Border Wall Prototype Build Faces Constitutional Challenge

September 19, 2017

More litigation could block the administration's plan to construct a wall at the Mexico - U.S. border.

The Center for Biological Diversity expanded its lawsuit against the federal government’s border wall and the construction of wall prototype projects in San Diego, California, challenging the Trump administration’s authority to waive environmental laws. The Center's suit contends that former DHS Chief John Kelly did not have authority to waive dozens of laws to rush construction of the border wall and prototypes, according to court records.

Paulo Lopes, a public lands policy specialist with the Center for Biological Diversity, said the government is utilizing an old law as its basis for the waivers.

“Over a decade ago, Congress granted waiver authority under the REAL ID Act to expedite the construction of a border fence, which has already been completed,” Lopes said. “Congress did not grant DHS perpetual unchecked authority to cast aside dozens of laws.” In fact, the original waiver act states the DHS secretary's authority was only good for the immediate time afer the law's enactment in 2005.

The suit states that, in effect, the government is seeking to circumvent existing laws with waivers.

On August 2, 2017 former DHS Secretary John Kelly issued a Determination in the Federal Register purporting to waive the application of more than 34 laws for border infrastructure projects thus allowing the construction of border wall prototypes to proceed without any compliance with Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA).

The center's suit contends that the Determination waivers were outside the authority allowed the DHS secretary, giving the example "The Veterans’ Administrator cannot issue oil drilling permits—nor can the Secretary of Labor rescind television licenses."

Additionally, according to court documents, DHS and the U.S. Customs and Border Protection (CBP) have failed to comply with the Freedom of Information Act (FOIA) despite requests from the center for information related to impact studies and compliance with other environmental laws related to the prototype project.

Challenges to such waiver determinations can only be heard in federal district court without an appellate court review. At that point, if the Center for Biological Diversity (or other groups who have filed similar suits) seeks review of the district court's decision, the case could go on to the Supreme Court.

Scott Nicol, executive member of the Sierra Club, said his group, along with the Defenders of Wildlife, and the Animal Legal Defense Fund, filed a similar lawsuit Sept. 14 against Elaine Duke, acting secretary of the U.S. Department of Homeland Security, and DHS, all challenging the constitutionality of the government’s waivers.

Lopes said the government has until October to respond to its amended complaint. The center would then respond in November to the government’s motion, with a tentative hearing on the government’s motion for dismissal set for Dec. 15