|
Overview
Background: After environmental concerns halted construction of fencing along the U.S.-Mexico border in San Diego County, Congress passed legislation in 2005 allowing the Department of Homeland Security to waive laws and litigation that would block the work. The federal government is rushing to finish 670 miles of border fencing by the end of the year, and waivers have cleared the way for fence construction in all four border states.
What's changing: The U.S. Supreme Court declined yesterday to take up an Arizona case brought by environmental groups that could have slowed or halted the multibillion-dollar fence project.
The future: Although the court's inaction allows the federal government to continue to invoke waivers, the fence faces two class-action suits against property condemnation and four other cases challenging environmental actions.
Related news:
|
|
The U.S. Supreme Court has refused to hear a case that challenged the Homeland Security Department's right to waive environmental laws and litigation to build a fence along the U.S.-Mexico border.
The decision, made without comment, seemingly removes a potential hurdle to construction of a $48.6 million fencing project across a canyon known as Smuggler's Gulch, west of the San Ysidro port of entry.
“It's over. They're going to build a wall,” said attorney Cory Briggs, who in 2004 filed suit to stop the project on behalf of the Sierra Club, San Diego Audubon Society, the Southwest Wetlands Interpretive Association and other local environmental groups.
The appeal, which grew out of a challenge to fence construction in Arizona, was filed by the Defenders of Wildlife and the Sierra Club. It challenged the constitutionality of Homeland Security's authority to waive laws and litigation standing in the way of border fence construction.
The waiver authority, granted by Congress in 2005, was first used that year in San Diego to dismiss legal and environmental challenges to the Smuggler's Gulch fence.
Yesterday's news was met with enthusiasm by longtime supporters of border fencing, including Rep. Duncan Hunter, R-Alpine, who pushed to add the waiver authority to the Real ID Act of 2005.
“This has been enormously important to him,” said Joe Kasper, Hunter's press secretary. “He has been an advocate for border fencing long before it was part of the national debate.”
Heavy construction on Smuggler's Gulch, which would include cutting soil from nearby hills to fill in the canyon, is set to begin next month, according to U.S. Customs and Border Protection.
As the federal government rushes to have 670 miles of border fence in place by the end of the year as part of the 2005 Secure Border Initiative, Homeland Security has used its waiver authority elsewhere on the southern border, starting last year in Arizona.
On April 1, two additional waivers cleared the way for construction in California, Arizona, New Mexico and Texas, with one waiver encompassing 470 miles.
So far, Homeland Security Secretary Michael Chertoff has waived more than 40 laws and regulations. As of June 13, 331 miles of fencing had been built, with about as much still to go.
The case being appealed involved a two-mile section of fence in the San Pedro Riparian National Conservation Area near Naco, Ariz. Environmentalists have said the fence puts endangered species such as two types of wild cats – the ocelot and the jaguarundi – in even more danger because they would be prevented from swimming across the Rio Grande to mate.
The waivers have prompted other legal challenges, including one lawsuit filed this month in Texas by the county of El Paso and several other plaintiffs.
Although yesterday marked the end of the line for the Arizona case, said Defenders of Wildlife attorney Brian Segee, there is still a chance that another legal challenge may prevail. The Texas case, which Segee said has yet to be heard, represents not only local governments but also tribal and environmental interests, and covers a much larger area than the Arizona litigation did.
Mike McCoy of the wetlands association, one of the plaintiffs in the 2004 San Diego case dismissed after the waiver authority was granted, said he had spoken with Defenders of Wildlife about the decision.
“It doesn't surprise me any,” said McCoy, a longtime champion of preserving the Tijuana River estuary. “We were thinking (in 2005) that maybe we'd carry it all the way, but that would just be a waste of money.”
Once built, the 3.5-mile stretch of fence in Smuggler's Gulch, along with two smaller sections, will complete 14 miles of contiguous secondary fencing stretching from the ocean.
According to the federal government, an earthen berm will be built across the canyon to support a 15-foot secondary steel-mesh fence and all-weather patrol roads. This will require filling the canyon with at least 2 million cubic tons of dirt.
The concern among environmentalists is that among other things, sediment from the earth-moving operation would irreparably damage the estuary.
Some of the 2004 plaintiffs, including McCoy, have proposed an alternative construction plan that would not fill the canyon. It calls for replacing the aging fence on the canyon floor with a sturdier one, hiring additional Border Patrol agents and adding improved sensor technology. However, there haven't been any takers.
“We're hoping for wisdom,” said Jim Peugh of the San Diego Audubon Society, another original plaintiff. “But the chances don't look that good.”
The Associated Press contributed to this report.
Leslie Berestein: (619) 542-4579; leslie.berestein@uniontrib.com
