New border security bill would roll back public lands protections

Sen. John McCain’s proposal would give Border Patrol more immediate access to sensitive borderlands.


More than 10,000 miles of vehicle tracks twist across the arid borderlands of southern Arizona, the marks left by Border Patrol agents in their quest to seal off a stubbornly porous U.S.-Mexico frontier. As part of that effort, the Department of Homeland Security has built special bases and surveillance towers and agents drive off-road throughout conservation areas. 

As part of a post-9/11 security buildup, the Bush administration gave Homeland Security free rein to bypass environmental reviews when constructing border walls through the 2005 Real ID Act. The law helped expedite the construction of 670 miles of new barriers along the U.S.-Mexico border. And while the increased fortification helped stem the flow of immigrants, it came at a big cost for fragile desert ecosystems, fragmenting habitat and migration routes for many species, and causing or exacerbating erosion and flooding (such as in 2008 when a 40-foot section of wall collapsed in the Organ Pipe National Monument during a monsoon storm).

Now, Sen. John McCain, R-Arizona, wants to give Customs and Border Protection agents even greater access to borderlands in his state and parts of California. Currently, the waiver on environmental laws, which include the National Environmental Policy Act, the Endangered Species Act, and the Wilderness Act apply only to permanent infrastructure projects along the border. But a bill sponsored by McCain would expand that waiver to all Border Patrol activities within 100 miles of the border. On May 7, a Senate committee passed the “Arizona Borderland Protection and Preservation Act,” which would give “immediate access to federal lands for security activities." Those 10 million acres of land include Saguaro National Park, home of America’s largest cacti and the Sonoran Desert National Monument, the most biologically diverse desert in North America.

A statement by McCain and cosponsor Rep. Matt Salmon, R-Arizona, said the bill would make it easier for border patrol to enter and operate on federal lands and build infrastructure such as radio towers, by cutting “unnecessary red tape.” According to McCain, Border Patrol agents must currently wait for approval from the Departments of the Interior and Agriculture to enter protected areas for routine patrols or to build tactical infrastructure such as radio towers.

"Amazingly, the laws put in place to protect these lands also prevent Border Patrol agents from doing their jobs,” read the statement, citing the difficulties Border Patrol agents face in patrolling large swaths of federal land.

A press representative from the Tucson Border Patrol office said they would not comment on pending legislation.

Critics call the bill unnecessary, given the existing waiver of most environmental protections along the border. “The notion that they don’t have access is ridiculous,” says Tucson-based Randy Serraglio, a Southwest advocate for the Center for Biological Diversity. “They’re not really bound by any law — they fill out incursion reports, but if they’re pursuing a suspect they can go wherever they want,” he said, noting that McCain’s bill would remove the requirement that agents report when they drive off-road in a wilderness area, leaving no record of their activities. 

A Javelina is stymied by the the border in southern Arizona. Virtually all environmental laws have been waived to build more than 670 miles of new barriers since 9/11. Now, new border security bills are proposing to expand that waiver to all federal land within 100 miles of the border.
Matt Clark/Defenders of Wildlife

A letter dated May 5 signed by 40-plus immigration, labor, faith, environmental, human rights and border advocates attacked the bill for further weakening the rule of law in the borderlands. The letter pointed to a report from the Bipartisan Policy Center, that increased militarization of the border will not stop the flow of illegal migrants: “Achieving 100 percent enforcement is an unrealistic expectation in any border security effort.” 

In an interesting twist, even Customs and Border Protection does not want the enhanced authority Arizona’s politicians are proposing. Homeland Security, the parent agency of the Border Patrol, has repeatedly disclaimed the idea that such legislation is required to further border security. The agency maintains that existing cooperation with the Departments of Interior and Agriculture allows Border Patrol agents to fulfill their responsibilities while protecting the environment. 

A 2011 Government Accountability Office report found that the Border Patrol's access to some federal land along the Southwest border "has been limited" by certain environmental laws, but 22 of the 26 agents interviewed for the research also said overall security levels had not been affected by land laws. The report also cited factors such as the "remoteness and ruggedness of the terrain" as having a greater effect on agents' mobility than environmental laws. 

Very little is known about the border wall’s true environmental impacts because few scientific studies have been done. But video cameras installed by Border Patrol have filmed a mountain lion blocked by the wall, a scenario that’s likely playing out with other species, such as the endangered ocelot and jaguar.

And while the beefed-up border means fewer immigrants are entering illegally overall, it has redistributed migration flow into remote areas, increasing the risk of death. For instance, there’s been a marked rise in the number of people trying to cross the Sonoran Desert, a dangerous 50-mile trek across inhospitable terrain. During the early 1990s, Arizona's Pima County medical examiner saw between 5 and 11 border crosser deaths per year. In the year 2010, the number had risen to 225. 

McCain’s bill isn’t the only new proposal to increase border activity. In January, Texas representative Michael McCaul introduced a bill that calls for new “forward operating bases,” modeled after the outposts established in Afghanistan’s remote war zones, plus hundreds of miles of new roads. And like McCain's bill it also expands the waiver of environmental laws on the border to include any federal lands within 100 miles of Mexico. Department of Homeland Security Secretary Jeh C. Johnson called the legislation “extreme to the point of being unworkable.” 

Both border security bills, which are mostly Republican-backed, but have garnered support from some Democrats, will likely face a difficult path to approval — and not only because of environmental concerns. The Federation for American Immigration Reform, an immigration-restrictionist group, has opposed McCaul’s bill for not going far enough in imposing tougher border security measures. 

Sarah Tory is an editorial fellow at High Country News. 

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