Environmental Impact of Border Security Infrastructure: How Department of

Homeland Security’s Waiver of Environmental Regulations Threatens Environmental

Interests Along the U.S.-Mexico Border
Author(s): Marshal Garbus
Source: Tulane Environmental Law Journal , Summer 2018, Vol. 31, No. 2 (Summer
2018), pp. 327-344
Published by: Tulane Environmental Law Journal

Stable URL: http://www.jstor.com/stable/90021700

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 Environmental Impact of Border Security
Infrastructure: How Department of Homeland
Security’s Waiver of Environmental Regulations
Threatens Environmental Interests Along the
U.S.-Mexico Border
Marshal Garbus*

I. INTRODUCTION ................................................................................. 328

II. ECOSYSTEMS AT RISK ON THE SOUTHERN BORDER ........................ 329
III. LEGAL FRAMEWORK ........................................................................ 334
A. Legislative History ........................................................... 334
1. Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ............................................ 334
2. REAL ID Act of 2005 .................................................... 335
3. Secure Fence Act of 2006 .............................................. 336
B. Legal Developments ......................................................... 337
1. Defenders of Wildlife v. Chertoff .................................. 337
2. Executive Order 13767 .................................................. 338
IV. CONTEMPORARY CHALLENGE TO DHS WAIVER: IN RE
BORDER INFRASTRUCTURE ENVIRONMENTAL LITIGATION ............ 339
A. Ultra Vires Claim ............................................................. 339
B. Border Projects Are Not Covered Under IIRIRA
Section 102(a)................................................................... 341
C. Judge Curiel’s Opinion ..................................................... 342
V. MEASURING SUCCESS: GOVERNMENT ACCOUNTABILITY
OFFICE REPORT ON SOUTHWEST BORDER SECURITY ..................... 343
VI. CONCLUSION .................................................................................... 344

There have not been many frontiers like this one, I imagine. An
abstraction, a Euclidean line drawn across the desert, has created two
distinct human landscapes where there was only one before. Much of the

* © 2018 Marshal Garbus. J.D. candidate 2019, Tulane University Law School; B.A.
2010 New York University. The author would like to thank Laila Hlass for her guidance during
the writing process.
327

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328 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 31:327

frontier is river, and rivers are meant to bring men together, not to keep
1
them apart.

I. INTRODUCTION
With the inauguration of President Donald Trump in January 2017,
the promise of a border wall along the Mexican-USA border has become
a focal point in the administration’s immigration priorities. The signing
of Executive Order 13767 (EO13767) set forth the federal initiative to
“secure the southern border of the United States through the immediate
construction of a physical wall on the southern border,” covering roughly
2000 miles.2 The proposed border wall is projected to cross through a
variety of biologically diverse and vulnerable ecosystems, in addition to
numerous border communities that reside in its path. The concern for a
secure border and the desire to limit the flow of unauthorized
immigration has been a part of political discourse for decades, but recent
developments have introduced the prospect of an expansive physical
border wall as part of the solution to immigration reform. While there
are urgent humanitarian questions about the border wall’s effects, this
Comment will focus on the environmental impact and legal framework
applicable to the construction of the border wall.
Political interest in developing a contiguous physical barrier along
the entire southern border between the United States and Mexico
positions the Department of Homeland Security (DHS) to utilize a broad
discretionary waiver of environmental regulations on an unprecedented
scale. One of the environmental safeguards to review agency action is
the National Environmental Policy Act (NEPA). NEPA sets out an
agency review process that ordinarily must be followed, whereby any
“major federal actions significantly affecting the quality of the human
environment” requires a detailed statement on the environmental impact
of the proposed action and opportunity for public review and comment.3
The DHS waiver, supplemented by subsequent amendments and
legislation, originates from the Illegal Immigration and Immigrant
Responsibility Act’s original authorization for the Attorney General to
waive two environmental regulations for the expeditious construction of

1. J.B. Jackson, Chihuahua as We Might Have Been, in LANDSCAPE IN SIGHT: LOOKING

AT AMERICA 43 (Helen Lefkowitz Horowitz ed., 1997).
2. Exec. Order No. 13,767, Border Security and Immigration Enforcement
Improvements, 82 Fed. Reg. 8793 (Jan. 30, 2017).
3. National Environmental Policy Act, 42 U.S.C. § 4332(C) (2012).

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2018] ENVIRONMENTAL IMPACT OF BORDER SECURITY 329

a border fence near San Diego, California.4 The exercise of the waiver
authority on NEPA would severely limit the public’s ability to ensure
reasoned decision-making that takes into account environmental interests
and considers alternatives to the proposed agency actions. Since DHS
was authorized to exercise the waiver, it has done so five times from
September 2005 through December 2008, affecting all states along the
U.S.-Mexico border.5 This Comment will explore the environmental
interests at stake in the proposed border wall, the potential ramifications
of a DHS waiver’s continued application, including limited public review
of agency action, abrogation of environmental regulations, and resulting
environmental impact, as well as legal challenges to the waiver.
First, this Comment will outline the environmental consequences of
border infrastructure in various regions along the southern border. Next,
it will review the legislative history of the DHS waiver, tracing the
limited authorization provided by the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA) through subsequent legislative
amendments. In the following Part, the Comment will analyze a
contemporary challenge to DHS’s waiver. Lastly, the Comment will
analyze the border wall’s role in immigration reform by investigating the
costs of border security and its operational capabilities.

