The 9th Circuit Court of Appeals on Monday affirmed a US District Court ruling that granted summary judgment to the Department of Homeland Security in a lawsuit challenging DHS’s use of waiver authority in “border barrier” construction.

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In the initial lawsuit Plaintiffs claimed “that DHS exceeded its statutory authority in working on the border barrier projects and issuing the related waivers,” (ultra vires claims); environmental claims; that DHS violated environmental laws in planning and building the border barrier projects; and that DHS’s use of waivers authorized under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) was unconstitutional.

At the District Court level Judge Gonzalo Curiel declined to hear the environmental and ultra vires claims, saying that under the IIRIRA only the U.S. Supreme Court had jurisdiction to hear those claims, and ruled in favor of the Administration on the constitutional issue.

Plaintiffs first appealed directly to the U.S. Supreme Court, which declined to hear the appeal. As a result of Monday’s ruling, issued by a three-judge panel, Plaintiffs can request an en banc rehearing by a full panel of 9th Circuit judges or again file for a writ of certiorari.

Despite the environmentalist rhetoric in the court filings that ecosystems and habitats will be irreparably destroyed if the administration is allowed to use waivers to secure the border, the waivers at issue relate to projects that replace existing barriers, not for new construction. From Monday’s order:

The Secretary authorized the San Diego and Calexico Projects because the existing barriers in those areas were built in the 1990s using a fence design “that is no longer optimal for Border Patrol operations.”  82 Fed. Reg. 35,985, 42,830.  According to DHS, the new construction erects stronger and taller barriers.  The Calexico Project will replace “[t]he existing fourteen foot, landing mat-style fencing . . . with an eighteen to twenty-five foot barrier that employs a more operationally effective design.”  Id. at 42,830.  Similarly, the San Diego Project “will replace existing primary fencing” with a “new primary barrier” that “use[s] an operationally effective design.”  Id. at 35,984–85.  These are “additional physical barriers.”

Still, environmentalists are lying about the ruling and its effect.

“Congress has ceded its authority to Trump, who has swept aside fundamental public safety and environmental laws to build walls that won’t work,” Brian Segee, a Center for Biological Diversity attorney, said after Monday’s ruling. “This lawlessness is destroying irreplaceable ecosystems and militarizing communities.”

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