JURIST - Paper Chase: Chertoff lifts environmental barriers to border fence construction

[JURIST] US Homeland Security Secretary Michael Chertoff [official profile] Monday utilized his power under the Real ID Act [PDF text; JURIST news archive] to circumvent a federal district court decision handed down last week that on environmental grounds ordered the delay of fence construction along part of the Arizona-Mexico border. Judge Ellen Segal Huvelle [official profile] of the US District Court for the District of Columbia held that the federal government did not take into account the environmental impact [AP report] of that portion of the fence. Title I sec. 102 of the Real ID Act, as included in a 2005 emergency supplemental appropriations bill, provides "Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section." This is the third time Chertoff has invoked the waiver provision; in September 2005 he used it to waive provisions of the Endangered Species Act, the Migratory Bird Treaty Act, the National Environmental Policy Act, the Coastal Zone Management Act, the Clean Water Act, the Clean Air Act, and the National Historic Preservation Act applicable to construction of fencing through the Tijuana River National Estuarine Research Reserve near San Diego, and this January he used it to push fencing through the Barry M. Goldwater Air Force Range in Arizona [DW press release].

Huvelle had granted a temporary restraining order sought by two environmental advocacy groups to enjoin the Bureau of Land Management [official website] from building a 1.5 mile portion of the fence along the US-Mexico border over the San Pedro river until an appropriate environmental impact assessment had been completed, berating the government for beginning construction on the fence after taking only three weeks to assess its potential environmental impact. The San Pedro river, which flows across the Arizona-US border, is considered a National Conservation Area (NCA) [text] by the government. Huvelle noted in her ruling that the Homeland Security Department had legal authority to waive all environmental laws and build the fence despite the restraining order. AP has more.

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