Center for Biological Diversity

For Immediate Release, September 6, 2017

Contact: Brian Segee, (805) 750-8852,

Lawsuit Challenges San Diego Border-wall Waiver as Unconstitutional

Homeland Secretary Not Authorized to Suspend Environmental Laws

SAN DIEGO— The Center for Biological Diversity today expanded its lawsuit against border wall and prototype projects in San Diego, challenging the Trump administration’s authority to waive environmental laws and calling for an end to the unconstitutional maneuver.

The new filing, in U.S. District Court, asserts former Department of Homeland Security chief John Kelly did not have authority to waive dozens of laws to rush construction of the border wall and prototypes. It amends the Center’s ongoing lawsuit against the border-wall replacement and prototype projects.

“The waiver highlights the Trump administration’s dangerous disregard for our environment and the rule of law,” said Brian Segee, a senior attorney with the Center. “Trump is willing to throw environmental protections out the window to fulfil his divisive and destructive campaign promise. What’s to stop him from using this lawless approach to wreck wildlife refuges and beautiful public lands all along the border? We need to halt these unconstitutional waivers once and for all, here in San Diego.”

The waiver would speed construction of replacement walls, 30-foot-high prototypes, roads, lighting and other infrastructure without any analysis of the environmental impacts or any public input. This coastal area of south San Diego is surrounded by communities and contains critical habitat for several endangered species.

The 2005 REAL ID Act amended the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to give unprecedented and sweeping authority to the Homeland Security secretary to waive federal, state and local laws to expedite construction of the double- and triple-layer border fencing in San Diego. 

This waiver authority was later interpreted to apply to border wall construction under the 2006 Secure Fence Act, which requires Homeland to build 700 miles of border barriers. But Homeland met this mandate several years ago, using the REAL ID authority five times to waive more than 35 laws on 625 miles of border wall and barrier construction.

“The REAL ID waiver authority no longer applies. Homeland Security doesn’t have perpetual power to toss crucial conservation laws for any border project it wants until the end of time,” Segee said. “Trump’s border wall must comply with the laws that protect the environment and communities in the borderlands.”

The Center’s lawsuit also notes that the waiver violates constitutional requirements, including the separation of powers doctrine, and that the wall projects violate the Endangered Species Act.

Last week Homeland Security announced contracts with four companies to build concrete prototypes, and additional contracts are expected to be announced this week. Construction could begin later this month on 20 border-wall prototypes in the Otay Mesa area of south San Diego.

The border-wall replacement project would include construction of 14 miles of new primary and secondary border fencing from the Pacific Ocean to Otay Mesa. This region of coastal San Diego County contains wetlands, streams and other rare wildlife habitats, as well as critical habitat for numerous endangered species, including the Quino checkerspot butterfly and the coastal California gnatcatcher.

A recent study by the Center identified more than 90 endangered or threatened species that would be threatened by proposed wall construction along the 2,000-mile U.S.-Mexico border.

In April the Center and U.S. Rep. Raúl Grijalva (D-Ariz.) sued the Trump administration over the proposed border wall and other border-security measures, calling on Homeland Security to conduct an in-depth investigation of overall border-security environmental impacts.

Beyond jeopardizing wildlife, endangered species and public lands, the U.S.-Mexico border wall is part of a larger strategy of ongoing border militarization that damages human rights, civil liberties, native lands, local businesses and international relations. The border wall impedes the natural migrations of people and wildlife that are essential to healthy diversity.

Laws suspended by the Aug. 2 waiver are listed below.

Waived Laws

  1. National Environmental Policy Act, 42 U.S.C. § 4321 et seq.
  2. Endangered Species Act, 16 U.S.C. § 1531 et seq.
  3. Administrative Procedure Act, 5 U.S.C. §§701-706.
  4. Clean Water Act, 33 U.S.C. § 1251 et seq.
  5. National Historic Preservation Act, Pub. L. 89-665.
  6. Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.
  7. Clean Air Act, 42 U.S.C. § 7401 et seq.
  8. Archaeological Resources Protection Act, 16 U.S.C. § 470aa et seq.
  9. Paleontological Resources Preservation Act, 16 U.S.C. § 470aaa et seq.
  10. Federal Cave Resources Protection Act of 1988, 16 U.S.C. § 4301 et seq.
  11. National Trails System Act, 16 U.S.C. § 1241 et seq.
  12. Safe Drinking Water Act, 42 U.S.C. § 300f et seq.
  13. Noise Control Act, 42 U.S.C. § 4901 et seq.
  14. Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., and the Comprehensive Environmental Response, Compensation and Liability Act (Superfund), 42 U.S.C. § 9601 et seq.
  15. Archaeological and Historic Preservation Act, 54 U.S.C. § 320301 et seq.
  16. Antiquities Act, 54 U.S.C. § 320301 et seq.
  17. Historic Sites, Buildings, and Antiquities Act, 54 U.S.C. § 3201-320303 & 320101-320106
  18. Wild and Scenic Rivers Act, 16 U.S.C. § 1281 et seq.
  19. Farmland Protection Policy Act, 7 U.S.C. § 4201 et seq.
  20. Coastal Zone Management Act , 16 U.S.C. § 1451 et seq.
  21. Wilderness Act, 16 U.S.C. § 1131 et seq.
  22. Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq.
  23. National Wildlife Refuge System Administration Act and National Wildlife Refuge System Improvement Act, 16 U.S.C. § 668dd-668ee
  24. National Fish and Wildlife Act of 1956, 16 U.S.C. § 742a et seq.
  25. Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq.
  26. Wild Horse and Burro Act, 16 U.S.C. § 1331 et seq.
  27. Pub. L. 106-398
  28. Otay Mountain Wilderness Act of 1999, Pub. L. 106-145
  29. Sections 102(29) and 103 of Title I of the California Desert Protection Act, Pub. L. 103-433
  30. Rivers and Harbors Act of 1899, 33 U.S.C. § 403
  31. Eagle Protection Act, 16 U.S.C. § 668 et seq.
  32. Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001 et seq.
  33. American Indian Religious Freedom Act, 42 U.S.C. § 1996
  34. Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.5 million members and online activists dedicated to the protection of endangered species and wild places.

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