Amicus Curiae Brief — Center for Biological Diversity, et al., Petitioners v. Chad Wolf, Acting Secretary of Homeland Security, et al.
Supreme Court briefMar 5, 2020
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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,
v.
Petitioners,
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
THE EQUAL VOICE NETWORK AND
LA UNIÓN DEL PUEBLO ENTERO
IN SUPPORT OF PETITIONERS
---------------------------------♦--------------------------------EFRÉN C. OLIVARES
Counsel of Record
ANDREW UDELSMAN
RICARDO A. GARZA
CAROLYN O’CONNOR
TEXAS CIVIL RIGHTS PROJECT
1017 W. Hackberry Avenue
Alamo, TX 78516
(956) 787-8171
efren@texascivilrightsproject.org
March 5, 2020
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
ii
INTEREST OF AMICI CURIAE .........................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
4
I.
The Border Wall Waivers Negatively and
Disproportionately Impact Minority South
Texas Communities ....................................
4
A. Border Communities within the Rio
Grande Valley ......................................
4
B. The Executive’s Unchecked Expansion
into the Rio Grande Valley....................
5
C. Effects of the Secretary’s Waivers on
RGV Communities................................
8
II. Section 102(c) Insulates Policy-Making Decisions from the Democratic Pressure of
Border Communities ................................. 15
A. RGV Communities Oppose Unregulated
Wall Construction ................................. 15
B. Section 102(c) Unduly Insulates PolicyMakers from Democratic Pressure ....... 17
CONCLUSION..................................................... 20
ii
TABLE OF AUTHORITIES
Page
CASES
Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d
119 (D.D.C. 2007) ....................................................11
Gundy v. United States, 139 S. Ct. 2116
(2019) ......................................................... 2, 3, 18, 19
Korematsu v. United States, 323 U.S. 214 (1944).......19
Trump v. Hawaii, 138 S. Ct. 2392 (2018) ...................19
United States v. Martinez-Fuerte, 428 U.S. 543
(1976) .........................................................................6
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) .....................19
STATUTES
8 U.S.C. § 1357(a)(3) .....................................................6
Clean Water Act,
33 U.S.C. § 1251 et seq................................... 7, 13, 17
Endangered Species Act,
16 U.S.C. § 1531 et seq................................. 11, 12, 17
Farmland Protection Policy Act,
7 U.S.C. § 4201 et seq......................................... 14, 15
Migratory Bird Treaty Act,
16 U.S.C. § 703 et seq...............................................13
National Environmental Policy Act,
42 U.S.C. § 4321 et seq. .................................... passim
REAL ID Act of 2005, Pub. L. No. 109-113, Div. B,
Title I § 102(c), 119 Stat. 231, 302, 306 .......... passim
Rivers and Harbors Act of 1899,
33 U.S.C. § 403.........................................................13
iii
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES
151 Cong. Rec. H459 (daily ed. Feb. 9, 2005) ...............7
ACLU Border Rights Center, Death, Damage,
and Failure: Past, Present, and Future Impacts of Walls on the U.S.-Mexico Border 2019
Update (2019) .......................................... 7, 10, 11, 12
Aaron Nelsen, Hundreds turn out for rally opposing border wall through popular wildlife refuge, SAN ANTONIO EXPRESS-NEWS, Jan. 27, 2018,
https://www.expressnews.com/news/local/article/
Hundreds-turn-out-for-rally-opposing-borderwall-12531021.php ..................................................15
Colonia Organizations Win Groundbreaking
Street Lighting Victory in Hidalgo County,
TEXAS HOUSERS, Nov. 18, 2015, https://texas
housers.net/2015/11/18/colonia-organizationswin-groundbreaking-street-lighting-victoryin-hidalgo-county/ .....................................................5
Daniel Blue Tyx, Holding Back the Flood, THE
TEXAS OBSERVER, Feb. 11, 2016, https://www.
texasobserver.org/colonias-drainage-valley/ ............9
Department of Recreation, Park & Tourism
Sciences and Department of Agricultural Economics, Texas A&M University, An Initial Examination of the Economic Impact of Nature
Tourism on the Rio Grande Valley (2011) ....... 12, 14
iv
TABLE OF AUTHORITIES—Continued
Page
Dina Arévalo, New DHS acting secretary visits
RGV, tours border wall, THE MONITOR, Nov. 22,
2019, https://www.themonitor.com/2019/11/22/
new-dhs-acting-secretary-visits-rgv-tours-borderwall/ .........................................................................16
Environmental Protection Agency, Summary of
the Clean Water Act, https://www.epa.gov/lawsregulations/summary-clean-water-act ...................13
Examining the Effect of the Border Wall on Private and Tribal Landowners: Hearing Before
the H. Comm. on Homeland Sec., 116th Cong.
