Chertoff's Real ID Act Power to Waive U.S. Law Challenged

In 2005 the Real ID Act was attached as a rider on an appropriations bill funding the wars in Iraq and Afghanistan after it failed to pass on its own merits. It contained a provision intended to overrule the objections of the California Coastal Commission and anyone else who might oppose the construction of border barriers. “Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the 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.” Secretary of Homeland Security Michael Chertoff used his unprecedented new power to “waive in their entirety” the Endangered Species Act, the Migratory Bird Treaty Act, the National Environmental Policy Act, the Coastal Zone Management Act, the Clean Water Act, the Clean Air Act, and the National Historic Preservation Act, and a host of other federal laws to override court challenges to the construction of walls in California and Arizona. There is of course no reason for DHS to waive a law unless they know that their actions will violate it.

Defenders of Wildlife and the Sierra Club are challenging the authority to waive all of our nation's laws before the Supreme Court. They have issued the following press release:

WASHINGTON – Today, Defenders of Wildlife and The Sierra Club filed a petition asking the U.S. Supreme Court to hear its argument that the REAL ID Act, which grants Department of Homeland Security (DHS) Secretary Michael Chertoff unprecedented and sweeping authority to waive any and all laws to expedite the construction of a wall along the U.S.-Mexico border, is unconstitutional besides being harmful to the environment and border communities. The two conservation groups charge that such unbounded authority to the executive branch is a violation of the Constitution’s separation of powers provisions.

“By granting one government official the absolute power to pick and choose which laws apply to border wall construction, the REAL ID Act proves itself to be both inherently dangerous and profoundly un-American. 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. “We are hopeful that the Supreme Court will take up this case in order to protect the fundamental separation of powers principles enshrined in the United States Constitution”

“Laws such as the National Environmental Policy Act and the National Historic Preservation Act are part of America's enduring legal framework, and no agency or public official should be allowed to ignore them,” said Carl Pope, executive director of Sierra Club. “Our laws have provided Americans a voice in the decision-making process that affects their lives, their human rights and the protection of wildlife; our government must not exempt itself from obeying those laws.”

The groups’ petition is the latest chapter in their legal efforts dating back to October, 2007 to safeguard the borderlands in the face of aggressive border wall construction. At that time, Defenders and The Sierra Club filed a lawsuit challenging DHS and Bureau of Land Management’s (BLM) approval of border wall construction within the San Pedro Riparian National Conservation Area in Arizona. After a federal judge in the U.S. District Court for District of Columbia found that the groups would likely prevail on their claims and issued an injunction blocking further construction of the wall, Secretary Chertoff waived 19 laws intended to protect public health, wildlife and endangered species, clean air and water, and historic and archeological sites to move forward with construction.

In their petition to the U.S. Supreme Court, Defenders and The Sierra Club contend that the REAL ID Act’s waiver provision unconstitutionally allows the DHS secretary unilaterally to repeal laws, threatening the system of checks and balances assured in the Constitution.

Since passage of the REAL ID Act in 2005, Secretary Chertoff has used this power to waive laws on three occasions:
to complete a wall near San Diego, California
to remove vehicle barriers and replace them with a wall in the Barry M. Goldwater Range in Arizona
to build a border wall within the San Pedro Riparian National Conservation Area.

In addition, Secretary Chertoff appears poised to again waive laws in relation to proposed border wall construction in Texas, in order to bypass extensive opposition from local residents, elected leaders, business owners, and conservationists.

“It isn’t too much to ask that DHS and other government agencies comply with our nation’s environmental laws along the border, particularly where international treasures like the San Pedro River are at stake,” said Schlickeisen. “We can not afford to let this keep happening all across the border or we will be left with nothing but a 700-mile testament to our own short-sightedness.”

Defenders and Sierra Club are represented by the Yale Law School Supreme Court Clinic, led by Professor Dan Kahan. Defenders is also represented by Andrew J. Pincus and Charles Rothfeld of Mayer Brown, LLP.

Defenders of Wildlife and the Sierra Club challenge the constitutionality of the Real ID Act

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.

