An Assault on Principles The Border Fence and the Assault on Principles * Carlos A. de la Parra and Ana Córdova The opposition to the construction of the fence has two angles, environmental and legal. This section presents the main aspects of the legal debate involving the proposal to build the border fence. Several authors in this volume have mentioned some laws that allow the Department of Homeland Security (DHS) to proceed with fence construction without taking into account environmental laws currently in effect in the United States. Here we recount the evolution suffered by the legal framework until it reached this condition of exemption, and even though it frees the Government from carrying out a procedure, it does not proscribe the questioning or the criticism. Immigration Control For the U.S. Government, the construction of the border fence has the purpose of generating more confidence in that the Federal Government has achieved control over its borders (control our borders). The message that the Government wants to convey to the people is even reflected in the names that it has chosen for their programs: Hold the line, Operation Gatekeeper Operation Safeguard. * This essay was prepared based on information provided by Gustavo Alanís and Pablo Uribe from the Mexican Center of Environmental Law (CEMDA). 175
At the root of these initiatives is the migratory phenomenon and not terrorism. From the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA-1996), stem the first exemptions to the dispositions contained in environmental laws, that the U.S. Congress considered would hinder the work to seal the border. Aside from the known environmental impacts that the fence will have, civil society groups, academics and opinion leaders in both countries question a procedure that is perceived to be outside the legal framework or at least foreign to the spirit amongst neighbors, trade partners, and friends where concord should reign. In that sense, it is clear that the exemptions or waivers dictated by the legislature on Capitol Hill may have legalized the abuses against the environment, but they did not legitimize them. It weighs heavily on the spirit of a combative, participative society among which are several mayors of border cities in the United States 1 to see how a narrowly conceived objective can break down a body of environmental law built over the course of 35 years of environmental activism. That U.S. society living on the border with Mexico that for over decades has demanded that their Government be proactive, intervene,and pressure Mexico into complying with environmental laws along the border, must now be asking themselves whether their own country, the United States, is a country of laws or not. The 1996 legislation literally reads: (c) Waivers. - The provisions of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) and the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) are waived to the extent the Attorney General determines necessary to ensure expeditious construction of the barriers and roads under this section. During these times when the events of September 11 seem to explain the United States attitude towards its borders, we must remember that the 1996 Immigration Reform Bill authorized noncompliance with environmental law; the new H.R. 418 or Real ID Act only amends the text to specify the attributions of the Head of the DHS. 1 See, for example Border mayors infuriated by DHS s plans to build through Valley, J. Osborne, The Monitor, May 2, 2007; page 1A. Accessible at www.monitor.com. 176 Legal Issues
An Assault on Principles Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive, and shall waive, all laws such Secretary, in such Secretary s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section. (Section 102[c] from the Illegal Immigration Reform and Illegal Immigrant Responsibility Act of 1996). Among the laws that the Head of Homeland Security can waive are all environmental laws. The second article in the amendment states that no court shall have jurisdiction (A) to hear any cause or claim arising from any action undertaken, or any decision made, by the Secretary of Homeland Security; or (B) to order compensatory, declaratory, injunctive, equitable, or any other relief for damage alleged to arise from any such action or decision The most tangible abuses against the environment to date are carried out by the Border Patrol, as they make their rounds all along the international border, which translates into soil compaction and erosion due to intense traffic through delicate ecosystems, particularly the Arizona-Sonoran Desert. The impacts have not yet been specifically defined, although it is presumed that territorially they occur mostly in the United States. The main impacts refer mostly to the area s desert vegetation and the transit of migrants through the El Pinacate reserve, driven there by the barriers and the patrols in other areas. In addition to the impacts to the flora or fauna in the region, there is concern regarding specific cases, such as the plan to construct a portion of the fence which hasn t been built yet on a stream that flows from Tijuana down to the River Estuary and which is known as Smuggler s Gulch. If it is built, this fence would act as a dam and stop the natural flow of water, which could produce wash outs and floods as water from the stream overflows into the Tijuana neighborhoods that surround the canyon. The impact to the infrastructure and the financial damages on the Mexican side, as with the environmental impacts, are collateral damage of lesser importance for which the U.S. Government has no response and against which the affected parties have practically no legal recourse. U.S. Legislation Nullified Given that U.S. Congreso has exempt DHS from abiding environmental legislation, more than actual violations of national laws we could speak of legal 177