(2020) (testimony of Rey Anzaldua and Nayda
Alvarez), https://homeland.house.gov/activities/
hearings/examining-the-effect-of-the-borderwall-on-private-and-tribal-landowners ..................16
Gus Bova, Border Residents Protest Trump’s Wall
in Hidalgo County, THE TEXAS OBSERVER, Nov.
11, 2018, https://www.texasobserver.org/borderresidents-protest-trumps-wall-in-hidalgocounty/ .....................................................................15
J. Edward Moreno, UTRGV study: About 3 in 4
RGV residents oppose border wall, THE MONITOR, Apr. 2, 2019, https://www.themonitor.com/
2019/04/02/utrgv-study-3-4-rgv-residentsoppose-border-wall/ .................................................15
Karina Vargas, Several groups protesting proposed border wall near cemetery, KVEO, Nov. 14,
2019, https://www.kveo.com/news/local-news/
several-groups-protesting-proposed-border-wallnear-cemetery/ .........................................................15
v
TABLE OF AUTHORITIES—Continued
Page
National Weather Service, Major Hurricane Beulah—September 20, 1967, https://www.weather.
gov/crp/Beulah...........................................................9
National Weather Service, Storm Report on Hurricane Dolly in the Rio Grande Valley and
Deep South Texas: Update #2, https://www.
weather.gov/bro/2008event_dollyreport (stating damage likely to exceed $2 billion) ....................9
Office of the Texas Governor, Federal Disaster
Declaration Granted For Texas Counties Following Severe Weather And Flooding In The
Rio Grande Valley, July 17, 2019, https://gov.
texas.gov/news/post/federal-disaster-declarationgranted-following-severe-weather-in-the-riogrande-valley .............................................................9
Office of the Texas Governor, Federal Disaster
Declaration Granted For Texas Counties Following Severe Weather And Flooding In The
Rio Grande Valley, July 6, 2018, https://gov.
texas.gov/news/post/federal-disaster-declarationgranted-for-texas-counties-following-severeweather-and-flooding-in-the-rio-grande-valley .........9
Texas Department of Housing and Community
Affairs, 2007 State of Texas Low Income Housing Plan and Annual Report, Jan. 2007 ...................5
U.S. Border Patrol Rio Grande Valley Sector,
Texas, Environmental Stewardship Plan for
the Construction, Operation, and Maintenance
of Tactical Infrastructure, July 2008 ........................8
vi
TABLE OF AUTHORITIES—Continued
Page
U.S. Census Bureau, Quickfacts, https://www.census.
gov/quickfacts/fact/table/cameroncountytexas.
hidalgocountytexas/PST045219 ................................4
U.S. Department of Agriculture, Farmland Protection Policy Act, https://www.nrcs.usda.gov/
wps/portal/nrcs/main/national/landuse/fppa/ ........14
U.S. Department of Justice, Guidance for Federal Law Enforcement Agencies Regarding the
Use of Race, Ethnicity, Gender, National Origin,
Religion, Sexual Orientation, or Gender Identity (Dec. 2014) ..........................................................6
U.S. Environmental Protection Agency, Summary
of the Endangered Species Act, https://www.epa.
