PHOENIX - Unwilling to gamble on the outcome of a lawsuit, Homeland Security Secretary Michael Chertoff on Monday used his power to exempt a nearly seven-mile stretch of new border fence in Cochise County from all environmental and other regulations.
"Congress granted to me the authority to waive all legal requirements that I, in my sole discretion, determine necessary to ensure the expeditious construction of barriers and roads," Chertoff said in a formal declaration. That ends any and all legal maneuvers to halt the vehicle barriers and wall that already was under construction when a federal judge earlier this month stopped work.
Homeland Security spokesman Russ Knocke said Chertoff believes the federal government eventually would have prevailed in the lawsuit filed by Defenders of Wildlife and the Sierra Club, the two groups that got an Oct. 10 restraining order.
But he said further delay in building the fencing and other border security measures in and around the San Pedro Riparian National Conservation Area presents "unacceptable risks to our nation's security."
He said in the federal budget year that ended Sept. 30 federal agents stopped 19,000 people trying to enter the country illegally in that area alone.
"The potential always exists for a single individual or small group to cross the border ... undetected with drugs, weapons of mass effect or other implements of terrorism and crime," Knocke said.
And he said all those people create environmental problems of their own, ranging from illegal roads that divert the flow of water to the trash and human waste left behind by the border crossers.
But Sean Sullivan, a spokesman for the Rincon chapter of the Sierra Club, which covers Southeastern Arizona, said there are alternatives to what Homeland Security intends to build. He said those alternatives were never explored because the agency never prepared a full-blown environmental impact statement and never sought public input.
Sullivan acknowledged the Sierra Club has no specific plan of what - if anything - should be built along the border. Instead, he said his organization supports HR 2593, a proposal by Rep. Raul Grijalva, D-Ariz., which would require the government to "develop a border protection policy" that also supports the needs of federal lands, including parks and property, like the San Pedro conservation area, which is under the control of the Bureau of Land Management.
That measure also would specifically repeal the power of the Homeland Security chief to waive other laws to construct border fencing. Its list of 21 cosponsors does not include Rep. Gabrielle Giffords, D-Ariz., in whose district the fence at issue is located.
It was the failure of federal officials to conduct a full environmental study that resulted in U.S. District Court Judge Ellen Huvelle putting a halt to the work that had been done already along the nearly two miles the conservation area comes in contact with the border. She questioned what seemed to be a rush to complete the project with only minimal review.
Chertoff's order not only wipes out the lawsuit and clears the way for completion of that stretch but also exempts additional fencing he is installing for several miles to the east, to a point just west of the Naco port of entry. It allows not just fencing which could be as tall at 17 feet but also vehicle barriers, towers, sensors, cameras and other surveillance, communication and detection equipment.
But Russ Knocke, Chertoff's press secretary, said while Chertoff no longer legally has to worry about environmental concerns, the agency still intends to take steps to minimize damage.
Knocke said that only temporary vehicle barriers, which can be removed during flooding, will be installed in the river itself rather than a wall. He also said the agency will take steps to prevent introduction of invasive weeds.
This is only the third time Chertoff has used this extraordinary power Congress gave him as part of the 2005 Real ID Act, a law mainly meant to help create standards for identification for everything from airline travel to admission to federal buildings.
In 2005 he decided to build fencing near San Diego without conducting environmental studies. And just this past January he issued a waiver from all laws for a project along the edge of the Barry M. Goldwater Range in southwest Arizona.
© 2007 The Sierra Vista Herald