Archive for the ‘DHS waiver’ Category

c/o Sierra Club’s Borderlands Team

The San Pedro Riparian National Conservation Area in Arizona was the next to feel the brunt of the Real ID Act’s destructive power. When the Sierra Club and Defenders of Wildlife challenged the construction of the border wall across this World Heritage site and home of Arizona‚Äôs last free-flowing river, a federal court agreed that the Department of Homeland Security had ignored the requirements of the National Environmental Policy Act, and handed down an injunction temporarily halting construction. Rather than comply with the law, DHS Secretary Chertoff waived it, once again suspending the laws that were the basis of a successful suit, along with 18 others. Within days of the waiver, DHS restarted construction.

Apparently hoping to head off further court challenges to the border wall, in April 2008 DHS Secretary Chertoff issued two waivers. One waived 27 federal laws to allow for the insertion of border walls into the existing flood control levees in Hidalgo County, Texas. The second waiver covered every other section of border wall scheduled for construction from the Pacific to the Gulf of Mexico. This border-wide mega-waiver suspended 36 federal laws. Along with the environmental laws set aside in earlier waivers, Chertoff waived the Farmland Protection Policy Act, the National Historic Preservation Act, the Religious Freedom Restoration Act, the Native American Graves Protection and Repatriation Act, and a host of others, along with all state and local laws related to the subjects of the waived federal laws.

It’s a sunny day in political humor when you can see green-collar muscle at work on Constitutional issues and a DHS insider get in on actions to escalate repealing the Real ID Act of 2005. Such is the case where you see the legal wolverines unleashed by the Sierra Club and Defenders of Wildlife retailiate against the use of a Real ID section to tread on environmental lands. It is also proof that the growing strength of the Green movement is a force to be reckoned with. Privacy, civil liberties and homeowner advocates will need all the help they can get to fight back against a US Justice Department that fully supported the draft and enactment of the Real ID Act of 2005 – Section 102 and all.

c/o HSToday

A group of 14 Democratic members of Congress–including House Homeland Security Chairman Bennie Thompson (D-Miss.)–declared their intent Monday to urge the US Supreme Court to take up a case against the use of waiver authority by Secretary of Homeland Security Michael Chertoff to build border fencing.The congressman will file an amicus brief by April 17 on behalf of Defenders of Wildlife and the Sierra Club, which have petitioned the Supreme Court to declare unconstitutional the secretary’s authority to waiver laws that may delay construction of border fencing. A Republican-controlled Congress granted the authority to Chertoff in Section 102C of the REAL ID Act (Public Law 109-013) in 2005.

Thompson, however, argued the secretary should not use any such authority to ignore laws passed by Congress.

“This blanket waiver of laws like the Clean Air Act and the Safe Drinking Water Act is a clear and disturbing abuse of the Secretary’s discretion,” Rep. John Dingell (D-Mich.) added in the statement. “Congress’ efforts to seek justification for this waiver from DHS have been stonewalled, which leads me to believe none exists.”

The Defenders of Wildlife, a nonprofit conservation organization dedicated to the protection of natural habitats, field a petition for writ of certiorari, requesting the Supreme Court to consider voiding Chertoff’s waiver authority under the REAL ID Act, on March 17, Bob Dreher, vice president for conservation law at the Defenders of Wildlife, told Sympathetic and opposing parties have 30 days to respond to the court, but the Department of Homeland Security (DHS) may request an extension for an opposing response.

“We believe that waiver authority is an unconstitutional delegation of legislative power because it confers sweeping authority without any opportunity for judicial review to ensure the Secretary stays within Congress’ direction. It also effectively gives him the power to repeal the law without complying the Constitution’s requirements for enactment of repeal of laws,” Dreher stated.

After DHS files its response, the Defenders of Wildlife would have 10 days or so to file a reply. The petition then goes on a schedule for the court to examine and then determine whether or not to grant a review of the case.

“Our hope is that the court will make a decision on hearing the case before the end of its term in June. If they did grant review, they would presumably set a briefing schedule and a hearing date for late fall of next year,” Dreher said.

During that time, the Defenders of Wildlife can only wait for the court to act. It has already lost a federal district court case, which decided in favor of DHS. Under the law, the only option open to the plaintiff was to request that the Supreme Court review the constitutionality of the waiver authority, which enabled Chertoff last week to suspend more than 30 laws that could slow down border fencing construction in Arizona, California, New Mexico and Texas. Those laws ranged from environmental protection statutes to religious freedom guarantees. :: FULL STORY HERE::