gov/laws-regulations/summary-endangeredspecies-act ...............................................................11
World Birding Center, Birds of the Rio Grande
Valley, http://www.theworldbirdingcenter.com/
gallery.html .............................................................14
1
INTEREST OF AMICI CURIAE1
The Rio Grande Valley Equal Voice Network
(EVN) is a coalition of nonprofit organizations advancing equity along the United States-Mexico border
in south Texas. Each of the EVN’s member organizations seeks to organize and amplify the historically
marginalized voices of south Texas residents, including women, immigrants, the Lesbian, Gay, Bisexual,
Transgender, and Queer (LGBTQ) community, and
those living in persistent poverty. Through cultural,
legal, and political strategies, the EVN fights for transformative social justice at the local, state, and national
levels.2
La Unión del Pueblo Entero (LUPE) is a non-profit
organization serving low-income immigrant communities of the south Texas border. Founded by civil rights
advocates César E. Chavez and Dolores Huerta, LUPE
is rooted in the belief that members of these communities have the responsibility to organize themselves and
advocate for solutions to the issues that impact their
lives. LUPE works primarily with families who live in
colonias—rural unincorporated neighborhoods lacking
Petitioners have granted a blanket consent for the filing of
amicus briefs. Respondents have provided amici curiae consent
for the filing of this brief. No counsel for a party authored this
brief in whole or in part, and no counsel or party made a monetary
contribution intended to fund the preparation or submission of
this brief. No persons or entities, other than amici curiae, their
members, or their counsel made a monetary contribution to the
preparation or submission of this brief. The parties received notice of this filing.
2
For more details on the EVN, see https://rgvequalvoice.org/.
1
2
basic public services, including sewer systems, streets,
and safe and affordable housing. LUPE assists communities to advocate for their rights before county, state,
and federal governments.3
EVN and LUPE have an abiding interest in the
civil and democratic rights of individuals residing within
border communities in south Texas. As described below, those communities are directly and adversely affected by the Secretary of Homeland Security’s waivers
of federal laws intended to protect them.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
The framers of the Constitution were deeply concerned that a majority of voters could use legislation to
repress minority groups. To mitigate that danger, the
framers created a lengthy and complex legislative process to ensure that “any new law would have to secure
the approval of a supermajority of the people’s representatives.” Gundy v. United States, 139 S. Ct. 2116,
2134 (2019) (Gorsuch, J., dissenting, joined by Roberts,
C.J., and Thomas, J.).
But the protection afforded by that legislative
process disappears if Congress delegates its lawmaking power to the Executive. The Executive needs only
achieve the support of a plurality of voters, so it is less
responsive to minority interests. Therefore, delegation
For more details on LUPE’s activities and accomplishments,
see http://lupenet.org/about-us/.
3
3
of lawmaking power destroys the system that the
framers created “to guard unpopular minorities from
the tyranny of the majority.” Id. For that reason, it
is “unpopular minorities” who will suffer most when
the legislative and executive powers become one.
In this case, those negatively-impacted minorities
are the border communities that amici EVN and
LUPE represent. These communities have been marginalized for decades, their rights increasingly diminished by an ever-growing federal presence near the
border. Yet, even for communities accustomed to unwanted Executive interference, § 102(c) represents a
radical deprivation of rights by virtually unreviewable
Executive fiat. REAL ID Act of 2005, Pub. L. No. 109113, Div. B, Title I § 102(c), 119 Stat. 231, 302, 306.
The purpose of this amicus brief is to describe
how the § 102(c) waivers negatively and disproportionately impact minority communities within Texas’s Rio
Grande Valley. See Gundy, 139 S. Ct. at 2132 (“[U]nbounded policy choices have profound consequences for
the people they affect.”).
---------------------------------♦---------------------------------
4
ARGUMENT
I.
The Border Wall Waivers Negatively and
Disproportionately Impact Minority South
Texas Communities.
A. Border Communities within the Rio
Grande Valley
The southernmost portion of Texas is known as
the “Rio Grande Valley,” a unique region with a distinct
culture, cuisine, and traditions. It consists of four counties, two of which are affected by the waiver decisions
challenged in this petition: Hidalgo County and Cameron County. Demographically, individuals within these
counties, like the RGV as a whole, are predominantly
of Latino or Hispanic origin, mostly Mexican-American.
According to U.S. census estimates, 92.4% of Hidalgo
County residents and 89.8% of Cameron County identify as Hispanic or Latino.4
These counties have some of the lowest per capita
income in the United States. According to federal census data, the annual per capita income in Hidalgo
County is approximately $16,490, and 30% of Hidalgo
County residents are below the poverty level.5 Cameron County similarly has an annual per capita income
of approximately $16,587, and a poverty rate of 27.9%.6
U.S. Census Bureau, Quickfacts, https://www.census.gov/
quickfacts/fact/table/cameroncountytexas.hidalgocountytexas/
PST045219.
