The Texas Observer

Updated below

Remember Land Commissioner Jerry Patterson’s brusque promise of “No guns, no deal” on the proposed transfer of the Christmas Mountains to Big Bend National Park? Well, the AP has a story today that should cheer Yosemite Sam Patterson:

Interior Secretary Dirk Kempthorne proposed new regulations Wednesday that would allow people to carry a concealed weapon in some national parks and wildlife refuges.

The new rules would allow someone to carry a loaded weapon in a park or wildlife refuge only if the person has a permit for a concealed weapon and the state where the park or refuge is located allows guns in parks, Kempthorne said.

Park rangers, retirees, and conservation groups are agin’ the idea, arguing that it could lead to heightened danger for visitors and park personnel.

At this point the rule is far from a done deal. The public has 60 days to comment and some Democratic lawmakers are blasting the rule as ill-conceived and untenable. One sticking point is that some local and state laws place restrictions on carrying firearms. That’s probably not a problem in Texas, thanks in part to the concealed handgun law that - guess who - Jerry Patterson passed in 1995 when he served in the Texas House.

In any case, one wonders how this affects the Christmas Mountains deal. We called General Land Office spokesman Jim Suydam for comment. When we hear from him, we’ll update this post.

Update: The Land Office just released a statement welcoming the “return of Second Amendment rights to some National Parks.” Patterson is quoted as saying, “When I’m in a state or national park, I’m armed. An unconstitutional rule promulgated by a federal bureaucracy is not sufficient to deny me that right.” He encouraged freedom-loving Texans to fire away at the Interior Department with comments supporting the rule.

The specific story may be Austin’s, but the dilemma is close to universal: a treasured civic amenity (Barton Springs, say) inevitably attracts the attention of developers, who want to reshape the natural world in a more profitable manner (by installing sprawling subdivisions, for instance), threatening in the process the very goose that laid the golden egg. Conflict and lack of hilarity ensues, and eventually, almost always, the goose dies.

That’s the broad-brush outline of the substantially more nuanced The Unforeseen, produced by Terrence Malick and Robert Redford, and directed by Laura Dunn. The film premiered at Sundance last year. You can read the Observer’s review here. Or read our 2001 profile of director Dunn here.

The film opened its theatrical run in Austin last weekend.

Check out the Alamo Draft House South Lamar screening schedule here.

If you already have a read on this story from your time in the Austin trenches, you’ll want to see what the filmmakers got right and/or wrong. If you’re a newbie, you’d be hard-pressed to find a better (or prettier) primer on this town’s defining development/preservation dynamic.

See and discuss.

How appropriate that the Department of Homeland Security would announce its plan to file a massive environmental waiver to cover the southern border on April Fool’s Day. Homeland Security Secretary Michael Chertoff wants to get his border wall built before Christmas. A month later Bush will leave office and Chertoff will be looking for work elsewhere. We won’t be surprised if he eventually lands with a firm that’s making big bucks off this boondoggle.

In a press release today, Chertoff is quoted as saying, “Criminal activity at the border does not stop for endless debate or protracted litigation.”

The agency’s waiver will apply to 470 miles ranging from California, Arizona, New Mexico and Texas. A separate waiver has been signed for the 22-mile border fence-levee project to be built in Hidalgo County. This project was agreed to by Chertoff as a concession to Hidalgo County Judge JD Salinas and landowners in Granjeno, whose homes would have been destroyed by the wall.

As I wrote in an earlier blog last Friday, both Defenders of Wildlife and Sierra Club expected as much from Chertoff and company. Noah Kahn, a refuge program manager for Defenders of Wildlife, in Washington D.C.. said he had heard several credible rumors swirling around D.C. in the last few days about a waiver in the pipeline.

Chertoff has the authority to do this thanks to Congress and the Real ID Act of 2005. He has already waived environmental rules in California and Arizona to expedite the construction of the border wall. His goal is to have 370 miles of fence and 300 miles of vehicle barriers built along the Southern border by December 31, 2008. In a recent Observer blog, we wrote about lawsuits filed by Sierra Club and Defenders of Wildlife challenging Chertoff’s imperial powers.

Oliver Bernstein, a spokesperson for the Sierra Club, said that they hope the U.S. Supreme Court will rule by this summer on whether the court will hear their case. This new waiver will become part of that challenge, said Bernstein.