II. ECOSYSTEMS AT RISK ON THE SOUTHERN BORDER

The body of land that encompasses the U.S.-Mexico border is
roughly 1954 miles long6 and is home to the highest rate of species
endangerment in the United States.7 The borderlands are home to more
than 700 migratory species of birds, mammals, and insects.8 Along the
border are many protected national parks, including Big Bend National
Park in Texas and Organ Pipe Cactus National Monument in Arizona.

4. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.
L. No. 104-208, § 102(a)-(c), 110 Stat. 3009 (codified as amended at 8 U.S.C. § 1103 (2000)),
amended by REAL ID Act of 2005, Pub. L. No. 109-13, § 102, 119 Stat. 302 (codified as amended
at 8 U.S.C. § 1103 (2006)); Secure Fence Act of 2006, Pub. L. No. 109-367, § 3, 120 Stat. 2638
(codified as amended at 8 U.S.C. § 1103 (2006)); Consolidated Appropriations Act, 2008 Pub. L.
No. 110-161, § 564(a), 121 Stat. 1844 (codified as amended at 8 U.S.C. § 1103 (2012)).
5. Press Release, Dep’t of Homeland Sec., DHS Issues Waiver to Expedite Border
Construction Projects in San Diego Area (Aug. 1, 2017), https://www.dhs.gov/news/2017/
08/01/dhs-issues-waiver-expedite-border-construction-projects-san-diego-area.
6. The International Boundary and Water Commission—Its Mission, Organization and
Procedures for Solution of Boundary and Water Problems, RECOVERY.GOV, https://www.ibwc.
gov/About_Us/about_us.html (last visited Mar. 22, 2018).
7. Rick Van Schoik, Conservation Biology in the U.S.-Mexican Border Region, WORLD
WATCH (Nov./Dec. 2004), http://www.worldwatch.org/system/files/EP176C.pdf.
8. US-Mexico Border XXI Program Framework Document, at iii.4, Oct. 7, 1996, U.S.-
Mex., EPA No. 1 60-R-96-003.

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330 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 31:327

Significant state and local parks also exist along the border, including the
World Birding Center in the Lower Rio Grande Valley and the National
Butterfly Center in Mission, Texas. The fragile ecosystems of the
borderlands form part of transboundary ecosystems whose integrity is
essential to the hundreds of vulnerable species that inhabit it.9 The
migration of species across the international border is vital to their
health. In the case of large animal species, a large geographic area is
necessary to promote migration and genetic diversity, two important
aspects of species survival.10 The impact of a contiguous border wall will
increase the number of species at risk by preventing species migration
and genetic dispersal.11
Currently existing border security infrastructure is significantly
impacting the environment of the borderlands. To date, 654 miles of
pedestrian and vehicular border fence contribute to ecological damage in
the region. The existing security infrastructure includes fences, Customs
and Border Patrol (CBP) vehicle roads, vehicle road blocks, sensor
networks, communication networks, and lighting and video
installations.12 The consequences of border infrastructure contribute to a
variety of harmful ecological phenomena that lead to habitat
fragmentation, flooding, sedimentation, and damage to cultural and
natural resources.13 Soil erosion substantially disrupts the local ecology
with the construction of border fences that reach up to fifty meters deep
in the ground.14 The construction of border security infrastructure in
densely populated areas has pushed the avenues for unauthorized entry
into more rural regions.15 The movement of unauthorized immigration
and illegal activity on the border has shifted the environmental impact
onto the fragile ecosystems of the rural borderlands.16 With increased
enforcement efforts following new routes of unauthorized immigration,
“habitat fragmentation, water pollution, soil damage and compaction,

9. GOOD NEIGHBOR ENVTL. BD., ENVIRONMENTAL QUALITY AND BORDER SECURITY: A

10-YEAR RETROSPECTIVE 20 (2017).
10. Id.
11. Jesse R. Lasky et al., Conservation Biogeography of the US-Mexico Border: A
Transcontinental Risk Assessment of Barriers to Animal Dispersal, 17 DIVERSITY &
DISTRIBUTIONS 673 (2011).
12. GOOD NEIGHBOR ENVTL. BD., supra note 9, at 15.
13. Id. at 15-16.
14. Van Schoik, supra note 7, at 38.
15. NOAH GREENWALD ET AL., CTR. FOR BIOLOGICAL DIVERSITY, A WALL IN THE WILD:
THE DISASTROUS IMPACTS OF TRUMP’S BORDER WALL ON WILDLIFE 2 (2017).
16. Id.

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2018] ENVIRONMENTAL IMPACT OF BORDER SECURITY 331

destruction of vegetation, and wildlife disturbance” parallel the

movement of border crossing activity.17
A report by the Good Neighbor Environmental Board (GNEB), an
independent federal advisory committee, raised concerns about the
“hurried-pace construction of border security infrastructure” and its
significant environmental impact.18 By using the REAL ID Act waiver
on NEPA and other regulations, DHS compromises a rigorous
environmental review process for expediency in building border
infrastructure. GNEB compiled a list of recommendations for the U.S.
President and Congress on border fence advice in 2009, which illustrates
their concern regarding the REAL ID Act waiver’s application. The first,
and most significant, recommendation was to “[r]equire that all border
security infrastructure projects fully comply with the National
Environmental Policy Act . . . as well as all other laws, including
environmental, historic and archeological preservation laws.”19 While not
going as far as amending the REAL ID Act to limit the waiver,
implementing the recommendation would require DHS to willingly
engage in all the procedural requirements of NEPA—an improbable
scenario. In response to the GNEB recommendation, former Council of
Environmental Quality (CEQ) Chair Nancy Sutley succinctly
summarized the government’s position that it will assess environmental
impacts on its own terms, without committing to NEPA compliance for
all border security infrastructure.20 GNEB’s third recommendation called
for the construction of a border fence to “[f]ully incorporate adequate
environmental review, public participation and scientific analysis into the
design and implementation of all border security infrastructure
projects.”21 CEQ’s response to this recommendation could not adequately
address public participation. In April 2010, CEQ Chair Sutley outlined
measures taken between federal agency stakeholders but did not outline

