The Department of Homeland Security Versus Environmental Justice

In the recently released Rio Grande Valley Tactical Infrastructure Environmental Impact Statement (EIS), the Department of Homeland Security attempts to brush aside issues of environmental justice in its plans to build border walls in south Texas. Although the Rio Grande Valley’s population is over 85% minority, and its border communities are some of the poorest in the nation, the EIS states that the impacts of the proposed border wall “would not fall disproportionately on minority or low-income populations.”

The Environmental Impact Statement is not only of interest to environmentalists. By law, environmental impact statements are required to cover issues of the human environment as well. Unfortunately, the Rio Grande Valley Border Fence EIS (copy available at http://www.borderfencenepa.com/rio-grande-valley-sector-eis/) does not adequately address these issues, and the most vulnerable residents of the Rio Grande Valley are being left unprotected from the damage a border wall is certain to cause.


The Border Wall in Southern California - courtesy J.J. Castro

Environmental justice is defined by the Environmental Protection Agency to mean that “no group of people, including racial, ethnic, or socioeconomic groups, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal environmental programs and policies” (EPA Fact Sheet). This sentiment was codified by President Clinton in executive order 12898 (Federal Action to Address Environmental Justice [EJ] in Minority Populations and Low-Income Populations), which provides that “each Federal agency must identify and address, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the U.S.”

In 2004, the Operation Rio Grande Environmental Impact Statement found that environmental justice was indeed an issue for projects in the Rio Grande Valley:

"Approximately 85% of the population in the area can be classified as minority (well above the state average of 39.4%). The median annual household incomes for the counties in the project area (Starr, $10,182; Hidalgo, $16,703; and Cameron, $17,336) are well below the state average of $27,016 and, in the case of Starr County, below the $15,000 established by the EPA for defining the economic status risk group. Therefore, many of the households in the project area doubtless have a high potential EJ index." (Operation Rio Grande EIS, Section 3.12.6)

However, in the 2007 Draft Rio Grande Valley Border Fence EIS, it is claimed that the protections of environmental justice do not apply. This questionable judgment is achieved by sleight of hand and is revealed in the following quote:

"Of the 21 fence sections, 11 are within census bureau tracts in which a portion of the tracts have a higher proportion of minority or low-income residents. Of the proposed 70 miles of tactical infrastructure, substantially less than half is within census bureau tracts that have a higher proportion of minority or low-income residents—therefore the overall impacts of the proposed tactical infrastructure would not fall disproportionately on minority or low-income populations." (Section 5. 5.11)

Rather than stating that the majority of people who will be negatively impacted by the border wall are poor and/or minorities, which is what environmental justice is all about, the EIS counts miles. Miles that fall within US Fish and Wildlife refuge tracts, where no people live, are counted along with the miles that pass through poor communities, allowing them to dilute, at least on paper, the wall’s impact on minority and low-income populations. Mileage is irrelevant to the question of environmental justice. The question is whether a disproportionately high number of the people who will be negatively affected are members of minority and/or low income populations.

The EIS does mention in passing that people will lose their homes, stating that, “Construction of the project would require some acquisition of private property, including the potential dislocation of some property owners and tenants.” “Dislocation” is of course a euphemism for eviction. In communities like Granjeno, where families have passed property down through the generations since the Spanish land grants of the 1760’s, up to a third of the homes will be impacted.

Residents evicted to build the Berlin Wall

Hard-working people who may not have the money to hire lawyers are going to have their homes bulldozed or family farms sliced in two for a wall that won’t stop anyone. DHS is prepared to perpetrate a terrible injustice against the very U.S. citizens that they are supposed to protect.

The grassroots coalition No Border Wall is concerned that the Department of Homeland Security is papering over the real human hardships that a border wall tearing through Rio Grande Valley communities will cause and that minorities and the poor will bear the brunt of the damage of a misguided and politically-motivated project.

The Two Faces of Senator Cornyn

With the introduction of S. 2348, the “Emergency Border Security Funding Act of 2007”, Texas Senator John Cornyn has once again shown that he values the worst politics ahead of the best interests of Texas and our nation. It calls for at least 700 linear miles of border wall and 300 miles of vehicle barriers along the US – Mexico border, and provides $3 billion dollars to get construction started. This despite the fact that the walls built so far have had not impacted the number of people coming across the border.

In October, speaking to the Border Trade Alliance, Cornyn said, “I have long said that I do not support a fence, or as some said, a wall, between the United States and Mexico. That’s irrational and just doesn’t make sense, because we know that people can come over fences or walls; they can go under them; they can go through them, given sufficient opportunity.”

News from the border bears out Senator Cornyn’s statement. 24 tunnels have been found under just the 14 miles of wall that lie south of San Diego. The number of crossers apprehended there increased by 7% in fiscal 2007, despite the fact that San Diego has the most heavily fortified wall on our southern border. The border wall suffers daily breaches, and crews have been assigned to the never-ending task of fixing holes sliced through the steel walls and filling tunnels. The Congressional Research Service estimates that the annual cost of repairs will reach $8.3 million per mile.

In the Rio Grande Valley, where there currently is no wall, apprehensions of crossers dropped by 34% in fiscal 2007. Rather than analyze their success in Texas and their failure in California, Department of Homeland Security plans to begin construction of 70 miles of wall, which they prefer to call “tactical infrastructure”, in the Rio Grande Valley in the Spring of 2008. It will plow through people’s homes, businesses, farm fields, historic buildings, tracts of the Lower Rio Grande National Wildlife Refuge, and Texas Parks and Wildlife World Birding Centers.

