Amicus Curiae Brief — Center for Biological Diversity, et al., Petitioners v. Chad Wolf, Acting Secretary of Homeland Security, et al.

No. 19-975

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CENTER FOR BIOLOGICAL DIVERSITY, ANIMAL

LEGAL DEFENSE FUND, DEFENDERS OF WILDLIFE,

AND SOUTHWEST ENVIRONMENTAL CENTER,

Petitioners,

v.

U.S. DEPARTMENT OF HOMELAND SECURITY

AND CHAD WOLF, ACTING SECRETARY OF THE

U.S. DEPARTMENT OF HOMELAND SECURITY,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States District Court

For The District Of Columbia

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE NORTH

AMERICAN BUTTERFLY ASSOCIATION

AND NATIONAL BUTTERFLY CENTER

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------KATHERINE A. MEYER

Director

HARVARD ANIMAL LAW AND

POLICY CLINIC

1607 Massachusetts Avenue

Cambridge, MA 02138

(617) 496-5145

kmeyer@law.harvard.edu

Counsel of Record

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTERESTS OF AMICI CURIAE .......................

1

SUMMARY OF ARGUMENT ..............................

3

ARGUMENT ........................................................

4

I.

INTRODUCTION ......................................

4

II.

CONSTRUCTION OF THE BORDER WALL

WILL HAVE DEVASTATING IMPACTS ON

THE FRAGILE ECOSYSTEM OF THE

LOWER RIO GRANDE VALLEY .................

5

III.

COMPLIANCE WITH BASIC REQUIREMENTS OF ENVIRONMENTAL AND

OTHER LAWS IS VITAL TO PREVENTING IRREPARABLE DAMAGE TO THE

WILDLIFE, PLANTS, ECOSYSTEM, AND

ECONOMY OF THIS AREA ....................... 11

IV.

IIRIRA’S GRANT OF AUTHORITY IMPROPERLY DELEGATES LEGISLATIVE AUTHORITY TO THE EXECUTIVE BRANCH

AND VIOLATES IMPORTANT SEPARATION OF POWERS PRINCIPLES ................ 16

CONCLUSION..................................................... 19

APPENDIX

Addendum: Map of NBC in relation to the border ..................................................................... App. 1

ii

TABLE OF AUTHORITIES

Page

CASES

Gundy v. United States, 139 S.Ct. 2116 (2019) ..........18

Kleppe v. Sierra Club, 477 U.S. 390 (1976) ................13

Mistretta v. United States, 488 U.S. 361 (1989) ..... 4, 17

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) .................................................13

Rodriquez v. United States, 480 U.S. 522 (1987)........16

FEDERAL STATUTES

Administrative Procedure Act, 5 U.S.C. § 551 et

seq. ...........................................................................13

American Indian Religious Freedom Act, 42

U.S.C. § 1996............................................................13

Archaeological and Historic Preservation Act,

54 U.S.C. § 312501 et seq. ........................................12

Archeological Resources Protection Act, 16 U.S.C.

§ 470(aa) et seq. .......................................................12

Clean Air Act, 42 U.S.C.A. § 7401......................... 12, 15

Clean Water Act, 33 U.S.C. § 1251 et seq. ............ 12, 15

Coastal Zone Management Act, 16 U.S.C. § 1451

et seq. ................................................................. 12, 13

Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601

et seq. .......................................................................12

Eagle Protection Act, 16 U.S.C. § 668 ........................13

iii

TABLE OF AUTHORITIES—Continued

Page

Endangered Species Act of 1973,

16 U.S.C. § 153............................................. 12, 14, 15

Farmland Protection Policy Act, 7 U.S.C. § 4201

et seq. .......................................................................12

Federal Cave Resources Protection Act of 1988,

16 U.S.C. § 4301 et seq.............................................12

Federal Land Policy and Management Act, 43

U.S.C. § 1701 et seq..................................................13

Fish and Wildlife Coordination Act, 16 U.S.C.