5
Id.
6
Id.
4
5
Within these counties are hundreds of communities known as colonias, defined by the state of Texas as
“rural subdivisions characterized by high levels of poverty and substandard living conditions.”7 These unincorporated neighborhoods are typically located outside
city limits and often lack public water and wastewater
systems, paved streets, drainage, and adequate housing.8 The population of colonia residents is predominately Mexican-American.9 As of 2015, over 80% of
colonias within Hidalgo County lacked public street
lighting.10
B. The Executive’s Unchecked Expansion
into the Rio Grande Valley
Over the past 70 years, the federal government
has gradually expanded its presence and control in the
RGV. The first massive federal expansion came in 1953
with the Immigration and Nationality Act, which authorized immigration agents to enter private property,
conduct warrantless searches on buses, trains, and
other vehicles, and led to the United States Border
Patrol establishing fixed checkpoints on all highways
Texas Department of Housing and Community Affairs, 2007
State of Texas Low Income Housing Plan and Annual Report, Jan.
2007, at 245.
8
Id. at 246.
9
Id.
10
Colonia Organizations Win Groundbreaking Street Lighting Victory in Hidalgo County, TEXAS HOUSERS, Nov. 18, 2015,
https://texashousers.net/2015/11/18/colonia-organizations-wingroundbreaking-street-lighting-victory-in-hidalgo-county/.
7
6
exiting the RGV. 8 U.S.C. § 1357(a)(3). Today, it is virtually impossible to leave the RGV via land without
passing such a checkpoint, wherein Border Patrol
agents interrogate drivers and passengers about their
immigration status—without the need to show independent probable cause or even reasonable suspicion—
and detain those who do not answer to the agents’ satisfaction. Border Patrol agents are also stationed at
every airport in the region.
This growing federal incursion into the RGV
has infringed upon residents’ Fourth Amendment
rights. As the number of federal immigration officials
deployed to the RGV has steadily increased, so too
have the numbers of individuals racially profiled
and searched. While Department of Justice guidance forbids racial profiling for routine law enforcement throughout the country, it explicitly exempts
border zones such as the RGV from that prohibition.11
In short, for individuals “of apparent Mexican ancestry” living within 100 miles of the border, the
Fourth Amendment offers scant protection. United
States v. Martinez-Fuerte, 428 U.S. 543, 563, 553 n.8
(1976).
The REAL ID Act of 2005 authorizes the latest
and most aggressive expansion of federal control over
the RGV. Section 102(c) of that Act delegates to the Secretary of Homeland Security the authority to “waive all
U.S. Department of Justice, Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender,
National Origin, Religion, Sexual Orientation, or Gender Identity
at 2 n.2 (Dec. 2014).
11
7
legal requirements” that the Secretary “deems necessary,” in his “sole discretion,” “to ensure expeditious
construction” of the border wall. As Rep. Jackson-Lee
warned when the House of Representatives was considering § 102(c), “a waiver this broad is unprecedented.”
151 Cong. Rec. H459 (daily ed. Feb. 9, 2005) (adding
“[a]t the very least, we should have a hearing to consider the consequences of such a drastic waiver.”).
President George Bush’s Secretary of Homeland
Security exercised this waiver power on five occasions.
Between 2008 and 2010, DHS built eighteen segments of border fence in Hidalgo and Cameron Counties, for a total of fifty-four miles in these two
counties.12 In 2019, CBP announced that it intends to
construct another 19 miles in Cameron County and 35
in Hidalgo.13
In October 2018, the Secretary of Homeland Security invoked § 102(c) to waive twenty-eight federal
laws to build additional border wall in those two counties. Pet. App. 83-100. The nullified laws include the
National Environmental Policy Act, the Clean Water
Act, the Safe Drinking Water Act, and the Administrative Procedure Act, among many others. DHS began
constructing new wall in Hidalgo County in October
2019.
ACLU Border Rights Center, Death, Damage, and Failure:
Past, Present, and Future Impacts of Walls on the U.S.-Mexico
Border 2019 Update (2019), at 17.
