Mexico: Bordering on Disaster

There is little doubt that fencing constructed along the United States’ border with Mexico divides communities. According to recent reports from the Department of Homeland Security, 326.5 miles of fencing now bisect historically transnational communities like San Diego and El Paso. The border fence buildup and militarization of the border region have negatively affected how residents are able to interact with one another, dividing families and communities. Fencing has also contributed to a tragic increase in migrant deaths as people desperate for a better life are pushed to cross in increasingly remote stretches of desert. Yet it is not only human communities that are affected by the United States’ current security strategy.

Since the terrorist attacks of September 11, 2001 the so-called effort to “secure” our southern border has been prioritized by members of Congress on both sides of the aisle. Rather than working to find a solution for our broken and out-dated immigration system, too many policy makers have instead focused on misguided measures to expedite the construction of border fencing and other physical barriers. A provision buried in one such law, the REAL ID Act, is currently taking a disturbing toll on the delicate environment of the border region.

Under the auspices of the REAL ID Act, the Secretary of Homeland Security is allowed to waive any and all laws that may interfere with the expeditious construction of the border fence. Since being signed into law in 2005, Secretary Michael Chertoff has invoked the REAL ID Act to waive a spectrum of laws crafted by Congress to protect the environment, public health, endangered animals, Native American graves, and religious freedom. In the three times he has invoked the REAL ID Act, Mr. Chertoff has managed to waive (among other laws): the Safe Water Drinking Act, Endangered Species Act, Costal Zone Management Act, National Historic Preservation Act, Migratory Bird Treaty Act, Clean Air Act and, perhaps most egregiously, the National Environmental Protection Act.

Each of the laws waived was created for the specific purpose of protecting our valuable natural resources, cultural heritage sites and the animals and plants already threatened by human influence. The delicacy of the pristine desert ecosystem is readily apparent by the number of wildlife refuges and national parks scattered across the border region. This landscape is home to around 39 species that are protected or proposed to be protected by the Endangered Species Act, according to the Border Patrol. These species, including the ocelot, jaguarundi, pygmy owl, and Sonoran pronghorn, are directly affected by not only the fence itself, but by the drastic changes DHS has made to the landscape in order to facilitate its construction.

In early May, the San Diego Union Tribune reported that DHS was set to begin constructing a fence through Smuggler’s Gulch, a deep canyon located along the border in California. The newspaper reports that the project will require filling in the canyon with 2 million cubic yards of dirt in order to construct an “earthen berm” across the canyon to support the 15-foot fence and additional access roads.

In addition to the devastating environmental impact that a project like this could have, the border fence has also proved to be an expensive boondoggle. The Union Tribune reports that the Smuggler’s Gulch project will cost taxpayers an estimated $48.6 million, with fencing along the rest of the border costing between $2-3 million per mile for construction alone. While this may not seem like much compared to big budget items like the Iraq war, keep in mind that Congress has set a goal of completing 670 miles of fencing by the end of 2008. According to these numbers, a conservative estimate would put the cost of fencing at just over $1.3 billion, notwithstanding the future costs of maintenance and repair in addition to the possible cost of rebuilding the critical habitat currently being destroyed.

Both the Department of Homeland Security and Congress justify the enormous financial and environmental costs of a fence as a necessary step toward securing our country from a future terrorist attack. Yet, as the Texas Observer reported late last February, certain locations along the border have been exempted from DHS plans for fence construction. In the small town of Granjeno, TX, for example, plans for an 18-foot high border wall would abruptly end at the property of Dallas billionaire Ray Hunt. Mr. Hunt, who recently donated $35 million to Southern Methodist University to help with the construction of George W. Bush’s presidential library, is a close friend of the President and his family. The immunity granted to Mr. Hunt was not extended to his neighbor across the street, David Garza. Mr. Garza, who was a migrant agricultural laborer for 50 years, was initially told DHS would need to raze his modest brick home in order to construct the fence.

Both of these incidents point directly to the unchecked power of the Department of Homeland Security under the auspices of the REAL ID Act. The power granted to DHS under this legislation is so extensive, in fact, that some organizations have questioned its constitutionality.

Over the course of the last several months, LAWG has been working with D.C.-based environmental and religious groups as part of a recently formed border coalition to raise awareness about these important issues. In mid-March of this year two of the organizations in the coalition, Defenders of Wildlife and the Sierra Club, filed a petition calling for the U.S. Supreme Court to hear a case on the constitutionality of the REAL ID waivers. This petition argued that the sweeping authority granted to the Department of Homeland Security (and thus the Bush administration) is a violation of the separation of powers guaranteed by the Constitution.

Unfortunately, the Supreme Court has declined to take this important case. A June 24th New York Times article points out that the courts decision strengthens “the Bush administration’s drive, at least for now, for sweeping executive powers in a post 9/11 world.” The Times article also quotes Representative Bennie Thompson, chair of the House Homeland Security Committee who, along with several other members of Congress, filed an amicus or “friend of the court” brief encouraging the Supreme Court to take the case. Mr. Thompson told the Times that he believes use of the waiver authority will only spare the Department of Homeland Security from addressing “the real issue: their lack of a comprehensive border security plan.” Despite a lack of interest from the Supreme Court, other members of the border coalition continue to pursue legal action in regional courts.

Although it is unclear whether the powers granted under the REAL ID Act will ever be revoked, LAWG continues to work with concerned partners to raise awareness about this critical issue. We remain committed to a more humane, sustainable and just approach to border security; one that takes into account the safety of migrants, the health of the environment and the unique needs of communities on the border.

—Ellen Draeger