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Defenders of Wildlife v. Chertoff

December 18, 2007


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiffs Defenders of Wildlife and the Sierra Club initially brought this lawsuit to challenge defendants' compliance with several environmental statutes with respect to the construction of physical barriers and roads along the U.S.-Mexico Border within the San Pedro Riparian National Conservation Area ("SPRNCA") in Arizona. Plaintiffs have now amended their complaint to allege that the Secretary of Homeland Security's waiver of numerous federal environmental laws under section 102 of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 306, 8 U.S.C. § 1103 note, is unconstitutional. Because the Court finds that the waiver does not offend the principles of separation of powers or the non-delegation doctrine, it rejects plaintiffs' constitutional attack, and it will grant defendants' motion to dismiss.


At the direction of Congress, the Department of Homeland Security ("DHS") has undertaken to construct "physical barriers and roads" at various points along the United States' border with Mexico in order "to deter illegal crossings in areas of high illegal entry into the United States." 8 U.S.C. § 1103 note. On or about September 29, 2007, the Army Corps of Engineers, on behalf of DHS, began constructing border fencing, an accompanying road and drainage structures within the SPRNCA, an area which plaintiffs describe as "a unique and invaluable environmental resource" and "one of the most biologically diverse areas of the United States."*fn1 (Pls.' Mem. in Sup. of Mot. for Temporary Restraining Order ["TRO Mot."] at 1, 4-5.) The SPRNCA is managed by the Bureau of Land Management ("BLM"), which issued a perpetual right of way to DHS for the area of the fence project. (Id. at 1; Defs.' TRO Opp'n at 1, 3.) Before granting the right of way, BLM completed an Environmental Assessment ("EA"), which concluded that the proposed fencing would have no significant impact on the environment when paired with certain mitigation measures, and that an Environmental Impact Statement ("IS") was therefore not required by the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq. (See Ex. A to Defs.' TRO Opp'n at 3-4.)

After initially attempting to pursue administrative remedies within the BLM (see Pls.' TRO Mot. at 2), plaintiffs filed this action on October 5, 2007, and simultaneously moved for emergency injunctive relief to halt the construction of the fence within the SPRNCA. In support of their motion, plaintiffs argued that BLM's EA was inadequate and that NEPA required the preparation of a full IS. (See id. at 8-18.) They also argued that the BLM's grant of the right-ofway violated the Arizona-Idaho Conservation Act of 1988, which directs the BLM to manage the SPRNCA "in a manner that conserves, protects, and enhances the riparian area and the aquatic, wildlife, archeological, paleontological, scientific, cultural, educational, and recreational resources of the conservation area" and to "only allow such uses of the conservation area" that further the purposes for which it was established. 16 U.S.C. § 460xx-1. After conducting a hearing on October 10, 2007, the Court granted plaintiffs' motion for a Temporary Restraining Order ("TRO"), finding that plaintiffs had demonstrated a substantial likelihood of success on the merits with respect to their NEPA claims and that the balance of the equities favored plaintiffs. In response to the Court's order, defendants halted construction of the fence within the SPRNCA.

Approximately two weeks later on October 26, 2007, DHS Secretary Michael Chertoff published a notice in the Federal Register waiving NEPA, the Arizona-Idaho Conservation Act, and eighteen other laws with respect to the construction of the SPRNCA fence under the authority granted to him by section 102 of the REAL ID Act of 2005.*fn2 See 72 Fed. Reg. 60,870 (Oct. 26, 2007); 8 U.S.C. § 1103 note. Section 102 of the REAL ID Act gives the Secretary of Homeland Security "the authority to waive all legal requirements" that he determines "necessary to ensure expeditious construction" of border fences and roads "to deter illegal crossings in areas of high illegal entry." 8 U.S.C. § 1103 note. This provision also limits judicial review of claims arising from the Secretary's exercise of the waiver authority, and it allows the district courts to consider only those claims that allege a violation of the Constitution.*fn3

In his Federal Register notice, the Secretary stated that the area within the SPRNCA covered by this Court's TRO was "an area of high illegal entry," that "[t]here [wa]s presently a need to construct fixed and mobile barriers" in the area, and that it was therefore "necessary" for him to exercise the REAL ID Act's waiver authority "[i]n order to ensure the expeditious construction of the barriers and roads that Congress prescribed . . . ."*fn4 72 Fed. Reg. 60,870. Upon notification of the Secretary's waiver, the Court vacated the TRO. Defenders of Wildlife v. Chertoff, Civ. No. 07-1801, Minute Order (Oct. 26, 2007). Plaintiffs subsequently amended their complaint to allege that the waiver provision of the REAL ID Act violates the separation of powers principles embodied in Articles I and II of the Constitution because it "impermissibly delegates legislative powers to the DHS Secretary, a politically-appointed Executive Branch official." (Am. Compl. ¶¶ 36-38.)

In response, defendants have moved to dismiss plaintiffs' amended complaint under Rules 12(b)(1) and (6). Defendants argue, based on the Supreme Court's "non-delegation" line of cases, that the REAL ID Act's waiver provision is a constitutionally permissible delegation of legislative power to the Executive Branch because it provides the Secretary with an "intelligible principle" that "clearly delineate[s] the general policy, the public agency which is to apply it, and the boundaries of th[e] delegated authority" -- i.e., that he may only waive the legal requirements that he "determines necessary to ensure expeditious construction of the barriers and roads." (Defs.' Renewed Mot. to Dismiss at 3-4 (quoting Mistretta v. United States, 488 U.S. 361, 372-73 (1989))), and 8 U.S.C. § 1103 note (internal quotation marks omitted)). In support of their argument, defendants also emphasize that "Congress may delegate in even broader terms" than otherwise permissible in matters of immigration policy, foreign affairs, and national security, because "the Executive Branch already maintains significant independent control" over these areas. (Defs.' Renewed Mot. to Dismiss at 4-5.)