Another important question is how Chertoff’s waiver will affect private landowners like Eloisa Tamez in Brownsville. Tamez was profiled in our “Holes in the Wall” story about the border wall boondoggle. She has won several important concessions in her court case against Homeland Security. On March 6, U.S. District Judge Andrew Hanen ruled that DHS must enter into negotiations with Tamez and arrive at a fair price for her land before it condemns her property to build a wall.

Peter Schey, Tamez’s lawyer, said he doesn’t think the waiver will affect the Tamez litigation since suit is not dependent on environmental laws.

“We rely on two laws — one embedded in the 1996 IRIRA law that requires DHS to negotiate for a reasonable fixed price for the land and another law passed in the 2008 appropriations bill that requires DHS to consult with a property owner before condemning their property.”

Schey said the waiver will prevent any property owners from citing environmental laws when trying to protect their property from being condemned. “It erases it from the equation,” he says.

(Update below)

We don’t usually write about rumors but this one has too many implications for what remains of our civil liberties to ignore. We have received a few emails and calls today about the possibility that Homeland Security Secretary Michael Chertoff may post notice in the Federal Register Friday that he is going to waive all environmental rules to build the border wall in South Texas. The waiver may blanket Texas or the entire Southern border from California to Texas in a giant mega-waiver.

Chertoff has that ability thanks to Congress and the Real ID Act of 2005. He has already waived environmental rules in California and Arizona to put the border wall on the fast track. His goal is to have 670 miles of fence built along the Southern border by December 31, 2008. In an Observer blog last week, we wrote about lawsuits filed by Sierra Club and Defenders of Wildlife challenging Chertoff’s imperial powers.

We called Homeland Security in Washington D.C. in an attempt to get confirmation on the waiver. A spokesperson for the agency Amy Kudwa would not confirm a waiver in the pipeline, and said Homeland Security had no announcements today about a waiver.

Next we called Noah Kahn, a refuge program manager for Defenders of Wildlife, in Washington D.C.. Kahn said he had heard several credible rumors swirling around D.C. in the last few days about a waiver in the pipeline.

“It would not surprise me if there is a Real ID waiver coming soon because Chertoff has a history of waiving laws and it’s no secret that the border wall is not appropriate for a wildlife refuge,” Kahn says. “We have heard the waiver could be coming Friday which is a day typical for these kinds of press announcements since it is the end of the week and the press won’t be paying as much attention.”

Kahn says he thinks a waiver in Texas is more likely than a sea-to-shining-sea waiver from California to Texas. “That would be an even more unnecessary abuse of power,” he said.

The current mood in Congress is lukewarm when it comes to stopping the construction of the border wall. “It’s not politically palatable to oppose the border wall in an election year,” he says. “Those in Congress who are against the wall are remaining silent about it, because as long as it is linked with illegal immigration they don’t want to touch it.”

While the Real ID act allows Chertoff to waive federal laws, it will be interesting to see how the waiver impacts constitutional law. Dr. Eloisa Tamez and several other Texas landowners are currently fighting to keep their land from being condemned by Homeland Security. They assert that Chertoff is violating their right to due process under the fifth amendment of the Constitution.

Update

No sign of a waiver being filed today (Friday) in the Federal Register. A good source in Washington D.C. shared some important information that language was passed in the appropriations bill restricting any funding for the fence until 15 days after notice is published in the Federal Register.  We’ll keep you posted if we hear anything from Washington. Also, thanks to Jay J. Johnson-Castro, Sr, of Border Ambassadors for sounding the alarm about the possibility of an impending waiver in the pipeline.

Buddy Garcia, Gov. Perry’s pick to head the Texas Commission on Environmental Quality, apparently thinks everything is fine and dandy with Texas’ air quality.

“When the Environmental Protection Agency announced its new ozone standard, critics across the state jumped to the conclusion that the air we currently breathe is unhealthful,” Buddy wrote in an op-ed yesterday in the Fort Worth Star-Telegram. “Nothing could be further from the truth.”

So, Texas’ air is healthy then? Garcia never answers that question directly but he does tout the strides Texas has made in reducing air pollution. True enough - there have been sizable cuts of some pollutants - but that doesn’t mean we now breath clean air. His argument is kinda like the two-pack-a-day smoker who cuts back to one and declares victory.

