Legal or not, Trump’s wall is already being built

What you need to know about construction currently happening on the border.

 

Editor’s note: On Feb. 27, 2018, U.S. District Judge Gonzalo Curiel found that the Department of Homeland Security is acting within its authority in waiving federal regulations to fast-track border wall construction.

On January 25, 2017, five days after being sworn into office, President Donald Trump signed an executive order authorizing the immediate construction of a physical wall on the southern border of the United States. After delays — due in part to contractor battles — preliminary work on construction has begun in California, New Mexico, Arizona and Texas, leading to concerns ranging from states’ rights to environmental destruction.

A soldier with the Arizona National Guard welds a railroad track to an obstacle along the southern border in 2007. Construction following President Donald Trump's 2017 executive order is currently underway.
U.S. Army photo by Sgt. 1st Class Gordon Hyde

Where is the construction happening?

As of this writing, the Department of Homeland Security has started border wall projects or is planning to start projects in these locations: the Rio Grande Valley, Texas; El Paso, Texas; Sunland Park, New Mexico; Naco, Arizona; Imperial County, California; and San Diego County, California. Although Trump campaigned on building a wall along the entire border, approximately 2,000 miles, . Contractors’ bids, selected earlier this year, were required to describe walls from 18 to 30 feet in height that were aesthetically pleasing on their northern side and would take at least an hour to penetrate with sledgehammer, car jack, pick axe, chisel, battery operated impact tools, battery operated cutting tools, Oxy/acetylene torch or other similar hand-held tools. The government has awarded bids for two types of wall: one of concrete, another of materials other than concrete.

In every location, DHS is building on federally protected lands. This has set off alarms for conservation organizations, which worry that irreparable damage may be done to the country’s natural resources. The , for example, is known as the “jewel of the National Wildlife Refuge System” because of the incredible diversity of birds that it harbors.

Blue-winged teal and a common gallinule at the Santa Ana National Wildlife Refuge, in Hidalgo County, South Texas.
U.S. Fish and Wildlife Service

The refuge’s privately owned neighbor, the nonprofit , found itself in the crosshairs this past summer. The center sits on a former onion farm: land that it rehabilitated by planting native species that attract butterflies from throughout the continent during their migrations. In July, the center’s executive director, Marianna Tevino Wright, discovered that Customs and Border Protection had cleared a significant portion of the property and begun preliminary surveys for border wall construction. According to Wright, if a border wall is constructed as indicated, the organization will lose approximately two thirds of its property.

Why are we building a southern border wall?

Trump’s executive order cites a “recent surge” in undocumented immigrants through the southern border to justify the construction of a border wall. In fact, , apprehensions of undocumented immigrants at the U.S.-Mexico border have fallen in the past decade to approximately 400,000, a low not seen since the 1970s.

Nonetheless, under the executive order, federal prosecutors are to give higher priority to cases that involve the southern border. Additionally, the Secretary of Homeland Security is instructed to issue monthly, reader-friendly reports for the public accounting for all undocumented immigrants apprehended at the U.S.-Mexico border. This focus on visibility suggests that fulfilling a campaign promise is part of the president’s motivation.

How much will construction cost?

That depends on whom you ask. The executive order instructs the Secretary of Homeland Security to use all federal funds possible to immediately begin border wall construction. The president’s 2017 budget amendment added $2.6 billion to the Department of Homeland Security’s budget in order to fund the planning, design and construction of a border wall.

, the border fencing built during the mid-2000s cost up to $3.9 million per mile, totaling $823.5 million spent on 288 miles of fencing.

It’s hard to accurately estimate the cost of constructing the wall the president has ordered. Many regions that do not yet have any kind of barrier are the places where construction would be hardest to do — such as mountainous terrain. One research firm suggested that the total price tag could range from $15 to 20 billion, .

What will the environmental impacts of construction be?

, the border wall and the activities that would go with it — mainly associated road construction — would threaten vulnerable wildlife. The CBD estimates impacts to at least 93 species that are threatened, endangered, or candidates for listing by the U.S. Fish and Wildlife Service, ranging from jaguars to Sonora tiger salamanders to a rare kind of bighorn sheep.

We may never know the full extent of the wall’s environmental impacts. Trump’s executive order stresses immediate border wall planning, design and construction, explicitly by waiving federal regulations. To that end, among the many laws waived by former DHS Secretary John Kelly — — include NEPA, the Endangered Species Act, the Migratory Bird Treaty Act, and the Clean Water Act: regulations that enforce accountability and awareness for the American public. Without having to perform environmental impact reviews before initiating construction, DHS will not have a record of what it’s erasing from the landscape.

Interestingly, some of the laws listed for wall construction near San Diego — ranging from the Native American Graves Protection and Repatriation Act to the Wilderness Act — don’t seem to apply to that location. The list as a whole may hint at the regulatory snafus the agency hopes to avoid down the line at other wall locations.

Is border wall construction legal?