13
Id.
12
8
C. Effects of the Secretary’s Waivers on
RGV Communities
The wall that DHS intends to build in the RGV entails a tremendous construction project. Beyond erecting the wall itself, DHS must clear vegetation, level the
ground for roads, destroy any structures—including
homes—in the path of the project, and import massive
amounts of steel and concrete. Normally, when undertaking projects of such magnitude, the government
must comply with dozens of statutes that Congress
deemed necessary to ensure such taxpayer-funded construction occurs in a reasonable and responsible manner. The Secretary’s waivers nullify those laws, giving
DHS free rein to neglect potentially disastrous effects
as it rushes wall construction. What follows is a sampling of the negative effects RGV communities will suffer as a result of the Secretary’s waiver decisions.
i.
The National Environmental Policy
Act, 42 U.S.C. § 4321 et seq.
The Rio Grande Valley is located in the floodplain of the Rio Grande River, near where its waters
flow into the Gulf of Mexico.14 The defining aspect of
a floodplain is that it periodically floods. The result
U.S. Border Patrol Rio Grande Valley Sector, Texas, Environmental Stewardship Plan for the Construction, Operation, and
Maintenance of Tactical Infrastructure, July 2008, at 67 [hereinafter Environmental Stewardship Plan].
14
9
can be catastrophic, as occurred in 196715 and 2008.16
But more frequent, less deadly floods still cause tremendous damage: The federal government declared
disaster-flooding conditions in the RGV in both 2018
and 2019.17
Floods in the RGV destroy buildings, spoil crops,
and kill animals. They disrupt economic activity and
create health risks. The longer the water stays on
fields, homes, and streets, the more severe the damage. Floods are particularly disastrous for individuals
living in colonias, many of which lack adequate drainage systems.18 Once colonias fill with water, they remain underwater longer than areas with functional
National Weather Service, Major Hurricane Beulah—
September 20, 1967, https://www.weather.gov/crp/Beulah (describing 15 fatalities in Texas and $1.59 billion 2017 dollars in damage).
16
National Weather Service, Storm Report on Hurricane
Dolly in the Rio Grande Valley and Deep South Texas: Update #2,
https://www.weather.gov/bro/2008event_dollyreport (stating damage likely to exceed $2 billion).
17
Office of the Texas Governor, Federal Disaster Declaration
Granted For Texas Counties Following Severe Weather And
Flooding In The Rio Grande Valley, July 6, 2018, https://gov.
texas.gov/news/post/federal-disaster-declaration-granted-for-texascounties-following-severe-weather-and-flooding-in-the-rio-grandevalley; Office of the Texas Governor, Federal Disaster Declaration
Granted For Texas Counties Following Severe Weather And
Flooding In The Rio Grande Valley, July 17, 2019, https://gov.
texas.gov/news/post/federal-disaster-declaration-granted-followingsevere-weather-in-the-rio-grande-valley.
18
Daniel Blue Tyx, Holding Back the Flood, THE TEXAS
OBSERVER, Feb. 11, 2016, https://www.texasobserver.org/coloniasdrainage-valley/.
15
10
drainage systems, increasing the destruction and
health risks.
Despite the disastrous effects of flooding on colonias, those communities are frequently the last to receive federal assistance. After the flooding in 2008,
amicus LUPE had to sue the Federal Emergency Management Agency (FEMA) for discriminating against
colonia residents in denying their applications for assistance. FEMA eventually settled that lawsuit, providing long-overdue financial assistance.
When floods occur, there is only one place for the
water to drain: the Rio Grande River. But if a wall is
built in the floodplain—as CBP plans—then the wall
acts like a dam, preventing the water from lowering
and flowing into the river.19 In a 2008 report, CBP itself
recognized this risk: “Constructing the [wall] within
the floodplain has the potential to affect flood flows if
the [wall] is not maintained to remove blockages to
flow (debris and wrack) following high flow events.”20
Land between the river and the wall is at an even
greater risk of remaining underwater when the river
rises, since the wall channels the water that would otherwise spread and dissipate through the floodplain. As
past flooding events have demonstrated, a wall with
gaps between steel bollards does not eliminate this
19
20
ACLU Border Rights Center, supra note 12, at 4.