The statistics Buddy cites to prove his point are misleading, if not specious, according to Matthew Tejada, executive director of the Galeston-Houston Association for Smog Prevention (GHASP). For example, Garcia claims nitrogen oxide emissions from industrial sources in Houston have dropped from 479 tons per day in 2000 to 157 tons per day in 2009. “There aren’t any number out there that would justify that [claim] other than industry’s own self-reported statistics,” said Tejada. Houston has managed to modestly reduce nitrogen oxides, smog-forming gases, but that’s primarily from more efficient vehicles on the road, Tejada said.

Where Buddy really gets into trouble is when he starts bashing the EPA’s decision to reduce the ozone standard from 85 parts per billion to 75 ppb.

Garcia wrote that he was opposed to the reduction. “It’s not that we don’t want further air quality improvements,” he wrote, “but the health benefits of lowering the current standard are debatable… If the yardstick by which we judge air quality is based on anything other than clear-cut scientific proof, we are using the wrong measurement.”

While it’s true that it is next to impossible to quantify exactly how many lives are saved from lowering a smog standard, the EPA’s scientific clean air panel estimated that a standard of 75 parts per billion would prevent 1,300 to 3,500 premature deaths a year. However, the panel members unanimously urged at least a 65 ppb limit, which would prevent an annual 3,000 to 9,200 deaths. The EPA administrator Stephen Johnson ignored the experts’ consensus and decided, somewhat arbitrarily, to go with 75ppb.

In short: There is no scientific debate on whether reducing ozone would save thousands of lives, especially those of the young, ill, and old. It would. There is a policy debate to be had about the trade-off between saving lives and hampering industry. But Buddy, it seems, is more concerned with the latter:

As emission limits become more stringent, control costs rise. Unnecessary regulation costs jobs and raises the price of all kinds of goods and services. The people most adversely impacted are not the wealthy but those who live paycheck to paycheck, or lose their jobs, or never get the jobs that would’ve been created if not for additional, burdensome regulation.

This is the kind of anti-regulatory, pseudo-populist claptrap that people at industry-funded think tanks are paid six figures to come up with, but, hey, Buddy does it for free. While the presidential candidates are talking about creating millions of green-collar jobs, here’s Garcia worrying that asking Texas polluters to clean up their act will be too “burdensome.” The really biting irony is that the clean air improvements Garcia wants us to be proud of are the fruits of hard-nosed regulation, not the munificence of big business.

“What motivated him to write this op-ed?,” asks Tejada, who has submitted his own rebuttal piece to the Startlegram. “It doesn’t achieve any policy purpose… What is he trying to achieve other than trying to mislead the public?”

It came as a shock to us last year when we learned that Homeland Security Secretary Michael Chertoff has the authority to waive most any law that gets in the way of construction of a wall along the U.S.-Mexico border. It also precludes judicial review if someone asserts that Chertoff is overstepping his bounds. The power was stealthily given to him when Congress passed the REAL ID Act of 2005.

On Monday the Sierra Club and Defenders of Wildlife filed a petition asking the U.S. Supreme Court to review the authority. Here’s the press release. The filing, a pdf of which can be found here, argues that the REAL ID Act’s waiver provision contravenes the system of checks and balances guaranteed in the Constitution.

“Not only does the waiver authority extend to every federal, state, and local legal requirement, but the statute provides no right to a judicial determination that the Secretary’s exercise of this authority complies with the standard established by Congress. For that reason, this broad delegation of authority violates the principles recognized in the well-established nondelegation doctrine. The unchecked and unreviewable authority to waive any federal law in this case also violates the Constitution’s clear command…”

So far, Chertoff has used his authority to complete a wall near San Diego, to remove vehicle barriers and replace them with a wall in the Barry M. Goldwater Range in Arizona, and to build a border wall within the San Pedro Riparian National Conservation Area. There is speculation that Chertoff plans to waive environmental laws in Texas to build the wall as well. To date that has not happened but a controversial environmental impact statement may be a precursor to such action.

We were curious, given the radical turn of this Supreme Court, whether it might create some really bad law if the justices took this one on. We received a thoughtful response to that question from Bob Dreher, vice president for conservation law with Defenders of Wildlife.

First, we think it unlikely that the Court would grant review just to affirm the district court; if a majority of the Justices think the district court got it right, they will most likely just vote to deny review, leaving the decision as it stands. If they vote to grant review, therefore, we would view that as a positive sign that at least 4 Justices think there may be a serious constitutional problem with the waiver provision of the Real ID Act. The Court may nonetheless decide that issue against us, but in that case all they will have done is to ratify Congress’s existing understanding of their ability to delegate this sort of waiver authority to Executive Branch officials.