precepts nullified by Congress for the sake of building the fence. The list of laws that will go unabided are as follows: Clean Air Act Clean Water Act National Environmental Policy Act Coastal Zone Management Act California Coastal Zone Act Endangered Species Act California Environmental Quality Act Out of the seven laws identified, the case of three laws that will be wived by the border fence project merit major attention. National Environmental Policy Act of 1969 (NEPA) According to Section 102 of NEPA, all major federal actions requires an environmental impact statement as well as a proposal of the respective actions to mitigate impacts. Within Sections 102(C) and (D) are the bases so that the DHA, prior to implementing the construction of the fence, should report (1) the environmental impact of the proposed action, (2) alternatives to the proposed action, and (3) report any adverse environmental effects which cannot be avoided should the proposal be implemented while stating the relationship between local short-term uses of man s environment and the maintenance and enhancement of long-term productivity. None of this is known to the general public in the case of the border fence because DHS has not proceeded along that path and is unaware of the consequences of their proposed action. Clean Water Act of 1972, CWA More than violation to the provisions of the Clean Water Act, the construction of the border fence will impede fulfillment of important recommendations onintegrated watershed management that is a stated objective of the CWA. The border fence will impose alterations to the natural flow of water and interfere against integrated watershed management. First, it will impose an obstacle on the natural flow of water from canyons and streams, altering the transport of sediment, accumulating sediment being carried by streams, ponding water in streambeds with a sensible decline in water quality. Second, it will change 178 Legal Issues
An Assault on Principles the topography and alter the direction of flows and runoff along the border, altering the natural flow. Section 1329 (TITLE 33, 1329) recommends an integrated watershed approach that will become difficult on all watersheds that extend into both countries along the border. Endangered Species Act of 1973, ESA Section 7 of the Endangered Species Act (ESA) contains clear ordinances for those actions of the U.S. Federal Government that will occur on sites where the presence of an endangered species in known. Many of the species mentioned in this book are listed under special care in the Mexican legislation (NOM-059-ECOL-2001) and U.S. legislation (Endangered Species List). The violations to the spirit and intention of the ESA are clear regarding the effects within the United States as within Mexico, given that the legislation requires the U.S. federal government to support the efforts to protect endangered species (Section 8) undertaken in international territory by a foreign government. A Retreat in Bilateral and Multilateral Environmental Collaboration Staying within the general context wherein the building of the border fence takes place, as a backdrop to the Immigration Reform Act of 1996, the real ID Act of 2005, and the Secure Fence Act of 2006 is an indictment on the Agreement between the United States of America and the United Mexican States on Cooperation for the Protection of the environment of the Border Area, a.k.a. The La Paz Agreement. Signed in 1983 by Presidents Ronald Reagan and Miguel de la Madrid, the diplomatic environmental agreement marked the beginning of joint solutions to environmental problems affecting the border residents of both countries. The La Paz Agreement represents the formal framework from which stem the border environment cooperation programs undertaken by both countries, such as the Integrated Border Environment Program (IBEP), Border XXI Program, and Border 2012. The agreement constitutes a landmark in bilateral environmental work between the United States and Mexico, and represents the willingness manifest of both countries to address environmental issues in a coordinated and joint manner. Prior to the signing of the agreement, there was no mechanism to channel differences on environmental matters at the border, such as spilling of wastewater in the Tijuana-San Diego are or in No- 179
gales-nogales, amongst others, or the dumping of hazard waste on Mexican soil given the high degree of industrialization and environmental controls in the U.S. and a lag in legislation and environmental awareness in Mexico. The articles that are of major relevance on behalf of cooperation between both countries are: Article 1 which refers to the cooperation in the field of environmental protection in the border area on the basis of equality, reciprocity and mutual benefit. Article 7 which points out that the parties shall evaluate, projects that have significant impacts on the environment of the border area, that appropriate measures may be considered to avoid or mitigate adverse environmental effects. The building of the fence has converted the La Paz Agreement to a dead letter in the principle of collaboration it solidified with its signing some 25 years ago, as well as in practice wherever the DHS deems necessary. Other agreements of multilateral scope signed by the United States are in jeopardy as well. The Stockholm Declaration (1972), which established the commitment of the Parties with the human environment and the conservation of natural resources, declares in Principle 2 the conviction to safeguard for the benefit of generations, present and future the flora, fauna, water and natural ecosystems, resources that are notably distributed along the border. Similarly, the Ramsar Convention (1971) on wetlands establishes in Article 3 that the parties shall formulate and implement their planning so as to promote the conservation of the wetlands. The building of the fence will traverse streams that lead to the Tijuana River Estuary, a research reserve that is part of the Ramsar List of Sites of International Importance. The fence will become an obstacle, and the natural sediment and nutrient load in the stream will be obstructed. The commitments acquired by the U.S. government in the Ramsar Convention and ots application at the border will be compromised- Conclusions The legal determinations of the domestic policy in the U.S., in the case of the border fence, have repercussions on several fronts. First, the domestic front, shows reactions of a political variety as a wide sector of society, especially in the border region, that oppose the building of the fence despite having Congress, 180 Legal Issues
An Assault on Principles through legislative means, sanctioned the excesses against the environment. The second front is in the realm of the bilateral relation with Mexico, as explicit accords written in the La Paz Agreement are violated and other collaborations are upset. He third front refers to how the United States fails to meet multilateral accords signed decades ago, as in the case of the United Nations Conference on the Human Environment (Stockholm Declaration, 1972). Our point about the United States transgression of principles, even though it does not violate laws, is an evocation of the same principles that originated the laws from which DHS is now immune. The goals of protecting endangered species, a healthy human environment, enhancing integrated watershed management, and the knowledge and disclosure of the environmental impact of an action are principles that should be upheld, not avoided by a legal framework. At least, that s how it was considered by several legislatures of the past in the United States. 181