Chertoff Waives 20 Federal Laws to Force the Border Wall through the San Pedro River

The No Border Wall coalition is deeply disturbed by Department of Homeland Security Secretary Michael Chertoff’s decision to waive 20 federal laws and overturn a judge’s order to resume construction of the border wall through the San Pedro Riparian National Conservation Area. We believe that his action is highly irresponsible and will result in permanent damage to the San Pedro River and increased deaths in the desert, while the number of people who enter the U.S. illegally will be unaffected. Secretary Chertoff’s actions, and the ill-conceived Real ID Act that permits him to unilaterally waive our nation’s laws, undermine the notion that the United States is based on the rule of law. He cannot suspend the law while claiming to defend the law.

When the Border Patrol and Army Corps. of Engineers began building the border wall through the San Pedro Riparian National Conservation Area, disregarding important federal statutes such as the National Environmental Policy Act and the Endangered Species Act, Defenders of Wildlife and the Sierra Club petitioned the court for a temporary halt to construction. On October 10th U.S. District Court Judge Ellen Segal Huvelle found that DHS had largely ignored the relevant laws, and that the hasty Environmental Assessment that had been produced without public comment was “inadequate.”

Rather than attempt to comply with our nation’s laws, Chertoff chose to “waive in their entirety… all federal, state, or other laws, regulations and legal requirements” related to the following 20 federal statutes:
National Environmental Policy Act
Endangered Species Act
Federal Water Pollution Control Act (aka Clean Water Act)
National Historic Preservation Act
Migratory Bird Treaty Act
Clean Air Act
Archaeological Resources Protection Act
Safe Drinking Water Act
Noise Control Act
Solid Waste Disposal Act
Comprehensive Environmental Response, Compensation, and Liability Act
Federal Land Policy and Management Act
Fish and Wildlife Coordination Act
Archaeological and Historic Preservation Act
Antiquities Act
Historic Sites, Buildings, and Antiquities Act
Arizona-Idaho Conservation Act
Wild and Scenic Rivers Act
Farmland Protection Policy Act
Administrative Procedures Act
This is a clear admission that the walls being built through the San Pedro Riparian National Conservation Area and other refuges along the border will run counter to these laws. There is no reason for Chertoff to waive laws that the wall will not violate.

In response to the court order, Secretary Chertoff said, "I have to say to myself, 'Yes, I don't want to disturb the habitat of a lizard, but am I prepared to pay human lives to do that?'” This dilemma is completely false. More than just the habitat of a lizard, federally endangered species such as the jaguar have been recorded in the San Pedro Riparian National Conservation Area in recent years. And as for human lives, the border walls built to date have not saved lives; instead, they have cost lives. No terrorist has been apprehended attempting to cross our southern border, and a wall would not stop them if they tried. The Border Patrol has repeatedly stated that border walls only slow crossers down by a few minutes. In its June 5, 2007 report Border Security: Barriers Along the U.S. International Border the Congressional Research Service stated, “The primary fence, by itself, did not have a discernible impact on the influx of unauthorized aliens coming across the border in San Diego.” The only measurable impact that the border walls have had is in the number of people who have died in the desert. In August of 2005 the General Accounting Office issued a report titled Illegal Immigration: Border Crossing Deaths have Doubled Since 1995. Walls do not stop crossers, they redirect them into ever more remote parts of the desert where hundreds die of exposure and dehydration every year. When Chertoff asks himself whether he is “prepared to pay human lives,” he has his answer in the GAO report.

No Border Wall calls on Congress to restore the rule of law by repealing section 102 of the Real ID Act. Secretary Chertoff has provided a glaring example of the danger inherent in giving an Administration appointee the power to overrule all of the laws that Congress has enacted. If this precedent is allowed to stand the rule of law may be suspended for any future “crisis” that catches the attention of politicians during an election cycle. Our nation needs to find real solutions to our immigration issues, instead of a wall that destroys vital ecosystems and costs billions of dollars and hundreds of lives, but will only provide a false sense of security.

Will the Last Free-Flowing River in Arizona Survive the Border Wall?

By Scott Nicol

One of the last undammed, free-flowing rivers in the American southwest, the San Pedro River and its surrounding watershed is one of the most biologically diverse areas in the United States. As it runs from Mexico through Arizona before joining the Gila River it passes through the confluence of four major ecosystems: the Sierra Madre and Rocky Mountains, and the Sonoran and Chihuahan Deserts. The river’s course is home to 84 species of mammals, 14 species of fish, 41 species of reptiles and amphibians, more than 100 species of breeding birds and an additional 250 species of migrant and wintering birds. It also contains archaeological sites representing the remains of human occupation from 11,200 years ago. This led Congress to designate the San Pedro Riparian National Conservation Area in 1988. The San Pedro was recognized by the National Audubon Society as its first Globally Important Bird Area, and designated as a world heritage natural area by the United Nations World Heritage Program.

