Supreme Court refuses to hear environmental challenge to border fence

On Monday, the U.S. Supreme Court rejected a plea by environmentalists to stop the Bush administration from waving 19 federal laws to speed construction of a fence along the border with Mexico. The court refused to hear an appeal by Defenders of Wildlife and the Sierra Club challenging a 2005 law that Secretary Michael Chertoff invoked on the grounds that it violated the constitutional separation of powers principles.

The high court turned down the challenge to the Department of Homeland Security using authority granted to it by Congress in 2005 to waive certain environmental and land management laws to install the fencing. The two environmental groups argued that Chertoff's waiver represented an unconstitutional repeal of federal laws. The waiver provision amounted to an unconstitutional delegation of legislative power to Chertoff, with only limited judicial review of his decision, they said.

Under the law, Chertoff has the sole discretion to waive all legal requirements when he decides it is necessary to speed up construction of barriers along the border. Congress also set limited, streamlined judicial review of such waivers.

Attorneys for the two environmental groups said the case presented legally significant and practically important questions, as the law involved virtually unprecedented restriction of appellate review. Justice Department attorneys urged the Supreme Court to reject the appeal. They said a ruling in the case by a federal judge rejecting the challenge was correct and does not conflict with any decision by the high court or any other court. The Supreme Court sided with the Justice Department and denied the appeal without comment.

The case involved a section of fence that was being built in a national conservation area - the San Pedro Riparian National Conservation Area - in Arizona. Environmentalists had feared the project would disrupt wildlife habitats.