Chertoff's monster

Abstract

What do gila monsters and Secretary of Homeland Security Michael Chertoff have in common? Other than persistence, very little. US immigration policy – once described as “squeezing a balloon” (ie shifting emphasis from one sector to another) – and environmental policy seem to have become disparate as well. The fence now under construction along the US–Mexico border is the most recent intra-governmental standoff between the National Environmental Policy Act (NEPA) and another governmental function, immigration control by the Department of Homeland Security (DHS). NEPA has, as its basis, the mission “to declare a national policy which will encourage…harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere...[and] to enrich the understanding of the ecological systems and natural resources important to the Nation”. Immigration policy in the Sonoran Desert is designed to stop criminal activity, and NEPA's harmonious nature is being tested again. In what most see as an aggressive action to comply with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 and the Secure Fence Act of 2006, installation of fencing, barriers, roads, lighting, cameras, and sensors was mandated. The DHS announced in early April decisive moves to finish 370 of almost 700 miles of barriers on the approximately 1969 miles of the border with Mexico by the end of 2008, and that it would exercise waivers built into the fence statute to suspend federal and state environmental laws to meet that goal. Chertoff argued that Congressional authority under IIRIRA justified the waiver: “Congress and the American public have been adamant that they want and expect border security”, and, in addition to security risks and the flow of illegal immigrants, “Illegal border traffic has also caused severe and profound impacts to the environment”. Passed in 1969, NEPA was designed to ensure that federal projects would be reviewed to assess their potential environmental harm. The law requires federal agencies to integrate environmental awareness and values into decision-making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. To meet this requirement, federal agencies are required to prepare a detailed EIS for each such project. The US Environmental Protection Agency (EPA) reviews and comments on EISs prepared by other federal agencies. Congress can, in unusual and emergency situations, waive NEPA compliance to counterbalance unnecessary delays in an essential project, but such waivers must be fully vetted. Earlier this year, a federal court struck down a waiver issued by the White House that would have exempted the US Navy from complying with the Coastal Zone Management Act during sonar training exercises off of southern California. With the waivers in place, one might ask, what does the fence have to do with the environment? The answer is, plenty. At issue now is that the fence, designed to keep out criminals, illegal immigrants, terrorists, and so forth, also disturbs the natural ecological immigration of fauna. Some commentators believe that the fence is a waste of money, and will do nothing to stem the flow of cross-border migrants. On the other hand, the border spans the Sonoran Desert, wilderness areas such as Cabeza Prieta National Wildlife Refuge, the Organ Pipe Cactus National Monument, and the San Pedro Riparian National Conservation Area, and the effects on those areas are already clearly visible. Ecosystems, of course, know no borders, and a number of endangered and threatened species live in this environment shared by Mexico and the US, including jaguars, ocelots, jaguarundis, gila monsters, and Sonoran pronghorns, among others; one ecologist has described the fence as “a Great Wall of Arizona”. The fence, argue environmental groups, and even some Members of Congress, will cut off migration routes for many of these species and will bisect a series of dry washes. During monsoon season, water will pool behind the fence foundations, causing erosion that could eventually alter existing willow forests and other habitat. So, given the outcry, we may soon see who has the most tenacious bite – Chertoff, or our old friend, the gila monster.