Once again, Senator Cornyn is talking out of both sides of his mouth. When he visits the border, where people know that a wall will do tremendous damage but no good, he says that he does not support a wall. He says that there should be public input, ignoring the fact that there has been no real public input to date. When he is back in Washington, he panders to far-right xenophobes and sponsors legislation providing $3 billion to build border walls in Texas that he knows won’t work, and that he claims not to support.

The Wall Does Not Work

Department of Homeland Security Secretary Michael Chertoff announced that the number of undocumented immigrants apprehended by the Border Patrol dropped in the 2007 fiscal year, from 1,071,972 to 858,638. He credited this to increased enforcement along the southern border, including the construction of another 70 miles of border wall. It was, he claimed, proof that the border wall works, and therefore, “What it ought to do is encourage us to step up the tempo."

But the numbers that he was promoting prove the opposite. In San Diego apprehensions increased by 7%. San Diego was the first part of the border to get “triple fencing”. It consists of a primary fence made of steel slabs and a secondary steel mesh fence. Between the two there is a cleared area of 100 feet with a graded patrol road and light and camera towers. The Border Patrol began construction of this stretch of border wall in 1996, and it currently runs inland from the Pacific Ocean for 14 miles.

In contrast to the increase in the number of people crossing near San Diego, the Del Rio, Texas, sector saw a 45% drop. Del Rio, like all of Texas aside from El Paso, has no border wall. The Secure Fence Act calls for “2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors… extending from 5 miles northwest of the Del Rio, Texas, port of entry to 5 miles southeast of the Eagle Pass, Texas, port of entry,” but so far none has been built.

So in the place where the wall has been built and has been up for a decade, border crossings are on the rise. Where there is no wall crossings have dropped dramatically.

The fact that the border wall does not stop anyone from crossing has been pointed out numerous times since Congress passed the Secure Fence Act, just two weeks ahead of the 2006 midterm elections. The Border Patrol has said repeatedly that it will only slow a crosser down by a few minutes or a few seconds. In its June 5, 2007 report Border Security: Barriers Along the U.S. International Border the Congressional Research Service stated, “The primary fence, by itself, did not have a discernible impact on the influx of unauthorized aliens coming across the border in San Diego.”

Despite all of this, Secretary Chertoff is moving ahead with plans to bring the same level of destruction, expense, and ultimate failure that characterize the San Diego wall to the comparatively successful area of Del Rio. In the same press conference in which he crowed about the Border Patrol’s success in the areas where there has never been a wall, he indicated that he will use the power that the Real ID Act grants him to waive laws in Texas if construction of a wall is slowed by citizens who insist that he obey our nation's laws.

Instead of willfully violating our nation’s laws to build a wall that will not work, Chertoff should be looking at his department’s own statistics to find out what is working and what is not. The fact that he has not already done this is further evidence that construction of the border wall is driven by ideology and election politics, rather than an interest in constructively addressing a complex issue. Congress never should have granted an unelected Administration appointee the power to brush aside all of our nation’s laws, and they should immediately repeal section 102 of the Real ID Act and restore the rule of law.

Defenders of Wildlife and the Sierra Club challenge the constitutionality of the Real ID Act

Today, Defenders of Wildlife and the Sierra Club stepped up their efforts to save crucial environmental protections as well as unique wildlife and lands along the U.S.-Mexico border. The groups have filed an amended complaint in U.S. district court which challenges as unconstitutional the Bush administration’s power to single-handedly waive any and all United States laws to continue construction of border wall segments in environmentally sensitive areas.

On October 10, U.S. District Court Judge Ellen S. Huvelle issued a temporary restraining order stopping border wall and road construction within the San Pedro Riparian National Conservation Area, saying that the Department of Homeland Security (DHS) and the Bureau of Land Management, which oversees the San Pedro area, hadn’t properly analyzed the impacts of the construction on wildlife and other natural resources, and that the agencies had failed to include the public in their decision-making process. DHS Secretary Michael Chertoff responded by invoking the REAL ID Act to waive 19 laws in order to resume construction of this particular wall segment.

“Instead of fixing these shortcomings and incorporating environmental protection into national security efforts, Secretary Chertoff took it upon himself to waive 19 laws. These laws were put in place to provide all of us with clean air and water and ensure our treasured places and wildlife are protected,” said Rodger Schlickeisen, president of Defenders of Wildlife. “The Secretary’s action was a clear and unprecedented abuse of authority and demonstrated a profound disregard for the system of checks and balances assured in our constitution. The Secretary left us no choice but to address the unconstitutional nature of the REAL ID Act.”

“The Bush administration should know that we have the ability to protect our nation while at the same time preserving the unique wildlife and treasured lands along the border,” said Carl Pope, Sierra Club Executive Director. “Arbitrarily waiving environmental protections is an extreme path to tread.”

Under the REAL ID Act, Congress gave the DHS Secretary unrestricted power to waive any law—federal, state or local—that would otherwise apply to border wall and road construction. The groups’ amended complaint alleges that this unprecedented authority violates the fundamental separation of powers principles enshrined in the United States Constitution. They argue that by delegating the power to pick and choose which laws will apply to border wall construction, Congress has unconstitutionally given away its lawmaking responsibilities to a politically-appointed Executive branch official who is not accountable to the American public.

Despite the fact that the groups’ lawsuit was based on violations of only three laws, Sec. Chertoff responded by waiving 19 laws intended to protect wildlife and endangered species, clean water and air, safe drinking water, and cultural, historic and archeologically significant resources.