The nation's top security official may use his power to unilaterally trump a federal court order halting construction of a fence on a stretch of the Arizona-Mexico border.
Homeland Security Secretary Michael Chertoff is weighing whether to invoke a section of federal law that allows him to exempt border construction projects from any law, his press aide, Russ Knocke, told Capitol Media Services. That includes requirements for studies on environmental impacts of federally funded projects.
The move would not be unprecedented: Chertoff used the power at least twice since it was granted.
In 2005 he decided to build fencing near San Diego without conducting environmental studies. And in January he issued a waiver from all laws for a project along the edge of the Barry M. Goldwater Air Force Range in Southwestern Arizona.
The possibility of Chertoff again exempting his agency from environmental laws comes days after a federal judge in Washington stopped construction of a nearly two-mile stretch of fence at the foot of the San Pedro Riparian National Conservation Area southeast of Tucson. The conservation area, designated by Congress in 1988, is described on the U.S. Bureau of Land Management's Web site as ecologically "one of the most important riparian areas in the United States."
The restraining order gives two environmental groups time to convince Judge Ellen Huvelle that plans for vehicle barriers in the river's floodway and washes leading into it will cause erosion and sedimentation that will harm the environment and affect species dependent on the river.
Defenders of Wildlife and the Sierra Club also contend the BLM, which controls the area, did not seek public input on the project in performing an environmental assessment that took just three weeks. They contend the BLM should have prepared a more formal environmental impact statement.
Chertoff, however, can make the lawsuit, and judge's ruling, disappear simply by declaring the project exempt from the law the groups used to sue.
Knocke said Chertoff believes the lawsuit is without merit, saying the BLM's assessment concluded the project would not harm the area.
"We care about the border environment as much as anyone," Knocke said. "But when weighing a lizard in the balance with human lives, this border infrastructure project is the obvious choice."
Attorneys for Chertoff also argue that environmental damage from illegal border crossers is greater than anything that would occur from the barriers.
Nothing short of congressional action could stop Chertoff from exempting the San Pedro project from the environmental laws if he decides to do so.
Rep. Gabrielle Giffords, D-Ariz., whose district includes the river, does not support repeal of Chertoff's power.
"Border security has to be a top concern in a state like this," said C.J. Karamargin, Giffords' press aide. He said the congresswoman believes federal officials "should have the tools they need to do the job."
Bob Dreher, vice president for conservation law for Defenders of Wildlife, said what might stop Chertoff from exempting the project from federal laws is, "They have to do, I think, the politically costly thing of publicly saying, 'We're above the law.' " He said that might be what kept Chertoff from waiving environmental laws for a similar border project in Texas.
While Giffords is unwilling to repeal the law, she is willing to apply pressure.
She is one of five members of Congress who wrote Chertoff last week asking him to delay further work on the project, prepare a full environmental impact statement and conduct public hearings, something not done before construction began late last month.
"Our communities support safe and secure borders and simply ask for adequate time to share their concerns with their government, as they have a right to do," reads the letter signed by Giffords as well as Rep. Raúl Grijalva, also a Tucson Democrat. Three members of the Texas congressional delegation also signed that letter.
In his January decision dealing with the Goldwater bombing range, a military training ground, Chertoff declared that the high number of people entering the country illegally through that stretch of the desert create an immediate need to build not just fencing but also vehicle barriers, towers, sensors and cameras.
That, he said, justified exemptions from the National Environmental Policy Act — the law being used by the two environmental groups to sue over the San Pedro project — as well as the Endangered Species Act, the Clean Water Act, the Wilderness Act, the National Historic Preservation Act and the National Wildlife Refuge Systems Administration Act.
Chertoff also exempted the project from another law, which requires his agency to follow certain administrative procedures.