It's a curve toward sacrificing the National Environmental Policy Act--or at least the law's cautious spirit--in favor of political expediency and budget pinching. We've seen a good dose of this recently in the Coronado National Forest, where district rangers have misused a fancy sidestep called "categorical exclusions" to avoid NEPA reviews on road projects and several mining exploration forays. And now we're seeing it in the San Pedro Riparian National Conservation Area.
You might know the San Pedro River as a dense ribbon of life, weaving 140 miles through Southern Arizona and Mexico. Ranked by the American Bird Conservancy as a "Globally Important Bird Area" and the United Nations as a World Heritage natural area, San Pedro's riverbanks are thick with willows, cottonwoods and nearly 500 species of wildlife.
But the U.S. Homeland Security Department knows this precious waterway is a politically potent--if somewhat muddy--tool. And that's why the agency last month began building a border barrier across the river. Better yet, they got U.S. Bureau of Land Management biologists to hustle them up a permit--after less than a month of environmental review.
While that provides the project a mirage of scientific legitimacy, it sure doesn't do much for the profession of biology. Indeed, this rush job in such a delicate area might even suggest a wee bit of strong-arming, from one agency to another.
Obviously, there are timely advantages to making this fence happen with zero public input and only the most abbreviated form of NEPA review, known as an environment assessment. And that's why conservationists smell a skunk. Among them is Oliver Bernstein, an Austin, Texas-based spokesman for the Sierra Club. Along with Defenders of Wildlife, Bernstein's group went to court to stop the construction.
Both organizations want the government to conduct a full-blown environmental impact statement, not only of the San Pedro barrier, but of cumulative impacts from all border-security projects.
"Building a structure of this size without the proper studies--a full EIS--is without question the worst thing you can do in the border region," says Bernstein. "This would be an ideal situation for a comprehensive EIS for the entire border wall project."
But that's apparently the last thing federal officials have in mind. Even a legal motion filed by the two conservation groups on Oct. 5 failed to stop earthmovers. Only a temporary injunction five days later finally paused the pell-mell construction.
It seems environmentalists weren't the only ones smelling a skunk. While issuing her injunction, U.S. District Judge Ellen Huvelle said the groups made a good case for the possibility of permanent damage. She also recognized that federal agencies might just hanker to crank this job out before opposition could rally.
As construction rumbled to a halt, all eyes turned to the BLM's speedy environmental assessment, itself pasted together in a mere three weeks. "I wonder," says Bernstein, "if dedicated professionals at some of these agencies are not secretly just as upset as some of the environmental groups are over this."
But BLM spokeswoman Lorraine Buck defends the whirlwind study. "There are criteria for deciding what types of analysis to use," she says. "It seemed the appropriate level of analysis for that project."
And until legal questions are settled, Buck won't detail discussions about the project between the BLM and Homeland Security officials: "I can't comment on that. This is in the court system now."
Over at Homeland Security, meanwhile, spokesman Russ Knocke denies that his folks got heavy with the BLM. "Did we pressure them? No. We have a strong working relationship with them, but the assertion that somehow there was pressure placed by a department on a partner agency is false."
Which leaves the smoldering question: Why was this project given only three weeks of analysis, despite the BLM's own admission that the river could suffer irreversible damage, making it prone to silt buildups and even potentially altering the channel's course?
Could a credible analysis really be compiled so quickly? "My gut reaction is that no, it isn't enough time," says Dr. Juliet Stromberg, a biologist with Arizona State University's Stromberg Lab. She's conducted research on the San Pedro since the 1970s. "I don't know how many people (the BLM) has talked to about it, how widely they've discussed it. But three weeks seems insufficient."
Dr. Phil Rosen is a University of Arizona herpetologist who has also studied the river's wildlife. He calls it "ludicrous" to think the BLM could truly analyze such a project so rapidly. "Basically, they're under orders to secure the border line," Rosen says. "Clearly, that's what is going on under (Homeland Security Secretary) Michael Chertoff.
"It's really disgusting," Rosen says, "a total abuse of the whole NEPA process."
But of course, there's always the option of dropping pretense and simply waiving NEPA altogether. That's a threat DHS spokesman Knocke has begun trotting out since the San Pedro barrier hit a legal roadblock.
The Real ID Act of 2005 grants Chertoff leeway to ignore NEPA, the Endangered Species Act and other regulations when building roads and barriers along the Mexican boundary. It also prohibits any judicial review, making lawsuits against habitat-destructive projects pointless.
It seems appropriate that the autocratic Real ID measure--which promises to stem illegal immigration by denying driver's licenses to immigrants--emerged from a then-Republican Congress, and was attached to an emergency-funding bill for Iraq.
Regardless, at least invoking Real ID on the San Pedro would stop this silly charade--and place blame where it belongs.
"I'm not going to rule that out, along with other options," says Knocke. "Secretary Chertoff has used the waiver previously, but we believe there's still opportunity for dialogue with the court and with the plaintiffs."
But trends being what they are, don't hold your breath.