17. Brian P. Segee & Ana Cordova, A Fence Runs Through It: Conservation Implications
of Recent U.S. Border Security Legislation, in CONSERVATION OF SHARED ENVIRONMENTS:
LEARNING FROM THE UNITED STATES AND MEXICO 248 (Laura Lopez-Hoffman et al. eds., 2009).
18. GOOD NEIGHBOR ENVTL. BD., supra note 9, at 15.
19. Id. at 62.
20. Id. (“CEQ and appropriate federal departments and agencies appreciate your
recommendations of bringing border security infrastructure activities in full compliance with
NEPA and our nation’s environmental laws. As you know, we are reviewing the current
environmental impacts of border security infrastructure and looking for opportunities for
minimizing these impacts. As part of this process, we look forward to identifying opportunities
for ensuring that border security infrastructure and associated maintenance and repair meet
national environmental goals.”).
21. Id.

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332 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 31:327

any requirement DHS had to invite public participation.22 To date, no

actions by Congress or a U.S. President have altered the scope of the
REAL ID Act waiver or required DHS to comply with NEPA and other
environmental regulations in developing border infrastructure.23
In addition to the environmental degradation caused by border
infrastructure, binational conservation efforts between the United States
and Mexico will be jeopardized by the unilateral effort to enforce
EO13767. Transborder collaboration is essential in responding to the
transboundary environmental problems that arise on the border. One
example of harmful consequences of poor collaboration resulted in 2008,
when the United States added security fence between Nogales, Arizona,
and Nogales, Sonora, without consulting officials from Mexico. As a
result of the poor collaboration, the Mexico side of Nogales endured
extensive flooding. By preventing storm water from flowing north, the
international border wall caused the downtown section of Nogales,
Sonora, to flood with six-foot-deep waters.24 The ensuing flooding
prompted the government of Sonora to declare the city a disaster zone
and contributed to millions of pesos worth of damage.25 The
implementation of EO13767’s border wall may frustrate binational
efforts via its unilateral implementation and exacerbate hazards and
ecological challenges that confront the borderlands.
In a region with the highest rate of species endangerment, border
infrastructure has impacted and will continue to impact and challenge
conservation efforts. Decades worth of conservation work is currently at
risk with the proposed border wall plan. The GNEB’s Environmental
Quality and Border Security: A 10-Year Retrospective provided a case
study on the National Butterfly Center (NBC) to illustrate the potential
impact of bisecting conservation lands with the proposed border wall.26
For over fifteen years, the NBC has worked to preserve endangered
plant, butterfly, and reptile species by restoring habitats in the Lower Rio
Grande Valley of Texas. The proposed border will threaten this
conservation effort by contributing to habitat fragmentation via the

22. Id.
23. Id.
24. Bernardo J. Márquez Reyes, Floods, Vulnerability, and the US-Mexico Border: A
Case Study of Ambos Nogales 1 (2010) (unpublished Master of Science thesis, Arizona State
University), https://www.researchgate.net/profile/Rimjhim_Aggarwal/publication/267370777_
Floods_Vulnerability_and_the_US-Mexico_Border_A_Case_Study_of_Ambos_Nogales/links/
54579c5a0cf2cf51648218a4/Floods-Vulnerability-and-the-US-Mexico-Border-A-Case-Study-of-
Ambos-Nogales.pdf.
25. Id.
26. GOOD NEIGHBOR ENVTL. BD., supra note 9, at 24.

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2018] ENVIRONMENTAL IMPACT OF BORDER SECURITY 333

construction of artificial barriers, preventing terrestrial movement and

natural seed distribution.27 If the proposed border wall is built, more than
half of the NBC’s land would be left on the southern side of the wall,
with the potential to cause irreparable ecological damage.28
The Santa Ana Wildlife Refuge, in the Rio Grande Valley in South
Texas, is another site likely to be impacted by EO13767 early in its
implementation, owing in part to its location in a populous metropolitan
area along the border on federal land. The Santa Ana Wildlife Refuge
consists of over 2000 acres of land, where subtropical climate, gulf coast,
great plains and Chihuahuan desert all collide, resulting in great
biological diversity.29 Among the animals that call this place home is the
leopardus pardalis, commonly known as the ocelot. Highly endangered
and on the cusp of losing one of its last habitats, the ocelot’s survival
depends on wildlife refuges like Santa Ana.30 In addition to its
importance to endangered species, Santa Ana National Wildlife Refuge
lies along numerous migratory bird paths, making it one of the top
birding destinations in the world.31 As federal land, the Santa Ana refuge
remains vulnerable to government action because the government
already owns it.32 According to maps of planned border security
development obtained by the Sierra Club, an environmental organization,
the U.S. Army Corps of Engineers (USACE) has drafted plans to build a
levee wall that cuts across the Santa Ana refuge with a 150-foot
enforcement zone cleared of vegetation.33 Details of the project have also
revealed plans to install 120-foot-tall video surveillance towers and lights
to illuminate the enforcement zone.34 The consequences of the drafted
plan would substantially impact Santa Ana refuge’s future viability.
Potentially cutting off most of the refuge from access, the levee wall
would also cause habitat fragmentation.
The borderland’s environmental challenges are transboundary in
nature. They require binational cooperation between the United States
and Mexico to create solutions, and neither can succeed without the
other. The “Border 2020” is a binational environmental program

27. Id. at 24-25.

28. Id.
29. Santa Ana National Wildlife Refuge, About the Refuge, U.S. FISH & WILDLIFE SERV.,
https://www.fws.gov/refuge/Santa_Ana/wildlife_and_habitat.html (last visited Feb. 24, 2018).
30. Id.
31. Id.
32. Melissa del Bosque, Records Show Where Trump Plans to Build Texas Border Wall,
TEX. OBSERVER (Nov. 10, 2017), https://www.texasobserver.org/map-trump-border-wall-
locations-texas/.
33. Id.
34. Id.