The enviros are not the only ones concerned by the use of REAL ID to waive longstanding laws that protect public health and the environment. Connecticut Sen. Joe Lieberman wrote to Chertoff last December about the waiving of environmental laws to build a fence through the San Pedro conservation area in Arizona.

Lieberman asked several questions, including this rather important one: In what circumstances will Chertoff use his new power to suspend laws?

Chertoff responded (pdf here) with a lengthy letter that is well worth a read. The secretary’s answer reasserts his unilateral authority to a) determine where the wall is needed, b) judge its impact on the environment, and c) set the timeline by which it will be built. The best part perhaps is where Chertoff makes the argument that an enormous wall topped with bright lights through a conservation area will be good for the environment because it will deter trash and human waste from migrants who pass through.

The irony to this whole dance is that even Chertoff has admitted that construction of a border wall is largely symbolic and will not have much impact on illegal immigration.

Yesterday, the Texas Commission on Environmental Quality issued a “revised” draft license to radioactive waste outfit Waste Control Specialists. The permit would allow Waste Control to bury about 1.17 million cubic yards of “byproduct” waste - mostly uranium mill tailings and radioactive leftovers from the Cold War - in a landfill at its Andrews County facility in West Texas. (Background here.)

The license is virtually unchanged from its previous iteration, despite voluminous comments filed by Waste Control as well as the Sierra Club and eleven New Mexico residents opposed to the project. TCEQ executive director Glenn Shankle rebuffed the protestants’ calls for a public meeting and rejected out-of-hand their criticisms of Waste Control’s proposal. Shankle argued that conditions on the license “increase the overall safety” of the radioactive landfill.

Cyrus Reed said the license, even with the conditions imposed, can always be amended. “Once you say go, it’s hard to say no,” Reed said.

Agency staff have warned that the landfill could be situated dangerously close to two water tables. In August 2007, two state geologists went so far as to write to their bosses that the proposed landfill did not meet the requirements of state law.

“[H]ydrogeologic uncertainties and unknowns and modeling that shows water encroachment into the byproduct material landfill shows that the application lacks the requirements to demonstrate compliance with the rules” governing byproduct materials, they wrote. Waste Control has said that recent borings conducted at the site have proven that water is not anywhere close to the proposed landfills.

Waste Control sought to strip out a number of license conditions that would require further extensive study of the site’s geology and hydrology, but the TCEQ executive director rejected almost all the proposed changes. Waste Control also asked TCEQ to allow for disposal of “bulk waste,” soil-like stuff that state engineers worried could escape the landfill and contaminate the surrounding area. The executive director preserved the ban on such waste in the license.

Waste Control had also asked TCEQ to replace whole sections of the agency’s environmental analysis with text written by their own experts. The agency’s analysis raised questions about the presence of water in the proposed landfill and criticized the proposal for being inconsistent and incomplete in spots. However, the executive director decided to stick to his staff’s analysis.

On balance, it seems Waste Control won this round. Their shoot-for-the-moon strategy of trying to get TCEQ to tailor the license exactly to their liking failed, but they still got a license. The company certainly declared victory.

“This is a great accomplishment for our company and we are pleased that the Executive Director and his staff have recommended the issuance of the license to the TCEQ Commissioners after an exhaustive and thorough review of our application and our site,” said Rodney A. Baltzer, President of WCS, in a press release. “This license will allow us to safely dispose of the 3,776 canisters of by-product material received from the Fernald, Ohio site remediation currently in storage at our site as well as provide a more economical disposal facility for uranium miners in Texas and New Mexico.”

Meanwhile, the Sierra Club and the other protestants will have to hold out hope for a contested case hearing. The three Gov. Perry-appointed commissioners will decide soon whether opponents get a shake at overturning the permit in a hearing.

Late Update: A reader pointed out in an email that the other pending Waste Control license, for low-level radioactive waste, does allow for disposal of soil-like bulk waste. The same potential problems with wind dispersal of radioactively-contaminated soil would apply to the low-level landfill as the byproduct dump. Rod Baltzer, Waste Control president, told the Observer today that their modeling shows that a person standing in the middle of the byproduct area during a wind storm would receive a dose of radiation far below the legal limit.