Legal or Not, Trump’s Wall Is Already Being Built

This story was originally published at High Country News (hcn.org) on September, 25, 2017

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.

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, he recently told reporters that 700 miles might suffice. 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 Santa Ana National Wildlife Refuge, for example, is known as the “jewel of the National Wildlife Refuge System” because of the incredible diversity of birds that it harbors.

The refuge’s privately owned neighbor, the nonprofit National Butterfly Center, 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, according to Customs and Border Protection data, 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.

According to a Congressional Budget Office report, 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, according to the Washington Post.

What Will the Environmental Impacts of the Construction Be?

According to the Center for Biological Diversity, 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 — in some cases, more than thirty laws — 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.

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.