The head of the Border Patrol union told a congressional panel that environmental regulations and laws protecting federally managed lands are hampering agents’ ability to do their jobs, while an environmental activist argued that the roads border enforcers want to cut through sensitive areas only open up new routes for smugglers.
At a House Natural Resources Oversight and Investigations Subcommittee hearing last week, Chairman Bruce Westerman (R-Ark.) noted that while Customs and Border Protection has nabbed more than 100,000 border crossers along with seizing over 200,000 pounds of marijuana, 113 pounds of heroin, and 196 pounds of fentanyl over the past few months, “God only knows what we’ve really missed coming through our borders.”
“While our agents spend time seeking and waiting for authorization from federal land managers to make sure environmental impacts are addressed, criminals trample through environmentally sensitive areas leaving tons of garbage and waste along their paths,” he said. “On federal border lands, it can take months or even years for Border Patrol to receive approval to maintain roads or install tactical infrastructure such as communications relays, video surveillance towers and radars.”
The National Environmental Policy Act (NEPA) review process, Westerman added, “can have a crippling effect on border security” due to regulatory delays.
“Cartels and illegal immigrants don’t wait for environmental assessments, they don’t participate in Section 7 ESA consultations, and they don’t follow Wilderness Act restrictions,” he said.
Ranking Member Donald McEachin (D-Va.) countered that the Homeland Security secretary “already has sole authority to waive all laws and legal requirements that potentially get in the way of building fences, walls and roads along the border.”
“That means any law including our bedrock environmental, public health and safety laws can be totally ignored when it comes to building a fence or, worse, the president’s preposterous wall,” McEachin said. “If this sounds like an overreach of power, that’s because it is. In fact, it has been described as having greater reach than any other waiver authority in statute. Some legal experts have even deemed it unconstitutional.”
The congressman said of the eight times DHS has used its waiver power, three have been in the past six months as “the people and wildlife that live along the border suffer the most” from “tossed aside” environmental laws.
A border security budget document delivered to Congress in mid-January outlined new proposed unilateral authorities to bypass regulations and quickly obtain land for the administration’s desired border wall project. In his January 2017 executive order on border security, President Trump directed the secretaries of Homeland Security, Interior and Agriculture to take whatever steps were needed to give Border Patrol the access they need.
The Securing America’s Future Act introduced by Republicans in the House last month to save Deferred Action for Childhood Arrivals beneficiaries from deportation would also give agents more leeway in waiving regulations seen as roadblocks.
National Border Patrol Council president Brandon Judd told the committee that myriad “laws, regulations and bureaucratic policies related to federally managed and protected lands prevent Border Patrol agents in the field from fully doing their job on a daily basis.”
“Ultimately, these laws undermine our ability to effectively and efficiently secure our borders and put the lives of our agents and the public at greater risk,” Judd said.
About 40 percent of the land along the southern border is managed, controlled, or protected by the federal government, including parks and monuments as well as conservation and recreation areas. “The restrictions that agents face on these lands on a daily basis are due to a laundry list of some three dozen laws that date back over a century,” said Judd.
“In the Coronado National Forest within the Tucson sector of Arizona, our inability to build proper access roads along and near the line including secondary roads diminishes agent mobility while patrolling, and ultimately prevents agents from being as effective as they could otherwise be,” the union leader told lawmakers. “Because there is no actual east-west border road beyond the fence, which only stretches a short distance into the forest, the United States in essence has ceded approximately a quarter-mile of U.S. territory to criminal enterprise including drug and human traffickers.”
Judd recommended that the committee “may want to consider an amendment to ensure that Border Patrol efforts to close off tunnels used by drug and human smugglers are not delayed or blocked by existing laws.” He noted that in 2014 the Border Patrol had to wait until a nesting bird’s eggs hatched before they could take care of a Southern California smuggling tunnel.
Scott Nicol, volunteer co-chairman for the Sierra Club Borderlands team, lives 12 miles north of the border wall in McAllen, Texas, which he charged “cuts off a world birding center established to attract ecotourism dollars to a community in one of the poorest counties in the United States from an adjacent U.S. Fish and Wildlife Refuge.”
DHS should not be able to waive regulations as they conduct enforcement activities on all federal lands within 100 miles of the Mexican and Canadian borders, he said, because “the laws that are swept aside are not merely red tape; they are critical protections that were put in place for a reason to protect people, their communities and the environment.”
“Other walls have been built without regard for laws that protect people from unnecessary flooding. We’ve seen devastating floods in communities like Nogales and in protected natural areas such as Organ Pipe Cactus National Monument,” Nicol testified. “When walls are built across our rivers, arroyos, and flash-flood zones, they catch debris, back up water as much as six feet deep, and cause massive damage.”
In addition to environmental damage, the Sierra Club rep argued that waiving laws to carve out Border Patrol roads has proven counterproductive as “carving a road through a formerly road-less locale can make that area more accessible to drive-throughs by smugglers.”
“This occurred in the San Bernardino National Wildlife Refuge, which stated in its 2008 annual report that newly installed tactical infrastructure ‘allowed vehicles loaded with marijuana to drive into the United States using the new system of all-weather roads constructed by DHS. Drive-through drug loads have subsequently increased in the San Bernardino Valley,'” Nicol read. “So the waiving of laws has proved to be environmentally destructive, and by short-circuiting the normal deliberative process has allowed for counterproductive activities to be undertaken. It has also hurt borderlands communities.”