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334 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 31:327

between the United States and Mexico, marking a continuation of

binational cooperation dating back to the Integrated Environmental Plan
for the Mexican-U.S. Border Area in 1992. The Environmental
Protection Agency (EPA) and Mexico’s Secretariat for the Environment
and Natural Resources (SEMARNAT) are the main agencies whose
cooperation realizes the agreement. With the guiding principle to
“[p]rotect the environment and public health in the U.S.-Mexico border
region, consistent with the principles of sustainable development,”
Border 2020 is an example of a binational environmental program that
will be frustrated by EO13767.35 If border infrastructure development
proceeds under the broad waiver of the REAL ID Act, meaningful
interagency cooperation between DHS and the EPA will be limited, and
local stakeholders will be alienated from public participation in
policymaking. These limitations will likely carry over into international
efforts between the EPA and SEMARNAT, as both agencies will be
removed from DHS border infrastructure projects that don’t require
NEPA compliance.

III. LEGAL FRAMEWORK

A. Legislative History
1. Illegal Immigration Reform and Immigrant Responsibility Act of
1996
When Congress passed the IIRIRA, it marked one of the most
significant reforms to immigration since the Immigration and Nationality
Act of 1965 (INA), which eliminated the national origins quotas.36
According to the drafters, the overarching goals of IIRIRA were the
following:
[To] improve deterrence of illegal immigration to the United States by
increasing border patrol and investigative personnel, by increasing penalties
for alien smuggling and for document fraud, by reforming exclusion and
deportation law and procedures, by improving the verification system for
the eligibility for employment, and through other measures, to reform the
legal immigration system and facilitate legal entries into the United
37
States . . . .

35. ENVTL. PROT. AGENCY, BORDER 2020: U.S.-MEXICO ENVIRONMENTAL PROGRAM 4

(July-Aug. 2012), https://www.epa.gov/sites/production/files/documents/border2020summary.pdf.
36. See Jennifer Ludden, 1965 Immigration Law Changed Face of America, All Things
Considered, NAT’L PUB. RADIO (May 9, 2006), https://www.npr.org/templates/story/story.php?
storyId=5391395.
37. H.R. REP. NO. 104-828, at 1 (1996).

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2018] ENVIRONMENTAL IMPACT OF BORDER SECURITY 335

In addition to making wide-reaching amendments to the INA relating to

interior enforcement of immigration, removal proceedings, and grounds
for deportation, IIRIRA made substantial changes to border security.38
Under title 1 of IIRIRA, the Act authorizes the increase in border patrol
personnel and the improvement of physical barriers at the border.39
The border barrier provision of IIRIRA stems from the political
shift to increase border security during the Clinton administration’s
Southwest Border Strategy, which made control of unauthorized
immigration a top priority.40 Under the Southwest Border Strategy,
Operation Gatekeeper was the Clinton administration’s initiative to
control unauthorized immigration along the San Diego/Tijuana border,
which had been one of the highest traffic locations for unauthorized
border crossings. Since 1992, Operation Gatekeeper increased the
deployment of border patrol officers by 60%, marking an unprecedented
level of resources devoted to border security.41
IIRIRA authorizes the Attorney General (AG) to install physical
barriers and roads within the “vicinity of the United States border to
deter illegal crossings in areas of high illegal entry into the United
States.” The qualification of “areas of high illegal entry” was not
delineated in the Act itself but provides an example in the subsequent
provision, “Construction of Fencing and Road Improvements in the
Border Area Near San Diego, California.”42 The section on constructing
fencing along the San Diego border identifies fourteen miles of
international border that constituted a high priority. IIRIRA, as originally
written, also authorized the AG to waive two federal regulations, NEPA
and the Endangered Species Act (ESA).

2. REAL ID Act of 2005

Congress subsequently amended IIRIRA when they passed the
REAL ID Act of 2005, with the primary goal of enhancing national
security against terrorism. The Act authorizes the Secretary of
Homeland Security (Secretary) to waive any laws necessary for the
construction of border infrastructure. Section 102(c) of the REAL ID
Act provides:

38. See id.

39. Id. at 8-9.
40. News Release, Ag Reno Announces New Agents and Resources to Strengthen
Operation Gatekeeper and Cut Illegal Immigration, DOJ 95-003 (Jan. 4, 1995).
41. Id.
42. IIRIRA, Pub. L. No. 104-208, § 102, 110 Stat. 3009 (codified as amended at 8 U.S.C.
§ 1103 (2000)), amended by REAL ID Act of 2005, Pub. L. No. 109-13, § 102, 119 Stat. 302
(codified as amended at 8 U.S.C. § 1103 (2006)).

