Wednesday, April 02, 2008

Waive Goodbye to Environmental Law

Alright, back up the moving trucks. Yesterday the Department of Homeland Security issued itself two waivers to enable itself to completely bypass all environmental laws to construct a 470-mile chunk of border fence through a vast section of the Southwest. (See here, here, and here for coverage.) The authority for these waivers comes from Section 102(c) of IIRIRA as amended by the REAL ID Act of 2005. (Note: It is unclear which law is being enforced. Chertoff cites to IIRIRA for his authority, but I have seen the Real ID Act cited elsewhere.) This law allows the Secretary of DHS to "waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of the [border fence.]" Here is Chertoff's statement regarding his use of the waiver.

Predictably this action has been couched in terms of national security needs. While I do think there are legitimate national security issues related to border security, it is difficult for me to believe that this is anything more than xenophobia wrapped in the flag. But my political leanings aside, what really outrages me here are the legal issues. How can the Secretary of DHS, an Executive appointee, waive Congressional laws? Lawmaking (and lawrepealing) is the job of Congress, and they cannot delegate that duty to the Executive. Moreover, this waiver right is unlimited. Not only can Chertoff waive federal and state environmental laws, but he may waive all legal requirements in his sole discretion. Child labor? Health codes? Overtime pay? Why the heck not!

A couple of environmental organizations have taken up the cause, challenging section 102(c) as an unconstitutional delegation of the legislative power and a violation of Art. 1, Sec. 7 of the Constitution. (Cert petition and more info; note that this lawsuit was filed last month in response to other DHS waivers). I hope the Supreme Court takes the case and declares 102(c) unconstitutional. As far as I'm aware, we don't give such unfettered discretion to any other government official. It is ridiculous enough to allow a single person to overturn federal laws--allowing it for the sole purpose of building a border fence is simply beyond comprehension. So, who's up for some hockey, eh?



Anonymous Anonymous said...

maybe the tree-sitters could intervene.

4/02/2008 3:49 PM  
Blogger Armen said...

Actually Max, I have to disagree with you while my political leanings are identical. Prior Congresses cannot bind the current Congress. And Congress can delegate waiver of statutory requirements to the Executive's sole discretion. Both are sound Constitutional principles that are not in much dispute. So what's the big deal? Are you upset that the waiver is being used to circumvent environmental laws? Such waivers are routinely used in the Immigration context to obtain immigration benefits for persons who are otherwise ineligible under the INA. Is that an assault on our Constitution?

4/02/2008 3:58 PM  
Blogger tj said...

I'd have to agree with Armen on this one...

What environmental laws are implicated in the building of a fence? Is it simply that the agency is waiving the costly (both time and actual $$) process of a complete EIR? If so, I don't see that big of a problem here. (Ok- maybe you'll end up catching the migration patterns of squirrels or something, but if they're going to build a fence, how could it work otherwise?)

[I'd like to take this opportunity to reiterate that I'm not taking a position on the fence construction itself. People sometimes like to attribute certain viewpoints to certain statements I make and I want to be very clear this time.]

Somewhat related: I think that government should go further sometimes (key word = "sometimes") to absolve itself from certain costly regulations.

Take our stadium renovations: if it weren't for some asinine un-tested law (Google "Alquist-Priolo"), we'd not be having to pay (via our tuition / tax dollars) for outside counsel to litigate the issue. We're getting nailed TWICE - as we're paying for both sides when the city sues the university. A simple exemption for the stadium slipped into some larger state or federal bill makes this whole issue go away. It'd save us millions in taxpayer money.

4/02/2008 10:43 PM  
Blogger Patrick said...

I am a far, pathetic cry from anything resembling a con law maven, but isn't there something odd about an office of the executive waiving statutory requirements for itself?

Surely Congress packaged the delegation of the privilege to do so with standards to which all waivers must adhere. Based on the linked articles, if there was a congressional standard for this delegation, it would have to be pretty broad.

Armen suggests such waivers are not the subject of significant constitutional dispute. He is almost certainly correct. I guess the issue is something I should probably get clear on before, you know, I sit down for my final exam in a few weeks . . .

4/03/2008 9:25 AM  
Blogger Max Power said...

Good responses. I unfortunately don't have time for a full airing of the legal issues, but will say as much as I can. Armen, you're right about the two principles, but I would not agree that they lead to the conclusion that Congress may vest the Secretary of DHS with the right to waive ALL legal requirements for the sake of building a wall. The cert petition I linked to does a much better job than I could of explaining why this is so. It also distinguishes this situation from others where such waivers are allowed. Part of the problem with 102(c) is that it does not allow for judicial review (a violation of the "intelligible principle"), as the court has required for similar waivers in the past. Also at issue is the breadth of the waiver power. Anyone who is interested in this issue should give the cert petition a quick read.

TJ--you ask what environmental laws are implicated in the building of a fence. I don't really know, but my guess would start with the more than 30 laws that Chertoff has waived so far, including NEPA. You also say "I think that government should go further sometimes (key word = "sometimes") to absolve itself from certain costly regulations." I know you are not trying to take an extreme position here, but what is the point of government regulations if the government doesn't need to abide by them?

Lastly, the thing about environmental laws is that they are almost always "costly" and very often get in the way of other important projects, like fence-building. But that's exactly why we have them--because without them the environment will never win any dispute. In most situations there is a perfectly reasonable economic rationale against protecting the environment. Allowing the government (or anybody else) to bypass environmental laws whenever they're inconvenient would therefore make enviro laws go the way of the Dodo.

4/03/2008 12:20 PM  
Blogger Armen said...

Max, I could take the time to deconstruct every argument, but since we're doing comment posts on the cheap, I suggest you click a few more pages and read the District Court's thoughtful opinion and merciless destruction of the Plaintiffs' arguments. When I saw them citing Clinton I spit out my Diet Coke. The word "meritless" comes to mind.

4/03/2008 1:30 PM  
Blogger Max Power said...

Armen--I agree the District Court did a good job of striking down the comparisons to Clinton. But I'm not so sure about the rest of the opinion. A delegation of legislative authority requires an "unintelligible principle to which the person or body authorized to [exercise the dlegated authority] is directed to conform." Putting it another way, the court says a delegation must be "accompanied by sufficient guidance." I don't think that the court provides much reasoning behind its conclusion that there is sufficient guidance, nor does the court address distinctions between this case and the precedent it relies upon. It's a fairly conclusory opinion.

Alright, can I get back to work now? I don't think anyone else is even reading this, anyway.

4/03/2008 2:03 PM  
Blogger Callagy said...

TJ--You ask what environmental laws are implicated in building a fence. I'm not the guy to answer that question, but I do live next to said border, and it is comprised for the length of Texas of a very large and stressed river. Whatever is done here, the environmental impact is likely to be significant. Whatever is built on or next to the border here will have a big impact on all kinds of ecosystems, erosion, flood plains, international boundaries, etc. Perhaps you're thinking of places in the Southwest where the border is mostly an aribtrary line following a line of latitude past a few lonely cacti. I think it's different on the Rio Grande, where, I understand, some of the waivers will be applied.

I'm not expressing an opinion one way or another about the wisdom of the fence or the environmental waivers. Just want to give some food for thought.

4/03/2008 3:10 PM  

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