Biden admin waives federal laws to allow border wall construction in Texas

In a striking acknowledgment of the need to address the migrant influx at the southern border, the Biden administration announced it waived 26 federal laws to permit more border wall construction in southern Texas, a move that builds on one of the most controversial cornerstones of the Trump administration.

The Department of Homeland Security posted the announcement overnight in the Federal Registry, which said the administration was waiving federal laws such as the Clean Air Act, the Safe Drinking Water Act and the Endangered Species Act for the wall construction in Starr County, Texas, using federal funds appropriated in 2019.

“There is presently an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States in the project areas,” Homeland Security Secretary Alejandro Mayorkas said in the notice.

In a statement, a spokesperson for U.S. Customs and Border Protection noted that Mayorkas issued waiver under federal immigration law for a barrier project that was quietly announced in June, which will be constructed on about 17 miles in Starr County.

“Congress appropriated fiscal year 2019 funds for the construction of border barrier in the Rio Grande Valley, and DHS is required to use those funds for their appropriated purpose,” the CBP spokesperson said, adding that the project was consistent with President Joe Biden’s proclamation after taking office that ended the use of military funds for border wall construction and using money provided by Congress instead.

“CBP remains committed to protecting the nation’s cultural and natural resources and will implement sound environmental practices as part of the project covered by this waiver,” the spokesperson said.

Reached for comment, White House spokesperson Angelo Fernández Hernández deferred to the CBP for comment, noting the the agency’s announcement in June to proceed with the planning and execution of about 20 miles of border barrier in the Rio Grande Valley.

The administration’s new announcement marks a major policy reversal for Biden, who vowed that not “another foot of wall” would be constructed under his administration during his 2020 campaign. Upon taking office in 2021, he also issued an executive order which read in part: “It shall be the policy of my administration that no more American taxpayer dollars be diverted to construct a border wall. … Building a massive wall that spans the entire southern border is not a serious policy solution. It is a waste of money that diverts attention from genuine threats to our homeland security.”

Notably, the administration’s most recent announcement on border wall construction waives environmental laws to speed up the project at a time when it faces increasing pressure from fellow Democrats to take action at the border.

In response to the move, former President Donald Trump accused Biden of breaking “every environmental law in the book to prove that I was right” in a post on his Truth Social platform Thursday morning.

“As I have stated often, over thousands of years, there are only two things that have consistently worked, wheels, and walls!” Trump wrote.

“Will Joe Biden apologize to me and America for taking so long to get moving, and allowing our country to be flooded with 15 million illegals immigrants, from places unknown,” he added. “I will await his apology!”

The announcement comes days after Illinois Gov. J.B. Pritzker, a Democrat, called on Biden to step up action on an “untenable” migrant crisis in the state. Pritzker demanded an overhaul to the system, saying that Illinois’ resources were beyond strained after Texas officials bused more than 15,000 migrants to the state in the past year. He criticized the White House for a “lack of intervention and coordination at the border.”

“Unfortunately, the welcome and aid Illinois has been providing to these asylum seekers has not been matched with support by the federal government,” Pritzker wrote in a letter Monday to Biden. “Most critically, the federal government’s lack of intervention and coordination at the border has created an untenable situation for Illinois.”

On Sunday, Pritzker and Chicago Mayor Brandon Johnson, as well as White House chief of staff Jeff Zients and senior adviser Tom Perez, participated in what the White House later characterized as a productive conversation on the matter.

New York City Mayor Eric Adams also called on the Biden administration to address the influx of migrants, saying that they were overwhelming city resources.

Following heavy lobbying from New York’s top Democratic officials, particularly Adams and Gov. Kathy Hochul, to address the issue, the Biden administration last month granted temporary protected status to hundreds of thousands of Venezuelan migrants who crossed the border without legal documentation, allowing them the right to legally obtain work.

A White House official told NBC News that the administration’s decision to waive environmental laws to build more of the border wall is not tied to mounting pressure from Democrats.

But in the notice published in the Federal Register, Mayorkas drew a direct connection to the recent influx of migrants at the southern border, calling the Rio Grande Valley an area of “high illegal entry.”

“As of early August 2023, Border Patrol had encountered over 245,000 such entrants attempting to enter the United States between ports of entry in the Rio Grande Valley Sector in Fiscal Year 2023,” Mayorkas wrote. He said that required him to use his authority “to install additional physical barriers and roads in the Rio Grande Valley” and his department to “take immediate action to construct barriers and roads.”

Pressed on Biden’s previous comments rejecting the construction of more border wall during his presidency, the White House official said the administration had no choice but to use the money Congress appropriated in 2019 during the Trump administration.

“In order to follow the law, we had to use this money,” the official said, adding that the timing of the environmental waiver was related to end of the fiscal year.

Mayorkas, however, struck a more urgent tone in the notice released overnight: “There is presently an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States in the project areas.”

Advocates react

Environmental and humanitarian organizations swiftly criticized the Biden administration’s move to proceed with more border wall construction in southern Texas.

“You’re walling off not only people from the river, but wildlife, trying to get away from the river when there’s a flood or getting to the water,” said Jim Chapman, the president of Friends of the Wildlife Corridor, an environmental non-profit in the Lower Rio Grande Valley. “That’s basically the only water there is. It’s basically horrible.”

Laiken Jordahl of the Center for Biological Diversity similarly noted that the national corridor along the Rio Grande River, especially in the National Wildlife Refuge, is “the last ribbon of habitat for a lot of species.”

“Bulldozing a border wall through the heart of that habitat is absolutely devastating,” Jordahl said. “There’s not a lot of nature left in South Texas.”

Roberto Lopez, an advocate with the Beyond Borders program at the Texas Civil Rights Project, drew parallels between the Biden administration’s announcement and the president’s predecessors.

“President Obama built Bush’s wall and now Biden is building Trump’s,” Lopez said. “In the Rio Grande Valley, it’s been consistent that the federal government has been building border wall over the last several years, and this is just a continuation of those policies.”

“I’m from South Texas. I’m from these areas. It feels like a slap in the face,” he added. “It feels like bollards are going up, when infrastructure in these communities is struggling.”

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