The state of California will present arguments in federal appeals court Tuesday to convince a three-judge panel the government exceeded its authority when it waived environmental laws to pave the way for President Donald Trump’s proposed border wall.
In a joint lawsuit with environmental advocacy groups, the state seeks to overturn a lower court decision from February that gave the Trump administration the green light to begin wall construction.
At issue is a 2005 law known as the REAL ID Act, which gives the Department of Homeland Security authority to waive dozens of environmental laws in order to build border security infrastructure.
Then-DHS Secretary John Kelly invoked this power in August 2017, waiving more than 30 environmental regulations to expedite border wall projects near San Diego.
His successor Kirstjen Nielsen issued a similar waiver in January for wall construction in New Mexico.
California sued the Trump administration in September over the waivers, arguing the government’s authority to issue them expired in 2008 when DHS satisfied existing congressional requirements about how much border wall to build.
But U.S. District Judge Gonzalo Curiel of San Diego sided with the administration, ruling that the waivers were consistent with the government’s authority under the 2005 law.
Several legal challenges to the construction of border barriers have failed in recent years because the courts generally give the government wide latitude in areas of national security.
In his February ruling, Curiel quoted Chief Justice John Roberts.
The line Curiel quoted came from the Supreme Court decision Roberts wrote in 2012 that upheld the constitutionality of the Affordable Care Act, generally referred to as Obamacare.
“Court[s] are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments,” Curiel wrote.
“Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them,” Curiel quoted from the 2012 ruling. “It is not our job to protect the people from the consequences of their political choices.”
California is joined in its appeal by the Center for Biological Diversity, the Sierra Club, Defenders of Wildlife and Animal Legal Defense Fund.
“Borderland communities and wildlife deserve the same protections as everyone else in the country,” Brian Segee, a senior attorney at the Center for Biological Diversity, said in a statement.
“We’re hopeful that the court will put an end to this lawlessness and executive overreach.”
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