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336 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 31:327

Notwithstanding any other provision of law, the Secretary of Homeland

Security shall have the authority to waive all legal requirements such
Secretary, in such Secretary’s sole discretion, determines necessary to
ensure expeditious construction of the barriers and roads under this section.
Any such decision by the Secretary shall be effective upon being published
43
in the Federal Register.
This amendment to IIRIRA reallocates the ability to waive laws from the
AG to the Secretary and expands the Secretary’s discretionary waiver to
any laws relating to the construction of barriers and roads at the U.S.
border. DHS has interpreted the broad discretionary waiver in IIRIRA to
apply to any area within “the vicinity of the United States border,” as
opposed to the region near San Diego, California, where the previous
waiver applied.44 Not only did the section 102(c) waiver expand the
geographic boundaries of waiver applicability, but DHS also interpreted
its authority to waive countless other federal regulations that provide
oversight over the agency’s actions. Additionally, the REAL ID Act
imposes a limited means of review for challenging the discretionary
waiver. Under section 102(c)(2), federal courts retain exclusive
jurisdiction to hear any claims arising from DHS waiver actions and such
claims must be brought on grounds of constitutional violations.45
According to a Congressional Research Service report on the laws
pertaining to the U.S. border barriers, the amended section 102(c)
waiver’s scope is substantial, and with the exception of the Constitution,
“the waiver potentially could be employed with respect to any other legal
requirement.”46 The scope of the section 102(c) waiver has been
challenged repeatedly and the history of its implementation has not
helped to clarify concrete parameters for its application.

3. Secure Fence Act of 2006

The Secure Fence Act of 2006 was a significant legislative mandate
to continue DHS development of border security, which consequently
provided opportunities for DHS to apply the section 102(c) waiver on
new border projects. The Act reshaped the geographic scope of border
security operations by amending the provision of IIRIRA that targeted

43. REAL ID Act of 2005, Pub. L. No. 109-13, § 102, 119 Stat. 302 (codified as
amended at 8 U.S.C. § 1103 (2006)).
44. MICHAEL JOHN GARCIA, CONGR. RESEARCH SERV., BARRIERS ALONG THE U.S.
BORDERS: KEY AUTHORITIES AND REQUIREMENTS 22-24 (2017), https://fas.org/sgp/crs/home
sec/R43975.pdf.
45. Id.
46. Id. at 22-23.

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2018] ENVIRONMENTAL IMPACT OF BORDER SECURITY 337

the region near San Diego, California, to encompass at least 700 miles of
fencing along the southern border.47 Additionally, the Act set forth new
definitions of operational control on the border, promoting the
installation of systematic surveillance and physical infrastructure to
prevent unlawful entries into the United States.48 According to the most
recent report by the Government Accountability Office (GAO), DHS has
expanded border fencing between 2005 and 2015 from 119 miles to 654
miles.49 In the following section, legal challenges on the use of section
102(c) waivers illustrate how the court understood its statutory
boundaries.

B. Legal Developments
1. Defenders of Wildlife v. Chertoff
On September 2007, the Army Corps of Engineers initiated the
construction of border fencing and infrastructure along the U.S.-Mexico
border, within the San Pedro Riparian National Conservation Area, on
behalf of the DHS. After environmental organizations challenged the
conclusion of the Environmental Assessment of the proposed action
required by NEPA, DHS Secretary Chertoff published a notice waiving
environmental regulations along with eighteen other laws.50 The
plaintiffs, Defenders of Wildlife and the Sierra Club, challenged the
constitutionality of the REAL ID Act on the grounds of the non-
delegation doctrine, arguing that the Act “impermissibly delegates
legislative powers to the DHS Secretary, a politically-appointed
Executive Branch official.”51
The United States District Court for the District of Columbia
analyzed the constitutionality of the REAL ID Act waiver by addressing
the plaintiff’s claim that the waiver is functionally equivalent to law
making, thus violating separation of powers.52 Here, the court was
unconvinced that the waiver was equivalent to a legislative function
because it was intrinsically not the same as a legislative amendment or

47. Id. at 7-9.

48. Secure Fence Act of 2006, Pub. L. No. 109-367, § 23, 120 Stat. 2638 (codified as
amended at 8 U.S.C. § 1103 (2006)).
49. GOV’T ACCOUNTABILITY OFFICE, SOUTHWEST BORDER SECURITY: ADDITIONAL
ACTIONS NEEDED TO BETTER ASSESS FENCING’S CONTRIBUTIONS TO OPERATIONS AND PROVIDE
GUIDANCE FOR IDENTIFYING CAPABILITY GAPS 8 (2017), https://www.gao.gov/assets/690/
682838.pdf.
50. Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 121 (D.D.C. 2007).
51. Id. at 123.
52. Id.

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338 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 31:327

partial repeal of law.53 Because the waiver was the exercise of authority
explicitly directed by Congress and the delegation of authority was
“accompanied by sufficient guidance,” the REAL ID Act waiver satisfied
the constitutional challenge of separation of powers and the non-
delegation doctrine. The court recognized the boundaries of the
delegated authority by Congress’ requirement that the waiver applies to
laws that the Secretary determines are “necessary to ensure expeditious
construction” to “deter illegal crossings in areas of high illegal entry.”54
This first challenge to the REAL ID Act waiver demonstrated that
the waiver could survive a constitutional challenge over its expansive
scope and broadly defined guidelines. The D.C. district court’s opinion
supported two subsequent challenges to the REAL ID Act waiver in Save
Our Heritage Organization v. Gonzalez and County of El Paso v.
Chertoff .55 In both cases, plaintiffs challenged the waiver of
environmental regulations relating to the construction of border wall
infrastructure on constitutional grounds stated in Defenders of Wildlife
and failed to convince the court that the waiver lacked the intelligible
principle required by the non-delegation doctrine.