§ 661 et seq...............................................................13

Historic Sites Buildings and Antiquities Act, 16

U.S.C. § 461 et seq....................................................12

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1103 .... 3, 4, 5, 16

Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. ...... 12

National Environmental Protection Act of 1969,

42 U.S.C. § 4332................................................. 12, 14

National Fish and Wildlife Act of 1956, 16 U.S.C.

§ 742(a) ....................................................................13

National Historic Preservation Act, 54 U.S.C.

§ 300101 et seq.........................................................12

National Wildlife Refuge System Administration Act, 16 U.S.C. § 668dd ......................................13

Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001 et seq. ........................13

Noise Control Act, 42 U.S.C. § 4901 et seq. ................12

iv

TABLE OF AUTHORITIES—Continued

Page

Paleontological Resources Preservation Act, 16

U.S.C. § 470(aaa) .....................................................12

River and Harbors Act of 1899, 33 U.S.C. § 401

et seq. .......................................................................13

Safe Drinking Water Act, 42 U.S.C. § 300f .................12

Solid Waste Disposal Act, 42 U.S.C.A. § 6901 ...... 12, 15

MISCELLANEOUS

American Rivers, Lower Rio Grande River

Named One of America’s Most Endangered

Rivers of 2018 (2018), available at https://

www.americanrivers.org/conservation-resource/

lower-rio-grande-named-one-of-americas-mostendangered-rivers-of-2018/ .......................................9

Damian Carrington, Light Pollution Is Key

‘Bringer of Insect Apocalypse,’ THE GUARDIAN

(Nov. 22, 2019), available at https://www.the

guardian.com/environment/2019/nov/22/lightpollution-insect-apocalypse ....................................10

Eighteenth Report of the Good Neighbor Environmental Board to the President and Congress of the United States, Environmental

Quality and Border Security: A 10-Year Retrospective, ENVIRONMENTAL PROTECTION AGENCY

(2017) .........................................................................8

v

TABLE OF AUTHORITIES—Continued

Page

John Burnett & Marisa Peñaloza, Border Wall

Threatens National Wildlife Refuge That’s

Been 40 Years in the Making, NATIONAL PUBLIC

RADIO (Jan. 14, 2020), available at https://

www.npr.org/2020/01/14/795215639/border-wallthreatens-national-wildlife-refuge-thats-been40-years-in-the-making ............................................7

Liz Perkin, A Surprising Effect of Light Pollution: It Disrupts Aquatic Insects, THE REVELATOR (Mar. 7, 2019), available at https://the

revelator.org/light-pollution-aquatic-insects/?

fbclid=IwAR1WyX6xwTIXHjDq-zM3ubsaFUB

AEt1Ay7tmiU2CaRPe0xrkxYUWOQl1yhI ............10

Making Further Continuing Appropriations for

the Department of Homeland Security for Fiscal Year 2019, and for Other Purposes, 116

Cong. 1, Conference Report (2019), available

at https://www.appropriations.senate.gov/imo/

media/doc/Bill%20FY19%20Consolidated%20

Appropriations%20Act.pdf........................................2

North American Butterfly Association & National Butterfly Center, We Must Battle the

Border Wall: How Trump’s Barrier Threatens

the Wild Creatures & Features of the Rio

Grande Valley of Texas (July 2019), available

at https://indd.adobe.com/view/1655c7d7-5bf64187-9c32-1123f2dca7cf?fbclid=IwAR19P4rPsI2

UIQEEKBGI9EnkGd-l-XRhNpXLj0LUe_WTtd

Ong8hcpqbWjtk............................................... passim

1

INTERESTS OF AMICI CURIAE1

Amici Curiae are non-profit organizations with

longstanding interests in conserving habitat and biodiversity of native flora and fauna along the United

States-Mexico border. The North American Butterfly

Association (“NABA”) is a non-profit organization that

conserves and studies wild butterflies in their natural

habitats, takes part in scientific research on butterfly

populations across North America, and educates the

public about these species and the ecosystems on

which they depend. NABA has over 4,500 members in

30 chapters across the United States. It is concerned

about the enormous adverse environmental effects

construction of the United States-Mexico Border Wall

(“Border Wall”) will have on these fragile ecosystems,

including the negative impacts that are already occurring from current construction in Organ Pipe Cactus

National Monument, an International Biosphere Reserve located in New Mexico, where the United States’

only colony of Howarth’s White butterflies exists.

