Conservation Groups Challenge Chertoff's Waiver Power as Unconstitutional

(11/01/2007) -

WASHINGTON – Today, Defenders of Wildlife and the Sierra Club stepped up their efforts to save crucial environmental protections as well as unique wildlife and lands along the U.S.-Mexico border. The groups have filed an amended complaint in U.S. district court which challenges as unconstitutional the Bush administration’s power to single-handedly waive any and all United States laws to continue construction of border wall segments in environmentally sensitive areas.

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, saying that the Department of Homeland Security (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, and that the agencies had failed to include the public in their decision-making process. DHS Secretary Michael Chertoff responded by invoking the REAL ID Act to waive 19 laws in order to resume construction of this particular wall segment.

“Instead of fixing these shortcomings and incorporating environmental protection into national security efforts, Secretary Chertoff took it upon himself to waive 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,” said Rodger Schlickeisen, president of Defenders of Wildlife. “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.” 

“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,” said Carl Pope, Sierra Club Executive Director. “Arbitrarily waiving environmental protections is an extreme path to tread.”

Under the REAL ID Act, Congress gave the DHS Secretary unrestricted power to waive any law—federal, state or local—that would otherwise apply to border wall and road construction. The groups’ amended complaint alleges that this unprecedented authority violates the fundamental separation of powers principles enshrined in the United States Constitution.  They 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. 

Despite the fact that the groups’ lawsuit was based on violations of only three laws, Sec. Chertoff responded by waiving 19 laws intended to protect wildlife and endangered species, clean water and air, safe drinking water, and cultural, historic and archeologically significant resources.

Read more about Defenders of Wildlife's work on Wildlife and Border Issues


Defenders of Wildlife is dedicated to the protection of all native animals and plants in their natural communities.  With more than 1 million members and activists, Defenders of Wildlife is a leading advocate for innovative solutions to safeguard our wildlife heritage for generations to come.  For more information, visit

The Sierra Club is America's oldest, largest and most influential grassroots environmental organization. Inspired by nature, the Sierra Club’s 1.3 million members and supporters work together to protect our communities and the planet.



Robert Dreher, Defenders of Wildlife, (202)772-3225
Oliver Bernstein, Sierra Club, (512)477-2152

You may also be interested in:

Habitat Conservation
For all its unique beauty, the Arctic Refuge is under assault. The oil industry and its political allies continue to launch attacks to open this national treasure to destructive oil and gas drilling, while climate change threatens to disrupt its habitats faster than wildlife can adapt.
Sharing the Air
In the Magazine
Wind energy is crucial to battling climate change. Can it expand without harming eagles?
In the Magazine
Wanted: candidates for Congress. Essential duties include protecting our nation’s natural resources and wildlife.