A new settlement between conservation groups and federal agencies reinforces the governmentβs obligation to address environmental damage done by the border wall and bars further use of military funds for wall construction.
But environmentalists say the measures will not fix much of the harm.
βMuch of this is irreparable with the wall standing,β said Brian Segee, a lawyer for the Tucson-based Center for Biological Diversity. βThereβs actions that can be taken, and hopefully some of those that we identified in the settlement agreement, that will be of some benefit, but there really is no way to fully mitigate or undo the damage that was done by wall construction with stolen DOD monies.β
The settlement stems from a 2019 lawsuit challenging the Trump administrationβs emergency declaration that funneled billions in Department of Defense funding to border-wall construction. It was reached between the plaintiffs β the Center for Biological Diversity, Defenders of Wildlife and the Animal Legal Defense Fund β and defendants in the departments of defense, homeland security, interior and the Army Corps of Engineers.
Along with committing the federal government to environmental remediation, the March 24 settlement specifically prohibits further use of the military funds for border wall construction that the Trump administration allocated for that purpose.
It also instructs Customs and Border Protection to pay for a study that will assess the impacts of barrier infrastructure construction on the connectivity of wildlife populations between the United States and Mexico.
The settlement only addresses border barriers built with redirected Department of Defense funding and ignores projects built with money appropriated by Congress. But most of the construction in Arizona was done with DOD money, redirected from funding for military training facilities, schools, vehicles, aircraft and ships.
Nothing is certain
The only funding amount mentioned in the settlement is for the environmental study, which shall not exceed $800,000.
The amount allotted for the environmental study is disappointing, said Myles Traphagen, borderlands program coordinator for conservancy organization Wildlands Network.
βAnybody whoβs ever run a research project knows that youβre just getting started at that point,β he said. βThat was an entirely inadequate figure to conduct studies along 455 miles of border wallβ $800,000 along the entire border for a project that had a cost of about $15 billion total is just a drop in the bucket.β
Typically, environmental impact statements on such projects cost between 1% and 3% of the total project budget, Traphagen said.
And like all the remediation measures, it will be funded βsubject to the availability of funding for such purposes,β court documents say. The settlement also says the government βshall have sole and exclusive authority to determine when, how, or where, if at all, to undertake the activities.β
The funding is contingent and not yet identified, Segee said.
At least one version of Congressβ omnibus appropriations bill that passed in March to fund the rest of fiscal year 2022 had $100 million for mitigation activities related to border barrier construction on federal lands.
But in the end the bill passed with nothing along the lines of wall remediation funding βbecause Republicans drew a hard line on that and Democrats caved,β Segee said.
Segee said President Bidenβs proposed budget, released March 28, does include substantial funds to direct toward mitigation, but it still has to be appropriated by Congress and nothing is certain.
The Department of Homeland Security and the Defense Department did not respond to questions about how much funding would be available.
Permanent environmental damage
Much of the barrier in Arizona was built on national forest and wildlife refuges.
βThese are some of the most key areas for endangered species habitat and cross-border movement along the entire U.S.-Mexico border, and those are now blocked,β Segee said.
The Wildlands Network set up scores of motion-activated wildlife cameras in the San Bernardino Valley in southeastern Cochise County about two years ago. They saw wildlife, including larger species such as mountain lions, whitetail deer, mule deer and Gouldβs turkeys, moving through some of the openings in the wall, in particular in spots where floodgates were opened prior to the monsoons last year.
The organization has preliminary data showing that after the floodgates were closed, large animals, such as mountain lions, which naturally move north and south across the border, were no longer crossing, Traphagen says.
The governmentβs proposal also included gap closure and gate installation, which is something environmental groups say will further impede the movement of wildlife.
βTheir proposal for small wildlife passages is entirely insufficient,β Traphagen said. βThe 8-by-11-inch wildlife passages are not going to do anything to restore conductivity for wildlife. Nothing larger than a cottontail rabbit is probably going to use that. It will not allow deer, desert bighorn sheep, jaguar, javelina, mountain lions, any of that to pass through the current barrier.β
Settlementβs impact debated
The Department of Homeland Security announced in December that it would address safety and environmental issues left by unfinished border wall projects across parts of the border with Mexico.
And in January, CBP announced a proposal to clean up and repair damage in Pima, Cochise and Santa Cruz counties, including environmentally sensitive areas in Organ Pipe National Monument, Buenos Aires and Cabeza Prieta wildlife refuges, San Pedro National Riparian Area and Coronado National Memorial.
The remediation has yet to start, but the government has begun clearing construction materials away from sites, including areas in Buenos Aires National Wildlife Refuge, where piles of gravel and dirt remain.
The settlement included much of the same measures that were outlined in the January proposal, including revegetation of disturbed areas, installation of small wildlife passages in the fence or wall, erosion control, installation of cattle fencing and cattle guards, completion of access roads and restoration, drainage completion or repair and stormwater pollution prevention.
βThere was nothing that went above and beyond the current plan that CBP has put in place and has put out for public comment,β Traphagen said. βIt was identical to it, so other than getting $800,000 for a study I donβt see that the agreement really was that consequential.β
But Segee doesnβt think the government would have made those commitments in the first place in the absence of litigation.
βWeβre just formalizing what was catalyzed by the litigation in the first place. Itβs naive to think that the Biden administration would have taken all these actions in the absence of a multitude of lawsuits brought by a diversity of stakeholders,β he said, referencing other lawsuits challenging the Defense Department spending that reached similar settlements.
Nonetheless, he agrees that there is a lot that is unsatisfying about the outcome, primarily that the lawsuits couldnβt stop environmental regulations being waived to build the wall in the first place. The 2005 REAL ID Act, contains a provision that allows the Secretary of Homeland Security to waive laws that interfere with construction of physical barriers at the borders, a law that is still in place under the current administration and would take an act of Congress to change.
βA lot of this can only be solved by Congress, whether thatβs the repeal of the REAL ID waivers or appropriating the money that the settlement is contingent on, where Congress failed us this fiscal year,β Segee said. βSo much of it is in the hands of Congress.β
CBP is hosting a webinar on April 4 at 6 p.m. to provide an update on how public feedback will be incorporated into border barrier remediation in the Tucson Sector. To register, send an email to TucsonComments@cbp.dhs.gov with your name and the subject line “Tucson Remediation Plan Webinar.” Webinar log-in information will be posted on Monday at tucne.ws/1k5r.