Amicus National Butterfly Center (“NBC”) operates as a project of NABA. It is a 100-acre wildlife center located in Mission, Texas, that serves as a wildlife

center and native species botanical garden. NBC supports the education and conservation mission of NABA

1

Timely notice was given and all parties have provided written consent to the filing of this brief. Pursuant to this Court’s Rule

37.6, Amici state that no counsel for any party in this case authored this brief in whole or in part, and no person, other than

Amici or counsel has made a monetary contribution to the preparation and submission of this brief.

2

in a multitude of ways, including through collaboration

with the National Park Service to ensure the survival

of mass migrations of Monarch butterflies across the

United States-Mexico border. It also works in partnership with the United States Fish and Wildlife Service

to plant rare and endangered native flora. In addition,

NBC protects and preserves many other species of

flora and fauna that live in the refuge and the surrounding ecosystem.

Thousands of local residents, school children, tourists, and scientists visit NBC each year. Initially, the

Border Wall was designed to bisect NBC, cutting off

nearly 70% of NBC’s refuge from its visitor pavilion.

To date, Congress passed an appropriations bill that

specifically exempts NBC from the construction of

“pedestrian fencing,” or construction of a Border Wall,

through the refuge. Making Further Continuing Appropriations for the Department of Homeland Security

for Fiscal Year 2019, and for Other Purposes, 116 Cong.

1, Conference Report (2019), available at https://www.

appropriations.senate.gov/imo/media/doc/Bill%20FY19%

20Consolidated%20Appropriations%20Act.pdf. However,

the Border Wall construction will still have devastating environmental impacts on the land immediately

adjacent to the refuge and on which the species who

live there greatly depend. Moreover, despite the appropriations language, the federal government still claims

to have the authority to build the Wall directly through

NBC and, of course, if the statute is upheld in this case

as constitutional, the Secretary may waive the current

appropriations restriction as well. Therefore, Amici

3

have grave concerns about the construction of the

Wall so close to this important refuge without any

consideration of environmental impacts, alternatives,

or the implementation of mitigation measures that

would normally apply to such massive construction

projects under long-standing environmental and other

laws that have already been, and could continue to

be, waived pursuant to the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, 8 U.S.C.

§ 1103 (“IRRIRA”). See Addendum at App. 1. (Map showing locations of the NBC and proposed Border Wall construction).

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

The petition for certiorari should be granted in

this case because enormous and devastating environmental consequences will flow from the decision by

the Secretary of Homeland Security to waive all environmental and other laws to allow the expeditious

building of the proposed Border Wall. This includes irreparably harming dozens of rare animal and plant

species that inhabit the Lower Rio Grande Valley, and

forever destroying the already extremely fragile ecosystems on which they depend. Compliance with the

environmental laws—which Congress enacted decades

ago in the overall aesthetic and economic interests of

the nation and future generations—would have required the Secretary, at a minimum, to examine the

environmental consequences of such a decision, explore viable alternatives, and implement much-needed

4

mitigation measures to ameliorate the irreparable

damage that will inevitably ensue.

The waiver provision of the IIRIRA is an unconstitutional infringement upon important Separation of

Powers principles. It allows an unelected official of

the Executive Branch, who is not accountable to the

people, to make these critical policy choices that are

inherently legislative in nature. Moreover, because the

waiver provision establishes no limits whatsoever on

the exercise of this authority by the Secretary, this provision cannot possibly satisfy the “intelligible principle” rule for proper delegation of legislative authority.

Mistretta v. United States, 488 U.S. 361, 372-73 (1989).

Should the Court nevertheless find that the challenged

provision meets that test, it should revisit and revise the test to ensure that such momentous policy

decisions are made by our elected representatives in

Congress, rather than by unelected officials of the Executive Branch.

---------------------------------♦---------------------------------

ARGUMENT

I.

