President Trump ended the week by signing a pair of documents representing two very different visions for the U.S.-Mexico border: A spending bill that would de-fund planned wall sections in wildlife sanctuaries, and a national emergency declaration that would inject an additional $6 billion into construction and leave their future uncertain.
Early Thursday, it looked like wildlife advocates had notched a significant, if limited, victory along the border. Negotiators on Capitol Hill, working to avoid another government shutdown, announced a spending deal that included a provision to block funding for border wall construction at the National Butterfly Center and several other ecologically sensitive sites. The Texas center and other borderland wildlife sanctuaries have become flashpoints in a fight to block new barriers that environmentalists say would devastate the rich, unique ecosystems of the lower Rio Grande Valley.
But by Thursday afternoon, new uncertainty loomed over the future for these border communities. Senate Majority Leader Mitch McConnell announced that President Trump would sign the bipartisan budget deal to keep the government open—and would also declare a state of emergency to fund the wall that, as a candidate, he said Mexico would pay for. And in an announcement on Friday morning, Trump made the emergency declaration official, saying he planned to repurpose more than $6 billion in military and anti-narcotics funding for wall construction. At least one lawsuit contesting the declaration has already been filed.
The conflict between branches of government leaves it unclear, for now, which of the dueling directives—legislation to protect sensitive border areas, and executive action to wall them off—will prevail.
Presidents have declared 58 national emergencies since a 1976 law gave them authority to do so, but this is the first use of that power to kick off a construction project, according to the Washington Post. Recent polls show Americans strongly oppose using an emergency declaration for a border wall, FiveThirtyEight reported. Democrats immediately objected to Trump’s invocation of emergency powers, and members of his own party warned that it set a dangerous precedent and was on shaky legal footing.
“I think it’s illegal on several levels,” says Ilya Somin, a law professor at George Mason University. Even if the emergency declaration itself were legal, the president lacks statutory authority to spend military funding on a domestic law-enforcement project, Somin says. But he emphasizes that it’s impossible to predict how the situation will unfold. “While I believe the administration should lose, I’d be lying to you if I said I could definitely predict what will happen in the courts.”
The bill to keep the government running through September, which Trump signed Friday afternoon, includes nearly $1.4 billion for 55 miles of new border fencing in Texas's Rio Grande Valley. But it stipulates that no funding from this bill or any earlier ones can be used to build barriers at three natural areas where activists have rallied to stop wall construction: the National Butterfly Center, Santa Ana National Wildlife Refuge, and Bentsen-Rio Grande Valley State Park. The agreement also spares a Catholic chapel at La Lomita Historical Park, and a facility owned by Elon Musk’s space flight company, SpaceX. “That seems like a direct ban on building in those areas,” Somin says. “I think that pretty clearly, categorically forbids building there, even under the national emergency declaration.”
Rep. Henry Cuellar, a Democrat whose district includes part of the valley, inserted the exemptions into the spending deal, along with a measure requiring the federal government to work with local leaders on the design of barriers in some border communities. “I worked hard to include this language because protecting these ecologically-sensitive areas and ensuring local communities have a say in determining the solutions that work for them is critical,” he said in a statement.
An unnamed administration official, however, told the Wall Street Journal that the White House believes it can use the emergency funds for construction in those areas. And staff at the National Butterfly Center sound deeply anxious about the future of their private, 100-acre sanctuary. “All bets are off,” says Marianna Treviño-Wright, the center’s executive director. “The heavy equipment is literally next door.”
Earlier this month, the center alerted its supporters and the media that construction equipment and law enforcement officers had arrived at its property in Mission, Texas. It looked as though construction was about to begin, using existing funding, to build a wall section atop a levee north of the Rio Grande. If built, it would leave the center’s staff and visitors unable to access the southern two-thirds of the property.
A planned barrier would also run through the adjacent Bentsen State Park, where more than 525 bird species have been documented. The Texas Parks and Wildlife Department has warned that the planned barrier could force it to close the park to visitors. Doing so could violate the terms under which the family of late U.S. Sen. Lloyd Bentsen, Jr. sold the property to the state—they said it must remain a public park—which would return the land to the Bentsen family.
The nearby Santa Ana National Wildlife Refuge was an early target for wall construction, but a spending package last spring put it off limits after public outcry. The refuge—home to Green Jays, Altamira Orioles, and a rainbow of other species—is considered one of the top birding destinations in the world.
The ribbon of refuges and preserves along the Rio Grande Valley provides birders with opportunities to beef up their life lists with tropical and subtropical birds like Blue Buntings and Rose-throated Becards. “We’re talking about some species of wildlife that you can’t see anywhere else in the United States,” says Romey Swanson, director of conservation strategy for Audubon Texas. “It’s been well documented that this public investment is specifically aimed at preservation of this intact relict habitat.” Wildlife tourism helps the region net $463 million a year, according to a Texas A&M University study.
While the sites singled out in the spending bill deserve protection, “so do the family farms, towns, and wildlife refuges that will be hit by the additional 55 miles of border wall in the deal,” says Scott Nicol, co-chair of the Sierra Club’s borderlands team. On the same day that Congress announced the spending deal, he noted, construction crews were busy cutting down shrubs to prepare for construction in the La Parida Banco unit of the Lower Rio Grande Valley National Wildlife Refuge, just west of Bentsen State Park.
“They’re going to destroy every refuge property except for Santa Ana,” says Treviño-Wright. “We’re heartbroken for our friends and neighbors who are still losing their land, their livelihood, their inheritance.”
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