2. Executive Order 13767

On January 25, 2017, five days after the presidential inauguration,
President Trump signed EO13767, marking his first action to follow
through on campaign promises to build a wall along the southern border.
Predicated on the national security interests posed by unauthorized
immigration, an alleged surge of illegal immigration from Mexico, and
transnational criminal organizations that contribute to border violence
and the influx of illegal drugs, the border policy outlined by EO13767
provides a policy framework for the executive branch to begin
construction of a southern border wall.56 This cornerstone policy
statement succinctly states the administration’s goal to “secure the
southern border of the United States through the immediate construction
of a physical wall on the southern border, monitored and supported by
adequate personnel so as to prevent illegal immigration, drug and human
trafficking, and acts of terrorism.”57 In addition to the call for

53. Id. at 124.

54. Id. at 127.
55. Our Heritage Org. v. Gonzalez, 533 F. Supp. 2d 58 (D.D.C. 2008); Cty. of El Paso v.
Chertoff, No. EP-08 -CA-196-FM, 2008 WL 4372693 (W.D. Tex. Aug. 29, 2008).
56. Exec. Order No. 13,767, Border Security and Immigration Enforcement
Improvements, 82 Fed. Reg. 8793 (Jan. 30, 2017).
57. Id.

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2018] ENVIRONMENTAL IMPACT OF BORDER SECURITY 339

construction of a border wall, EO13767 also calls for the additional

hiring of 5000 border patrol agents.58
Despite the call for immediate action, EO13767 does not account
for the funding required to put the policy into action. President Trump
repeatedly called for Mexico’s funding of the border wall throughout his
presidential campaign, but the policy is limited by action from Congress
to allocate adequate funds for the border wall and additional personnel.

IV. CONTEMPORARY CHALLENGE TO DHS WAIVER: IN RE BORDER

INFRASTRUCTURE ENVIRONMENTAL LITIGATION
Following President Trump’s EO13767 instructing the DHS
Secretary to construct a contiguous border wall between the United
States and Mexico, former DHS Secretary Kelly issued the “San Diego
Waiver,” waiving NEPA, ESA, the Clean Water Act, the Administrative
Procedure Act, and numerous other environmental regulations for the
construction of a fifteen-mile segment of the United States Border Patrol
(USBP) San Diego Sector and the construction of various border wall
prototypes.59 Concerned with the environmental impact of the proposed
border infrastructure projects, the Center for Biological Diversity (CBD),
along with Defenders of Wildlife, Sierra Club, Animal Defense Fund,
and the State of California, filed suit against DHS in the U.S. District
Court for the Southern District of California over the legitimacy of the
waiver.

A. Ultra Vires Claim

In In re Border Infrastructure Environmental Litigation, plaintiffs
offered a new legal theory against the broad application of the section
102(c) waiver through an ultra vires claim.60 At the heart of the argument
is the authority granted to DHS by Congress in IIRIRA and subsequent
legislation was exceeded by DHS in the August 2 waiver regarding the
San Diego infrastructure projects. CBD argued that because the
development of border wall prototypes doesn’t fall under the categories
of action authorized under the waiver, it was ultra vires. CBD’s ultra

58. Id.
59. Determination Pursuant to Section 102 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, as Amended, 82 Fed. Reg. 35,984 (Aug. 2, 2017),
https://www.gpo.gov/fdsys/pkg/FR-2017-08-02/pdf/2017-16260.pdf.
60. Plaintiff Center for Biological Diversity’s Memorandum of Points and Authorities in
Support of Cross Motion for Summary Judgement and in Opposition to Defendants’ Motion for
Summary Judgement for Plaintiff Center for Biological Diversity at 10-15, In re Border
Infrastructure Environmental Litigation (3:17-cv-01215) 2017 WL 5862844 (S.D. Cal.).

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340 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 31:327

vires claim raises the question of how an ultra vires claim may proceed
under the statutory preclusion of judicial review under section 102(c)(1):
(2) Federal Court Review. (A) In General. The district courts of the United
States shall have exclusive jurisdiction to hear all causes or claims rising
from any action undertaken, or any decision made, by the [DHS Secretary]
pursuant to paragraph (1). A cause of action or claim may only be brought
alleging a violation of the Constitution of the United States. The Court
shall not have jurisdiction to hear any claim not specified in this
61
subparagraph.
CBD argued that the limitation of judicial review under section 102(c)1
to constitutional claims should not shield DHS from judicial review in
determining whether the agency had acted within its statutory authority
delegated by Congress.62 Furthermore, CBD contended that because the
August 2 waiver was ultra vires, it would not be covered by the limitation
of judicial review because an ultra vires action is intrinsically not made
“pursuant to” IIRIRA section 102(c)1.63 Citing Dart v. United States,
CBD outlines the strong preference for courts to presume judicial review
when agencies have allegedly acted beyond their delegated authority.64
The ultra vires challenge to agency actions has been available to provide
individuals an opportunity to challenge an agency’s action since
American School of Magnetic Healing v. McAnnulty.65 CBD’s argument
highlights the importance of a presumption of judicial review by stating:
If a no-review provision shields particular types of [executive] action, a
court may not inquire whether a challenged [executive] decision is
arbitrary, capricious, or procedurally defective, but it must determine
whether the challenged . . . action is of the sort shielded from review.
Otherwise, agencies could characterize reviewable or unauthorized action
as falling within the scope of no-review provisions whose application to
66
such action Congress did not intend.
CBD must further prove that the border wall replacement and
prototype projects were outside the statutory authority of DHS. One of
the challenges CBD faced is proving that IIRIRA section 102’s scope is

61. IIRIRA, Pub. L. No. 104-208, § 102(c)(1), 110 Stat. 3009 (codified as amended at 8
U.S.C. § 1103 (2000)), amended by REAL ID Act of 2005, Pub. L. No. 109-13, § 102, 119 Stat.
302 (codified as amended at 8 U.S.C. § 1103 (2006)).
62. Plaintiff Center for Biological Diversity’s Memorandum of Points and Authorities,
supra note 60, at 13.
63. Id. at 11.
64. Id. at 12 (citing Dart v. United States, 848 F.2d 217 (D.C. Cir. 1988)).
65. Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902).
66. Plaintiff Center for Biological Diversity’s Memorandum of Points and Authorities ,
supra note 60, at 12 (citing Amgen v. Smith, 357 F.3d 103, 113 (D.C. Cir. 2004)).

