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The Center for Biological Diversity will file the third in what promises to be a string of environmental legal challenges to President Donald Trump’s border wall plans.
The Tucson-based group on Thursday filed a required notice of its intent to sue the Department of Homeland Security over plans to hire contractors to build 30-foot-long prototypes of reinforced concrete or other materials this summer near San Diego.
Such construction north of an existing border fence would harm several legally protected endangered species, the organization contends, and the government has provided no documents assessing or disputing that point.
“It’s the big first step to building the border wall,” said Brian Segee, an attorney for the center. “The administration just has not done any environmental analysis at all.”
Homeland Security officials declined to comment.
The center and U.S. Rep. Raul Grijalva, D-Ariz., already have filed a separate suit in Tucson federal court against the broader wall construction and enforcement proposal. They alleged Trump’s order to build a wall violated the National Environmental Policy Act because Homeland Security has failed to involve the public and update old environmental analyses dating to the George W. Bush administration.
A third lawsuit challenges the department’s failure to produce public records from the Trump administration’s transition. Officials responding to the center’s public-records request said they could not comply until August, by which time the prototypes could already be constructed.
Congress approved some exemptions to environmental laws at the border during the George W. Bush administration, and federal courts may now have to determine whether or how they continue to apply. For instance, Homeland Security could argue that it does not need to comply with the Endangered Species Act in the border zone.
Segee would dispute that interpretation. The Bush-era waiver was “sweeping,” he acknowledged, but was targeted specifically to border areas the department secretary determined required rapid construction of barriers to counter high rates of illegal crossing. Otay Mesa, the part of San Diego County where contractors will build the prototypes, no longer qualifies as a high-traffic area, he said.
“It’s not meant to deter immigration,” he said. “It’s a prototype project.”
The center lists the Quino checkerspot butterfly, coastal California gnatcatcher and San Diego fairy shrimp as affected species. Elsewhere along the border, a wall could impede endangered mammals such as jaguars and ocelots from establishing breeding populations in Arizona.
Last month the Tucson non-profit released a study concluding that 25 threatened or endangered species have federally designated “critical habitat” on the border, and more than 2 million acres of the region within 50 miles.
“It could drive magnificent species like the jaguar and ocelot to extinction in the United States,” the center’s endangered species director, Noah Greenwald, said when releasing that report.
Follow the azcentral and Arizona Republic environmental reporting team at OurGrandAZ on Facebook, Twitter and Instagram. Environmental coverage on azcentral and in the Republic is supported by a grant from the Nina Mason Pulliam Charitable Trust.
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