Environmental Stewardship Plan, supra note 14, at 6-8.
11
flooding risk, since debris easily clogs those gaps.21 In
sum, the wall increases the risk of catastrophic damage caused by flooding.
If it were not waived, the National Environmental
Policy Act (NEPA) would require the government to
publish information about the risk of flooding and seek
public input as to the wall’s designs.22 In addition to
providing detailed information to the public about
these risks, the NEPA process would likely result in
wall construction that better mitigates such risks.
ii.
The Endangered Species Act, 16
U.S.C. § 1531 et seq.
The Endangered Species Act (ESA) requires federal agencies to minimize disruptions to the habitats
of critical species.23 DHS intends to build wall in the
Lower Rio Grande Valley National Wildlife Refuge—a
key habitat for the critically endangered ocelot and
ACLU Border Rights Center, supra, note 12, at 23.
In 2008, the government’s failure to comply with NEPA resulted in a lawsuit and TRO enjoining wall construction. Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119, 121 (D.D.C. 2007).
Then-Secretary Chertoff responded to that lawsuit by waiving
NEPA. Id. at 121-22. In an attempt to avoid having to comply with
Congressionally mandated statutory obligations, then-Secretary
Nielsen instead waived NEPA from the start in this case.
23
U.S. Environmental Protection Agency, Summary of the
Endangered Species Act, https://www.epa.gov/laws-regulations/
summary-endangered-species-act.
21
22
12
jaguarundi.24 The ESA would therefore heavily constrain wall construction in that habitat. Waiving the
ESA removes those constraints, further threatening
the survival of already-endangered species.
Harming those endangered species will cause
additional negative effects on RGV communities. In
addition to the joy such species bring to local communities, those species bring tourists to the area.25 According to a 2011 study, nature tourism during the offpeak season alone contributed over $300 million to
the local RGV economy.26 Reducing the numbers of the
RGV’s most unique species is bound to decrease that
tourism.
These negative effects on tourism would normally
be considered in an environmental analysis pursuant
to NEPA, but, as discussed above, the Secretary has
waived that act as well. Thus, this example demonstrates how waivers of multiple statutes have a compounding effect.
ACLU Border Rights Center, supra note 12, at 34.
Environmental Stewardship Plan, at 10-9.
26
Department of Recreation, Park & Tourism Sciences and
Department of Agricultural Economics, Texas A&M University,
An Initial Examination of the Economic Impact of Nature Tourism on the Rio Grande Valley (2011).
24
25
13
iii. The Clean Water Act, 33 U.S.C.
§ 1251 et seq., and the Rivers and
Harbors Act of 1899, 33 U.S.C. § 403
The Clean Water Act (CWA) regulates discharges
of pollutants into the waters of the United States.27
Normally, the CWA would require DHS to employ construction methods to minimize the amount of discharges that will enter water sources, including the Rio
Grande River, which is the primary source of water for
residents throughout this region.
Related to the CWA, the Rivers and Harbors Act
of 1899 (RHA) criminalizes discharges of refuse matter
into navigable waters such as the Rio Grande River.
With the CWA and RHA waived, nothing prevents
DHS—or its contractors—from dumping pollutants
into that river.
iv.
The Migratory Bird Treaty Act, 16
U.S.C. § 703 et seq.
The Migratory Bird Treaty Act (MBTA) prohibits
“takings” of birds listed in the act. Takings include incidental takings, such as those that might occur from
construction that destroys nests or impedes migrations. Waiving the MBTA will lead to further destruction of migratory bird habitats.
Environmental Protection Agency, Summary of the Clean
Water Act, https://www.epa.gov/laws-regulations/summary-cleanwater-act.
27
14
Bird watching is a major natural attraction for
tourists to the RGV, which is home to the World Birding Center, a group of nature preserves together hosting some 500 bird species.28 As discussed above with
regards to destruction of endangered species’ habitat,
any reduction in migratory bird species is likely to
have secondary negative impacts on RGV tourism, and,
consequently, the region’s economy.
v.
