Although shaken by the Biden administration’s recent move to waive dozens of environmental laws to build more border wall in Texas, environmentalists say it’s unlikely the administration would do the same in Arizona, at least in the immediate future.
Earlier this month U.S. Department of Homeland Security officials said the agency is required to construct 20 more miles of border wall in Starr County, Texas, because Congress appropriated the money for this purpose in 2019.
But there is not currently a congressional appropriation for border-wall construction in Arizona on the books, so the Biden administration couldn’t make the same argument here as it’s making in Texas, said Laiken Jordahl, Southwest conservation advocate with the Tucson-based Center for Biological Diversity.
Money for Arizona border-wall construction under the Trump administration came mostly from re-appropriated Department of Defense funds — which a federal appeals court eventually ruled an unlawful use of military funds — rather than a congressional appropriation, Jordahl said.
But that doesn’t mean Congress won’t fund more border wall here in the future, he said.
“Everything is so up in the air right now,” Jordahl said. “We never imagined that we would see this administration use environmental waivers to rush wall construction. I don’t think any of us on the border can feel secure that we won’t see new wall construction” in Arizona.
The Center for Biological Diversity is among more than 100 organizations across the country — including environmental and wildlife advocates, social-justice groups and religious nonprofits — that have signed a petition urging the Biden administration to rescind all existing waivers issued for border-wall work, and to pause all border-wall activity in Starr County, Texas in order to first comply with the applicable environmental regulations.
The petition will be sent to the Biden administration on Monday, Jordahl said.
A draft copy of the letter shared with the Arizona Daily Star finds irony in DHS officials choosing to ignore dozens of federal laws in order to comply with one appropriations law.
“We must reiterate that there is no legal requirement to waive any laws for border barrier construction,” the letter says. Homeland Security Secretary Alejandro Mayorkas’ “decision to cast aside these critical protections to rush the construction of a wall that you admit ‘does not work’ … suggests either serious confusion or troubling hypocrisy.”
“Stab in the back”
Extensive environmental and cultural damage from wall construction already occurred in Arizona under the Trump administration, fast-tracked by environmental-law waivers, according to a two-year audit by the Government Accountability Office.
Border barriers went up in critical habitats and protected areas, including Organ Pipe National Monument, Cabeza Prieta National Wildlife Refuge and on Tohono O’odham Nation tribal lands. The construction did significant and sometimes irreparable damage to sensitive ecosystems ecosystems, wildlife migration corridors and cultural resources on indigenous lands, the GAO report found.
“We know that these border walls are not going to stop the people from coming, but they’re definitely going to cause a huge impact to the environment, which is really fragile in those areas, and also to the border communities,” said Erick Meza, Tucson-based borderlands coordinator for the Sierra Club.
The Biden administration’s use of the waiver in Texas sets aside 26 environmental and cultural preservation laws that would otherwise guide construction, including the Clean Air Act, the Endangered Species Act, the Native American Graves Protection and Repatriation Act and the National Environmental Policy Act.
Some advocates feel betrayed by the Biden administration’s use of the waiver authority, permitted under the 2005 REAL ID Act, to construct more wall, despite Joe Biden’s pledge as a presidential candidate to halt wall construction.
“It’s truly a breathtaking stab in the back to border communities,” Jordahl said.
Past presidential administrations have used the waiver authority granted under the REAL ID Act since border wall construction ramped up in the mid-2000s, Meza said.
“I’m glad there is the media attention to the waivers, but they are not new,” he said.
At many of those rushed border-wall sites in Arizona and California, the lack of environmental assessment and proper drainage work has caused erosion along the base of the wall, destabilizing the entire structure and necessitating further spending on repairs, he said.
“When you don’t do the proper environmental planning process, then you’re going to start dealing with an environmental disaster,” Meza said. “It’s just an infinite money pit. You have to keep throwing in money for maintenance, not to mention the impact to the environment from bringing in all this equipment again and again.”
When Congress funded additional border wall projects in the Rio Grande Valley of Texas in 2019, the Border Patrol’s Rio Grande Valley sector was the busiest of the nine southern border sectors, Jordahl said.
But since July, the Tucson sector has taken that title, U.S. Customs and Border Protection data show. In August, Border Patrol in the Tucson sector encountered nearly 49,000 migrants who entered Arizona between ports of entry.
“I do fear that, because we’ve seen increasing numbers in the Tucson sector, there could be a renewed push in Congress to allocate billions more to blast apart the remaining mountainous corridors (in Arizona) where there are no border walls and build walls across them,” Jordahl said.
