SAN DIEGO – A San Diego federal judge will hear arguments Friday over whether environmental waivers granted by the federal government to speed up construction of President Donald Trump’s border wall violate federal law.
This past August, the Department of Homeland Security announced it had waived environmental and land-management laws in order to expedite building a 15-mile segment of the border wall in San Diego.
The Sierra Club, Defenders of Wildlife and Animal Legal Defense Fund promptly sued the federal government, claiming the department’s decision to waive 37 environmental laws including the National Environmental Policy Act could have a disastrous impact on the 27 species listed in the Endangered Species Act that live within 150 feet of the U.S.-Mexico border.
More than a dozen of the species listed are only found in Southern California, including the California gnatcatcher, Pacific pocket mouse and Riverside fairy shrimp.
California Attorney General Xavier Becerra filed a similar lawsuit on behalf of the state this past September, joined by the California Coastal Commission. The lawsuit was consolidated with the case brought by the environmental groups.
The groups want the federal governmental to be enjoined from moving forward with any border wall construction until it complies with all laws.
San Diego has taken center stage as Trump forms policies aimed at immigration and border enforcement.
U.S. District Judge Gonzalo Curiel, who presided over the Trump University class action cases in the Southern District and was famously lambasted by Trump ahead of the 2016 presidential election, is presiding over the border wall case. On the campaign trail, Trump said Curiel was biased and “Mexican” and could not preside fairly over the fraud class action because of the then-candidate’s hard-line stance on immigration.
Appointed by former President Barack Obama, Curiel was born in Indiana. He approved the $25 million Trump U. settlement, which the Ninth Circuit affirmed on Tuesday.
Trump also selected San Diego as the location for his border wall prototypes. While San Diego is on deck for replacement of its current fencing, apprehensions at the border there dropped significantly after the fence went up in the 1990s.
Members of the Congressional Hispanic Caucus filed an amicus brief last month in support of the challenge brought by the environmental groups. They claim the waivers granted under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 “push the very outer limits of the separation of powers framework embedded in the U.S. Constitution.”
The caucus added: “In resurrecting Section 102’s waiver authority, the department essentially claims for itself the unilateral and unchecked power to waive all federal, state and local laws for border construction activities in perpetuity. This interpretation and application of Section 102 is, constitutionally speaking, a bridge too far.”
Environmental waivers were last granted under the Act a decade ago.
The government claims the environmental groups’ constitutional claims are meritless and argue theories that have been previously rejected in court in favor of the federal government’s authority to execute waivers of local laws.
According to the government’s briefs, Homeland Security Secretary Elaine Duke determined waivers were necessary “to ensure the expeditious construction of the barriers and roads” for two projects in San Diego, including the replacement of existing primary fencing that was constructed in the early 1990s and the building of the border wall prototypes.
While the department sought the waivers to speed up construction, it emphasized it does not “turn its back on environmental stewardship” and consulted with stakeholders and conducted site surveys for environmental and endangered species concerns before initiating the border wall prototype project.