obviously we are concerned about endangered species," Mehlman adds. "The tradeoff here is that we have compelling interest both from a national security point of view and also to stop massive immigration to get that fence completed." CNN anchor and anti-illegal immigration crusader Lou Dobbs praised Chertoff on air for "doing the right thing" and helpfully declared that his program's "official position" was that "the Sierra Club can stick it."

The environmental groups' legal strategy is to challenge the constitutionality of the section of the 2005 Real ID law that let Chertoff sidestep the federal environmental and land management laws, which include the Clean Water Act, the National Park Service Organic Act and the Antiquities Act. In March lawyers for the Defenders of Wildlife and the Sierra Club submitted a petition for the Supreme Court to hear the case of a very limited waiver Chertoff signed last year to speed construction on a few miles of fence and road that cross the San Pedro Riparian National Conservation Area, south of Tucson, Ariz. The Real ID law deals mainly with improving the security of state driver's licenses to prevent counterfeiting. But one section grants amended federal legislation to hasten fence construction. The groups maintain in their suit that the waiver provision of Real ID violates the Constitution's separation-of-powers guarantees by effectively granting Homeland Security the power to circumvent environmental protections without sufficient judicial review.

The government rejects that view and points out that lower courts upheld the constitutionality of the broad waiver rules in two earlier cases. A federal district court judge in the San Pedro case rejected the theory last December, and the Supreme Court is weighing whether or not to hear the case. Segee, the Defenders of Wildlife attorney, says the legal team will file a notice with the high court about this week's waiver. "I think this week's decision by the secretary increases the chances of the court taking the case," says Segee, who adds that he hopes others will submit friend of the court briefs supporting his group's position.

Other opponents are hoping to drum up opposition in Congress. The Sierra Club and the League of United Latin American Citizens (LULAC), an opponent of the border fence, will jointly send a letter to House and Senate members Friday denouncing Chertoff's move. "We think [Congress] can … make sure the secretary makes a good-faith effort to abide by the laws," says Brent A. Wilkes, LULAC's national executive director. "They are the ones who gave him the authority, and they can take it away whenever they want." Other groups plan to fan public anger as a way of convincing legislators to take notice. "There's a groundswell already happening," says Mike Daulton, director of conservation policy at the National Audubon Society. "We are hoping that this is such an extreme decision that there will be a public outcry against an agency that thinks it's above the law."

The decision has also angered some local groups opposed to the wall. In Texas, Steve Ahlenius, president and CEO of the McAllen Chamber of Commerce, complained that Chertoff's moves will allow 22 miles of wall-and-berm construction that "is going to destroy habitat and lose it forever." Jim Peugh, a local Audubon volunteer in San Diego, complained, "If they have to design a fence, you'd think they'd be committed to designing it right."

Some on Capitol Hill want to repeal the law that enabled Chertoff's broad decision. Arizona Rep. Raúl Grijalva hopes to gain more congressional support for a bill he introduced last year that would, among other provisions, cut language that grants the homeland secretary the broad power. The Borderlands Conservation and Security Act would also force consultation with local land managers before construction could begin. In an interview Grijalva, chair of the Subcommittee on National Parks, Forests and Public Lands of the House Resources Committee, says he will expand the focus of his first hearing on the bill, later this month in Texas, to include Chertoff's decision.

Still, opponents aren't bragging about their chances. Environmental groups failed in legal bids to stop two previous waivers that Chertoff granted, in Texas and Arizona. Environmentalists and opponents of the wall seem keenly aware that the politics of immigration and border security, especially after 9/11, trump environmental protection. Fewer than 25 members have stepped in to cosponsor Grijalva's bill since last summer. And the congressman knows that an election year may not be the best time to rally opposition to Chertoff—particularly in districts where illegal immigration is unpopular. "Honestly, I don't know if my colleagues have the political guts to challenge [the administration] on this issue," he says, criticizing fellow Democrats as well as Republicans. The question may hang fire until next year, when a new homeland security secretary takes over. By then many miles of the fence may be built. And it looks as though the next president will be one of three senators who voted to approve the border fence.