National Security

Environmentalists File New Challenges to Trump’s Border Wall Prototypes

Center for Biological Diversity says DHS waiver is unconstitutional, illegal

U.S.-Mexico border on August 1, 2017 / Getty Images

An environmental group challenging the construction of President Donald Trump’s border wall and prototype projects in San Diego expanded its lawsuit challenging the Homeland Security Department’s authority to waive environmental laws in order to move forward with the project.

The new filing in U.S. District Court argues that then-Department of Homeland Security Secretary John Kelly did not have the constitutional or other legal authority to waive dozens of environmental laws to "rush construction of the border wall and prototypes."

"The waiver highlights the Trump administration’s dangerous disregard for our environment and the rule of law," Brian Segee, a senior attorney with the Center for Biological Diversity, which filed the lawsuit, said in a statement. "Trump is willing to throw environmental protections out the window and fulfill his divisive and destructive campaign promise."

"What’s to stop him from using this lawless approach to wreck wildlife refuges and beautiful public lands all along the border?" he added.

A spokesman for the U.S. Customs and Border Protection did not immediately respond to a request for comment about the expanded lawsuit.

In early August, DHS announced that it would waive environmental and other regulations to try to "ensure expeditious construction of barriers and roads" near the U.S.-Mexico border south of San Diego, where the agency is planning to build its prototypes for the border wall.

DHS justified the move by arguing location remains one of the busiest for illegal crossings in the country, an area of "high illegal entry for which there is an immediate need to improve current infrastructure and construct additional barriers and roads."

In fiscal year 2016 alone, DHS said in a release, the CBP "apprehended more than 31,000 illegal aliens and seized 9,167 pounds of marijuana and 1,317 pounds of cocaine in the San Diego sector."

The waiver focuses on a specific 15-mile stretch of land east of the Pacific Ocean and south of San Diego where DHS plans to embark on "infrastructure projects," including the building of four to eight 30-foot high prototypes of the 2,000-mile border wall Trump promised during the presidential campaign.

Last week, the CBP announced the selection of four companies that will build prototypes of the reinforced concrete version of the wall. An announcement of several other companies selected to build prototypes using other materials that could provide "see-through" capability is expected soon. Construction on the prototypes is set to begin as early as later this month.

The Center for Biological Diversity says the waiver allows the Trump administration to bypass required environmental impact analyses of the building, as well as public input.

"The coastal area of southern San Diego is surrounded by communities and contains critical habitat for several endangered species," the center said in a release.

In addition to the prototype building, the center said the waiver allows a separate border-wall replacement project stretching 14-miles south of San Diego, a region containing wetlands, streams and other habitat critical for numerous endangered species including the Quino Checkerspot butterly and coastal California gnatcatcher bird.

study by the center identified more than 90 endangered or threatened species who would be jeopardized by proposed wall construction along the entire U.S.-Mexico border.

The center specifically took issue with the legal basis DHS relied on in issuing the waiver.

The department used the 2005 Real ID Act, which amended the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to give the Homeland Security secretary the power to waive federal, state and local laws, to expedite construction of the double and triple-layer border fencing in San Diego.

The waiver authority was later interpreted to apply to border-wall construction under the 2006 Secure Fence Act, which requires DHS to build 700 miles of border barriers.

However, the center argues DHS met this mandate several years ago using the Real ID law five times to meet more than 35 laws involving 625 miles of border wall and barrier construction.

"The Real ID authority no longer applies," Segee said. "Homeland Security doesn’t have perpetual power to toss conservation laws for any border project it wants until the end of time. Trump’s border wall must comply with the laws that protect the environment and communities in borderlands."

The center additionally argued that the waiver violates constitutional requirements, including the separation of powers doctrine and the Endangered Species Act.