June 13th, 2006
By Scott Nicol
In recent months the U.S. House and Senate passed separate immigration bills, both of which mandate fencing along the U.S./Mexico border. This would be two or three parallel walls, as much as 15 feet high, with a road running between them and cameras, sensors, and 24-hour spotlights. All vegetation would be cleared from an area up to 300 feet wide and hundreds of miles long.
The House bill (HR 4437) would directly impact the lower Rio Grande valley, mandating continuous fencing from Laredo to Brownsville, along with additional fencing from the Pacific to the Gulf of Mexico that will total more than 700 miles. The Senate bill (S 2611) mandates 300 miles in Arizona. A House/Senate conference committee is working to reconcile the two bills.
The proposed fence would slice through the heart of a wildlife corridor and a flyway vital to migratory birds. Ocelots, numbering less than 100 and listed under the Endangered Species Act, live in the area’s remaining habitat. Jaguarundi, which are even rarer than the ocelot in the United States, are also found here. Because so few of each species are left in the U.S. they must have access to mates in Mexico to avoid inbreeding. It is inconceivable that they would be able to cross the proposed fence.
The lights trained on the fence also have the potential to disrupt the ability of these mostly nocturnal animals to hunt nearby, and may interfere with the night time migrations of numerous bird species. Migrating birds require places in which to rest and refuel during their journeys. Clearing miles and miles of habitat to build walls and roads will result in increasing stress on birds that may end up without the energy necessary to survive the flight.
These impacts will be in addition to the more visible damage that would be done to the ecosystems of the Sabal Palm Audubon Sanctuary, Bentsen-Rio Grande Valley State Park & World Birding Center, Santa Ana National Wildlife Refuge, and numerous US Fish & Wildlife tracts that front the Rio Grande.
The Senate’s Immigration bill, if adopted by the conference committee, would spare Texas. Rather than 700 miles of destruction in four states, the Senate bill mandates 300 miles in Arizona. Of course, the landscape that would be impacted is no less worthy of protection than the Rio Grande ecosystem.
The Sonoran pronghorn, one of the most endangered mammals in the United States, lives in the desert that the Senate fence (as well as that of the House) would disrupt. At least 39 federally endangered, threatened, proposed and candidate species live along Arizona’s border with Mexico. Arizona’s stretches of fence would tear through the Organ Pipe Cactus National Monument, the Cabeza Prieta National Wildlife Refuge, and the Buenos Aires National Wildlife Refuge.
If Congress approves fencing on the border, it will not be subject to any of the laws that might lessen the damage. This is because in 2005 the Real ID Act, attached as a rider to a supplemental appropriations bill funding the wars in Iraq and Afghanistan, decreed, “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.” (See Title I, Sec. 102 at the link above).
This means that the ocelot gains no protection from the Endangered Species Act, migrating birds cannot rely on the Migratory Bird Treaty Act, and farmers or other landowners such as the Sabal Palm Audubon Sanctuary that may not want to give up their property have no legal recourse to fight to keep it.
On September 22, 2005, Secretary of Homeland Security Michael Chertoff used his new power to “waive in their entirety” the Endangered Species Act, the Migratory Bird Treaty Act, the National Environmental Policy Act, the Coastal Zone Management Act, the Clean Water Act, the Clean Air Act, and the National Historic Preservation Act to extend triple fencing through the Tijuana River National Estuarine Research Reserve near San Diego.
The Real ID Act further stipulates that his decisions are not subject to judicial review, and in December 2005 a federal judge dismissed legal challenges to Chertoff’s move by the Sierra Club, the Audubon Society and others. For more on the Real ID Act, see pages 32-33 of this Defenders of Wildlife Report.
So long as the Real ID Act is in force, it is important to fight the construction of any Congressionally-mandated fencing along our borders. If the House and Senate bills cannot be reconciled in conference committee, they will not go into effect. However, that would not be the end of this issue – because unless Congress repeals the Real ID Act, any future fencing along the 6,000 miles of our borders with Mexico and Canada would pose the same threats. Texas Senator John Cornyn is on the conference committee http://www.cornyn.senate.gov. As the environmental impacts of Immigration legislation have received so little attention in the debate over the bills, it is vitally important that he hears from concerned constituents.
Scott Nicol teaches at South Texas College and is on the Executive Committee of the Lower Rio Grande Valley Sierra Club group. He can be reached at firstname.lastname@example.org.