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2018] ENVIRONMENTAL IMPACT OF BORDER SECURITY 341

more limited than the DHS interpretation. CBD’s main argument for a
limited interpretation of the waiver is a statutory interpretation that reads
section 102(c) as operating solely over the preceding provision’s
enumerated projects in section 102(b).67 This interpretation is supported
by CBD’s claim that the legislative history and case law precedent, in
addition to the statute formatting, indicate the necessity of a limited
interpretation of the section 102(c) waiver.
In its motion for summary judgment, CBD points the court to its
previous interpretation of the section 102(c) waiver in Sierra Club v.
Ashcroft.68 There, the United States District Court for the Southern
District of California stated that the “barriers and roads” referenced in
section 102(c) in the original and amended IIRIRA operate with a
narrow scope over the Triple Fence project located near San Diego.69
In addition to highlighting the court’s previous interpretation of the
section 102(c) waiver, CBD argues that, at the least, the construction of
section 102 remains ambiguous and the legislative history of the REAL
ID Act sheds light on the waiver’s limited application.

B. Border Projects Are Not Covered Under IIRIRA Section 102(a)

CBD makes a compelling case by arguing that regardless of
whether the section 102(c) waiver applies to section 102(a), the August 2
waiver should not be authorized by IIRIRA because the project does not
fall under the broad category of activities under section 102(a). Under
section 102(a), “The Attorney General . . . shall take such actions as may
be necessary . . . in areas of high illegal entry into the United States.”70
Information provided by the State of California in their brief provides
evidence that the region of the border projects are not in “areas of high
illegal entry,” and to determine such would be unreasonable. Using
CBP’s data, the State of California pointed out that the number of
deportable migrants apprehended in the San Diego sector fell from

67. Id. at 17.

68. Id. (citing Sierra Club v. Ashcroft, 2005 U.S. Dist. LEXIS 44244 (S.D. Cal. Dec.
2005)).
69. Id. (citing Ashcroft, 2005 U.S. Dist. LEXIS 44244, at *19-20) (“[T]he ‘barriers and
roads’ alluded to are in the same in both articulations of Section 102(c): the Triple Fence project
located along the U.S.-Mexico border in the vicinity of San Diego . . . . Congress simply
broadened the scope of the waiver authority of the pre-existing delegation to ‘all laws,’ but again
only for the narrow purpose of expeditious completion of the Triple Fence authorized by the
IIRIRA.”).
70. IIRIRA, Pub. L. No. 104-208, § 102(c)(1), 110 Stat. 3009 (codified as amended at 8
U.S.C. § 1103 (2000)), amended by REAL ID Act of 2005, Pub. L. No. 109-13, § 102, 119 Stat.
302 (codified as amended at 8 U.S.C. § 1103 (2006)).

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342 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 31:327

483,815 in 1996 to 31,891 in 2016.71 Despite overwhelming evidence

that shows that the rate of illegal entries has declined dramatically over
the past decade in the San Diego sector, the agency’s determination of
“high illegal entry” is a threshold that is difficult to challenge because of
the discretion of the agency. Congress has declared “operational control”
of the borders as “the prevention of all unlawful entries into the United
States, including entry by terrorists, other unlawful aliens, instruments of
terrorism, narcotics, and other contraband.”72 Considering the definition
of operational control’s high standard, challenging San Diego Sector’s
designation as “high illegal entry” may likely be unavailing.

C. Judge Curiel’s Opinion

On February 28, 2018, the United States District Court for the
Southern District of California issued an opinion on In re Border
Infrastructure Environmental Litigation. In an order granting DHS’s
motion for summary judgment, Judge Curiel reviewed the agency’s
actions under CBD’s ultra vires claim, finding that the agency had not
acted ultra vires.73 The court found that it had jurisdiction to hear the
ultra vires claims under the narrow exception when there is a claim that
an agency acted beyond its statutory authority.74 The analysis of whether
the actions were ultra vires relied upon the standard that the agency acted
in contravention of “clear and mandatory” statutory language.75 Because
of the statutory language of section 102 and the plausibility of both the
CBD and DHS’s interpretations, the court could not conclude that DHS
acted in excess of their delegated powers, contrary to the “clear and
mandatory” standard.76
The court order supported the validity of an ultra vires challenge to
challenges against the construction of border infrastructure under
IIRIRA and the limited judicial review available; however, the order
reinforced the broad authority delegated to DHS. Judge Curiel
emphasized his belief in the court’s role, where he echoes Chief Justice

71. Memorandum in Support of Motion for Summary Judgment for People of the State
of California and the California Coastal Commission at 18, In re Border Infrastructure
Environmental Litigation (3:17-cv-01215) 2017 WL 5760186 (S.D. Cal.).
72. Secure Fence Act of 2006, Pub. L. No. 109-367, § 2(b), 120 Stat. 2638 (codified as
amended at 8 U.S.C. § 1103 (2006)).
73. Order Denying Plaintiffs’ Motions for Summary Judgment and Granting Defendants’
Motions for Summary Judgement, at 19-20, In re Border Infrastructure Environmental Litigation
(S.D. Cal. June 15, 2017) (No. 3:17-cv-01215).
74. Id. at 21.
75. Id. at 29.
76. Id. at 39.

