February 14, 2005

Voting 261-161, the House of Representatives approved a bill this week intended to deter terrorists and illegal immigrants from breaching the nation's borders.

Included in the bill was language to exempt the final 3½ miles of a controversial fence project along the U.S.-Mexico border from all state and federal environmental laws, including the Clean Water Act.

"National security is increasingly being linked to many environmental issues," said Brian Segee, a Washington, D.C., attorney for Defenders of Wildlife. "It's not only brought up in the context of the border, where that link is clear. We increasingly see it linked to energy development and other instances involving natural resources."

If approved by the Senate, the sweeping exemption provided by the House bill would apply to any future fences and security zones sought by the Department of Homeland Security anywhere along the nation's 1,933-mile border with Mexico and 3,987-mile border with Canada.

"This bill is incredibly over-reaching," Segee said. "The Border Patrol and Office of Homeland Security can ignore labor laws, civil rights laws and environmental laws as long as it involves construction of a barrier or road along the U.S. border."

Proponents say an impenetrable triple-fenced surveillance zone with motion sensors and bright lights is essential to the nation's effort to deter terrorists, drug smugglers and illegal immigrants from crossing into the United States.

Last year, the California Coastal Commission ruled the project was far more destructive to the environment than necessary and pushed for a compromise.

The project, which would have a footprint as wide as a four-lane freeway, includes installation of two new fences along with roads that require massive grading of rare habitat and filling in steep canyons. Erosion from re-sculpting the landscape could choke the Tijuana River estuary, an internationally renowned wetland sanctuary.

San Diego Rep. Randy "Duke" Cunningham, R-Escondido, who voted in favor of the bill, said in a prepared statement: "The bottom line is that we must put homeland security first. We need to know who is coming into our country."

Cunningham blamed ongoing scientific studies for delaying the project's completion, but that assertion is erroneous. In 1996, Congress exempted the project from the Endangered Species Act.

"It's not a matter of studies at all," said Jim Peugh of the San Diego Audubon Society. "We already know this project would be horrendously damaging. It's simply a matter of coming up with a project that minimizes damage to the environment and offsets the losses."

Congress has approved limited environmental exemptions for various projects, including the clearing of dead wood from national forests.

In 1998, then-Rep. Ron Packard, R-Oceanside, sponsored legislation exempting the Foothill-South toll road in southern Orange County from a law prohibiting highway construction on government-owned parkland.

In 2003, active military training ranges, including Camp Pendleton in San Diego County, were exempted from the Marine Mammal Protection Act and the Endangered Species Act as long as they complete resource-management plans.

Karen Wayland, legislative director for the Natural Resources Defense Council, said the Department of Defense is seeking additional waivers from hazardous waste and Superfund cleanup laws enforced by the Environmental Protection Agency.

The border fence exemption, she said, "is part and parcel of a move to get out from compliance of all the laws that ultraconservatives find offensive."

The House bill includes a provision barring lawsuits challenging border security projects.

"There would be no judicial review, no way for anyone to protest the waivers that the Department of Homeland Security might put into place," she said. "We're basically allowing one federal official who is not elected to have unprecedented power to get out from under the rule of law."

Adam Keats, a lawyer for the Center for Biological Diversity in San Francisco, said the measure would preclude the public from having a voice on homeland security projects in border communities.

"What proposals like this are doing is throwing away 30 to 40 years of good laws that have been enacted to protect the environment and include the public in these decisions," Keats said.

Environmentalists caught off guard by the swiftness of the House Republicans' victory are circling back to attack the waiver provisions when they are reviewed by the Senate.

"It's a sad day when environmental destruction is wrapped around the cloak of the politics of fear," said Peter Douglas, executive director of the Coastal Commission, whose efforts to forge a compromise on the border fence are now in ruins. "Hopefully the Senate will be more understanding of how environmental protection and security are not that far apart and can be reconciled."