Trump’s Attempt to Waive Environmental Laws in Border Wall Construction is Unconstitutional, ELC Argues

More than 90 endangered or threatened species are at risk of further harm by the proposed wall construction along the 2,000-mile U.S.-Mexico border.  In spite of this, in order to hasten construction of the border wall, the Trump Administration is stretching the bounds of its constitutional authority beyond the legal limit by waiving essentially all analysis of the border wall’s environmental impacts.

In particular, the Administration is attempting to invoke unfettered discretion to waive over 30 federal environmental, cultural, and historic protection laws to expedite border wall construction.  In an amicus brief in the U.S. District Court on behalf of many members of the Congressional Hispanic Caucus, the Stanford Environmental Law Clinic argues that this waiver of environmental laws violates the separation of powers protections in the U.S. Constitution.

Separation of powers among our three branches of government is the cornerstone of American democracy. The courts have ensured adherence to this concept in part through the nondelegation doctrine.  As laid out in the Clinic’s amicus brief, the nondelegation doctrine permits Congress to delegate its legislative power – for example, the power to waive compliance with certain laws – to the executive branch only where the delegating statute provides boundaries to help guide agency action. Unfortunately, there appear to be no limits guiding the Administration’s action in this case:  The Administration’s waiver of dozens of federal, local, and state laws is essentially unbounded in time and scope.

Specifically, the Administration is attempting to broaden a 1996 law – which allowed limited waiver of two federal environmental statutes to address issues on a 14-mile segment of the San Diego border – into a law that allows the Administration to act outside and beyond the constraints of all laws for as long as necessary to expedite border wall construction.  This is a clear violation of the nondelegation doctrine and an insult to our foundational governing principles.

A hearing on these issues is scheduled for this month in the U.S. District Court in San Diego.