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Jul 31, 2020122.1K Shares2M Views
In a blow to environmentalists, the Supreme Court on Monday refused (without comment) to hear a legal challenge against the Bush administration for ignoring numerous environmental, public health and cultural heritage laws in order to hasten construction of the U.S.-Mexico border fence. The decision leaves administration critics clinging to hopes that a similar case, now pending in Texas, will prove more successful. Though a congressional fix is also possible, it’s not likely to happen in an election year when Democrats are wary that opposition to the fence could brand them soft on national security.
The legal challenge, brought by the Sierra Club and Defenders of Wildlife, charged that the Dept. of Homeland Security’s 2007 decision to waive 19 such laws on the Arizona-Mexico border violated the separation of powers guaranteed by the Constitution. The groups maintain that the DHS has no power to disregard federal laws.
The high court’s decision brought immediate condemnation from Rep. Bennie Thompson (D-Miss.), chairman of the House Homeland Security Committee, who had joined 13 other House Democrats in signing their supportto the petition.
"This waiver will only prolong the Department from addressing the real issue, their lack of a comprehensive border security plan," Thompson said in a statement. "Without a comprehensive plan this fence is just another quick fix. Despite this decision, [DHS] Secretary [Michael] Chertoff still has a responsibility to act prudently and to consult with all stakeholders."
Waiver critics have faced an up-hill climb because it was Congress that granted the waiver authority to begin with. That statute, passed in 2005 under a GOP-majority Congress, empowers DHS to ignore any federal, state or local laws it deems a barrier to the "expeditious construction" of the border wall. The waiver language was attached to a must-pass military spending bill and didn’t receive a separate vote.
Since then, the administration has invoked the law on four occasions. The most recent casecame in April, when Chertoff announcedthat the agency would disregard 36 federal laws that might impede the construction of 470 miles of fence in parts of Texas, New Mexico, Arizona and California. Among the laws waived were the Endangered Species Act, the Safe Drinking Water Act and the Native American Graves Protection and Repatriation Act.
A coalition of local governments, wildlife conservation groups and an Indian tribe have challenged that decision, claiming, among other things, that the waivers unconstitutionally disregard state and local laws. The case is pending in a federal district court in Texas.
Environmentalists are also hoping that Congress will step in to nullify the waivers. Oliver Bernstein, a Texas-based spokesman for the Sierra Club, said the group is supporting the Borderlands Conservation and Security Act, sponsored by Arizona Rep. Raul Grijalva (D). The bill would repeal the 2005 law that granted the waiver authority.
But waiver opponents probably shouldn’t hold their breath for Congress to act. Congressional Republicans and administration officials have sold the border fence as vital for protecting the country against the next terrorist attack.
In an election year when Democrats are expected to pick up dozens of seats, there is little appetite to risk that advantage for the sake of the environment.
Rhyley Carney
Reviewer
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