Environmental waivers enter DHS bill amid growing opposition

E&E
September 16, 2011
by Annie Snider

Efforts to let the U.S. Border Patrol waive environmental laws on public lands along the border advanced this week in a Senate spending bill.

Sen. John McCain (R-Ariz.) on Wednesday introduced an amendment to the fiscal 2012 Homeland Security spending bill that would give Border Patrol agents free access to public lands within 300 miles of the border with Mexico. The committee approved a modified version, 13-4, that scaled the provision back to a 100-mile zone.

Randy Serraglio, a conservation advocate for the Center for Biological Diversity based in Tucson, Ariz., said McCain's amendment and the whole issue of a conflict between between border security and environmental protections is a red herring.

"There's a motivation for politicians to grandstand on the issue," he said. "Unfortunately, what underlies this issue in general is a lot of ignorance and hysteria that's driven by misinformation."

Serraglio said the proposed exemptions could have a devastating effect on wildlife. In his region of Arizona, he points to jaguar, ocelot and Sonoran pronghorn as some of the sensitive species that could be affected.

Although worded differently, McCain's amendment closely follows a bill introduced earlier this year by Rep. Rob Bishop (R-Utah) that applies to the northern, southern and maritime borders. So far, the bill has attracted 49 co-sponsors.

Bishop and other supporters say environmental protections prevent Border Patrol agents from doing their jobs along the 40 percent of border land that is under federal management. Specifically, they point to the 4.3 million acres of wilderness areas where motorized vehicles are generally prohibited (Land Letter, July 14; Greenwire, April 18).

But in two studies completed last fall, the Government Accountability Office found that even when they caused delays, environmental protections were not a significant hindrance to security operations.

And at recent hearings, Border Patrol, Interior Department and Agriculture Department officials have denied that there is a problem.

"Does the Border Patrol face challenges with respect to operating around protected lands when they are in our enforcement zones? Yes," Ronald Vitiello, deputy chief of U.S. Border Patrol, told lawmakers in April. "But we have been able to establish practical solutions to allow for mission success."

Many of those solutions came from a 2006 memorandum of understanding between the Customs and Border Patrol and land managers that gives Border Patrol agents greater access. Most notably, it allows the Border Patrol free access in exigent circumstances, like when in hot pursuit.

But Republicans say the Obama administration is putting a nice face on a dangerous problem.

"You can't come before the American people and say everything is rosy and fine," Rep. Jason Chaffetz (R-Utah), a co-sponsor of Bishop's bill, told administration officials in April. "The American people are dying. They are getting killed because we have holes in our security ... and we're putting border patrols out there and saying, 'Oh, go on horseback, go on foot,' because we'd much rather protect this little cactus."

Local concerns

Republicans on the House Natural Resources Committee have brought southern ranchers to testify about the dangers of the border region during hearings on Bishop's bill. But Hugo Tureck, a rancher and former chairman of the Central Montana Resource Advisory Council, said that is not an issue in his region.

Moreover, Tureck, who has been closely following recent debate over the Interior Department's ability to designate national monuments on federal land, said he saw hypocrisy in the fact that some of the same lawmakers who co-sponsored Bishop's bill this week decried the Antiquities Act as a "land grab" (Greenwire, Sept. 13).

Rep. Denny Rehberg (R-Mont.) "is talking about how the government has come in the middle of the night and taken away landowners' rights, but then he goes and proposes a bill that gives an agency extreme powers with no oversight," said Tureck, who grazes cattle on public land in Coffee Creek, Mont.

Tureck plans to pen an opinion piece in his local paper to alert Montanans to the issue.

"Homeland Security could stop timber sales, snowmobiles, hunting, they could kick cattle off the land and build a fence wherever they want -- that's all given to them," Tureck said. "Montanans just cherish their public lands. That's why we're here."

'A fundamentally scary piece of legislation'

For John Leshy, a professor at the University of California's Hastings College of Law and a former Clinton administration solicitor for Interior, the problem with the border security bills is that they prevent DHS from being challenged in court.

"This is a fundamentally scary piece of legislation," Leshy said of Bishop's bill. "DHS basically gets a pass on judicial review. You can only challenge them on constitutional grounds, you can't challenge it as being inconsistent with any statute."

Leshy pointed to an exemption that Congress granted DHS in 1996 that was expanded. First, DHS had the right to waive the Endangered Species Act and the National Environmental Policy Act for the construction of 14 miles of fenceline along the Mexican border. Then, in 2005, the right expanded to 70 miles of fence and all environmental laws. A year later, Congress extended the waiver to 400 miles of fence construction.

"If you've got the power, you're eventually going to exercise it," Leshy said. "That's just a fact of human nature."