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Environment & Energy Report

High Court Rejects Border Wall Case That Challenged Agency Power

June 29, 2020, 1:47 PM

The Supreme Court won’t review an environmental case that could have had big implications for both the U.S.-Mexico border wall and a major legal doctrine affecting federal agencies.

The justices on Monday denied a petition for review from the Center for Biological Diversity and other groups who say the federal government’s practice of waiving environmental statutes and other laws for border wall construction is unconstitutional.

The case could have given the justices a new opportunity to address the nondelegation doctrine, a long dormant principle barring Congress from giving agencies lawmaking authority.

Conservative lawyers have repeatedly pushed the Supreme Court to revive the doctrine in recent years to reel in what they see as an excessively powerful “administrative state.” Several justices have signaled an interest, but the high court has stopped short of striking down any laws on nondelegation grounds so far.

Border Wall

The border wall case focuses on the Illegal Immigration Reform and Immigrant Responsibility Act, or IIRIRA, which allows the Department of Homeland Security to waive the National Environmental Policy Act, Endangered Species Act, and other laws to construct barriers and roads along the border with Mexico.

Agency officials have frequently invoked the waivers to streamline construction in New Mexico, Arizona, Texas, and California.

Environmental groups have unsuccessfully challenged the waivers in district courts in recent years, and the statute bars them from pursuing their claims in appellate courts.

The Center for Biological Diversity, Defenders of Wildlife, the Animal Legal Defense Fund, and the Southwest Environmental Law Center in January asked the Supreme Court to get involved. They say the waivers violate the Constitution’s separation of powers among the branches of government and the nondelegation doctrine.

“The Trump administration has made a mockery of the Constitution to build this destructive border wall,” CBD attorney Jean Su said in a June 23 statement. “It has swept aside dozens of laws that protect our air, water, wildlife and public lands in violation of separation of powers.”

Lawyers for the Trump administration in May pushed back on the environmental groups’ petition, saying Congress gave clear instructions on how the executive branch should use IIRIRA, making it a proper delegation of authority that doesn’t run afoul of the doctrine.

The case is Ctr. for Biological Diversity v. Wolf, U.S., No. 19-975, cert. denied 6/29/20.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com; Renee Schoof at rschoof@bloombergindustry.com

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