The Farmland Protection Policy Act,
7 U.S.C. § 4201 et seq.
The Farmland Protection Policy Act (FPPA) imposes restrictions on federal construction projects that
irreversibly convert farmland, directly or indirectly, to
nonagricultural use.29 Both the wall itself and construction of roads necessary for wall construction will
have irreversible effects on farmland. Moreover, wall
construction “is expected to alter the topography and
remove vegetation from approximately 105 acres
within the floodplain of the Rio Grande, which could in
turn increase erosion potential and increase runoff
during heavy precipitation events.”30 Such erosion will
Department of Recreation, Park & Tourism Sciences and
Department of Agricultural Economics, Texas A&M University,
An Initial Examination of the Economic Impact of Nature Tourism on the Rio Grande Valley (2011); World Birding Center, Birds
of the Rio Grande Valley, http://www.theworldbirdingcenter.com/
gallery.html.
29
U.S. Department of Agriculture, Farmland Protection Policy
Act, https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/
landuse/fppa/.
30
Environmental Stewardship Plan at 6-8.
28
15
destroy farmland of property owners near the river. By
waiving the FPPA and NEPA, the Executive can ignore
this risk to RGV communities, which Congress had
foreseen when it enacted these statutes. The predictable result is less responsible grading, faster erosion,
and greater irreversible damage to RGV farmland.
II.
Section 102(c) Insulates Policy-Making Decisions from the Democratic Pressure of
Border Communities
A. RGV Communities Oppose Unregulated
Wall Construction
Given the potentially disastrous effects of rapid,
regulation-free wall construction, it should come as no
surprise that RGV residents overwhelmingly oppose
this government action.31 For years, they have expressed this opposition through frequent protests and
community actions on the southern border.32 LUPE
J. Edward Moreno, UTRGV study: About 3 in 4 RGV residents oppose border wall, THE MONITOR, Apr. 2, 2019, https://www.
themonitor.com/2019/04/02/utrgv-study-3-4-rgv-residents-opposeborder-wall/ (noting survey found 75.7% of RGV residents opposed
the border wall).
32
See, e.g., Aaron Nelsen, Hundreds turn out for rally opposing border wall through popular wildlife refuge, SAN ANTONIO
EXPRESS-NEWS, Jan. 27, 2018, https://www.expressnews.com/news/
local/article/Hundreds-turn-out-for-rally-opposing-border-wall12531021.php; Gus Bova, Border Residents Protest Trump’s Wall
in Hidalgo County, THE TEXAS OBSERVER, Nov. 11, 2018, https://
www.texasobserver.org/border-residents-protest-trumps-wall-inhidalgo-county/; Karina Vargas, Several groups protesting proposed border wall near cemetery, KVEO, Nov. 14, 2019, https://
www.kveo.com/news/local-news/several-groups-protesting-proposed-border-wall-near-cemetery/.
31
16
has organized protests against the border wall and
the waiver of laws. Most recently, LUPE and EVN organized a demonstration against the border wall in
Donna, Texas, where the wall is being built, on the
same day DHS Secretary Wolf was visiting.33 Predictably, Mr. Wolf drove past the protest in his motorcade
without slowing.
Some of the most vociferous opponents of regulation-free wall construction are those who live or own
land on or near the Rio Grande River. In addition to
losing land directly in the proposed wall’s path, they
also face increased risks of flooding, erosion, and contamination to their land near the Rio Grande. With
representation from EVN members, these landowners
are calling their congressional delegates, testifying before Congress, and defending their land in court.34
Through these exercises of their Free Speech rights,
RGV residents occasionally win minor victories in the
form of legal protections for their land. But, for the reasons described in the following section, the overall effect of § 102(c) is to insulate the true border wall policymaker from such democratic pressure.
Dina Arévalo, New DHS acting secretary visits RGV, tours
border wall, THE MONITOR, Nov. 22, 2019, https://www.themonitor.
com/2019/11/22/new-dhs-acting-secretary-visits-rgv-tours-borderwall/.
34
See, e.g., Examining the Effect of the Border Wall on Private
and Tribal Landowners: Hearing Before the H. Comm. on Homeland Sec., 116th Cong. (2020) (testimony of Rey Anzaldua and
Nayda Alvarez), https://homeland.house.gov/activities/hearings/
examining-the-effect-of-the-border-wall-on-private-and-triballandowners.
