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Environment & Energy Report

Trump’s Border Wall Faces Environmental Challenge at High Court

Jan. 31, 2020, 7:44 PM

Environmental groups are calling on the Supreme Court to review the legality of the Trump administration’s decision to exempt various border wall projects from environmental laws.

The Center for Biological Diversity, Defenders of Wildlife, the Animal Legal Defense Fund, and the Southwest Environmental Center filed a petition Friday that says the federal government’s waiver authority violates the Constitution’s separation of powers among the branches of government.

At issue is how the Department of Homeland Security has issued a steady stream of waivers in recent years to fast-track construction along the U.S.-Mexico border, freeing the government from having to comply with the National Environmental Policy Act, the Endangered Species Act, and other statutes.

“At stake is the fraught accumulation of legislative powers in the unitary Executive official, who has discretionarily swept aside a vast breadth of public and private liberties protected by federal, state, local, and tribal statutes in the name of border wall construction—all without an iota of congressional guidance,” the new filing says.

“The Constitution prohibits this outrageous executive overreach, and we’re asking the Supreme Court to defend these bedrock principles of our democracy,” Center for Biological Diversity attorney Jean Su said in a statement.

The Department of Homeland Security didn’t immediately respond to a request for comment.

Border-Linked Waivers

Congress established the waiver process through the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and expanded it in 2005, giving the executive branch power to waive statutes as varied as the Antiquities Act, National Environmental Policy Act, and Farmland Protection Policy Act in order to construct barriers and roads along the border.

Congress also limited the scope of federal district courts’ review of waiver decisions and required all appeals to go straight to the Supreme Court, bypassing federal circuit courts.

In addition to violating the separation of powers, the environmental groups say the waiver process flouts the Constitution’s nondelegation doctrine, which bars Congress from passing its legislative authority to the executive branch, and the presentment clause, which sets out how the legislative process works.

Congress can’t give the executive branch the power to sidestep existing laws, and it can’t short-circuit judicial review, their petition says.

Environmentalists and others have unsuccessfully challenged the border wall waivers one at a time through lawsuits in California, Arizona, and Washington, D.C.

The new petition focuses on the administration’s use of six waivers for border projects in New Mexico, Arizona, Texas, and California. The justices declined to take up a similar case in 2018.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com

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