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Federal judge rejects enviro lawsuit over border wall

A federal judge on Tuesday rejected a lawsuit that would have forced the Trump administration to halt the construction of a wall along the U.S.-Mexico border. 

In a 101-page decision, U.S. District Judge Gonzalo P. Curiel sided with Homeland Security officials and dismissed three consolidated lawsuits filed by environmental groups, including Tucson-based Center for Biological Diversity, Defenders of Wildlife, the Sierra Club, and the Animal Legal Defense Fund and the state of California. 

U.S. Rep. Raúl Grijalva also joined with Center for Biological Diversity's lawsuit. 

During his presidential campaign, Donald Trump derided Curiel's heritage in 2016, calling the Indiana-born judge "very hostile" and a "hater" because Curiel, whose parents were immigrants from Mexico, presided over a class-action lawsuit against Trump and Trump University filed by thousands of students. 

Trump attacked Curiel, noting that the judge "happens to be Spanish, which is fine. He is Hispanic, which is fine," before arguing that Curiel should have thrown out the lawsuit— Trump later settled the lawsuit with a $25 million payout. 

The border lawsuits dismissed Tuesday had challenged the ability of the secretary of Homeland Security to issue waivers of a host of environmental rules and regulations to build new border barriers in California and Arizona. 

The lawsuit would have required DHS and U.S. Customs and Border Protection to undertake a "comprehensive review of the social, economic and environmental costs of the border wall." 

However, Curiel ruled that while the court was aware that border barriers were "currently the subject of heated political debate," the Trump administration had not exceeded its legal authority. 

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"In its review of this case, the Court cannot and does not consider whether underlying decisions to construct the border barriers are politically wise or prudent," Curiel wrote. Curiel also cited "fellow Indiana native" Supreme Court Chief Justice John Roberts, who wrote that courts are "'vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments.'" 

"'Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices,'" Curiel added. 

Curiel did not dismiss the Tucson environmental group's objection to DHS's alleged violation of the Freedom of Information Act, but said that it will be resolved "either via settlement or a separate briefing." 

Brian Segee, a senior attorney with the Center for Biological Diversity, called the ruling "disappointing." 

"We intend to appeal this disappointing ruling, which would allow Trump to shrug off crucial environmental laws that protect people and wildlife," Segee said. "The Trump administration has completely overreached its authority in its rush to build this destructive, senseless wall. They’re giving unprecedented, sweeping power to an unelected agency chief to ignore dozens of laws and crash through hundreds of miles of spectacular borderlands. This is unconstitutional and shouldn’t be allowed to stand." 

Gloria Smith, an attorney with the Sierra Club also criticized the decision. 

"The effects of these waivers and the destruction of a border wall will be long-lasting and detrimental for border communities," Smith said. "Waiving these bedrock and bipartisan laws has resulted in flooding in places like Nogales where people lost their lives. The waivers have driven destruction in Native American burial sites. They have killed thousands of species and fragmented habitat. Most concerningly, there is zero accountability or consequence for these outcomes." 

"The biggest problem with waiving laws is not judicial or philosophical, it is concrete. The laws that are swept aside are not merely red tape. They are critical protections that were put in place for a reason-- to protect people, their communities, and the environment that we depend upon," Smith said. 

Homeland Security officials, who typically refuse to comment on pending litigation, immediately praised the decision. In an unsigned statement, DHS officials wrote that border walls "have proven to be extremely effective in preventing the flow of drugs and illegal aliens across our borders." 

"Walls have worked in Yuma, Arizona and San Diego, California, where both areas have seen a 95 percent drop in attempted illegal border crossings. Simply put – walls work. The Department of Homeland Security looks forward to building the wall where our frontline operators say it is needed and in accordance with all applicable laws,"  the statement said.

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Despite the lawsuits, last September Homeland Security officials began issuing waivers to more than two dozen federal laws and regulations to replace a two-mile section of border security fence near Calexico, Calif.  

This was the second time the agency had used this authority in 2017 to bypass a range of environmental and procedural rules to begin building new border infrastructure, sidestepping laws including the Endangered Species Act, Safe Drinking Water Act, Antiquities Act, and the Administrative Procedure Act.

The waiver allowed DHS to begin the replacement of ad-hoc "legacy" fencing — made from Vietnam-era steel landing mats — with modern "bollard-style" barriers in the El Centro Sector, beginning from the port of entry near Calexico and running approximately two miles westward.

The project is similar to construction completed near Naco, Ariz., where Granite Construction replaced 7.5 miles of outdated "pedestrian fencing" at a cost of $44.7 million, or an estimated cost of $6 million per mile, according to an estimate given to the U.S. Government Accountability Office by CBP.

The existing 14-foot high landing mat fencing, originally installed in the 1990s, is "no longer optimal for Border Patrol operations" and will be replaced with bollards that rise 18-25 feet high, said a DHS spokesman in a filing with the Federal Register.

Replacing the fence in the El Centro Sector was one of the highest priorities, said Duke. 

Under the 2005 REAL ID Act, Congress used an earlier 1996 Clinton-era law to give the agency broad authority to waive legal requirements that could impede the construction of barriers and roads along the border, allowing DHS to facilitate the construction of hundreds of miles of fencing and other infrastructure.

In late July, John Kelly — now serving as White House chief of staff — waived environmental laws and other regulations to plan for the construction of new prototype walls near San Diego, beginning from the Pacific Ocean and running 15 miles east to "Border Monument 251."

Before 2017, DHS used environmental waivers only five times, all of them in a three year span from 2005 to 2008.

In the announcement, Elaine Duke — who served as DHS Secretary before she was replaced by Kirstjen Nielsen last October — wrote that Border Patrol agents had apprehended more than 19,400 people in the sector last fiscal year. However, the number of apprehensions in the El Centro Sector have, like the rest of the Southwest border, declined year over year since 2000. 

Overall, total apprehensions by Border Patrol agents have dropped nearly 75 percent from the fiscal year of 2000 when nearly 1.7 million people were apprehended by Border Patrol agents, according to agency statistics. 

In El Centro Sector, Border Patrol agents apprehended just over 238,000 in the fiscal year of 2000. Even after a dramatic increase in apprehensions from 2015 to 2016, the total number of apprehensions has declined nearly 91 percent since 2000. 

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Paul Ingram/TucsonSentinel.com

Construction workers dismantle the old border fencing near Naco, Arizona as part of an Obama-era program to replace landing mat panels with 'bollard fencing.'

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