Petition Asks U.S. Supreme Court to Overturn Border-wall Waiver Decisions

Four conservation groups asked the U.S. Supreme Court today to review federal court rulings that have allowed the Trump administration to waive dozens of environmental, health and safety laws to speed construction of border walls from the Pacific Ocean to the Rio Grande Valley.

Today’s petition challenges the constitutionality of six decisions by the U.S. Department of Homeland Security to waive more than 40 federal laws so the Trump administration could quickly erect 145 miles of steel-bollard walls along the U.S.-Mexico border in California, Arizona, New Mexico and Texas.

“Trump has taken a chainsaw to the Constitution to build his wildly destructive border wall,” said Jean Su, an attorney at the Center for Biological Diversity. “He’s done an end run around Congress and waived dozens of laws that protect our air, water, wildlife and public lands. The Constitution prohibits this outrageous executive overreach, and we’re asking the Supreme Court to defend these bedrock principles of our democracy.” 

The department has swept aside laws to rush construction of border walls, enforcement zones and other infrastructure through some of the country’s most spectacular protected landscapes, from the wetlands of the Tijuana Slough National Wildlife Refuge to the pristine Sonoran Desert in the Organ Pipe Cactus National Monument to the “string of pearls” in the Lower Rio Grande Valley of Texas. The 30-foot-high barriers block wildlife migration, damage ecosystems and harm border communities.

“The Trump administration’s blatant rollback of the Endangered Species Act, Clean Water Act, and dozens of other environmental protections violates the Constitution and disregards the health and well-being of people and wildlife along the border,” said Jason Rylander, senior counsel for Defenders of Wildlife. “We will not stop fighting to protect wildlife and communities from the devastation this border wall would bring.”

Today’s petition follows the group’s 2018 and 2019 lawsuits challenging the administration’s waiver of dozens of laws to speed border-wall construction in New Mexico, Arizona, Texas and California. The waiver authority, granted by Congress in 2006, expired years ago and is an unconstitutional delegation of power from the executive branch in violation of the separation of powers. 

“Construction of a wall that cuts through the heart of vitally protected wildlife refuges, forests, and conservation areas will have devastating effects on wildlife, such as jaguars, Mexican gray wolves, and ocelots, who call the border their home,” said Animal Legal Defense Fund Executive Director Stephen Wells. “That is why we are asking the Supreme Court to take this important case and put a stop to these border wall-related projects”

In September 2019 a U.S. District Court judge ruled against the group’s New Mexico lawsuit. An earlier Supreme Court ruling lifted an injunction in a separate case involving Trump’s use of military funds to build the border wall, allowing construction to proceed in Arizona, Texas and California.

“The Trump administration has turned our safe and beautiful borderlands and border communities into a place where our nation’s most important laws — the laws that protect the environment and ensure the health, safety and well-being of communities everywhere else in America —  literally do not apply,” said Kevin Bixby, executive director of the Southwest Environmental Center. “It is time for the Supreme Court to restore the rule of law to the borderlands and end the Trump administration’s efforts to circumvent the Constitution.”  

Background:

The Trump administration has issued 16 waivers to exempt the department from more than 40 laws that protect clean air, clean water, public lands and endangered wildlife, including the National Environmental Policy Act, Endangered Species Act, Safe Drinking Water Act, Clean Air Act, Antiquities Act, and Native American Graves Protection and Repatriation Act.

Trump’s border wall would fragment vital ecosystems and landscapes protected by both countries, jeopardizing decades of binational conservation investment. Dozens of endangered, threatened and rare wildlife species make their homes in the borderlands. A 2017 study by the Center identified more than 90 endangered or threatened species that would be threatened by wall construction along the 2,000-mile U.S.-Mexico border.

Construction and maintenance of the border wall destroys vegetation and harms wildlife. Border militarization also disrupts and alters wildlife behavior as animals avoid borders, lights, noise, patrols and other enforcement-related disturbances.

Conservation groups are also challenging Trump’s 2019 emergency declaration to fund border-wall construction. The Center’s first border-related lawsuit ― filed in 2017 in U.S. District Court in Tucson with U.S. Rep. Raúl Grijalva (D-Ariz.) ― seeks to require the Trump administration to do a detailed analysis of the environmental impacts of its border-enforcement program. These lawsuits are pending.

Beyond jeopardizing wildlife, endangered species and public lands, the U.S.-Mexico border wall is part of a larger strategy of ongoing border militarization that damages human rights, civil liberties, native lands, local businesses and international relations. The border wall impedes the natural migrations of people and wildlife that are essential to healthy diversity.

In a study published in BioScience, thousands of scientists from around the world declared consensus over the border wall’s damage to North America’s biodiversity.