In his executive order, Trump cites several laws authorizing his order of the construction. The one that comes up the most in discussions of the legality of this executive order is the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

The lawsuit filed this week by California’s Attorney General, Xavier Becerra, disputes the legality of the executive order. Perhaps taking a page from the playbook of other Western states, California focuses partly on states’ rights. By waiving the Coastal Zone Management Act, which gives California broad powers to regulate how federal projects affect its coastal ecosystems, the state claims that the federal government is interfering with California’s sovereign authority.

Hillary Hoffmann, an environmental law professor at the Vermont Law School, explains that part of California’s lawsuit rests on the belief that the president is upsetting the country’s system of checks and balances. Federal laws trump state laws, but Congress can’t essentially tell agents of the federal government that state laws don’t apply to them without passing corresponding laws. This part of California’s lawsuit could be precedent setting if it goes to the Supreme Court, as it deals with interpreting the Constitution.

In any case, plaintiffs in this lawsuit and other border wall lawsuits argue, the IIRIRA doesn’t apply to Trump or his DHS Secretary. The law applied only to border fencing projects for a very specific period of time, ending in 2008. If the court agrees, then DHS will not be able to waive environmental laws in building walls.

An already existing border fence near San Diego. More than 30 laws were waived to begin additional border wall construction near the city.
Josh Denmark/U.S. Customs and Border Patrol

What now?

Hoffmann points out that in matters of national security, the courts generally defer to the DHS. For that reason — regardless of where the merits of the case lie — plaintiffs will have a steep hill to climb in challenging border wall construction.

It’s complicated, and the financial, environmental, and legal — not to mention humanitarian — stakes are high. At the very least, the suits ask for preliminary injunctions. If granted, the related border wall construction will halt as these issues are sorted out.

Maya L. Kapoor is an associate editor for NewTowncarShare News.

Note: This story has been updated to correct the spelling of Hillary Hoffmann’s name.

NewTowncarShare News Classifieds
  • Popular vacation house, furnished, 2 bed/1 bath, yard, dog-friendly. Lee at [email protected] or 520-791-9246.
  • Crested Butte Land Trust seeks a development director to lead its fundraising efforts. Remote and unspoiled, Crested Butte is located in one of the Rockies...
  • 5-Acre Home Site, Great Views with Spectacular Sunsets From a South Facing Home Site. Excellent for Passive Solar Design. Covenants, No HOA. Keller Williams Co....
  • 3 bed/2 bath, detached strawbale building. 11.7 acres, barn, corrals, fenced. Wells, solar panels, greenhouses. Paved access. 575-535-2568.
  • WildEarth Guardians seeks two public interest-focused staff attorneys with a minimum of 5 years experience to join our legal team. Experience with at least some...
  • The New Mexico Wildlife Federation is seeking an Executive Director, a visionary leader who is passionate about public lands, dedicated to executing an innovative strategic...
  • HIGH COUNTRY NEWS Customer Service Specialist I General Statement of Duties: Works closely with the customer service manager performing high-volume routine computer database work. Also...
  • We are hiring a Finance Associate Full time, competitive pay and benefits, based in Bozeman,MT Visit www.greateryellowstone.org/careers for details GYC is an equal opportunity employer
  • The Aravaipa Land Steward coordinates preserve stewardship work and general operations including maintenance and general preserve management. Implements preserve management plans, which may include species...
  • One of the premiere community-based collaboratives in the country seeks full-time Operations Manager to manage financial, administrative, and fund development functions. Required qualifications: - Five...
  • seeks a talented and dynamic development professional, with a passion for protecting our natural environment, to lead our development and fundraising team.
  • The Native American Fish and Wildlife Society seeks an Executive Director in Denver, CO to serve as the Chief Administrator of the national Native American...
  • NewTowncarShare News seeks a development assistant to assist with fundraising campaigns. HCN is an award-winning, national news magazine. Strong candidates will have experience administering...
  • Energiekontor US seeks experienced local candidate, must reside in western South Dakota. Send resume and cover letter to: [email protected]
  • Needed: instructor with 5 years *documented* instruction experience, current qualifications, M-410 or equivalent, and able to work as-needed for NM non-profit working with at-risk youth.
  • Seeking passionate full-time Executive to lead the oldest non-profit organization in Idaho. Must have knowledge of environmental issues, excellent organizational, verbal presentation and written skills,...
  • Carbondale based public lands advocate, Wilderness Workshop, seeks a Conservation Director to help direct and shape the future of public land conservation on the West...
  • The Bighorn River Basin Project Manager identifies and implements projects to improve streamflows, restore stream and riparian habitat, improve fish passage and rehabilitate or replace...
  • The San Juan Mountains Association in Durango, CO is seeking a Director of Visitor Services & Bookstore Operations to lead our visitor information program &...
  • Dream of owning your own business, being your own boss, working from home ... this is the one. 928-380-6570, www.testshop.com. More info at https://bit.ly/2Kgi340.