White House waivers override regulations guarding environment
WASHINGTON — Over the last week, Marianna Trevino Wright has watched work crews drive through her butterfly sanctuary in the Rio Grande Valley to a nearby site where brush is being cleared for a planned six-mile stretch of border wall.
Homeland Security has planned to build an 18-foottall steel and concrete barrier across the National Butterfly Center, cutting it in half. Those plans were blocked, at least for now, in the spending bill that Congress passed and President Donald Trump signed Friday, which specifically bars construction at the 100-acre site.
It wasn’t immediately clear if Trump’s declaration of a national emergency on the border would upend that ban.
Federal authorities have provided no environmental impact study for erecting a barrier in the middle of a wildlife refuge. Nor has the government analyzed how much damage the spotlights, heavy machinery and foot traffic would do to endangered species in the area.
Under Trump, the secretary of Homeland Security has repeatedly invoked a little-known waiver to cast aside federal environmental and public notice laws that could block or slow border barrier construction — more than under any other administration.
Citing national security, the Trump administration has issued six such waivers for replacement fencing and barrier projects in the last two years, bypassing the Endangered Species Act, the Clean Air Act, the National Environmental Policy Act and other regulations that the department would be forced to consider for any other public works project.
That compares to five such waivers issued during President George W. Bush’s eight years in office, and none under Presidents Obama and Clinton. Congress created the waiver authority in 1996.
“It is breathtaking just how easy it is for them to waive these laws,” said Laiken Jordahl, an environmental advocate with the Center for Biological Diversity. “As environmental litigators, that’s our entire toolkit, and we can’t use any of them here.”
At a time when federal courts have delayed or struck down many of the administration’s efforts to roll back environmental regulations, the waiver has become a reliable way to ensure the president’s long-promised border wall is not derailed by environmental lawsuits.
Waivers almost certainly will be used after Trump declared a national emergency from the White House Rose Garden on Friday, then signed a bill to keep the government open.
The bill includes $1.375 billion for about 55 miles of fencing in the Rio Grande Valley, as well as specific protections for the butterfly refuge and several other areas.
Mick Mulvaney, Trump’s acting chief of staff, told reporters Trump would use the national emergency declaration to tap $6.6 billion in other federal accounts to build his border wall, likely setting up a court battle over the proposed new construction.
On Thursday, House Democrats introduced several other measures that would remove the government’s ability to unilaterally waive environmental laws for border wall construction.
Kirstjen Nielsen, secretary of Homeland Security, most recently issued a waiver on Feb. 8 to speed construction of 14 miles of replacement fence in San Diego, bypassing 36 separate federal environmental and historic preservation laws.