| Groups seek Supreme Court review of waiver authority for border fence |
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| Written by APRIL REESE, Land Letter | |
| Thursday, 27 March 2008 | |
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Two environmental groups filed a petition last week asking the Supreme
Court to hear their challenge to the REAL ID Act, a 2005 law that
allows the Department of Homeland Security to suspend any federal law
to expedite construction of new fencing along the U.S.-Mexico border.
The groups, Defenders of Wildlife and the Sierra Club, contend that the
law violates the Constitution's separation of powers provisions and
allows the federal government to damage the environment and dismiss
public concerns.
"The issue here is not security vs. wildlife, but whether wildlife, sensitive environmental values and communities along the border will be given fair consideration in the decisions the government makes," said Rodger Schlickeisen, president of Defenders of Wildlife, in a statement. "Our laws have provided Americans a voice in the decision-making process that affects their lives, their human rights and the protection of wildlife," added Carl Pope, executive director of the Sierra Club. "Our government must not exempt itself from obeying those laws." Calls to the Department of Homeland Security seeking comment on the lawsuit were not returned. Typically, federal agencies do not comment on pending litigation. Since Congress passed the REAL ID Act three years ago, DHS Secretary Michael Chertoff has invoked the waiver authority three times: to complete a fence in wetlands near San Diego, Calif.; to replace vehicle barriers with a fence in the Barry M. Goldwater Range in Ariz.; and to construct a barrier through the San Pedro Riparian National Conservation Area (Land Letter, March 6). The groups believe that Chertoff will have to again use the waiver to complete a new segment of fence through communities and a wildlife refuge in south Texas (see separate story). Under the Secure Fence Act of 2006, DHS is to build 700 miles of fence along the 2,000 mile border. Defenders of Wildlife and the Sierra Club unsuccessfully filed suit in district court in November over the waiver authority. A federal judge dismissed the suit in December, finding that the executive branch traditionally exercises "independent constitutional authority" over matters of immigration control and foreign affairs. A California court issued a similar determination in 2005 in response to a Defenders of Wildlife suit over Chertoff's use of the waiver for construction of a section of fence through coastal wetlands near San Diego. But Bob Dreher, vice president for conservation law at Defenders of Wildlife, said the REAL ID Act goes far beyond any previous waiver authority, allowing Chertoff to suspend any law, without judicial review. "This is a giant get-out-of-jail free card," he said. "It's the most sweeping waiver ever enacted." Dreher acknowledged that the groups' chances of convincing the high court to hear the case are probably slim, however. "I don't want to oversell the notion that the court will take the case," he said. "It's a long shot, but it's important enough to try." Dreher said he is hopeful the Supreme Court will issue a decision in June on whether it will hear the case. April Reese writes from Santa Fe, N.M.
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| Last Updated ( Thursday, 27 March 2008 ) |
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