No Environmental Laws Near The Border
Air Date: Week of October 28, 2011
The metal wall straddling parts of the US border with Mexico has been controversial for inhibiting animal migrations. (Photo: Wonderlane)
House Republicans have proposed a bill that would suspend 36 different environmental laws within 100 miles of the U.S. borders with Canada and Mexico. UC Hastings College of the Law Professor John Leshy tells host Bruce Gellerman that the proposed bill is politically motivated.
GELLERMAN: From the Jennifer and Ted Stanley Studios in Somerville, Massachusetts, this is Living on Earth. I'm Bruce Gellerman.
House Republicans have taken the first step to make good on a promise they made last year in their Pledge to America. Voting on strict party lines, the Natural Resources Committee approved a bill Republicans call “The National Security and Federal Lands Protection Act.” It would allow the Border Patrol to ignore three-dozen environmental laws on federal land within 100 miles of U.S. borders. The chief sponsor of the bill is Utah Republican Rob Bishop.
BISHOP: Border Patrol should not be stopped or inhibited in anything they try to do. The environment is being trashed by illegal entry. It's not national security that's threatening our environment. It's the lack of national security that is threatening our environment. Environmental laws and border security are in conflict. What is happening right now is not acceptable and has to change.
GELLERMAN: But John Leshy says nothing needs to change. He was general counsel at the Department of the Interior during the Clinton Administration and testified before the House Committee. Professor Leshy now teaches at UC Hastings College of Law.
LESHY: It provides a complete exemption for the Department of Homeland Security from all of the major environmental and related natural resource laws. When it operates on federal land within 100 miles of any land border of the United States - that’s basically the Canadian border and the Mexican border. So, all around the Great Lakes, and you know, there’s a lot of federal land - a lot of National Forests, a lot of National Parks, those are all…would be under great threat.
GELLERMAN: So, those would be laws like safe drinking water?
LESHY: Clean air, clean water, the Wilderness Act, the Endangered Species Act, the act that governs the National Park Service, the National Forest System, etc., on and on - long list - 30-some laws.
GELLERMAN: Now, can’t the Secretary of Homeland Security, right now, can’t they use their authority that’s been delegated by Congress to waive environmental laws?
LESHY: They have limited authority to do that under some laws passed under the Republican Congress in the Bush Administration. It’s very localized and very limited. What this would do is take that little, sort of, camel's nose under the tent and put the entire camel inside the tent.
GELLERMAN: So, as I understand this bill, it's actually a compromise. It would have originally included private lands.
LESHY: That’s right. In its original proposal, it applied to all private and state land, as well as federal land within 100-miles of the border. It also originally defined the border to include coastlines, so it would have included, you know, California, and Massachusetts and the entire state of Florida and all of that.
So, they have limited it to some extent, but it’s still … on any federal land there, DHS can basically gain access, build roads, build whatever facilities that it decides it needs to secure operational control of the border without complying with any laws.
GELLERMAN: Well, I know back in 2009, under the Bush Administration, that the Department of Homeland Security said they were going to pay up to 50 million dollars for reasonable mitigation measures because of the environmental damage that they did in terms of constructing roads and building the fence.
LESHY: Yeah, there have been, you know, localized problems along the Mexican border with the fence and endangered species and that sort of thing. The agencies - that is the Department of Homeland Security and the land managers in the Interior Department and the Agriculture Department have actually worked these problems out as they’ve arisen. And, in fact, nobody in the federal executive branch now - at DHS or in the Interior or Agriculture Departments - favors this exemption. They say we don’t need it.
GELLERMAN: Has there, to your mind, Professor, been a case where national security was at risk because of some environmental laws … red tape?
LESHY: You know, it’s interesting. Many of the laws that this proposal would waive actually have national security exemptions in them, like the Clean Water Act. I mean, a number of environmental laws say, "Look, if there is a national security issue with implementing these laws, it'll be worked out between EPA and Homeland Security."
GELLERMAN: Well, I guess I’m going to ask you to speak on behalf of the House Republicans - they passed it out of the Natural Resources Committee. Why do they say they want it?
LESHY: Frankly, in my own judgment, this is all about politics, and not about real policy on the ground. It’s convenient to beat up these days on regulators and on environmental laws as causing all sorts of problems.
And, in the new Tea Party Contract with America, they made securing the borders a big deal and they don’t like things like the Endangered Species Act and the Wilderness Act that try to safeguard some pristine areas of federal land. So they’re seizing this sort of border security mania to try to score some political points.
GELLERMAN: You testified before the House Committee, right?
GELLERMAN: And what was the reception to what you were saying?
LESHY: Oh (LAUGHS), fairly hostile from the Tea Party-types. I mean, some members waived their copy of the Constitution at me and basically said, “Doesn’t the Constitution say that border security trumps everything else?”- which is really not true. So, I would say my testimony, which was, you know, along the lines of what I said here - that this is really not fixing a real problem - was met with a fairly hostile reception.
GELLERMAN: I noticed that among the backers of this bill include some motorcycle rider associations.
LESHY: Yeah, that’s quite interesting, actually. The Motorcycle Riders Association and the Cattlemen’s Association apparently support this. Frankly, if I were them I would be a little troubled by this because if you say DHS has complete exemption from laws to do what it needs on these federal lands, I think that grazers and hunters and miners and other people who use these lands might find themselves crowded out by DHS. Because this says if DHS needs access and needs to occupy these lands, it can without any control. So, I think actually poses a threat to their activities.
GELLERMAN: The bill came out of a committee. What happens now? The full House gets to vote on it?
LESHY: Yeah, I think it has to go through a couple of other committees, then it goes to the floor of the House. I would predict it will probably pass the House. When it gets over to the Senate, I’m not sure what’s going to happen.
GELLERMAN: Professor, thank you very much.
LESHY: Thank you. Glad to have the opportunity to talk.
GELLERMAN: John Leshy is a professor at UC Hastings College of the Law.
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