INTRODUCTION

Amici address below the environmental importance of the area where the proposed Border Wall

is being built, and the serious and irreparable harm

that will be caused to native butterfly species and

other fauna and flora that inhabit the area, without

any adherence to the federal, state, local, and tribal

environmental and other laws that would normally

5

apply to such projects but have been waived in this

case by respondent Secretary of the Department of

Homeland Security. The Lower Rio Grande Valley

(“LRGV”), where NBC is located, and where the Border

Wall is being built, currently serves as a critical federally-protected wildlife corridor—the LRGV Wildlife

Conservation Corridor—and supports thousands of

unique and native species of plants and animals. The

LRGV is already a highly biologically imperiled area

due to the destruction of habitat from urban and agricultural sprawl. The Border Wall as proposed will have

additional devastating impacts on approximately

13,000 acres of habitat crucial to the survival of endangered and other native species, without requiring

any consideration of alternatives or the implementation of any mitigation measures to ameliorate such

harm to these precious natural resources.

This brief also explains that the limitless waiver

provision of the IRRIRA impermissibly encroaches on

the Constitution’s carefully crafted Separation of Powers.

II.

CONSTRUCTION OF THE BORDER WALL

WILL HAVE DEVASTATING IMPACTS ON

THE FRAGILE ECOSYSTEM OF THE LOWER

RIO GRANDE VALLEY.

Amicus NBC is located in the fragile ecosystem of

the LRGV. The construction of the proposed 36-foot

concrete and steel Border Wall through and near the

6

federally-protected LRGV Wildlife Conservation Corridor will segment habitat vital for wildlife foraging

and reproduction; trap terrestrial wildlife, such as

the highly imperiled ocelot, between the wall and Rio

Grande River; restrict natural seed distribution of native flora; exacerbate the spread of invasive species;

eliminate access to water by many species of wildlife;

cut off seasonal migratory routes for some wildlife,

and eliminate vital native host plants upon which butterflies and moths rely for reproduction. See, e.g., North

American Butterfly Association & National Butterfly

Center, We Must Battle the Border Wall: How Trump’s

Barrier Threatens the Wild Creatures & Features of the

Rio Grande Valley of Texas (July 2019) (“NABA Report”),

available at https://indd.adobe.com/view/1655c7d75bf6-4187-9c32-1123f2dca7cf ?fbclid=IwAR19P4rPsI2

UIQEEKBGI9EnkGd-l-XRhNpXLj0LUe_WTtdOng8

hcpqbWjtk.

The LRGV is home to a remarkable array of wildlife, including many endangered and threatened species

found nowhere else in the country. Over 530 species of

birds, 300 species of butterflies, and dozens of different

species of bees, dragonflies, reptiles and mammals, including the endangered Jaguarundi, Texas Horned

Lizard, and South Texas Ocelot depend on this habitat

for survival. See NABA Report. In fact, the LRGV

contains eleven biologically-distinct ecosystems, making it one of the most diverse regions in the country.

Id.

At present, the Congressionally-approved two billion dollars allotted for construction of the Border Wall

7

equates to 92 miles of new structure that will separate

the entire LRGV region from the Rio Grande River,

which, without appropriate mitigation measures, will

result in devastating impacts to native flora and fauna.

NABA Report. Even without the wall’s construction,

over 95% of the habitat in the LRGV has already been

destroyed to make way for urban, agricultural, and industrial development, id., which makes protection of

the remaining habitat absolutely crucial to the preservation of these species. Id.

Indeed, in an effort to counter the already devastating impacts on this area, the LRGV Corridor was

established by Congress in 1979 with over 80 million

taxpayer dollars, in addition to nearly 10 million dollars donated by amicus NABA members and donors,

that in turn is used to preserve critical habitat through

land acquisition, conservation easements on private

property, and collaboration with non-profits. Id.; see

also John Burnett & Marisa Peñaloza, Border Wall

Threatens National Wildlife Refuge That’s Been 40

Years in the Making, NATIONAL PUBLIC RADIO (Jan. 14,

2020), available at https://www.npr.org/2020/01/14/

795215639/border-wall-threatens-national-wildlife-refugethats-been-40-years-in-the-making.

