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Biden's Waiver of Border Environmental Laws Not Required, Will Cause Real Harm

October 13, 2023 (1 min read)

Mark Nevitt, Lawfare, Oct. 11, 2023

"[D]id President Biden have to build this section of the border wall? Second, was waiving this flurry of environmental laws required?  Yes and no.  Yes: The president was legally obligated to use the money from an earlier 2019 congressional appropriation for its intended purpose—the border wall. This is nondiscretionary. Failure to do this would violate fiscal law principles and the Impoundment Control Act of 1974.  No: The president did not have to waive environmental laws in spending the money for the border wall. This is purely discretionary and is the first time the Biden administration has used this waiver authority. ... [W]aiving this full menu of environmental laws was ultimately not required and will cause real environmental harm. ... The upshot is that the Biden border wall will be constructed without a NEPA environmental impact statement or public comment. Nor will the secretary comply with ESA mandates that prohibit the “take” of endangered species. “Take” is broadly defined under the ESA to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” ... This wholesale waiver of the APA and environmental laws is sure to be challenged, but it is hard to see how they will be successful after the Ninth Circuit’s ruling. Still, lawsuits are likely to emerge from environmental groups. These lawsuits face an uphill battle. My prediction is that this 20-mile border wall section will likely be built. This will dismay environmentalists but be celebrated by those supporting stricter, physical border protections."