The nation’s top security official may use his power to unilaterally trump a federal court order that halted construction of a fence along a stretch of the Arizona-Mexico border.
Russ Knocke, press aide to Homeland Security Secretary Michael Chertoff, told Capitol Media Services his boss is weighing whether to invoke a section of federal law that allows him to exempt border construction projects from any law. That includes requirements for studies on environmental impacts of federally funded projects.
The move is not unprecedented. Chertoff used the power at least twice since it was granted.
In 2005, he decided to build fencing near San Diego without conducting environmental studies. And in January, he issued a waiver from all laws for a project along the edge of the Barry M. Goldwater Range in southwest Arizona.
The possibility of Chertoff again exempting his agency from environmental laws comes days after a federal judge in Washington stopped construction of a nearly two mile stretch of fence at the foot of the San Pedro Riparian National Conservation Area. The restraining order gives two environmental groups time to convince Judge Ellen Huvelle that plans for vehicle barriers in the river’s floodway and washes leading into it will cause erosion and sedimentation that will harm the environment and affect species dependent on the river.
Defenders of Wildlife and the Sierra Club also contend the Bureau of Land Management, which controls the area, did not seek public input on the project in performing an “environmental assessment” that took just three weeks. They contend the BLM should have prepared a more formal “environmental impact statement.”
Chertoff, however, can negate the lawsuit and judge’s ruling by declaring the project exempt from the law the groups used to sue.
Knocke said Chertoff believes the lawsuit is without merit, saying the BLM’s assessment concluded the project would not have adverse impact.
“We care about the border environment as much as anyone,” Knocke said. “But when weighing a lizard in the balance with human lives, this border infrastructure project is the obvious choice.”
Attorneys for Chertoff also contend environmental damage from illegal bordercrossers is greater than what would be caused by the barriers.
Nothing short of congressional action could stop Chertoff from exempting the San Pedro project from the environmental laws. But even Rep. Gabrielle Giffords, D-Ariz., whose district includes the river, does not support repeal of Chertoff’s power.
“Border security has to be a top concern in a state like this,” said C.J. Karamargin, Giffords’ press aide. He said the Giffords believes federal officials “should have the tools they need to do the job.’’