The LRGV Corridor creates a 275-mile pathway

for native flora and fauna to thrive in their natural

habitat. NABA Report. Building 92 additional miles of

Border Wall will require decimating large swaths of

the remaining 5% of natural habitat. Id. In fact, the

Wall as proposed will directly bisect the LRGV Corridor, greatly reducing the value of the taxpayer dollars

8

and donations used to preserve the only strip of land

in the world that is home to multiple distinctive native

plant and animal communities, including, for example,

the endangered Tamaulipan kidneypetal and critically

endangered jaguarundi. Id. In fact, as proposed, collectively, over 13,000 additional acres of habitat will be

destroyed or damaged through construction of the

Wall. Id.

Amicus NBC, one of several refuges in the area,

serves as a host for a variety of pollinators, including

butterflies, bees, dragonflies, and damselflies, many of

which can only be found in the LRGV, and is located at

the funnel-point of the Central United States Flyway

for migratory birds. NABA Report. The LRGV is also

home to Bentsen-Rio Grande Valley State Park which

houses the headquarters of the World Birding Center,

El Morillo Banco, and La Parida Banco National Wildlife Refuge Tracts. Collectively, these areas make up

approximately 2,000 acres of habitat dedicated to

species conservation, outdoor recreation, and environmental education. Id. These collective areas have

been specifically identified by the Good Neighbor Environmental Board, an independent federal advisory

committee to the President and Congress, as “characterized by high overall species richness and high richness of species at risk from existing barriers and the

construction of potential new barriers.” Eighteenth Report of the Good Neighbor Environmental Board to the

President and Congress of the United States, Environmental Quality and Border Security: A 10-Year Retrospective, ENVIRONMENTAL PROTECTION AGENCY (2017).

9

In addition, the Rio Grande River was recently named

one of America’s most endangered rivers. American

Rivers, Lower Rio Grande River Named One of America’s

Most Endangered Rivers of 2018 (2018), available at https://

www.americanrivers.org/conservation-resource/lowerrio-grande-named-one-of-americas-most-endangeredrivers-of-2018/.

NBC has worked for over a decade to become a haven for endangered and vulnerable species in the

LRGV region. Over the last 16 years, NABA and NBC

have planted over 300 species of native plants on the

refuge to provide much needed habitat for butterflies

and other insects. NABA Report. NBC also serves as a

stop on the Monarch butterfly’s transcontinental migration. Id. These pollinators are vitally important to

the continued vitality of ecosystems, and to the agricultural interests in the region. NBC alone hosts 238

species of butterflies, 200 species of bees, and 85 species of dragonflies. In addition to pollinators, NBC

hosts 17 species listed as threatened and endangered

under the Endangered Species Act on or near its property. Id.

Of particular concern is that the proposed Border

Wall will be far more harmful than any existing barriers. Thus, unlike previous border barriers, the proposed Wall will have no sloped escape route for

terrestrial animals in the event of wild fire or flood—

both of which are happening with much more frequency. Previously, steel or concrete walls were 18-20

feet tall. However, the proposed Wall will be more than

30 feet high. Moreover, the proposed “enforcement

10

zone,” which consists of a clear-cut area on either side

of the Border Wall, will be expanded from an average

of 40 feet wide to a minimum of 150 feet wide, meaning

that for each mile of wall constructed, an estimated 20

miles of habitat will be decimated. In addition, this

area will be patrolled by high speed vehicles, which

will further endanger wildlife, contribute to erosion,

and decrease air quality.

Additionally, the enforcement zone will employ allnight bright lighting situated on 22 foot poles every

150 feet along the wall. These sources of strong, unnatural light are scientifically shown to be extremely disruptive to terrestrial insects, such as bees and moths,

to water dependent insects, such as dragonflies, and to

birds. Liz Perkin, A Surprising Effect of Light Pollution: It Disrupts Aquatic Insects, THE REVELATOR (Mar.

