Tuesday, December 04, 2018

U.S. top court snubs environmental challenge to Trump's border wall

The U.S. Supreme Court on Monday rebuffed a challenge by three conservation groups to the authority of President Donald Trump’s administration to build a wall along the U.S.-Mexico border, a victory for Trump who has made the wall a centerpiece of his hardline immigration policies. The justices’ declined to hear the groups’ appeal of a ruling by a federal judge in California rejecting their claims that the administration had pursued border wall projects without complying with applicable environmental laws. The groups are the Center for Biological Diversity, the Animal Legal Defense Fund and Defenders of Wildlife. The dispute centers on a 1996 law aimed at countering illegal immigration that gave the federal government the authority to build border barriers and preempt legal requirements such as environmental rules. That law also limited the kinds of legal challenges that could be mounted. The groups argued that Trump’s wall projects did not fall under that law, and that the measure was unconstitutional because it gave too much power to unelected Cabinet officials to avoid laws such as the Endangered Species Act and the National Environmental Policy Act. U.S. District Judge Gonzalo Curiel in February ruled that the administration had not exceeded its powers. The groups appealed the judge’s decision to the Supreme Court...MORE 

The original waiver authority was in Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and read:


.—The provisions of the Endangered Species Act of 1973 and the National Environmental Policy Act of 1969 are waived to the extent the Attorney General determines necessary to ensure expeditious construction of the barriers and roads under this section.

Since then, through various amendments, Congress has greatly expanded the waiver authority, as demonstrated in this 2008 waiver document

Determination and Waiver : The Department of Homeland Security has a mandate to achieve and maintain operational control of the borders of the United States. Public Law 109-367, Section 2, 120 Stat. 2638, 8 U.S.C. 1701 note. Congress has provided the Secretary of Homeland Security with a number of authorities necessary to accomplish this mandate. One of these authorities is found at section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (``IIRIRA''). Public Law 104-208, Div. C, 110 Stat. 3009-546, 3009-554 (Sept. 30, 1996) (8 U.S.C 1103 note), as amended by the REAL ID Act of 2005, Public Law 109-13, Div. B, 119 Stat. 231, 302, 306 (May 11, 2005) (8 U.S.C. 1103 note), as amended by the Secure Fence Act of 2006, Public Law 109-367, Section 3, 120 Stat. 2638 (Oct. 26, 2006) (8 U.S.C. 1103 note), as amended by the Department of Homeland Security Appropriations Act, 2008, Public Law 110-161, Div. E, Title V, Section 564, 121 Stat. 2090 (Dec. 26, 2007). In Section 102(a) of the IIRIRA, Congress provided that the Secretary of Homeland Security shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States. In Section 102(b) of the IIRIRA, Congress has called for the installation of fencing, barriers, roads, lighting, cameras, and sensors on not less than 700 miles of the southwest bord er, including priority miles of fencing that must be completed by December of 2008. Finally, in section 102(c) of the IIRIRA, Congress granted to me the authority to waive all legal requirements that I, in my sole discretion, determine necessary to ensure the expeditious construction of barriers and roads authorized by section 102 of the IIRIRA. 

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