McALLEN, Texas (Border Report) — U.S. Customs and Border Protection began a “public scoping” period with the first of two environmental webinars for people to chime in or ask questions about future border barrier plans in the Rio Grande Valley.
However, the format of the 30-minute webinar Tuesday afternoon prevented the public from reading questions or suggestions from others. Online organizers also summarized and changed some questions, at least with regards to several questions submitted by Border Report.
It is unclear whether this process is legally required under the National Environmental Policy Act (NEPA), since the Trump administration issued several environmental waivers to build the border wall, which President Joe Biden has not rescinded.
The CBP webinar, “Border Barrier Environmental Planning Projects in Starr, Hidalgo, and Cameron Counties” lasted 30 minutes, the last 17 of which minutes were for questions from the public.
It followed the agency’s announcement last month that it is “is seeking input on potential environmental impacts and project alternatives for the proposed construction, operation, and maintenance of border barrier and related system elements” for 86 miles of border wall that had been slated for those three South Texas counties under the Trump administration.
Congress appropriated millions of dollars in the fiscal years 2018 and 2019 for the border wall to be built in these counties in deep South Texas. But President Joe Biden halted border wall construction when he took office.
Now, the Biden administration is reaching out to ask the public for input on how they suggest moving forward to best secure the border yet safeguard the local environment.
The Biden administration cannot outright cancel border barrier plans that have been approved by Congress; only Congress can do that.
“Unless Congress cancels those funds CBP is required to use those funds,” Paul Enriquez, deputy director for the U.S. Border Patrol’s Infrastructure Portfolio, said at the outset of Tuesday’s webinar.
There are no hard and fast rules on how to hold a public scoping webinar, but some environmentalists told Border Report that screening information can take away from the overall intent of these proceedings, which are designed to be an open forum for public dialogue.
Throughout the webinar, Enriquez and other CBP officials said that future border plans “will not involve construction of new border barrier or new land acquisition.”
However, in its Jan. 19 announcement that it would be conducting an Environmental Assessment, CBP listed that the possibility of 30-foot-tall border bollards, as well as several other security elements, could be built.
Currently, there are several sections in Hidalgo County where 6-foot-tall metal bollards are being placed atop a concrete wall. When Border Report on Tuesday asked why the construction of these bollards is taking place in areas, such as those near the National Butterfly Center in Mission, Texas, CBP officials responded it is not a border wall but a “guard rail,” and they said it is placed there for the public’s “safety.”
“There can be as high as a 10-foot vertical drop (on the levees),” Enriquez said. “So not having some kind of guard on that barrier can be a safety issue on the levee … for walking or biking or driving.”
There also was confusion as to whether CBP is even required to comply with NEPA. Several times during the webinar, officials said the agency was performing “environmental planning in accordance with NEPA.”
But Dinah Bear, who for 23 years was the general counsel of the Council on Environmental Quality, the agency that oversees NEPA, told Border Report she came away from Tuesday’s webinar very unclear as to whether CBP believes it must legally comply with NEPA because several environmental waivers issued under the Trump administration are still are in effect.
“I am indeed perplexed as to why DHS does not lift the waivers of law for this proposed action. I have heard them use terms like ‘consistent with NEPA,’ which is a term typically used if an agency is exempt from NEPA compliance but is undertaking it voluntarily,” Bear said from Washington, D.C.
“In my view, this is a very muddled situation. CBP appears to be holding themselves out as following/complying/acting under/consistent with NEPA and yet none of us know whether they ultimately will claim that they don’t really have to comply with NEPA. In my view, the secretary of DHS should revoke the waivers so that it is clear.”
Jim Chapman, vice president of Friends of the Wildlife Corridor, said he believes unless the waivers are revoked that NEPA doesn’t apply. “It will not be challengeable in court because the waiver is still in effect,” he said. “They’re not going to say ‘they are subject to NEPA’ but they are saying they’re going to follow NEPA guidelines and I think the big difference is a legal one. They cannot be challenged legally.”
Bear also questioned why CBP is preparing an Environmental Assessment (EA) and not the more detailed Environmental Impact Statement (EIS).
“Typically, an 86 mile construction project that goes through sensitive areas near a river and through a national wildlife refuge and impacts communities would require an EIS,” Bear said.
She added that an EA does not require a public scoping period, but an EIS does.
Some environmentalists, like Scott Nicol, suspect the Biden administration might be stalling for time by issuing the environmental assessments — which are not required at all because of the presidential waivers — in the hopes that in the meantime Congress will claw back the border wall funds and future construction will be off the table.
A second webinar is scheduled for 6 p.m. CST Tuesday.
The agency is accepting public comments until March 7. Comments can be emailed to RGVComments@cbp.dhs.gov. Include “Rio Grande Valley Environmental Planning” in the subject line. Or call (800) 514-4781 or can be mailed to: U.S. Customs and Border Protection, U.S. Border Patrol Headquarters, 1300 Pennsylvania Ave. 6.5E Mail Stop 1039, Washington, D.C. 20229-11.
Sandra Sanchez can be reached at email@example.com.