7, 2019); NBA Report. Artificial light affects insects in

every part of their lives, with some insects becoming

trapped in the lights’ orbit, exposing them to predators,

and hindering mating and reproduction. Damian Carrington, Light Pollution Is Key ‘Bringer of Insect Apocalypse,’ THE GUARDIAN (Nov. 22, 2019). Light pollution

also contributes to sleep deprivation and declining

health, and even death, for birds. See, e.g., https://www.

darksky.org/light-pollution-poses-threat-to-migratorybirds. Because NBC is home to 200 species of bees, 300

species of butterflies, 85 species of dragonflies, and

286 species of birds, the projected light pollution from

the Border Wall will cause grave ecological and biological damage to these species. NABA Report. Further, the enforcement zone will be maintained with

11

herbicide—poison that will be sprayed on the ground,

travel through the air, and negatively affect the surrounding areas and potentially leach into the soil and

water table on the banks of the Rio Grande River.

The construction of the Wall without consideration

of any alternatives or mitigation measures will also

wield a tremendous blow to the local economy of the

area that depends on hundreds of millions of dollars in

income from ecotourism. NABA Report. In addition,

the Wall will cut off approximately two million LRGV

residents from their only source of freshwater—i.e., the

Rio Grande River—in addition to blocking access to important recreational lands along its banks. Id. Therefore, the cost and consequences of the Wall, on wildlife,

plants, and humans simply cannot be overstated. As

succinctly summarized by Doctor Jeffrey Glassberg,

President and Founder of NABA, when asked what the

Border Wall would achieve, “It will transform what is

now a vibrant, but endangered ecosystem, into a biological desert.” Id.

III. COMPLIANCE WITH BASIC REQUIREMENTS OF ENVIRONMENTAL AND OTHER

LAWS IS VITAL TO PREVENTING IRREPARABLE DAMAGE TO THE WILDLIFE,

PLANTS, ECOSYSTEM, AND ECONOMY

OF THIS AREA.

As a result of the challenged grant of authority to

the Secretary, over 40 federal, state, local, and tribal

laws have been waived in connection with approval of

12

the proposed Wall. As a consequence, absolutely no environmental implications have been or will be taken

into account in constructing the Border Wall, despite

the fact that LRGV is home to endangered and other

unique species of wildlife and plants with much habitat already largely compromised by other human activities.

In approving the Border Wall, the Secretary

waived 28 federal and dozens of state, local, and tribal

laws, many of which are absolutely critical to protecting the already fragile biodiversity and cultural and

historic character of this unique area. These included

the National Environmental Policy Act (“NEPA”), 42

U.S.C. § 4332, the Endangered Species Act (“ESA”), 16

U.S.C. § 1531, the Clean Water Act, 33 U.S.C. § 1251 et

seq., the National Historic Preservation Act, 54 U.S.C.

§ 300101 et seq., the Migratory Bird Treaty Act, 16

U.S.C. § 703 et seq., the Clean Air Act, 42 U.S.C.A.

§ 7401, the Archeological Resources Protection Act, 16

U.S.C. § 470(aa) et seq., the Paleontological Resources

Preservation Act, 16 U.S.C. § 470(aaa), the Federal

Cave Resources Protection Act of 1988, 16 U.S.C.

§ 4301 et seq., the Safe Drinking Water Act, 42 U.S.C.

§ 300f, the Noise Control Act, 42 U.S.C. § 4901 et seq.,

the Solid Waste Disposal Act, 42 U.S.C.A. § 6901, the

Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq., the Archaeological and Historic Preservation Act, 42 U.S.C.

§ 9601 et seq., the Historic Sites Buildings and Antiquities Act, 16 U.S.C. § 461 et seq., the Farmland Protection Policy Act, 7 U.S.C. § 4201 et seq., the Coastal Zone

13

Management Act, 16 U.S.C. § 1451 et seq., the Federal

Land Policy and Management Act, 43 U.S.C. § 1701 et

seq., the National Wildlife Refuge System Administration Act, 16 U.S.C. § 668dd, the National Fish and

