Supreme Court Rejects Environmentalists' Border Fence Case

In April, Homeland Security Secretary Michael Chertoff announced that he was waiving 36 federal laws, including the Endangered Species Act, the Migratory Bird Treaty Act, the National Wildlife Refuge System Administration Act, and the National Environmental Policy Act, in order to speed up construction of over 300 miles of border wall.

In their lawsuit, Defenders of Wildlife and the Sierra Club allege that the secretary's use of the waiver is unconstitutional. They argue it would take an Act of Congress to set these laws aside.

Congressman Bennie Thompson, a Mississippi Democrat who chairs the House Committee on Homeland Security and 13 other Members of Congress, including six committee chairmen, submitted a brief urging the Supreme Court to grant hear the case.

In response to the decision, Thompson said, "I am extremely disappointed in the Court's decision. This waiver will only prolong the department from addressing the real issue, their lack of a comprehensive border security plan. Without a comprehensive plan this fence is just another quick fix."

"Despite this decision, Secretary Chertoff still has a responsibility to act prudently and to consult with all stakeholders," said Thompson.

Part of the border fence (Photo courtesy Dept. Homeland Security)

The Department of Homeland Security sought from the Bureau of Land Management, BLM, a perpetual right of way for the San Pedro border fence.

Under the National Environmental Policy Act, BLM is obligated to conduct an initial environmental assessment before granting a right of way and then undertake a further and more detailed environmental impact statement if the agency’s proposed action may result in significant environmental impacts, the petitioners argued.

Despite the fact that its environmental assessment disclosed the possibility of serious impacts to the soils and natural resources of the conservation area, BLM decided not to prepare an environmental impact statement and granted the right of way, allowing construction of the fence.

The petitioners requested an administrative stay of fence construction while they challeged the BLM's noncompliance with the National Environmental Policy Act. The federal court for the District of Columbia granted a temporary injunction against fence construction in the conservation area.

Two weeks later, Secretary Chertoff issued his waiver of the National Environmental Policy Act and the 35 other federal laws so that fence construction could take place.

Homeland Security Department spokesman Russ Knocke said the department is pleased with the court's decision to let the waivers stand. "The American people expect this department to enforce the rule of law at the border," he said, promising to consult with stakeholders as the fence construction continues.

The department is committed to completing a total of 670 miles of pedestrian and vehicle fence along the Southwest border by the end of 2008 - 370 miles of pedestrian fence and 300 miles of vehicle fence.

As of June 13, crews have completed 181.7 miles of pedestrian fence and 149.3 miles of vehicle fence.

At least two other lawsuits against the fence brought by other environmental and citizens groups are in various stages of court proceedings.

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