President Trump’s plan to have the Pentagon quickly build part of the wall on the U.S. border with Mexico is now facing years of potential delays because of environmental reviews.
The Navy has started work on an environmental impact statement for the $450 million project to construct a 32-mile-long border barrier along the Barry Goldwater bombing range in Arizona. The federally mandated environmental review, required under the National Environmental Policy Act, or NEPA, will require the government to accept public input and look at other alternatives.
“The EIS process can and typically runs in a matter of years,” said Jim McElfish, a senior attorney with the Environmental Law Institute. “This administration has put a pretty high priority on and put out executive orders and tracking approaches to try to get those done in two years.”
The review could stretch into a new administration, unless the Department of Homeland Security Secretary Kirstjen Nielsen can use authorities under NEPA and the Endangered Species Act to waive the environmental regulations.
The Goldwater project was denied an initial exemption from the NEPA requirements, and the Navy has gone to step No. 2 by hiring a contractor to conduct the required EIS, according to Naval Facilities Engineering Command, which is heading up the environmental review.
The EIS contract was awarded in September, NAVFAC said. The Navy has tapped $11 million in Pentagon operations and maintenance funds for environmental work.
“The Navy’s goal is to complete the EIS in the most efficient manner possible, while ensuring that all potential environmental impacts are taken into consideration,” the command said in a statement.
The outcome of that process could be challenged in court, which could also draw out the project, McElfish said.
Trump was frustrated at the slow pace and lack of wall funding from Congress when he raised the possibility of using the military last summer.
“We have two options – we have military, we have homeland security. Politically, I’d rather get it through politically. If we don’t, I’m looking at that option very seriously,” Trump said in August. In that same month, the Department of Homeland Security sent a request to the Pentagon for the new 30-foot barrier along the range, where the Bush administration spent about $122 million on vehicle and pedestrian barriers in 2007.
The Pentagon said it is still looking at how the $450 million barrier project will be funded. If the project is handled and paid for solely by the military, it remains unclear whether Nielsen can or will issue a DHS waiver from all environmental regulations, a power granted to her by Congress in 2005 to speed up construction of border barrier projects.
“The secretary is committed to building President Trump’s border wall and is engaged in ongoing conversations with the Department of Defense,” DHS spokeswoman Katie Waldman wrote in an email.
DHS declined to comment on the secretary’s waiver power.
Trump’s DHS has already employed waivers a handful of times on the border, and Nielsen waived environmental rules last month for border wall construction in Texas.
Her predecessor in the Bush administration, Michael Chertoff, used those same waiver powers for a DHS project erecting border barriers along the Goldwater range in 2007. Chertoff waived NEPA and the Endangered Species Act along with six other federal regulatory laws for that project.
The administration could try to tap that authority again at the bombing range, said Brian Segee, a senior attorney for the Center for Biological Diversity, which is challenging all of the waivers in court.
“It’s surprising to me to hear that they have initiated NEPA work,” Segee said.
Unlike the NEPA process, the DHS project waivers are very difficult to challenge in court. The only way to appeal a ruling is to petition the Supreme Court.
Segee said he worked on legal challenges to the Bush administration waivers, but none of the lawsuits have been successful. A Congressional Research Service report in 2017 noted that the waivers are seen “as possibly having greater reach than any other waiver authority conferred by statute.”
“The borderlands area is incredibly environmentally important, but we’re not getting to the substance because we have been litigating over the waivers,” Segee said. “Aside from the environmental considerations, we think there is fundamental notions of transparency, public participation, and just the rule of law involved.”
