Posted on 12/20/2007 4:44:37 PM PST by SandRat
PHOENIX — A federal judge has tossed out efforts by two environmental groups to void a provision of federal law that Homeland Security Secretary Michael Chertoff invoked to build a stretch of border fence in Cochise County.
Judge Ellen Huvelle said there is nothing unconstitutional about a 2005 law that lets Chertoff unilaterally decide he need not comply with various other federal statutes when constructing barriers and roads on the U.S.-Mexico border.
She said it would be one thing if Congress gave Chertoff the power to unilaterally repeal a law.
Instead, Huvelle said, federal lawmakers simply gave him the power, on a case-by-case basis, to waive the requirements.
That’s exactly what Chertoff did in October, declaring the border fence project along the southern edge of the San Pedro Riparian National Conservation Area need not comply with the Endangered Species Act and 19 other federal laws.
“Each of the 20 laws waived by the secretary on Oct. 26, 2007, retains the same legal force and effect as it had when it was passed by both houses of Congress and presented to the president,” Huvelle wrote.
“The fact that the laws no longer apply to the extent that they otherwise would have with respect to the construction of border barriers and roads within the SPRNCA does not, as plaintiffs argue, transform the waiver into an unconstitutional partial repeal of those laws,” she continued.
Huvelle’s decision is a defeat for Defenders of Wildlife and the Sierra Club, which originally had convinced the judge to temporarily halt construction work in and around the San Pedro River.
The judge originally had halted the work after saying there was evidence the Bureau of Land Management, which controls the property, had not done the legally required environmental studies of the impact of the barriers and roads on the river and the various animals and plants that depend on the habitat.
Government attorneys disagreed, saying they had done the necessary work. They pointed to the fact the final design included not a fence through the river, but instead removable vehicle barriers.
But Chertoff, rather than waiting for the case to be heard and risking an adverse decision, decided to use the power Congress gave him in the 2005 Real ID Act to waive the various requirements. That cleared the way for construction to begin.
The two environmental groups then changed tactics and challenged the law, hoping a legal victory would force the government to tear out anything built in the interim.
Huvelle rejected the contention of the two organizations that the statute is a violation of constitutional requirements for separation of powers. “The Supreme Court has widely permitted the Congress to delegate its legislative authority to other branches (of government) so long as the delegation is accompanied by sufficient guidance,” she said.
Here, Huvelle said, the law specifically says Chertoff can use his power only if he first determines that a waiver is “necessary to ensure expeditious construction of the barriers and roads” that Congress separately ordered him to construct.
And she said that direction is narrow, dealing only with areas “in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.”
This is the third time Chertoff has used his waiver authority.
In 2005, he decided to build fencing near San Diego without conducting environmental studies.
And just this past January he issued a waiver from all laws for a project along the edge of the Barry M. Goldwater Range in southwest Arizona.
Border Bump!
A rare case of judicial sanity? that will not be allowed to stand :)
Build IT!!!!
Easy to allow now that the congress has reniged on the border fence appropriations and withdrawn the money.
No money, no fence.
Judge Ellen Segal Huvelle was appointed to the United States District Court in October 1999. She received a B.A. from Wellesley College in 1970
What you said. Unfortunately, they will find every way possible to hold up funding.
Except that Kay Bailey Hutchison (R-ino) has succeeded in getting her bill passed which gives anyone and everyone the right to protest the fence for any reason be it that it might upset the cute little animals to someone’s culture to it’s Tuesday and they had nothing else to do. Jorge is to sign off on it next week.
Great. Now Chertoff can proceed with his plan to put a speed bump on the border.
ping
The issue isn't going away anytime soon. That's for sure.
But what I really like about this story is that the Sierra Club lost one.
No more excuses now...
Vote for the banana republican. Lets see, which one or is it which two or three. we know we have at least three banana democrats
You really don’t believe the congress ever had any intention of building that old fence on the Southern Border do you?
We get oil from Mexico and you actually believe a congress critter puts you and your rights above his greed?
That’s nice. Too bad they’re not going to build it.
>>Judge Ellen Huvelle said there is nothing unconstitutional about a 2005 law that lets Chertoff unilaterally decide he need not comply with various other federal statutes when constructing barriers and roads on the U.S.-Mexico border.
She said it would be one thing if Congress gave Chertoff the power to unilaterally repeal a law.<<
In fact, congress just gave Chertoff and many other bureaucrats legal justificaction for not building a fence. They snuck it into the latest appropriations bill, and Bush will sign it.
Yes, but are they building the fence?
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