A Pesky Law Might Allow the President to Waive Environmental Review to Replace a Part of the U.S.-Mexico Border Wall

By: Alison Shlom

 

The Trump campaign promised to strengthen the U.S.-Mexico border walls.[1] The House of Representatives recently approved the administration’s request for $1.6 billion, part of which will replace fourteen miles of the border wall in Calexico, CA, where nearly 32,000 arrests occurred in 2016.[2]

There are currently three lawsuits regarding the waiver of several environmental laws to replace the border wall.[3]  The Center for Biological Diversity filed suit before U.S. District Judge Gonzalo Curiel, who also presided over lawsuits that alleged fraud at Trump University.[4] California Attorney General Xavier Becerra filed the second lawsuit on behalf of California state.[5] The Sierra Club, Defenders of Wildlife and Animal Legal Defense Fund brought action in a third case supported by their hundreds of thousands of members.[6] Each case claims that the federal government relied on federal statutes that do not authorize replacing barriers in San Diego and Imperial counties.[7] The Plaintiffs are worried that the replacement of the border wall will cause enormous environmental destruction, and that without environmental review, the legislative branch cannot hold the executive branch accountable.[8]

In 2005, Congress passed a law (“§ 102(c)”) that gives the Secretary of Homeland Security “authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section.”[9] The waiver blunts any challenges that border wall construction in San Diego violates environmental laws.[10] Congress intended § 102 (c) to strengthen foreign affairs and immigration control, over which the Executive Branch has traditionally exercised a large degree of discretion.

The success of the United States government depends upon checks and balances; each of the three branches has a limited amount of power to overthrow the actions of another branch. The president has the power to issue Executive Orders, for example, but may not deprive Congress of its exclusive law-making authority.[11] In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court ruled that the President overstepped his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills.[12] A Presidential order may not direct the Congress to execute a presidential policy in a manner prescribed by the President because Congress has exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution.[13] The Trump administration’s waiver similarly demonstrates the executive power to check the actions of legislative branch, and ideally, through lawsuits, the judicial branch would use its power to review this action. However, the language of § 102(c) removes checks and balances by delegating legislative, judicial, and executive authority to the Secretary of Homeland Security.[14] It is unlikely that the courts for the current lawsuits will be able to properly review this provision due to the severe limitations on judicial review.[15]

Replacing the border wall in San Diego will waive thirty-seven regulations, many of which protect the environment through environmental review.[16] Before building on public lands, an agency generally must complete an environmental impact study.[17] Environmental review would require the administration to involve public participation in the evaluation of the project, consider alternative actions to reach the same result, and report how a decision was reached.[18] The border wall will fragment ancient and historic climate migration routes and block wildlife from food, water, cover, nesting, and reproduction sites, and threaten 111 endangered species.[19] The wall may also block debris, forming a dam and causing fatal flooding.[20] Under § 102(c), the Secretary of Homeland Security waives environmental review, and will undoubtedly cause this destruction.[21]

Previous challenges to waiver of environmental review under § 102(c) have all failed.[22] In Defenders of Wildlife, the court implied that the provision deserves the same deference that is accepted in other federal statutes in which Congress confers waiver power.[23] In the petition of certiorari to the Supreme Court, the plaintiffs in Defenders of Wildlife pointed out that the district court cited delegations with considerably narrower scope than the waiver authority in § 102(c).[24] Unfortunately, the language of § 102(c) leaves no path for appeal except to the Supreme Court of the United States, and certiorari was not granted for Defenders of Wildlife, so this distinction was not addressed.[25]

Though § 102(c) grants too much authority to the executive and is likely unconstitutional, the language of the provision makes judicial review difficult, and will likely allow the Trump administration to overstep its authority and waive the thirty-seven environmental regulations, without accountability. Congress should use its power to correct its own mistake by repealing the waiver authority in § 102(c), restoring proper checks and balances.[26]


[1] Elliot Spagat, Homeland Security will waive environmental reviews, other laws to build U.S. border wall, PBS NewsHour (August 1, 2017 at 5:44 PM EDT), http://www.pbs.org/newshour/rundown/homeland-security-will-waive-environmental-reviews-laws-build-u-s-border-wall/.

[2] Id.

[3] See generally id.

[4] See id.

[5] Patrick McGreevy and Jazmine Ulloa, California again steps up to Trump, this time to stop the border wall, L.A. Times (September 20, 2017, 4:55 PM), http://www.latimes.com/politics/la-pol-ca-xavier-becerra-trump-wall-lawsuit-20170920-story.html.

[6] Environmentalist groups sue to block Trump’s border wall proposal, L.A. Times (September 14, 2017, 6:35 PM), http://www.latimes.com/local/lanow/la-me-border-wall-20170914-story.html.

[7] See McGeevy, supra note 5.

[8] Laws Waived on the Border, Sierra Club, http://www.sierraclub.org/borderlands/laws-waived-border (last visited Sept. 29, 2017) [hereinafter Sierra Club].

[9] 8 U.S.C. § 1103 note 102(c) (2006).

[10] Spagat, supra note 1

[11] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588(1952).

[12] Id.

[13] Id.

[14] See Jenny Neeley, Over the Line: Homeland Security’s Unconstitutional Authority to Waive All Legal Requirements for the Purpose of Building Border Infrastructure, 1 Ariz. J. Envtl. L. & Pol’y 139, 162 (2011).

[15] Id. at 165.

[16] McGeevy, supra note 5.

[17] See Feelingblueandseeingred, The Environmental Impact of the US-Mexico Border Wall, Daily Kos (Wedesday Aug. 09, 2017 8:13 PM EDT), https://www.dailykos.com/stories/2017/8/9/1688257/-The-Environmental-Impact-of-the-US-Mexico-Border-Wall.

[18] See Sierra Club, supra note 8.

[19] Feelingblueandseeingred, supra note 17.

[20] Id.

[21] Id.

[22] Neeley, supra note 14 at 157.

[23] See Def. of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 125 (D.D.C. 2007).

[24] Neeley, supra note 14 at 157

[25] Id.

[26] See id. at 165.

 

 

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