33
17
B. Section 102(c) Unduly Insulates PolicyMakers from Democratic Pressure
Section 102(c) delegates to the Secretary of Homeland Security the power to legislate by subtraction.
As the federal government has grown, the legislative
branch has increasingly constrained and regulated Executive actions through a panoply of laws like NEPA,
the ESA, and the CWA. Section 102(c) has no standards that the Secretary must apply when determining
when it is “necessary” to waive those constraints to
achieve “expeditious” wall construction. The Secretary
is not required to make any record as to how he arrived
at such determinations. Section 102(c) simply trusts
the Secretary to exercise his authority responsibly.
In virtually any situation other than border wall
construction, aggrieved citizens can challenge arbitrary and capricious Executive decisions through the
Administrative Procedures Act (APA) and decisions in
excess of authority through ultra vires challenges. But
§ 102(c) prohibits both actions. Thus, at the same time
that § 102(c) grants legislative power to the Executive,
it removes power from the Judiciary.
This lack of judicial review renders illusory § 102(c)’s
supposed restraints on the Secretary’s authority. Section 102(b)(1)(C) theoretically requires the Secretary
to consult with border area stakeholders, including in
the RGV, “to minimize the impact” of construction. But
if the Secretary fails to conduct such consultations,
18
aggrieved parties cannot remedy that failure through
the courts.
The first casualties of such unconstrained delegations are “stability and fair notice.” Gundy, 139 S. Ct.
at 2135 (Gorsuch, J., dissenting). Since 2005, when
§ 102(c) was created, there has been no significant
change in immigration or security at the U.S. border.
And yet the Bush administration invoked the § 102(c)
waiver authority on five occasions, the Obama administration did not invoke it at all, and the Trump administration has already invoked it an alarming sixteen
times. These drastic shifts from one Administration to
the next reveal that the laws in force in border communities are governed by “nothing more than the will of
the current president.” Id.
Another casualty of the § 102(c) delegation is
the ability of RGV communities to exert democratic
pressure on unpopular policies affecting them. While
Congress could attempt to pass a law waiving all environmental laws that hinder wall construction, such
a proposal would inevitably cause fierce debate and
opposition, particularly from Congressional representatives from border regions. In § 102(c), Congress
avoided such difficulties by “merely announc[ing] [a]
vague aspiration[ ]”—expeditious wall construction—
and then “assign[ing] the responsibility” to the Executive to realize that goal. Id. at 2133. Thus, Congress
took credit for furthering the aspiration while insulating itself from the consequence: the creation of a
statutory-free border zone.
19
It would be a grave error for this court to deny
certiorari merely because the Government asserts
that this case involves national security near the border. Though border security is the prerogative of the
Executive, this Court has repeatedly warned against
treating national security as “ ‘a talisman’ that the
Government can use ‘to ward off inconvenient claims.’ ”
Trump v. Hawaii, 138 S. Ct. 2392, 2446 (2018) (quoting
Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017)). All too
often, it is under the guise of “national security” that
the Executive violates the rights of disfavored minorities. See Korematsu v. United States, 323 U.S. 214
(1944), abrogated by Trump v. Hawaii, 138 S. Ct. at
2423.
When Congressional accountability breaks down,
“minority interests” will suffer most. Gundy, 139 S. Ct.
at 2134 (Gorsuch, J., dissenting). Over the course of
decades, RGV border communities have learned that
the Executive considers them “unpopular minorities”
with diminished legal rights. Id. The framers separated the executive and legislative powers because—
like RGV communities—they did not trust a government wielding both powers to protect residents’ liberties. This Court should not trust an Executive branch
that the founders did not.
---------------------------------♦---------------------------------
20
CONCLUSION
For the foregoing reasons, this Court should grant
the petition for a writ of certiorari.
Respectfully submitted,
EFRÉN C. OLIVARES
Counsel of Record
ANDREW UDELSMAN
RICARDO A. GARZA
CAROLYN O’CONNOR
TEXAS CIVIL RIGHTS PROJECT
1017 W. Hackberry Avenue
Alamo, TX 78516
(956) 787-8171
efren@texascivilrightsproject.org
March 5, 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.