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While courts have concluded the federal government can waive virtually any laws it wants to build walls on the US-Mexico border, the same can’t be said for Texas Governor Greg Abbot’s promised state efforts.
Daniel Braaten, Jennifer G. Correa, & Joseph M. Simpson
One might not think it to look at it, but the prostrate milkweed (Asclepias prostrata), a diminutive plant native to South Texas and source of sustenance to Monarch butterflies and other pollinators, has the power to stop steel and concrete walls—themselves fueled by nativism and xenophobia—in their tracks.
On Tuesday, February 28, 2023, the U.S. Fish and Wildlife Service (USFWS), under the federal purview of the Department of Interior headed by Secretary Deb Haaland, a member of the Laguna Pueblo Tribe, designated the prostrate milkweed plant as part of their endangered species list under the Endangered Species Act. In addition, the USFWS has carved out 661 acres of land in Starr and Zapata counties and deemed it a critical habitat for the endangered plant. This long-awaited announcement was met with praise from the broader environmental and conservation community; however, the state of Texas, particularly the Texas Office of Attorney General, has criticized the move as a major disruption to the state’s border security plans.
In late December 2021, Texas Governor Greg Abbott unveiled plans to build a nearly two-mile border wall under its Operation Lone Star campaign. At a press conference, he debuted the first 900-foot of barrier construction on state-owned land in Starr County along the Texas-Mexico border to stop unauthorized immigration. And he directed the Texas Facilities Commission (TFC) to oversee the border wall, with $1B to kick off the project. For its part, the TFC has not been transparent about where they plan to build and how they will be acquiring land, particularly private lands.
Unlike the federal government, the state of Texas cannot use eminent domain to take private lands due to an amendment passed along with a multi-billion dollar border security bill in 2021.
So the TFC must work with private landowners on acquiring their land through sale or donation to the state of Texas. This process is ongoing and filled with confusion and uncertainty for many landowners on the border. The listing of the prostrate milkweed on the endangered species list throws a wrench into these plans. It’s also not the first time the protection of endangered species, or environmental conservation efforts more broadly, have conflicted with border militarization efforts.
These scenarios are not new, nor are they solely a partisan issue; both Republicans and Democrats have used national security concerns and eminent domain laws to push through hundreds of miles of barrier construction, leaving the private property, protected lands, and the overall ecology of the environment in potential peril. Between the Bush and Obama Administrations the construction of 654 miles of border walls cost the United States $2.4 billion. Border walls became a flashpoint once again for the Trump Administration, which in 2019 proposed 65-miles of barrier in the Rio Grande Valley Sector.
In 2020, then-presidential candidate Joe Biden declared, “There will not be another foot of wall constructed on my administration.” However, the construction of border walls under now President Biden has continued—albeit at a less enthusiastic pace.
One of the families affected by Biden’s border wall is the Cavazos family. Baudilia Cavazos said in a statement provided to attorneys in 2021 and shared with Texas Public Radio: “We are utterly devastated. We thought President Joe Biden would protect us. Now we’ve lost our land. We don’t even know what comes next.”
The first conflict between border security infrastructure and the protection of endangered species stretches back to the construction of the first significant border barrier between San Diego and Tijuana. The Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996 authorized the construction of a wall between San Diego and Tijuana, and it also allowed for the waiver of requirements under the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA) for the construction of that wall. The IIRIRA was subsequently amended by the Real ID Act of 2005 and the Secure Fence Act of 2006 to expand border wall construction across the entire southern border and to waive all laws that may stand in the way of its construction. The impetus for the initial decisions to include a waiver to the ESA and NEPA in the IIRIRA was a debate in Congress concerning whether the listing of the Pacific pocket mouse (perognathus longimembris pacificus) on the ESA would prohibit the construction of the wall between San Diego and Tijuana.
This legislative act set the stage for what sociologists Joseph Simpson and Jennifer Correa describe as the federal government’s “abrogation” of its environmental obligations under laws such as the ESA and NEPA. By allowing environmental laws to be waived, the federal government has given up its role in protecting endangered species and the environment more broadly in favor of border security.
This is tied to what Correa and Simpson also explain as the federal government’s “repertoires of militarization” that facilitate militarized border build-up and oftentimes result in the degradation of the environment.
These “repertoires of militarization” entail the US government’s violation of international treaties such as the 1970 Boundary Act, which states that a nation cannot build a structure that impedes water flow; the waiving of environmental laws described above; and finally, the expansion of law enforcement powers at the federal, state, and municipal levels—in this case, the US Border Patrol, Texas Department of Public Safety, and local city/county police who patrol the border.
One reason this tiny plant may prove so formidable to the construction of towering walls is that, at the moment, the push for further border wall construction is not coming from the federal government, but rather the state government of Texas. Abbott’s Operation Lone Star encompasses multiple layers of “securing the border,” such as sending thousands of DPS personnel and Texas National Guard members to arrest and detain unauthorized immigrants, along with building barriers on primarily private lands. Landowner Joseph Hein is familiar with both the federal government’s strategies of seizing land through eminent domain to build a border wall. Under OLS, Mr. Hein is now contending with the possible reality that he may have a border wall bisecting his 580-acre ranch known as the Rancho Santo Nino, which has been in his family for nearly 100 years and sits on the Webb and Zapata county line.
Hein says that his ranch has never been unsafe nor is it overrun by unauthorized migrants, telling Samantha Aguilar of the Texas Tribune:
“Do you see [migrants] running all over the place? Do you think I would bring my daughters if it was dangerous out here? What father in his right mind brings his kids to a dangerous situation?”
Meanwhile, Governor Abbott and his administration continue to wage a war with a single narrative that the U.S.-Mexico border is a dangerous place as it seeks more private lands to build its border walls.
Texas Attorney General Ken Paxton’s 12-page letter to the FWS objecting to the prostrate milkweed listing claims it will inhibit the state from further construction on the border wall. Unlike the federal government, the state of Texas has no authority to waive federal environmental laws to militarize the border further. Moreover, the Texas border wall is of dubious legality as immigration and border security are areas that are squarely under the purview of the federal government.
The Texas border wall, Operation Lone Star, along with an onslaught of legislation working its way through the Texas Legislature currently, including a bill that would create a Texas border militia, are all attempts by the state of Texas, and primarily the Republican Party of Texas, to challenge the federal government’s authority over immigration and border security.
These policies serve many purposes beyond their stated goals of deterring migrants from crossing the border, including bolstering Governor Abbott’s profile among conservative Republicans as he ponders a presidential run. In addition, Abbott has publicly challenged the federal government’s immigration policies in the hopes they will fall before a sympathetic federal judge or even the Supreme Court.
These Texas policies are so extreme that they border on nullification, an explicit goal of Attorney General Paxton, as he seeks an overturning of Arizona v United States (2012). This case held that the power to enforce immigration law resided with the Federal government and not the states. For now, however, the humble prostrate milkweed has at least slowed Abbott’s ambitions.
Daniel Braaten is an associate professor of political science at Texas A&M University-San Antonio. Jennifer G. Correa, associate professor of sociology at Texas A&M University-San Antonio, examines the intersections of power, national security, and militarization on the U.S.-Mexico border. Joseph M. Simpson, associate professor of sociology at Texas A&M University-San Antonio, studies the interaction between social and natural systems.