“The Ninth Circuit Monday affirmed the federal government’s authority to waive dozens of environmental laws to speed-up border wall construction near San Diego and Calexico, California, though one judge found it was a call for the Supreme Court, not the Ninth Circuit, to make,” Courthouse News reported.
The case stems from one of Trump’s early Executive Orders “directing federal agencies to secure the U.S.-Mexico border.”
By March, plans were in place to build border wall prototypes in the Otay Mesa area of San Diego County, in addition to replacing 14 miles of fencing from the Pacific Ocean eastward in San Diego.
In August 2017, Homeland Security waived over three dozen environmental laws to spur construction of the two projects. The waiver pointed out “San Diego Sector remains an area of high illegal entry for which there is an immediate need to construct additional border barriers and roads.”Courthouse News; Feb 11 2019
In September 2017, California Attorney General Xavier Becerra sued on behalf of the State of California along with the California Coastal Commission “for circumventing state and federal environmental laws in order to speed up construction on the border wall.”
In addition to the state of California’s suit, three environmental groups, the Sierra Club, Defenders of Wildlife and Animal Legal Defense, had filed suit against the Department of Security and its then acting secretary Elaine Duke.
The waivers mean the border wall can be built without having to adhere to state and federal laws protecting protect wildlife, costal zones, public lands, outdoor recreation and safe drinking water, among other protections and requirements.
Sierra Club attorney Gloria Smith said in an interview the conservation groups brought the case because “we want to stop a dangerous campaign slogan from becoming reality.”Courthouse News; September 14 2017
According to Monday’s 30-page ruling, the Ninth Circuit’s Judges M. Margaret McKeown and Jacqueline Nguyen “affirmed summary judgment in favor of the Department of Homeland Security” in the consolidated cases of the environmental group’s and California’s lawsuits “challenging the federal government’s waiver of 37 environmental laws under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.”
The Ninth Circuit found “the plain text” of the act “granted DHS authority to construct the border barrier projects.” The panel also found it lacked jurisdiction to consider any argument challenging the waivers themselves.
“Because the projects are statutorily authorized and DHS has waived the environmental laws California and the environmental groups seek to enforce, we affirm the district court’s grant of summary judgment to DHS,” McKeown wrote.
But Judge Consuelo Callahan disagreed the Ninth Circuit even had the authority to review the appeal, saying the act requires any appeal to go directly to the Supreme Court. Callahan, a George W. Bush appointee, made the same point during oral arguments in the case this past August, where she noted the government doesn’t “want it tied up in court forever.”
She said she would have dismissed the appeals entirely.Courthouse News; Feb 11 2019
The summary judgment affirmation comes from Southern District of California District Judge Gonzalo Curiel’s ruling in favor of the government filed almost a year ago on February 27, 2018.
Curiel found former Homeland Security Secretary John Kelly and former acting Homeland Security Secretary Elaine Duke could not act “in excess of its delegated powers” due to “competing plausible interpretations” of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act and its complicated legislative history.
“Because the DHS secretary, acting as an agent of the Executive Branch, has significant, independent authority over immigration, Congress is justified in delegating broad authority,” Curiel wrote in granting the government’s motion for summary judgment.Courthouse News; Feb 27 2018
Judge Curiel, if you recall, is the judge who “presided over the Trump University class action cases” who was “famously lambasted by Trump ahead of the 2016 election,” claiming Curiel “was biased and “Mexican” and could not preside fairly over the fraud class action” because, Trump claimed, of his “hard-line stance on immigration.”
Judge Curiel was born in Indiana.
For the full story and full context with embedded links, read:
Trump Waivers for Border Wall OK’d by Ninth Circuit; Courthouse News