No Easy Path for Bill to Exempt Border Patrol From Environmental Laws

Congressional Quarterly
October 11, 2011
By Tim Starks

A Republican push to exempt the Homeland Security Department from observing environmental laws along the border has gained traction in several congressional committees in recent weeks. But with critics speaking out against the measure and Congress focused on other priorities, further movement is uncertain.

The proposal, a 2010 GOP campaign pledge, faces resistance from the Obama administration, environmental groups and some border state Democrats. Further complicating its prospects are the broader immigration debate, Congress’ preoccupation with the budget deficit and the need for supporters to find a suitable legislative vehicle.

In their 2010 “Pledge to America,” House Republicans vowed to “ensure that the Border Patrol has the tools and authorities to establish operational control at the border and prohibit the secretaries of the Interior and Agriculture from interfering with Border Patrol enforcement activities on federal lands.”

Last week, the House Natural Resources Committee approved, on a party-line 26-17 vote, a bill that would give U.S. Customs and Border Protection authority to patrol, build roads and fences and construct temporary offices in national parks, forests and other public lands within 100 miles of U.S. borders with Canada and Mexico.

The measure, sponsored by Utah Republican Rob Bishop, would block the Interior and Agriculture departments from holding the border agency to more than 30 environmental statutes, some decades old, including the National Environmental Policy Act (PL 91-190), the Clean Water Act (PL 100-4) and the Solid Waste Disposal Act (PL 94-580).

Also last week, House Homeland Security Chairman Peter T. King, R-N.Y., a cosponsor of Bishop’s bill, introduced a reauthorizing bill for the Homeland Security Department (HR 3116) that includes a similar provision. The language mirrors an amendment offered by Arizona Republican John McCain that made its way into the Senate Homeland Security and Governmental Affairs Committee-approved Homeland Security authorization bill (S 1546).

Next Steps Unclear

Versions of the language were adopted by both the House and Senate in previous years as amendments to other bills, but the provision did not become law.

Bishop has yet to discuss the next step for his legislation with GOP leadership. But he is not worried about support from GOP leaders in the long term.

“The only problem we have is not the bill itself but the atmosphere around here,” said Bishop, chairman of the Natural Resources subcommittee on National Parks, Forests, and Public Lands. “Everything has been about dealing with the budget and appropriations. It has sucked the air out of every other issue. This is not a budget issue. That’s the only negative as far as time, but there’s commitment to this concept and idea.”

But the bill has run into opposition from environmental advocates, administration officials and some Democrats.

“This legislation represents a serious threat to a long list of bedrock environmental protections that for decades have safeguarded the health and well-being of Americans,” Jane Danowitz, Pew Environment Group’s director of U.S. public lands, said after Bishop’s bill won committee approval. “Improving national security and border protection is critical to our country, but waiving core conservation measures will not accomplish this goal.”

Kim Thorsen, the Interior Department’s deputy assistant secretary for law enforcement, security and emergency management, told Bishop’s subcommittee in July that the bill could do serious harm. “As drafted, this bill could impact approximately 54 units of the national park system, 228 national wildlife refuges, 122 units of the National Wilderness Preservation System managed by Interior, and 87 units of [the Bureau of Land Management’s] National Landscape Conservation System, resulting in unintended damage to sensitive natural and cultural resources, including endangered species and wilderness,” Thorsen said in written testimony. Thorsen added that the bill also could also affect water channels, levees, canals and bridges along a 1,000-mile stretch of the Colorado River that are required in order to fulfil U.S. water-sharing obligations with U.S. and Mexican users.

Border State Concerns

Some border state Democrats also have cast the bill in harsh terms. At the July hearing, subcommittee member Raúl M. Grijalva of Arizona said the bill “may succeed in decreasing immigration, but only because the water, air and environments of border communities will be so degraded, no one will want to come here.”

Bishop said he has altered his bill to reflect several concerns voiced by critics. But he noted that Mexican drug cartels are causing environmental damage along the border, citing suspicions among U.S. law enforcement that cartel-tied drug manufacturers are behind numerous wildfires.

Bishop said environmental protection cannot be the only priority. “On the border there is something more important than wilderness designation, and that’s patrolling the border and trying to protect people’s lives,” he said.

If Bishop’s bill does not advance, it is unclear how the GOP will make good on its pledge. Although similar language was included in both the House and Senate homeland security authorization bills, no such authorization bill has ever been enacted.