The only issue presented is whether the Secretary's waiver under the REAL ID Act is constitutional. First and foremost, plaintiffs argue that the REAL ID Act's waiver provision is unconstitutional under Clinton v. City of New York, 524 U.S. 417 (1998), because it "provides the DHS Secretary with a roving commission to repeal, in his sole discretion, any law in all 50 titles of the United States Code that he concludes might impede construction of a border wall." (Pls.' Opp'n at 3-4 (emphasis omitted).) In Clinton, the Supreme Court struck down the Line Item Veto Act of 1996, which gave the President the authority to "cancel" certain federal spending items that had been passed by Congress, because the Court found that the Act -- "[i]n both legal and practical effect" -- allowed the President to amend Acts of Congress by repealing portions of them. Clinton, 524 U.S. at 438. Article I of the Constitution requires that all federal legislation pass both houses of Congress, and "before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it." U.S. CONST. art. I, § 7. The cancellation procedures in the Line Item Veto Act, the Court held, were unconstitutional because "[t]here is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes." Clinton, 524 U.S. at 438. "Amendment and repeal of statutes, no less than enactment, must conform with" the bicameralism and presentment requirements of Article I. INS v. Chadha, 462 U.S. 919, 954 (1983).

Plaintiffs argue that "[t]he power granted by section 102 of the REAL ID Act to the Secretary of DHS to 'waive' the applicability of any law that would otherwise apply to border wall and fence construction projects is unmistakably the power partially to repeal or amend such laws," and thus, that Clinton "squarely governs this case." (Pls.' Opp'n at 9-10.) The laws waived by the Secretary's federal register notice are "repeal[ed]," plaintiffs argue, "to the extent that they otherwise would have applied to wall and road construction" within the SPRNCA, and the waiver is therefore an "impermissible exercise of legislative authority." (Pls.' Surreply at 1, 2.)

Plaintiffs' arguments are unavailing, however, because the waiver provision of the REAL ID Act is not equivalent to the partial repeal or amendment at issue in Clinton. See Sierra Club v. Ashcroft, Civ. No. 04-272, 2005 U.S. Dist. LEXIS 44244, *21 (S.D. Cal. Dec. 12, 2005) (distinguishing the waiver of laws under the REAL ID Act from their "repeal"). It was "critical" to the Clinton Court's decision that the Line Item Veto Act essentially "g[a]ve[] the President the unilateral power to change the text of duly enacted statutes." Clinton, 524 U.S. at 446-47. The line items cancelled by the President would no longer have any "legal force or effect" under any circumstance. Id. at 437 (citing 2 U.S.C. §§ 691e(4)(B)-(C)). Similarly, in Byrd v. Raines, 956 F. Supp. 25, 37 (D.D.C. 1997) (vacated on other grounds), the predecessor case to Clinton, Judge Jackson of this Court reasoned that cancellation under the Line Item Veto Act "forever render[ed] a provision of federal law without legal force or effect, so the President who canceled an item and his successors must turn to Congress to reauthorize the foregone spending." Id. at 37. Judge Jackson also distinguished the Line Item Veto Act's cancellation provision from the President's traditional authority to impound -- or refrain from spending -- funds appropriated by Congress, explaining: "Whereas delegated authority to impound is exercised from time to time, in light of changed circumstances or shifting executive (or legislative) priorities, cancellation occurs immediately and irreversibly . . . ." Id. at 36. He therefore held that the cancellation provision violated the Presentment Clause and constituted "a radical transfer of the legislative power to repeal statutory law." Id. at 33, 35 ("The President's cancellation of an item unilaterally effects a repeal of statutory law such that the bill he signed is not the law that will govern the Nation. That is precisely what the Presentment Clause was designed to prevent.").

The REAL ID Act's waiver provision differs significantly from the Line Item Veto Act. The Secretary has no authority to alter the text of any statute, repeal any law, or cancel any statutory provision, in whole or in part. Each of the twenty laws waived by the Secretary on October 26, 2007, retains the same legal force and effect as it had when it was passed by both houses of Congress and presented to the President. The fact that the laws no longer apply to the extent they otherwise would have with respect to the construction of border barriers and roads within the SPRNCA does not, as plaintiffs argue, transform the waiver into an unconstitutional "partial repeal" of those laws. By that logic, any waiver, no matter how limited in scope, would violate Article I because it would allow the Executive Branch to unilaterally "repeal"or nullify the law with respect to the limited purpose delineated by the waiver legislation. Yet, as plaintiffs acknowledge, there are myriad examples of waiver provisions in federal statutes,*fn5 and they have not questioned Congress's ability to confer the waiver power in these circumstances. (See Pls.' Surreply at 6.) If the REAL ID Act's waiver provision is unconstitutional under Clinton, numerous other statutory authorizations of executive waivers would also be invalid. Such a conclusion is certainly not supportable under Clinton or any other case cited by plaintiffs.

Nor can plaintiffs gain any solace by citing Clinton's discussion of Marshall Field & Co. v. Clark, 143 U.S. 649 (1892), in which the Supreme Court upheld the constitutionality of a suspension provision in the Tariff Act of 1890. (See Pls.' Opp'n at 24.) The Tariff Act exempted certain import commodities from tariffs, but directed the President to "suspend" the exemption with respect to any country that he found imposed "reciprocally unequal and unreasonable" duties on American exports. Field, 143 U.S. at 680. Clinton distinguished the Tariff Act from the Line Item Veto Act, identifying "three critical differences" between the two,*fn6 and plaintiffs ...

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