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2018] ENVIRONMENTAL IMPACT OF BORDER SECURITY 343

Roberts: “Court[s] are vested with the authority to interpret the law; we
possess neither the expertise nor the prerogative to make policy
judgments . . . . It is not our job to protect the people from the
consequences of their political choices.”77

V. MEASURING SUCCESS: GOVERNMENT ACCOUNTABILITY OFFICE

REPORT ON SOUTHWEST BORDER SECURITY
The fencing infrastructure in place since the congressional mandate
of the Secure Fencing Act of 2006 should inform policymakers on the
development of border infrastructure, including EO13767. Available
information on the efficacy of various fencing structures on DHS’s
operational objectives should be considered before more taxpayer money
is devoted to the project. In February 2017, the GAO published a report
on the state of Southwest border security and the efficacy of fencing
infrastructure.78 As an independent, nonpartisan agency working for
Congress, GAO’s mission is to investigate how taxpayer dollars are spent
and the success of government programs in meeting their objectives.79
The congressionally requested report examines border fencing’s intended
contributions to security and CBP’s ability to assess the contributions of
fencing.80 The report concludes that CBP has still not assessed pedestrian
or vehicle fencing’s contributions to border security, despite spending
approximately $2.3 billion to deploy border fencing along the border from
2007 through 2015.81 Beyond the costs of deployment, maintenance and
repair work on the border will cost more than $1 billion over twenty
years.82 Because CBP has not developed a system of metrics to assess
the operational capabilities of border fencing, the agency has not
provided any measurements of fencing contributions to border security.83
In addition to highlighting CBP’s lack of contribution metrics, the
GAO report details Border Patrol Agents’ acknowledgement of the
limitations of border fencing.84 Between 2010 and 2015, CBP recorded
9287 breaches in pedestrian fencing.85 Methods for breaching pedestrian

77. Id. at 3 (quoting Nat’l Fed’n of Indep. Bus v. Sebelius, 567 U.S. 519, 538 (2012)).
78. GOV’T ACCOUNTABILITY OFFICE, SOUTHWEST BORDER SECURITY: ADDITIONAL
ACTIONS NEEDED TO BETTER ASSESS FENCING’S CONTRIBUTIONS TO OPERATIONS AND PROVIDE
GUIDANCE FOR IDENTIFYING CAPABILITY GAPS (2017).
79. About GAO, GOV’T ACCOUNTABILITY OFF., https://www.gao.gov/about/index.html
(last visited Feb. 25, 2018).
80. GOV’T ACCOUNTABILITY OFFICE, supra note 78, at 2.
81. Id. at 25.
82. Id.
83. Id.
84. Id. at 22.
85. Id.

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344 TULANE ENVIRONMENTAL LAW JOURNAL [Vol. 31:327

fencing are varied and depend on the type of fencing, which ranges from
legacy landing mat fences to modern bollard fences. Simple portable
power tools, burrowing, and wire cutters are common methods for
breaching border fencing.86 Border Patrol Agents have also witnessed
small aircrafts transporting contraband over the pedestrian and vehicle
fencing.87 In early August 2017, Border Patrol in San Diego County,
California, apprehended an individual for transporting over thirteen
pounds of methamphetamines over the border with a remote control
drone.88 While not the first instance of drones transporting contraband
over the border, new technologies and methods for breaching border
fencing are emerging and present a clear limitation in border fencing.
While billions of dollars have been spent on the development of
border fencing along the U.S.-Mexico border, questions remain on its
efficacy and call for further studies and assessments. EO13767 proposes
a contiguous wall for the purposes of securing the border from “illegal
immigration, drug and human trafficking, and acts of terrorism,” which a
conservative estimate by DHS reports would cost $21.6 billion to
construct, not including annual maintenance and repair costs.89

VI. CONCLUSION
The development of border security infrastructure along the U.S.-
Mexico border has significant impacts on the local environment and will
continue to transform the landscape with high environmental costs. The
question of how many environmental interests we are willing to give up
to advance some form of border security is one that is being removed
from the public and a multitude of stakeholders. The DHS authorization
to waive laws pursuant to the REAL ID Act has alienated and will
continue to alienate public oversight of the agency’s actions,
circumventing a vital mechanism for public participation and assessment
of mitigation and alternative measures via NEPA. Unless Congress
reforms, limits, or eliminates the scope of the waiver, the strongest
instrument preventing EO13767 from realizing a contiguous border
without adhering to environmental regulations is funding.

86. Id.
87. Id. at 23.
88. Pauline Repard, In New Tactic, Smugglers Use Drone to Fly Meth Over Mexican
Border into San Diego, Official Say, L.A. TIMES (Aug. 19, 2017), http://www.latimes.com/
local/lanow/la-me-drug-smuggle-drone-20170819-story.html.
89. Julia Edwards Ainsley, Exclusive-Trump Border ‘Wall’ to Cost $21.6 Billion, Take
3.5 Years to Build: Internal Report, REUTERS (Feb. 9, 2017), https://www.reuters.com/article/us-
usa-trump-immigration-wall-exclusive/exclusive-trump-border-wall-to-cost-21-6-billion-take-3-
5-years-to-build-internal-report-idUSKBN15O2ZN.

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