Wildlife Act of 1956, 16 U.S.C. § 742(a), the Fish and

Wildlife Coordination Act, 16 U.S.C. § 661 et seq., the

Administrative Procedure Act, 5 U.S.C. § 551 et seq.,

the River and Harbors Act of 1899, 33 U.S.C. § 401 et

seq., the Eagle Protection Act, 16 U.S.C. § 668, the Native American Graves Protection and Repatriation Act,

25 U.S.C. § 3001 et seq., and the American Indian Religious Freedom Act, 42 U.S.C. § 1996.

Of the laws waived, one of the most crucial is

NEPA, which requires federal agencies to take a “hard

look” at the environmental effects of their proposed

actions prior to taking such action. Kleppe v. Sierra

Club, 477 U.S. 390, 410, n.21 (1976) (internal citation

omitted). With respect to such a massive federal undertaking as construction of the Border Wall, this

would require preparation of an Environmental Impact Statement (“EIS”) to examine the environmental

impacts and feasible alternatives, as well as consideration of measures that could be implemented

to mitigate the environmental damage. 42 U.S.C.

§ 4332(2)(E); 40 C.F. R. § 1508.27. The purpose of these

requirements is to ensure that agencies do not make

uninformed decisions that could result in negative

unanticipated impacts that are irreparable. See, e.g.,

Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 349 (1989). In preparing an EIS, an agency must

“rigorously explore” all reasonable alternatives and

14

include appropriate mitigation measures. 40 C.F.R.

§ 1502.14. For example, had the Secretary of Homeland Security been required to comply with NEPA, she

may well have been required to establish important

mitigation measures, such as preserving particular migration corridors for species, reducing the size of the

proposed enforcement zone, limiting vehicle traffic in

ecologically-fragile areas, and limiting the location or

times of day for bright light illumination.

Similarly, the Secretary’s waiver of the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq.,

eliminated the need to consider whether construction

of the wall is likely to cause the extinction of any species listed as endangered or threatened, or to require

any mitigation measures that would avoid such results. See, e.g., 16 U.S.C. §§ 1536, 1539. As explained

above, NBC is located in the Rio Grande Valley, one of

the most biodiverse areas in the country, and the home

to several species that have been designated as threatened or endangered under the ESA, including the critically imperiled jaguar, jaguarundi, and ocelot. Had the

Secretary been required to properly comply with the

ESA, these species would have been provided some

measure of protection in the design and construction

of the Border Wall project. Indeed, even if the Secretary

determined that including such protective measures

was simply not feasible, the decision to nevertheless allow a project that will result in the extinction of a listed

species would have to be made by a Congressionallydesignated high-level Committee, including the Secretaries of Agriculture, the Army, and the Interior, as

15

well as the Chairman of Economic Advisors, the Administrators of the Environmental Protection Agency

and the National Oceanic and Atmospheric Administration, and Presidentially-appointed State representatives—often referred to as the “God Squad”

because of the momentousness of such decisions. 16

U.S.C. § 1536(e).

The Clean Water Act, which has also been waived,

and would most likely be otherwise implicated by construction of the Border Wall, would similarly require

consideration of alternatives and mitigation measures,

that would add at least some protection for vulnerable

species and their habitat. 33 U.S.C. § 1251 et seq.

(1972). Indeed, there are wetlands in and adjacent to

the NBC that would otherwise implicate the requirements of this important federal statute.

Other federal statutes that were waived that

would ordinarily require an examination of alternatives and possible use of mitigation measures to protect this fragile ecosystem include (but are not limited

to) the Solid Waste Disposal Act, 42 U.S.C.A. § 6901,

Clean Air Act, 42 U.S.C.A. § 7401, and the Safe Drinking Water Act, 42 U.S.C. § 300f. However, because each

law was waived in its entirety, information concerning

the adverse environmental and societal impacts of the

Border Wall are not even completely known, and neither

alternatives nor much-needed mitigation measures

have been or will be required to ameliorate the devastating impacts of this project

16

IV. IIRIRA’S GRANT OF AUTHORITY IMPROPERLY DELEGATES LEGISLATIVE AUTHORITY TO THE EXECUTIVE BRANCH AND

VIOLATES IMPORTANT SEPARATION OF

POWERS PRINCIPLES.

