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DHS Clears Some Legal Hurdles to Border Wall With Waiver

Seth Kaplowitz

If it ever gets started, the proposed border wall between the U.S. and Mexico won’t have to abide by environmental and other laws that would otherwise impact a construction project in San Diego County.

The U.S. Department of Homeland Security (DHS), which oversees border-related projects, announced Aug. 1 that its waiver applies to “a variety of environmental, natural resource and land management laws” in the San Diego region. The project is scheduled to begin in Otay Mesa by year’s end, starting with the building of prototypes.

But critics and other observers point to numerous challenges that still need to be mounted, including funding from Congress, a pending contractor lawsuit, and more legal and political challenges.

“They may be able to sweep the environmental issues under the rug, but there a lot of other things to deal with here,” said Seth Kaplowitz, a finance lecturer at San Diego State University who is also a lawyer.

Covers 15-Mile Stretch

The waiver identified by DHS covers a 15-mile stretch, and includes 14 miles of replacement secondary fencing within San Diego County. The agency has said the waiver applies to 37 local laws and regulations, primarily related to environmental issues, and a detailed list was expected to be released in the coming days.

The DHS statement said the department “remains committed to environmental stewardship with respect to these projects.”

“DHS has been coordinating and consulting — and intends to continue doing so — with other federal and state resource agencies to ensure impacts to the environment, wildlife, and cultural and historic artifacts are analyzed and minimized, to the extent possible,” the statement said.

Kaplowitz said there is a high probability that the border region contains sacred, centuries-old Native American and other cultural burial grounds, which by themselves could force future wall construction delays if there is a chance of disturbing them.

Also, a question still not answered in San Diego County, and elsewhere along the border, is whether the government will have eminent domain rights when it comes to taking land needed for the wall project. Any legal fights on this matter alone could add several months of delays.

DHS Secretary’s Discretion

In its statement regarding the environmental waivers, the DHS cites federal code regarding the department’s security mission, giving it authority to install “additional physical barriers and roads” in the border area “to deter illegal crossings in areas of high illegal entry into the United States.”

Congress in the past has authorized installation of additional fencing, barriers, roads, lighting, cameras and sensors along the Southwest border. DHS contends this gives the agency authority to waive all legal requirements that the DHS secretary “in his sole discretion, determines necessary to ensure the expeditious construction” of barriers and roads.

Kaplowitz said it remains to be seen whether the courts — in the event of highly likely legal challenges — will uphold the Trump administration’s contention that the building of the wall is an urgent matter justifying the immediate waiving of environmental and other laws. For instance, the courts have only partially allowed the implementation of the president’s temporary immigration travel ban, announced earlier this year and impacting six primarily Muslim countries.

The start of prototyping for the wall project has already been delayed by challenges made by two contractors — WNIS and Penna Group — to the federal bidding process. The two firms did not make it to a second round of bidding, though the government at press time had not announced an actual list of applicants still in the running.

The federal Government Accountability Office has dismissed the WNIS protest, but is still evaluating the one by Penna Group, which is based in Fort Worth, Texas. Because of the challenges, the wall prototyping phase, which had been scheduled to begin in San Diego in June, has now been pushed back to a likely November start.

State Actions

Recent estimates by various observers put the wall’s cost at around $20 billion. But the Trump administration has yet to identify a specific cost for the project, and Kaplowitz said Congress won’t be in a position to approve funding without knowing that cost.

The U.S. House of Representatives recently approved an appropriations bill that included $1.6 billion to build 74 miles of border wall — a very small stretch of a project expected to span 2,000 miles. DHS and its constituent agencies, including U.S. Customs and Border Protection, have recently stressed that any estimates of total border wall construction costs are “premature,” as factors such as technology and hiring of security personnel will also need to be factored in after the wall itself is designed.

When it comes time to hire construction contractors and subcontractors for local work, more legal battles could be brewing. Kaplowitz pointed to a bill pending in the California Senate — S.B. 30, proposed by Sen. Ricardo Lara, D-Bell Gardens — that would essentially bar California contractors from working on state-financed projects if they provide goods or services for the border wall.

The state measure has been supported by entities including the San Diego Unified School District, but is opposed by industry groups such as the Southern California Contractors Association.

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