“We are compelled”
Biden officials have emphasized the wall construction in Texas does not mark any change in policy.
“From day one, this administration has made clear that a border wall is not the answer,” Mayorkas said earlier this month. “That remains our position and our position has never wavered. We have repeatedly asked Congress to rescind this money, but it has not done so and we are compelled to follow the law.”
Some environmentalists reject Biden’s claim that the administration is required by law to use the funds to construct more wall. Jordahl argues those appropriated funds could be used to remediate the damage done by border wall construction.
But even if the administration must construct more wall, there’s no requirement that they waive 26 environmental laws to do it, Jordahl said.
“This is an entirely discretionary choice,” he said.
The administration has not provided justification for its use of the waiver, said Myles Traphagen, borderlands program coordinator for Salt Lake City-based Wildlands Network.
“They did not need to use the waiver authority,” said Traphagen, who is based in Tucson. “That is not required to build border walls. They have not addressed that, and they also have not rescinded the waivers (still in place) in other parts of the country,” including Arizona.
DHS officials did not respond to the Star’s questions, submitted on Tuesday, seeking an explanation for why the administration must use the waiver authority and what would be the legal consequences of failing to use appropriated funds for their intended purpose.
Area of “high illegal entry”
On Oct. 5, DHS posted an announcement on the U.S. Federal Register describing the planned construction project in Starr County, Texas, stating the waiver of 26 environmental protection laws was necessary “in order to ensure the expeditious construction of the barriers and roads in the project areas.”
The post described Starr County as located in an area of “high illegal entry” and cited a statistic that advocates say is misleading: In the first 10 months of fiscal year 2023, the Border Patrol encountered more than 245,000 undocumented migrants between ports of entry in the Rio Grande Valley sector, which includes Starr County, the post said.
But that sector-wide statistic, repeated by national media outlets, does not represent the reality in the small rural county where more wall is planned, Jordahl said.
The Rio Grande Valley sector includes 21 counties, some heavily utilized by border crossers, but Starr County is not a popular crossing point, he said.
Jordahl visited Starr County soon after Congress’ appropriations bill passed, and described a serene landscape with little immigration activity. Videos from his trip show peaceful riverbanks. Jordahl said he saw families picnicking on both the U.S. and Mexican sides of the river, and he did not see any border-crossers during his visit.
It’s another example of how the political rhetoric about the border does not reflect the on-the-ground reality, Jordahl said, including the impossibility of building an uninterrupted border wall, as periodic openings are needed to accommodate floodwaters that would otherwise topple or damage the structure. A lawsuit settlement earlier this year requires DHS to add openings for wildlife whose migration routes are blocked by the wall.
Biden says walls don’t work
The wall has also proven to be ineffective in reducing migration volume, Traphagen said.
Despite nearly 500 miles of border wall added or replaced since Trump took office, at a cost of at least $15 billion, migrant encounters have only increased, Traphagen said.
In fiscal year 2017, CBP encountered about 527,000 migrants on the southern border. That number has risen each year since — except for fiscal year 2020, during the pandemic — reaching 2.7 million encounters border-wide in fiscal year 2022, and 2.8 million for the first 11 months of fiscal year 2023.
Currently, “there’s nothing rational about border policy,” Traphagen said.
Pressed by reporters earlier this month, Biden said he does not believe the border wall works.
Democratic lawmakers have also criticized the Biden administration’s use of the REAL ID Act waivers.
“Walls don’t work,” said long-time U.S. Rep. Raúl Grijalva of Tucson and ranking member of the House Natural Resources Committee, in an Oct. 6 statement. “They are climbed over, cut through, and even blown over by the wind. They are a cheaply-conceived — yet exorbitantly expensive — political stunt that does nothing to address a deeply complex humanitarian issue. What walls do accomplish is drumming up anti-migrant hate, dividing border communities in half, and endangering the lives of people who are fleeing violence and oppression in search of a better life.”
Migration through the southern border is no longer primarily single men seeking seasonal work, Traphagen said. Increasingly, families are fleeing violence, oppression, natural disasters and drought with no plans to return home, both here and globally, he said.
“As a civilized nation and civilized global community, we need to learn how to deal with migration,” he said. “We’ve got to get our act together to learn how to manage this, because walls are not the answer to it.”
Contact reporter Emily Bregel at ebregel@tucson.com. On X, formerly Twitter: @EmilyBregel
