President Trump’s political opponents may use existing federal laws designed to protect endangered species to stop him from building a border wall to stem the flow of illegal immigrants coming from Mexico.
Environmentalists say Trump’s proposed border wall would hinder the movement of endangered species migrating through their natural, cross-border habitats, and activists aren’t above filing suit under the Endangered Species Act (ESA) to stop the wall.
“We’ll of course closely review Trump’s proposal,” Margie Kelly, a spokeswoman for the National Resources Defense Council, told The Daily Caller News Foundation.
“Litigation is just one tool in our advocacy work, and we take nothing off the table,” she said.
The ESA, signed into law by President Nixon in 1973, is one of the most powerful environmental laws on the books. It empowers federal agencies to protect species at the brink of, or threatened with, extinction and puts huge swaths of land off-limits to development, including private property.
Trump delivered on a major campaign promise Wednesday, ordering the Department of Homeland Security (DHS) to begin the “immediate construction of a physical wall on the southern border” to stem the flow of illegal immigration and drugs.
Trump’s team has been in talks with the U.S. Army Corps of Engineers and the Department of the Interior concerning what legal obstacles they can expect when building the wall. The transition team wondered if environmental laws, like the ESA, could be used to block or slow down construction.
A 2005 law allows the DHS secretary to wave dozens of environmental laws in order to build infrastructure along the U.S.-Mexico border. Former Secretary of Homeland Security Michael Chertoff invoked the law in 2008 to build barriers along the border.
The Trump administration could do the same, but it may not work in all cases.
“The Act is so powerful that it will likely prove a significant hurdle for constructing a border wall in some locations,” explains Brian Seasholes, an ESA expert who works at the libertarian Reason Foundation.
Seasholes argues that more border enforcement could actually help endangered species, since current environmental laws make it harder for border patrol agents to track illegal immigrants.
“Ironically, over the past several years proponents of the Act, and likely opponents of the wall, have been relatively untroubled by illegal migrants in Texas preferentially using federal wildlife refuge lands as human trafficking corridors,” Seasholes said.
He said this “harms endangered species like the ocelot, because the border patrol has been prevented from going off road with motorized vehicles.”
Democrats decried the costs of the wall, and environmentalists at the Center for Biological Diversity (CBD) claimed the wall would “end any chance of recovery for endangered jaguars, ocelots, and wolves in the border region.”
Jaguars and ocelots, for examples, are endangered species whose range extends along the U.S.-Mexico border. They are more abundant in Mexico than the U.S., so they could pose hurdles if portions of the wall cross through their habitats.
Environmentalists can file suit to force the Trump administration to undergo environmental reviews or protracted court battles, delaying construction of the wall.
“We will not stand by while Trump creates a Berlin Wall on America’s border,” Kierán Suckling, CBD’s executive director, said in a statement. “We’ll fight this Stone Age proposal in every way we can — and if necessary put our bodies in front of the bulldozers.”
CBD specializes in endangered species protection, and the group has filed numerous lawsuits under the ESA. Federal agencies have paid out $30 million in attorneys fees to environmentalists suing under the ESA since 2009.
“Ironically, the flood of illegal migrants likely does more harm to these species than would occur if vehicles went off road,” Seasholes said.
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