ARTICLE: New Lawsuit Against Border Wall Has Huge Implications For South Texas

By Steve Taylor

No Border Wall spokesman Scott Nicol

BROWNSVILLE, November 2 - The No Border Wall group says a new lawsuit challenging the Real ID Act’s constitutionality could put a halt to fencing being erected along the South Texas border.

On Thursday, attorneys for Defenders of Wildlife and the Sierra Club filed an amended complaint in federal court challenging the 2005 REAL ID Act. This legislation granted Homeland Security Secretary Michael Chertoff the power to waive any law - federal, state or local - that would otherwise apply to border wall and road construction.

The amended complaint alleges that this unprecedented authority violates the fundamental separation of powers principles enshrined in the U.S. Constitution. The environmental groups also argue that by delegating the power to pick and choose which laws will apply to border wall construction, Congress has unconstitutionally given away its lawmaking responsibilities to a politically-appointed executive branch official who is not accountable to the American public.

“This lawsuit is really important news for the fight against the border wall,” Scott Nicol, spokesman for the No Border Wall group, told the Guardian.

“The Sierra Club and Defenders of Wildlife are challenging the Real ID Act's constitutionality, and if they win Chertoff will be unable to issue further waivers of law along the border.”

The No Border Wall group has been leading the grassroots fight against the border wall being built in the Rio Grande Valley. In September, the Department of Homeland Security (DHS) issued new maps showing 70 miles of proposed fencing, with the greatest concentration of “tactical infrastructure” to be assembled in the Brownsville area.

Nicol said it would be “virtually impossible” for the wall to be built along the Lower Rio Grande in a manner that complies with both the Secure Fence Act and the Endangered Species Act, not to mention state and federal laws that protect private property, - if the new lawsuit prevails.

“Under section 102 of the Real ID Act an unelected Administration appointee has the power to ignore all of our nation's laws. If this lawsuit is successful it will restore the rule of law,” Nicol said.

On October 10, U.S. District Court Judge Ellen S. Huvelle issued a temporary restraining order stopping border wall and road construction within the San Pedro Riparian National Conservation Area.

The Sierra Club and Defenders of Wildlife had argued that DHS and the Bureau of Land Management, which oversees the San Pedro area, hadn’t properly analyzed the impacts of the construction on wildlife and other natural resources.

The groups also argued that the agencies had failed to include the public in their decision-making process.

Chertoff responded by invoking the REAL ID Act to waive 19 laws in order to resume construction of this particular wall segment.

“I want to stress that it’s not our intention to run roughshod over existing laws and regulations,” Chertoff said at the time. “But, Congress recognized the significance that secure borders have on our national security and provided legal authority for me to waive any restrictions that may impede our progress.”

Chertoff has invoked the provisions of the REAL ID Act twice before. He used it to finish construction of a fence in San Diego and another fence in Arizona.
Rodger Schlickeisen, president of Defenders of Wildlife, said that in the case of the San Pedro conservation area, Chertoff rode roughshod over 19 laws.

“These laws were put in place to provide all of us with clean air and water and ensure our treasured places and wildlife are protected,” Schlickeisen said. “The Secretary’s action was a clear and unprecedented abuse of authority and demonstrated a profound disregard for the system of checks and balances assured in our constitution. The Secretary left us no choice but to address the unconstitutional nature of the REAL ID Act.”

Sierra Club Executive Director Carl Pope agreed. “The Bush administration should know that we have the ability to protect our nation while at the same time preserving the unique wildlife and treasured lands along the border. Arbitrarily waiving environmental protections is an extreme path to tread,” Pope said.
In the case of the San Pedro conservation area, the statutes waived by Chertoff are:

The National Environmental Policy Act, the Endangered Species Act, the Federal Water Pollution Control Act, the National Historic Preservation Act, the Migratory Bird Treaty Act, Clean Air Act, the Archaeological Resources Protection Act, the Safe Drinking Water Act, the Noise Control Act, the Solid Waste Disposal Act, the Comprehensive Environmental Response, Compensation, and Liability Act, the Federal Land Policy and Management Act, the Fish and Wildlife Coordination Act, the Archaeological and Historic Preservation Act, the Antiquities Act, the Historic Sites, Buildings, and Antiquities Act, the Arizona-Idaho Conservation Act, the Wild and Scenic Rivers Act, the Farmland Protection Policy Act, and the Administrative Procedures Act.

Nicol said he fully expects Chertoff to waive all federal laws again, should the City of Brownsville or various environmental groups succeed with their legal action against the border wall.

“Having exercised this unprecedented power three times already, it is certain that he (Chertoff) will do so again and again to build the 700 miles of wall called for by the Secure Fence Act,” Nicol said.

“In Texas, this will mean that cities and private landowners as well as wildlife refuges will feel the walls’ unmitigated impact. When walls slice through Roma, Rio Grande City, Granjeno, and Brownsville, all of the legal protections that U.S. citizens expect and deserve will be thrown to the wind.”

Write Steve Taylor

Courtesy of:
Rio Grande Guardian
www.riograndeguardian.com