The instrument is old and the scope is not. Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 lets the Secretary of Homeland Security waive any legal requirement he judges necessary to build border infrastructure quickly.
A determination signed by Secretary Markwayne Mullin, published in the Federal Register and effective Monday July 27, uses it broadly. The operative sentence: 'pursuant to section 102(c) of IIRIRA, I hereby waive in their entirety... all of the following statutes, including all federal, state, or other laws, regulations, and legal requirements of, deriving from, or related to the subject of, the following statutes' [1].
What follows is a list of more than thirty. Among them: the National Environmental Policy Act, the Endangered Species Act, the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, the National Historic Preservation Act, the Native American Graves Protection and Repatriation Act, and the Wilderness Act [1].
Also on the list: the Administrative Procedure Act, the statute governing how agencies must act and how the public may contest it [1]. Waiving that one removes the process by which the rest of the waiver could be argued about.
The project area covers Border Patrol's Big Bend and Del Rio sectors in Texas [1].
The justification is where the document becomes readable. DHS cites its own enforcement statistics for both sectors, and they do not describe the same problem. Big Bend: over 89,000 apprehensions, and 87,574 pounds of marijuana. Del Rio: over 1,410,330 apprehensions, and 277 pounds [1].
Del Rio has roughly sixteen times the apprehensions and a fraction of one percent of the marijuana. One set of numbers is being used to justify identical treatment of two very different places - and the treatment is the suspension of the Endangered Species Act.
