A group of environmental advocacy organizations filed suit (PDF [9]) against the Department of Homeland Security (DHS [10]) on Oct. 18 over concerns that the border wall will result in detrimental environmental impacts to the areas surrounding the wall construction sites. The Secretary of Homeland Security's office has issued a series of waivers [11], dubbed the Lower Rio Grande Valley Border Wall Waivers, that would exempt construction projects related to the planned border wall from federal environmental regulations, including the National Environmental Policy Act [12], the Endangered Species Act [13] and the National Wildlife Refuge System Administration Act [14]. The advocacy groups argue that the broadness of the waivers would violate the Take Care Clause [15], the Separation of Powers Doctrine [16], the Non-Delegation Doctrine [17] and the Presentment Clause [18] of the Constitution.
To issue the waivers, DHS drew authority from Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [19] (IIRIRA). The waivers are expected to exempt nearly 25 miles of land area from federal regulations. The advocacy groups argue the IIRIRA was not meant to be applicable to these waivers, as Section 102 only applies to construction of roads and "barriers"—not the kind of wall now contemplated. The plaintiffs therefore claim the Lower Rio Grande Valley Border Wall Waivers are ultra vires [20], as they "exceed the limited grant of authority for such waivers contained in IIRIRA Section 102."
The plaintiffs in the case are led by the Center for Biological Diversity [21],
From Jurist [7], Oct. 19. Used with permission.
Note: A similar case challenging waivers declared for a section of the wall already under construction in California was dismissed [22] in March. Previous challenges to waivers issued [23] for sections of border wall [24] under construction for the past decade have also been dismissed [25] by the courts. The waivers have drawn protests [26] from local residents of the border zone in Texas. Trump's planned border wall has also been challenged [27] before the Inter-American Commission on Human Rights by Mexico's incoming president Andres Manuel Lopez Obrador.
