Pentagon to Dump Environmental Laws for 175 Miles of Border Wall

• Defense to cite national emergency declaration for authority
• Move likely to spark new challenges from conservation groups

The Pentagon plans to ignore environmental laws like the Endangered Species Act and the Clean Water Act to build 175 miles of border barriers with the money it freed up, over many lawmakers’ objections, by delaying a raft of $3.6 billion in military infrastructure projects.

The move could allow the Pentagon to shave months or years off the wall construction projects by avoiding potentially lengthy public environmental reviews of construction work as the administration aims to ramp up building ahead of the 2020 election.

To waive environmental requirements, Defense Secretary Mark Esper will cite authority he says is granted under the national emergency declaration by President Donald Trump in February, according to a department spokesman.

The first likely beneficiary of the stance, originally disclosed in March, will be a $450 million, 31-mile wall project in a bombing range named after one-time GOP presidential candidate Barry Goldwater that runs along the border with Mexico in Arizona. The project is one of 11 separate ones that will see environmental and other requirements waived, according to the Pentagon.

(U.S. Air National Guard/Col. Kerry Gentry)

An F-16 drops live ordnance at the Barry M. Goldwater range in Gila Bend, Ariz.

A planned review by the U.S. Navy holding up the bombing range project has already been scrapped, the department said. That process is mandated by the National Environmental Policy Act, includes public input, and can take years to complete.

“The Goldwater range, people think it’s a bombing range, it’s probably a bunch of craters in the ground. That’s not true,” said Dan Millis, borderlands program manager for the Sierra Club’s Grand Canyon chapter in Tucson, Ariz. “This is a natural area. For all intents and purposes, it’s a conservation area.”

‘Bad News’

The Pentagon first confirmed to Bloomberg Government in March it believes the national emergency gives it the power to waive the environmental regulations on the $3.6 billion in military construction money. That position, though, is likely to spark new legal challenges from environmental groups.

“This is just bad news on top of bad news for the U.S. military. For them to be waiving laws on the border is totally counter to the way that they have operated for decades, even in the borderlands,” Millis said.

Meanwhile, Senate Democrats are already planning to force a vote this month overturning President Donald Trump’s national emergency and potentially blocking use of the military funding for border construction. If the resolution passes, the House will take up the measure, Speaker Nancy Pelosi said Thursday.

Lawmakers have been angered about losing military projects in their states and districts. Sen. Martin Heinrich (D-N.M.) said his state was among the hardest hit by the shift of funds to the border and could lose an $85 million facility to train drone operators at Holloman Air Force Base.

“Are you aware of the fact that current trainees are resorting to using duct tape to patch holes in the walls and ceilings of their training facility?” Heinrich asked top Pentagon nominees during a Senate Armed Services hearing Thursday.

While the power to sidestep fundamental environmental law is new to the Pentagon, the Department of Homeland Security, which has typically directed border construction, already has used similar authority repeatedly to waive environmental requirements for barrier projects paid through its budget.

Esper’s authority applies specifically to the $3.6 billion he shifted Sept. 3 to border construction. It was taken from 127 previously planned projects, including Puerto Rico hurricane recovery, a missile defense field in Alaska, Russian deterrence in Europe, and rebuilding military schools.

Homeland Security Precedent

The administration zeroed in on using the military’s construction budget after the president waged an unsuccessful fight with Congress over funding his signature border wall and declared the emergency Feb. 15. But the $3.6 billion sparked widespread outcry on Capitol Hill and remained in limbo for months before Esper’s decision this month to proceed.

The funding is separate from an additional $2.5 billion the Pentagon transferred earlier this year to border wall projects from a counter-drug fund under different legal authority. The American Civil Liberties Union and the Sierra Club have filed a legal challenge to that funding and the Supreme Court lifted an injunction in July, allowing the administration to move forward with construction.

The national emergency law tapped by Trump, 10 U.S.C. Section 2808, allows Esper to carry out projects “without regard to any other provision of law,” according to the Pentagon, which also said it interprets that to also mean the National Environmental Policy Act, or NEPA, as well as the National Historic Preservation Act and other laws.

About three dozen federal laws have been waived by the Department of Homeland Security for its border barrier construction projects.

To contact the reporter on this story: Travis J. Tritten at ttritten@bgov.com

To contact the editors responsible for this story: Paul Hendrie at phendrie@bgov.com; Jonathan Nicholson at jnicholson@bgov.com