Home > Programs and Policy > In the Courts > Full Legal Docket

Programs and Policy

In the Courts
- Full Legal Docket

Defenders' Experts

Media Contacts

Please direct media inquiries to:

James Navarro

Border Fence Construction: San Pedro Riparian NCA

Date Filed: 11/01/2007
Case Status: Completed

Defenders of Wildlife v. Chertoff (D.D.C.)

Case Background:

Under the Secure Fence Act, the U.S. Congress directed that the Department of Homeland Security (“DHS”) construct more than 700 miles of border wall along the southwestern border, including numerous areas of protected federal lands, habitat for threatened and endangered species, and other natural resources. While there is obvious potential for an infrastructure project of this magnitude to have significant environmental consequences, there exists relatively little data addressing the border wall’s predicted impacts. This dearth of information has been exacerbated by a second law passed by Congress, the REAL ID Act, which grants the DHS Secretary the extraordinary power to waive all laws she or he deems necessary to ensure the expeditious construction of the border wall and associated roads.

In combination, these two laws have facilitated extensive border wall construction without prior environmental analysis, resulting in ecological degradation and creating new environmental conflicts in the border region. These impacts are starkly illustrated by the first area of border wall construction on protected federal lands, within the San Pedro Riparian National Conservation Area (NCA) in southeastern Arizona. The San Pedro River, one of the last undammed, free-flowing rivers in the Southwest, along with its surrounding watershed, is world-renowned as one of the most biologically diverse areas of the United States. Construction of the border fence has fragmented critical wildlife corridors for jaguars, black bear, coatimundi, and many other species, and blocked numerous desert washes feeding the San Pedro River and floodplain, resulting in erosion and sedimentation into the river, which provides habitat for hundreds of breeding, migratory, and wintering bird species, as well as more than 80 species of mammals.

On October 8th 2007, Defenders of Wildlife, with the Sierra Club as co-plaintiff, sued to stop border wall construction on the San Pedro NCA until the government properly evaluate the overall impacts of the border wall on wildlife and to consider alternatives. On October 10, a federal judge granted Defenders’ request for a Temporary Restraining Order, finding that government agencies had likely violated the National Environmental Policy Act and other laws, and that continuing construction would cause irreversible environmental harm.

Instead of agreeing to discuss alternative ways to achieve border security without causing unnecessary environmental harm, on October 22nd, Department of Homeland Security Secretary Michael Chertoff used Section 102 of the 2005 REAL ID Act to waive 19 laws intended to protect wildlife and endangered species, clean water and air, safe drinking water, and cultural, historic and archeologically significant resources in order to resume construction of the wall. On November 1st 2007, Defenders of Wildlife and the Sierra Club filed an amended complaint in U.S. district court challenging the constitutionality of the Secretary’s power to pick and choose which laws will apply to border wall construction. The complaint asserts that by delegating this power, Congress has unconstitutionally given away its lawmaking responsibilities to a politically-appointed Executive branch official who is not accountable to the American public. Unfortunately, the district court rejected Defenders’ constitutional claims, and the U.S. Supreme Court in June 2008 denied our Petition for a Writ of Certiorari to review the lower court’s decision.

The San Pedro NCA was not the first example of border wall construction that would be completed under the REAL ID authority—Secretary Chertoff had already used the waiver to expedite construction on other wall segments in San Diego and the Barry M. Goldwater Air Force in southwestern Arizona. Nor would it be the last. On April 1, 2008, Chertoff invoked REAL ID to waive 35 laws--including NEPA and the Endangered Species Act as well as laws intended to protect archeological and cultural resources, public health and safety, and Native American religious and burial sites--that would otherwise have applied to more than 470 miles of proposed wall construction in all four southwestern border states.