Posted on March 5, 2018 by Robert Uram
In January 2017, I warned that it was not too soon to begin thinking about reining in the Trump administration’s ability to use the waiver authority that the Congress adopted in 2005 to carry out its program to build new border facilities. The 2005 waiver authority allows the Secretary of the Department of Homeland Security to unilaterally waive the federal government’s obligation to comply with any law that he feels will get in the way of building border walls. The grant of the waiver authority was a mistake. It is an affront to the rule of law, treats the residents of border areas as second-class citizens, and undermines the environmental laws that have been so successful in making America a great place to live.
My warning has not been heeded. The waiver authority issue has been lost in the raucous debate over immigration and border walls. None of the bills that were considered in the Senate during the week of February 12-16 proposed to change or reduce the waiver authority. Republicans in the House are actually seeking to expand the waiver authority. Democrats seem incapable of making the waiver issue a part of the conversation. This is inexcusable.
Dozens of laws have been waived since 2005. These include waivers of the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, the Endangered Species Act, and laws that protect national parks and wildlife refuges. The Trump administration continues to assert the right to exercise the 2005 waiver authority including waivers for walls near San Diego and for walls in New Mexico near the Texas Border. Additional waivers are planned for the Rio Grande Valley in Texas, most likely including a wall through Santa Ana Wildlife Refuge. Established in 1943, the Refuge provides important habitat for more than 400 species of birds and would be devastated by a wall through its boundaries.
I have practiced environmental law for more than 40 years. I know first hand that the environmental laws are not perfect, but there is no question that they are effective. Our air is cleaner and the water quality in our rivers and streams is vastly better. We are no longer creating toxic wastes sites and old dumps have been remediated. We have protected wildlife and ensured the continued existence of many species that would have been forever lost. We have saved billions of dollars on health problems that have not occurred because we have cleaner air, water, and land. We have done all of this and have continued to prosper economically. You only have to read the reports of air and water pollution in countries like China and India to appreciate how much our environmental laws have benefitted us. Application of the full suite of environmental laws to any new border facilities that may be built is needed to ensure that their environmental effects will be properly identified and addressed.
New border walls and conversion of existing vehicle barriers to border walls will cause local residents grave economic, environmental, and social harm. Border walls have divided farms and ranches, caused flooding in Texas and Arizona, and destroyed sensitive habitat for endangered species and other wildlife. More than 90 endangered and threatened species including jaguars, ocelots, snowy plovers, pygmy owls, and the rare Mexican gray wolf use habitats on both sides of the 2,000-mile border. Without the protection of the Endangered Species Act, these species will be much more likely to become extinct.
Lawsuits now pending before Federal Judge Curiel in San Diego have been the only tangible effort to stopping the use of the 2005 waiver authority. The lawsuits challenge three waivers on a number of grounds, including arguments that the waiver authority has expired, that its use does not apply to the work covered by the waiver, and that the waiver is unconstitutional. Because the Congress has severely restricted judicial review of waivers, these kinds of lawsuits are difficult to win. On February 27, 2018, Judge Curiel rejected the challenge to three waivers.
Judge Curiel’s decision will likely be appealed. But it is more likely than not that litigation will be unable to block waivers. The Congress will have to act to rein in waivers. A responsible Congress would address this issue decisively and head on. If the waiver remains on the books, it will not only lead to harm to border communities and the environment, it will also be a precedent to excuse compliance with other laws for other reasons. Protecting our legal system should be of bipartisan concern. The Congress is likely to return to the border issue in the weeks ahead. When it does, the Congress should set aside its past mistakes and revoke use of the waiver for any future repair or construction of border facilities of any kind and should decline to repeat its mistake with new, additional executive branch waiver authority.