Court dismisses DHS waiver lawsuit; Suit challenged Trump administration’s use of waivers for wall construction

A gate stands open leading to the other side of the border wall built into the IBWC levee just inland of the Rio Grande, in Hidalgo.

A federal court dismissed a lawsuit brought against the Trump administration by multiple conservation groups challenging its use of land waivers in New Mexico and Texas to expedite the construction of border walls, court records show.

During a hearing Wednesday, U.S. District Judge Ketanji Brown Jackson ruled to dismiss the lawsuit brought about by officials with the Center for Biological Diversity, a Tucson-based environmentalist group, Southwest Environmental Center, Defenders of Wildlife, and the Animal Legal Defense Fund, who sued the U.S. Department of Homeland Security last March to challenge waivers executed by the agency in its efforts to build barriers along the U.S.-Mexico border.

In a prepared statement, Jean Su, an attorney for the Center for Biological Diversity, said they were discouraged by the decision by the court; but their fight was far from over.

The lawsuit, which was filed March 22, 2018, challenges the administration’s wall waivers, which they claimed was granted in 2006, but no longer applied because it only applied to border wall construction under the 2006 Secure Fence Act. This set into motion the construction of 700 miles of border barriers during that time.

The lawsuit specifically challenged the DHS waiver of 25 laws to speed construction of 20 miles of border wall in eastern New Mexico, where DHS wanted to convert vehicle barriers into bollard walls along the border west of El Paso at the Santa Teresa Land Port of Entry.

In October 2018, the same groups sued the Trump administration on a similar basis, this time for border wall waivers in Texas — specifically 28 conservation laws that were waived for expedited construction in the Rio Grande Valley.

That lawsuit was effectively consolidated into the March 2018 lawsuit.

The groups claimed then that these waivers would allow DHS to build in environmentally sensitive areas in New Mexico and Texas, effectively destroying habitats of some of the most endangered species in the world.

“ …Furthermore, the construction of the Lower Rio Grande Valley Border Wall Projects, including the associated construction or installation of roads, gates, bridges, and staging areas, and excavation and site preparation, will directly destroy thousands of acres of native vegetation, causing the permanent loss of wildlife and their habitat. Under the Lower Rio Grande Valley Border Wall Waivers, DHS has not and will not properly consider these and myriad other negative environmental impacts of the projects, including whether there are reasonable alternatives that might avoid or mitigate such impacts,” a portion of the lawsuit stated.

The center also sued the Trump administration in February, after President Trump announced an emergency declaration that would divert billions from the Department of Defense for border wall construction in his efforts to have sections of the wall built before the 2020 election.

On Feb. 15, Trump declared a national emergency to provide nearly $8 billion for construction of a border wall, inching closer to fulfilling a promise he made when he announced his intentions to become president.

After weeks of negotiations between lawmakers attempting to avoid a government shutdown, the president agreed to sign a spending bill that did not include his request for nearly $6 billion in funds to construct a wall on the U.S.-Mexico border, instead the deal allocated $1.375 billion for about 55 miles of fencing.

The lawsuit, filed in U.S. District Court in Washington, argues that the president is violating the U.S. Constitution by declaring the emergency, overstepping his executive authority and sidestepping Congress to appropriate more than $6 billion to construct walls along the southern border, where he said drugs and criminals are pouring into the U.S.

The 39-page filing goes on to state that the president also”‘illegally invoked the National Emergencies Act and abused the authority given to him by Congress by re-allocating money in a non-emergency situation to fund a policy goal,” court records show.

Recently, at the end of July, the Supreme Court ruled Trump could divert the aforementioned funds for border wall construction. That lawsuit remains pending, records show.

Officials with the center were still weighing their options, with an appeal on the waivers lawsuit remaining an option.

“Trump is running roughshod over the law and the Constitution to fulfill a hateful campaign promise that will do nothing to make people safer,” Su said. “This ruling allows Trump to destroy protected wilderness, sensitive wildlife and historic communities. It should be a wake-up call to Congress to stop funding Trump’s border wall and end his unfettered abuse of power.”

lzazueta@themonitor.com