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The Trump Administration Waives Environmental Regulations (Again) for Border Wall Construction

The Department of Homeland Security is bypassing dozens of laws to speed up the construction of several miles of fencing in Texas.
An aerial view of President Donald Trump's border wall prototypes as seen from Tijuana, Mexico, on January 7th, 2019.

An aerial view of President Donald Trump's border wall prototypes as seen from Tijuana, Mexico, on January 7th, 2019.

The Department of Homeland Security is once again waiving key environmental protections and regulations "in their entirety" for nearly four miles of border wall construction scheduled to begin in November in Starr County, Texas.

News of the waiver came just one day after Customs and Border Protection and the Army Corps of Engineers awarded a $33 million contract to New Mexico-based Southwest Valley Constructors to carry out the project, which will include the construction of 18- to 30-foot-tall steel bollard fencing.

The waiver filed Monday states that "it is necessary to waive certain laws, regulations, and other legal requirements in order to ensure the expeditious construction of barriers and roads in the vicinity of the international land border in Starr County, Texas."

Among the 28 laws and environmental protections being sidestepped are the Endangered Species Act, the Clean Water Act, the Migratory Bird Treaty Act, and the National Environmental Policy Act.

This isn't the first time the DHS has declared itself exempt from environmental regulation. The Monitor in McAllen, Texas, reports that this is the 13th waiver the Trump administration has used to speed up border wall construction.

The department's authority to selectively bypass federal law stems from existing legislation such as the Real ID Act of 2005 and the Illegal Immigration Reform and Immigrant Responsibility Act of 2006, both of which contain language that grants the secretary of Homeland Security the power to waive any laws that interfere with the construction of barriers at the border.

The seemingly unrestricted power the DHS has in using these waivers to circumvent existing laws has made it difficult for opponents of border construction to find a legal foothold to block projects. As Jimmy Tobias wrote for Pacific Standard earlier this year:

These Real ID waivers have posed nearly insurmountable obstacles to immigrants rights groups, conservationists, civil libertarians, tribal nations, and others who seek to block the DHS from constructing barriers along the border.

"The walls as they stand today could not have been built without the use of such waivers," says Brian Segee, a senior attorney at the Center for Biological Diversity, an environmental group that has sued the Trump administration over its use of Real ID Act waivers. "I think a lot of the harm that has been inflicted by the border walls couldn't have happened otherwise."

Lawsuits from environmental groups to challenge the DHS practice of granting itself waivers have so far been unsuccessful. In February, a federal appeals court ruled that the Trump administration was within its right to waive environmental laws for a border construction project in southern California.

The border wall construction that this latest waiver green-lights will pass through portions of the Lower Rio Grande Valley National Wildlife Refuge, considered one of the most biologically diverse regions in North America.