For all of the reasons detailed in the Center for Biological Diversity’s Petition, Amici agree that IIRIRA

violates the Constitution’s carefully crafted Separation

of Powers, by delegating to an unelected official of the

Executive Branch authority that is quintessentially

legislative in function—i.e., “[d]eciding what competing values will or will not be sacrificed to the achievement of a particular objective”—“the very essence of

legislative choice.” Rodriquez v. United States, 480 U.S.

522, 526 (1987). Indeed, it is difficult to imagine a more

expansive delegation of legislative authority than has

occurred here, and that is also directly contrary to the

public interests Congress long ago exalted through enactment of the various environmental and other laws

that have now been waived.

Significantly, Amici do not contest that Congress

could make the policy choice to enact legislation that

waives all environmental laws that would otherwise

pertain to the building of the Border Wall—although

certainly Amici and the general public would undoubtedly oppose such legislation and hold their respective legislators accountable for such actions. However,

Amici respectfully submit that what Congress may not

do, under our tripartite system of government, is authorize an unelected official of the Executive Branch to

make the decision to waive all of the legislation that

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Congress has already enacted to protect the public’s interest in preserving our natural and cultural heritage.

Those decisions are inherently legislative in character—they are not the kind of mere “assistance” that

this Court has held the Legislature may obtain from

the Executive Branch to implement its policy choices

under Separation of Powers principles. Mistretta v.

United States, 488 U.S. 361, 372 (1989). Rather, what

has occurred here is a complete abdication of legislative authority.

Thus, Amici believe that all of these national interests—those concerned with Border security and

those focused on preserving wildlife, plant life, and the

ecosystems on which they depend—can be reconciled

by applying, rather than abandoning the existing laws

that Congress enacted to ensure the consideration and

amelioration of otherwise devastating environmental

effects.

Amici also agree with Petitioners that, in addition

to violating fundamental Separation of Powers concepts, the legislation at issue here violates the nondelegation principle because it fails to establish any

“intelligible principle” that “clearly delineates the general policy” as well as “the boundaries of that delegated

authority.” Mistretta v. United States, 488 U.S. at 37273 (emphasis added) (internal quotations omitted). Authorizing the Secretary of Homeland Security to waive

any and all environmental and other laws that would

otherwise apply to construction and operation of a

massive concrete barrier in an extremely environmentally sensitive area of the country simply to achieve

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“expeditious construction” of that barrier and the

roads leading to it, establishes no boundaries for that

authority—i.e., it simply establishes an objective that

must be attained without any limiting principles and

in direct contravention of decades of laws that our Legislature (and those of the states, localities, and tribes)

has enacted in response to many other, at least equally

important, policy choices. Accordingly, even under the

existing “intelligible principle” test, the challenged legislation must fail.

However, Amici also agree that should the Court

find that the legislation at issue does somehow pass

muster under the “intelligible principle” test, then it is

time to revisit and revise that test, to ensure that this

kind of boundless delegation of legislative authority is

no longer sanctioned, as suggested in Justice Gorsuch’s

analysis in his recent dissent in Gundy v. United

States, 139 S.Ct. 2116, 2141 (2019). This would include

establishing a new test that, at an absolute minimum,

examines perhaps the most important consideration

for purposes of adhering to basic Separation of Powers

principles—i.e., “did Congress, and not the Executive

Branch, make the policy judgments” at issue. Id. (emphasis added). Here, because Congress did not make

the policy choice to build the Border Wall without regard to any of the requirements of the various environmental and other laws that would otherwise apply to

such decisions, any such test could certainly not be satisfied.

---------------------------------♦---------------------------------

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CONCLUSION

For all of the foregoing reasons, the Court should

grant the Center for Biological Diversity’s Petition for

Certiorari.

Respectfully submitted,

KATHERINE A. MEYER

Director

HARVARD ANIMAL LAW AND

POLICY CLINIC

1607 Massachusetts Avenue

Cambridge, MA 02138

(617) 496-5145

kmeyer@law.harvard.edu

Counsel for Amici Curiae