Unfortunately for the San Pedro and the wildlife that depend upon it, it crosses the southern border of the United States. The Secure Fence Act of 2006 requires, “[at] least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors” covering over 700 miles of the U.S. – Mexico border, including a span “extending from 10 miles west of the Calexico, California, port of entry to 5 miles east of the Douglas, Arizona, port of entry.” This section alone would be approximately 370 miles long, directly impacting the Cabeza Prieta National Wildlife Refuge, Buenos Aires National Wildlife Refuge, Organ Pipe Cactus National Monument, Coronado National Forest, and the San Pedro Riparian National Conservation Area.

The Department of Homeland Security prefers the term “pedestrian fencing” rather than border wall, as it is less apt to evoke images of Berlin in the soviet era. To date they have favored two wall designs, “Sandia” and “Bollard”. Under the Bollard design, offsetting double rows of 14’ to 17’ high steel pipe, approximately 6” in diameter, are set in 8.5” centers, and then filled with concrete. This construction requires trenching 5’ deep and 2’ wide along the entire length of the wall. Under the Sandia design, metal mesh panels are attached vertically to 16’ steel poles, and then 6’ panels are secured to the top of these at an angle of 45 degrees. The poles are anchored by a 12” wide by 4’ deep concrete footing along the length of the fence. In the San Pedro Riparian National Conservation Area, the Army Corps intends to utilize a “modified” Sandia design with steel pipes arranged horizontally to a height of 3’, and the remaining height consisting of mesh. Vehicle barriers constructed of scrap railroad ties will be placed in the riverbed and removed using cranes during seasonal flooding. How cranes will reach the riverbed each year during the monsoon season without causing tremendous damage and erosion has not been explained.

In its rush to add more miles to the border wall (and mollify certain Presidential hopefuls), the Department of Homeland Security has largely ignored federal environmental regulations. DHS Secretary Chertoff used the power granted to him under the Real ID Act to “waive in their entirety” the National Environmental Policy Act, Endangered Species Act, National Migratory Bird Treaty Act, Clean Water Act, and other laws to build walls near San Diego and in Arizona’s Barry M. Goldwater Range. In other parts of Arizona rushed Environmental Assessments have been produced with no public comment period that invariably find that building walls through the habitat of endangered species such as the Sonoran pronghorn will have “no significant impact”.

When this was attempted in the San Pedro Riparian NCA the Defenders of Wildlife and Sierra Club requested a stay in construction so that an Environmental Impact Statement, as required by the National Environmental Policy Act, could be conducted. Instead the Army Corps began bulldozing the next day. In response Defenders of Wildlife and Sierra Club filed suit, asking a federal court to halt construction until the Army Corps of Engineers fully complied with the law. Specifically, they argued that a regional Environmental Impact Statement is required for the entire length of the Arizona border wall, rather than limited Environmental Assessments for individual sections. In addition, a full Environmental Impact Statement must be carried out for the San Pedro River. Finally, to comply with NEPA there should be public participation in the EIS process. Until Chertoff signs a waiver DHS and the Border Patrol must obey the laws of the land.

On October 10 U.S. District Court Judge Ellen Segal Huvelle temporarily delayed construction of the border wall in San Pedro Riparian NCA. She accepted the argument that the government had failed to look at the cumulative effects of the sections of border wall that have been built or proposed. The failure of the government to acknowledge the potential impact of walls on other parts of the border “renders this environmental assessment inadequate,” she said. This victory in the fight to save our nation’s public lands from being ripped apart by the border wall was tempered by the fact that Secretary Chertoff has the ability to waive the laws that formed the basis for the lawsuit, effectively nullifying it. As Judge Huvelle said, “The law allows you to trump it. You have all the power,”

Secretray Chertoff was quoted as saying, ““Illegal migrants really degrade the environment. I’ve seen pictures of human waste, garbage, discarded bottles and other human artifact in pristine areas. And believe me, that is the worst thing you can do to the environment.” Apparently the secretary confuses a litter-free parking lot with viable habitat. Litter can be a problem for wildlife, but litter in an ecosystem is still far better than the bulldozing of that ecosystem. Animals can sidestep discarded bottles, but if their habitat is cleared of vegetation and bisected by an impermeable wall they cannot survive. If walls are built in the San Pedro watershed erosion and damming will permanently alter the riparian habitat. When asked about the likelihood of issuing a waiver for the San Pedro Riparian National Conservation Area to nullify DHS’ loss in court, Chertoff said, “I certainly reserve the right to use it again.” If building the border wall were beneficial to the environment Chertoff would not need to waive environmental statutes. The only reason to waive these important laws is because he knows that DHS’ actions will violate them.

