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Stalling the wall

How Chertoff’s mega-waiver could awaken the Supremes, revive humane legislation, and create a kinder, gentler border

Greg Harman
Dinah Bear sees the mega-waiver as a breakthrough.

 

I’m walking the trail at the Sabal Palm Audubon Center, shooting video, and narrating from bulleted points of sanctuary’s literature. Switching off the camera, I peer through the green-infused light and into the dizzying hundred-foot canopy above. Narcotized by this lush setting, I think how nice it would be to take my daughter here one day. That’s when my internal CD skips and I’m jolted back into the present.

By the end of the year, this last remaining patch of sabal-palm forestland, about 130 acres, may be stranded south of Homeland Security’s proposed border wall in a No Man’s Land of perhaps thousands of acres ceded across Texas to notions of National Security.

Audubon’s leadership is unequivocal: If the wall goes up, the nature preserve shuts down.

It’s been more than a month since I traveled the riverlands from beneath El Paso past Brownsville to this preserve, trying to faithfully capture life on the Rio Grande while illuminating the impact this Congressionally mandated wall will bring (See “Muro del Odio, Part III” March 12, 2008, murodelodio.com). A lot has changed in the wall fight since. And it’s wonderful.

First off, Homeland Security Secretary Michael Chertoff has now issued two waivers in his quest for more than 150 miles of 18-feet-high, impact-resistant fencing on (or near) the Texas-Mexico border.

The first represents his attempt to compromise with Hidalgo County officials by merging wall plans with needed infrastructure improvements along their levy system.

The second is less charitable. By utilizing a provision tucked inside the federal Real ID Act, Chertoff announced he will ignore 36 federal laws — from Safe Drinking Water and Clean Air acts to Native American Graves Protection — to expedite the construction of 360 miles of border fence he wants to complete by year’s end.

The shock of this so-called “mega-waiver” has been an invaluable windfall for the resistance.

“The all-famous waiver has been like a miracle,” said Humane Borders board member Dinah Bear. “A couple of days before that we were begging people to care about this case and it was like, ‘Yeah, yeah, yeah,’ and then all of sudden, Bam! New York Times to Los Angeles Times editorials … We have lawyers saying, ‘Now I get it!’”

The Sierra Club and Defenders of Wildlife, defeated in attempts to stop the barrier from slicing through the San Pedro Riparian National Conservation Area, are now petitioning the Supremes to consider the constitutionality of the 2005 Real ID clause allowing Chertoff to sidestep any federal law “necessary to ensure expeditious construction of the barriers and roads.” An amicus brief submitted by 14 members of Congress in support of that request garnered national headlines and increased the petition’s political weight.

“Just to give you a sense of what’s happening, a Supreme Court practitioner said a few days after the waiver, ‘I’ve been watching what’s happening and I think the chances of the Supreme Court taking this has gone up like from 5 percent to 50 percent,’” Bear said.

Two more amicus briefs are expected to be filed this week before tomorrow’s deadline, one from an assortment of constitutional and administrative law professors and another, being drafted by Bear, from almost everybody else.
Bear’s list includes an assortment of national and international environmental groups, historic preservation and archeological societies, the Tohono O’odham Nation, and the United Church of Christ.

“We’ve had everybody from the Nature Conservancy to Greenpeace to the Little Sisters of the Good Shepard express interest – a very wide variety of people because of the breadth of the waiver — the fact that he waived the Religious Freedom Restoration Act.”

The sails of a secondary flashpoint are also beginning to flutter for the first time since being swallowed up by an unresponsive Homeland Security subcommittee last year. The Borderlands Conservation and Security Act authored by Arizona Representative Raúl M. Grijalva gained six new cosponsors after Chertoff made his April Fool’s Day mega-waiver announcement.

The Borderlands Act would not only repeal the Real ID provision enabling Chertoff’s waivers, but require “full public notice and participation” by local communities in border-security efforts, and create a Borderlands Conservation Fund to help respond to borderlands-habitat destruction.

“If we could at least get it out of committee, that would be our goal,” said Natalie Luna, Grijalva’s press secretary. “Obviously we want to get it to the floor, but if we can get it out of subcommittee into committee, get some traction on it, that would be fantastic. If it does get to the floor, there will be quite a fight I would imagine.”

The climate in Washington has been particularly rough on immigration or border-security bills, reflective most obviously in Congress’s failure to compromise on any immigration reform package.

Representative Charlie Gonzalez sits on that Homeland Security Subcommittee on Border, Maritime, and Global Counter Terrorism. He wasn’t sure what was holding up Grijalva’s bill. “We’re hoping to get it moving,” he said. “I think you’re not going to see any major changes until after the presidential election is out of the way, and we’re hoping at that time more reasonable minds can get to addressing the comprehensive reform.”

Not content to wait for a new administration while Chertoff’s cohort idles at the gates, Grijalva’s office is bringing a field hearing on the wall’s potential impact to Brownsville, the community most directly served by the sabal-palm preserves, and where thousands of school children in this impoverished area enjoy outdoor education each year.

“The decision to invoke a waiver for fence construction will devastate the region and is an insult to those of us who live near the border,” Grijalva said in a prepared release.

Texas Representatives Silvestre Reyes and Solomon Ortiz not only joined the amicus brief in support of the Sierra Club’s complaint, but are co-signers to Grijalva’s House Resolution 2593.

Other co-signers from Texas’s House delegation include Henry Cuellar, Ciro Rodriguez, Lloyd Doggett, Gene Green, and Ruben Hinojosa.

Rodriguez, who sits on the appropriations committee for Homeland Security, had the opportunity to challenge Chertoff last week. Congress Daily quoted Rodriguez as being “not against fencing” but concerned that the department has not held adequate hearings with the public. No one suggested freezing Homeland’s funding until the issue was resolved.

While several attempts to contact Rodriguez to better understand his position on the border wall were unsuccessful, he wrote in a press release that, “Unlike the Department of Homeland Security, I meet regularly with local communities, and I hear from local Border Patrol agents … I hear what they are saying, and that’s why I know there is a disconnect between what is really going on along the border and the decisions that are being made up here in D.C.”

For those of us living in South Texas, that “disconnect” Rodriguez writes about is obvious. On my travels along the border, I looked for evidence that this zone had become the new front line in the War on Terror, as U.S. Border Patrol literature now suggests. What I found were people who said they felt marginalized, demonized, misrepresented, or just plain misunderstood by the interior of the country and our elected leaders.

I marched with Bear in the Valley against this wall, but this week her voice was the most energized I’ve heard it. Maybe this attorney who worked for the White House Council on Environmental Quality under both Presidents Clinton and Bush Jr. before jumping into immigration issues is just a sedate protester. Certainly her years in Washington have informed her optimism.

The question I’m left with is whether my daughter will be able to see the Rio Grande and its last dense evidence of tropical forest as I did. Or will I be forced to describe the beauty of America to her, huddled under the shadow of the Wall? •

________________________________________________

WHAT: Walls and Waivers: Expedited Construction of the Southern Border Wall and the Collateral Impacts on Communities and the Environment

WHEN: 10 am Mon, Apr 28

WHERE: University of Texas-Brownsville, Lecture Hall of the Science, Engineering and Technology Building

The Congressional Field Hearing sponsored by Rep. Grijalva, D-Ariz., and Madeleine Z. Bordallo, D-Guam, was called after Homeland Security Secretary Michael Chertoff announced he was going to override 36 federal laws and regulations to speed the construction of 267 miles of fence along the border.

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