Environmentalists lose border-fence fight
Judge tosses bids to block Chertoff barrier authority
By Howard Fischer
Capitol Media Services
Tucson, Arizona
Published: 12.20.2007
PHOENIX A federal judge has tossed out efforts by two environmental groups to void a provision of federal law that Homeland Security Secretary Michael Chertoff invoked to build a stretch of border fence in Cochise County.
Judge Ellen Huvelle said there is nothing unconstitutional about a 2005 law that lets Chertoff unilaterally decide that he need not comply with various other federal statutes when constructing barriers and roads on the U.S.-Mexico border.
She said it would be one thing if Congress gave Chertoff the power to unilaterally repeal a law. Instead, Huvelle said, federal lawmakers simply gave him the power, on a case-by-case basis, to waive the requirements.
That's exactly what Chertoff did in October, declaring the border-fence project along the southern edge of the San Pedro Riparian National Conservation Area need not comply with the Endangered Species Act and 19 other federal laws.
“Each of the 20 laws waived by the secretary on Oct. 26, 2007, retains the same legal force and effect as it had when it was passed by both houses of Congress and presented to the president,” Huvelle wrote.
“The fact that the laws no longer apply to the extent that they otherwise would have with respect to the construction of border barriers and roads within the SPRNCA does not, as plaintiffs argue, transform the waiver into an unconstitutional partial repeal of those laws,” she continued.
Huvelle's decision is a defeat for Defenders of Wildlife and the Sierra Club, who originally had persuaded the judge to temporarily halt construction work in and around the San Pedro River.
The judge had halted the work after saying that there was evidence the Bureau of Land Management, which controls the property, had not done the legally required environmental studies of the impact of the barriers and roads on the river and on the various animals and plants that depend on the habitat.
Government attorneys disagreed, saying they had done the necessary work.
They pointed to the fact that the final design included not a fence through the river but instead removable vehicle barriers.
But Chertoff, rather than waiting for the case to be heard and risking an adverse decision decided instead to use the power Congress gave him in the 2005 Real ID Act to waive the various requirements. That cleared the way for construction to begin.
The two environmental groups then changed tactics and challenged the law, hoping that a legal victory would force the government to tear out anything built in the interim.
Huvelle rejected the contention of the two organizations that the statute is a violation of constitutional requirements for separation of powers.
“The Supreme Court has widely permitted the Congress to delegate its legislative authority to other branches (of government) so long as the delegation is accompanied by sufficient guidance,” she said.
Here, Huvelle said, the law specifically says Chertoff can use his power only if he first determines that a waiver is “necessary to ensure expeditious construction of the barriers and roads” that Congress separately ordered him to construct.
And she said that direction is narrow, dealing only with areas “in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.”
This is the third time Chertoff has used his waiver authority.
In 2005 he decided to build fencing near San Diego without conducting environmental studies.
And just this past January he issued a waiver from all laws for a project along the edge of the Barry M. Goldwater Range in Southwestern Arizona.