Conservation Groups Appeal Construction of Arizona Border Wall

The Sierra Club and Defenders of Wildlife issued the following statement today regarding the construction of the border wall in sensitive habitat along Arizona's southern border.

Conservation Groups Ask Federal Government to Consider
Border Fence’s Overall Impact to Wildlife, Public Lands in Arizona

WASHINGTON – The government needs to look at the overall impacts of building walls along Arizona’s border before constructing additional segments, according to a formal appeal filed today by two national conservation groups. The joint appeal to the Bureau of Land Management (BLM) and Department of the Interior asks that the government prohibit construction of a border wall within the San Pedro Riparian National Conservation Area (NCA) until it can comprehensively assess the environmental impacts on wildlife and protected federal lands in Arizona.

“The San Pedro National Conservation Area is an irreplaceable national treasure. Putting a fence right through the middle of it will rob America of one of its most important wildlife areas, but it won’t make America any safer,” said Jamie Rappaport Clark, executive vice president of Defenders of Wildlife. “The decision to build a wall in this unique area points out the absurdity of the government’s ill-conceived approach to securing America’s borders. Meanwhile, the government isn't even considering the cumulative impacts of these wall segments on wildlife and habitat. They haven’t taken a step back to look at the whole picture—and right now that picture looks bleak.”

The appeal by Defenders of Wildlife and the Sierra Club challenges the short-sighted decision to build a wall through the San Pedro NCA, which is one of the American Southwest’s most unique and biologically diverse areas. The San Pedro region has been designated as a World Heritage Natural Area by the United Nations World Heritage program. Some 250 species of migratory birds have been recorded in the area, which led to its designation as a Globally Important Bird Area by the National Audubon Society, American Bird Conservancy, and the international Commission for Environmental Cooperation. The San Pedro River is one of the last free-flowing rivers in the United States, and its natural beauty and diverse wildlife attract visitors from around the globe.

The appeal specifically challenges a BLM decision that permits construction of a wall and a new road within the San Pedro Riparian NCA. According to the BLM, the proposed fencing across the desert arroyos that feed the San Pedro River would cause erosion, sediment build-up and possibly even shift the entire riverbed. These changes could be disastrous for the cottonwood-willow woodlands and the wildlife that depend on this habitat. Construction of the wall could also physically isolate numerous wildlife species in Arizona that have populations in Mexico, including jaguar, ocelot, coati, gray and kit fox, badger, black bear, ringtail cat and unique subspecies of deer and squirrel.

The San Pedro wall is just one of six wall segments proposed since the beginning of the year along Arizona’s border with Mexico, including the San Pedro River, Organ Pipe Cactus National Monument and Buenos Aires National Monument. At least two of these segments are already under construction. Under the National Environmental Policy Act, federal agencies are required to consider alternatives and review the cumulative environmental impacts of different federal actions that are occurring at the same time in the same area. Such comprehensive assessments are necessary to determine how best to minimize the impacts of border security measures on wildlife, wildlands and border communities.

On September 24, the Department of Homeland Security announced that it would complete comprehensive Environmental Impact Statements concerning the cumulative impacts of planned border fence construction along much of the Texas border with Mexico. In Arizona, however, where construction on some segments of the fence has already begun, no such effort has been made.

“It’s an encouraging step in the right direction that the government has agreed to do a comprehensive assessment in Texas, but Arizona is the place where bulldozers are tearing up the borderland as we speak,” said Sean Sullivan, executive committee member for the Sierra Club Rincon (Southern Arizona) group. “Arizona’s border wall is already under construction in certain places, and the government has a responsibility to make sure its actions are thoroughly examined before it starts any new projects, especially in areas as sensitive as the San Pedro.”