The nation’s high court refused Monday to consider the legality of a federal statute that lets the Homeland Security secretary waive environmental and other laws to build border fence.

Without comment, the U.S. Supreme Court turned away a challenge to the federal laws which empower Michael Chertoff to unilaterally decide to ignore these laws to meet his mandate to construct new pedestrian fences and vehicle barriers between the United States and Mexico.

 

Most immediately the ruling ends efforts by Defenders of Wildlife and other groups to halt construction of a stretch of fence and barriers through the southern edge of the San Pedro Riparian National Conservation Area.

“We don’t really know what the justification is for that,” said Matt Clark, the group’s Southwest representative. He pointed out that the justices are not required to say why they will not consider a case.

Clark noted, though, that other groups have a similar challenge to Chertoff’s authority. And he said the justices might be more willing to consider that case, currently pending in federal district court, when it is appealed by whichever side loses.

He said the real answer, though, may be political: Congress has the power to strip Chertoff and any successors of that authority.

Congressman Raul Grijalva, D-Ariz., already is the co-sponsor of legislation to rescind the provisions of law that Chertoff now has used several times to clear the way for border fencing projects, a power Grijalva said the Homeland Security chief has abused.

Grijalva said his legislation does protect border security.

“But you must have a process” to review plans for fencing and other barriers, he said. “It must be transparent and the public has to be included.”

And Grijalva said his legislation does not slow down the process of erecting fences.

U.S. Rep. Gabrielle Giffords, a Democrat like Grijalva and Arizona’s other border-area member of Congress, said in a prepared statement she was “extremely disappointed” the Supreme Court refused to hear the case.

“Our nation needs smart border security that balances the complex issues of immigration and environmental protection,” the statement reads. “Blazing a trail of fencing without due consideration of its impacts on the communities and land it invades is irresponsible.”

But Giffords has so far refused to support repeal of Chertoff’s authority. And her press aide, C.J. Karamargin, refused to say whether she believes the law needs to be altered.

“The statement speaks for itself,” he said.

Clark said he is not surprised that Giffords, a one-term legislator who faces a Republican challenger in November, has not spoken out on the underlying law that Chertoff used.

“It’s a very controversial issue in an election year,” Clark said.

“I’m not sure she’s excited about being on one side or the other on this issue,” he continued. “She may be kind of playing it safe.”

Monday’s high court decision was praised by Russ Knocke, Chertoff’s press aide.

“It reinforces the authority Congress already provided,” he said.

“We’ve only used this authority on a handful of occasions,” Knocke continued. “But it’s an important authority so we can finish the job of building fencing at the border and securing that border.”

He said more than 300 miles of fencing already has been erected, with the government “on pace still to get to 670 miles total by the end of the year.” That includes the San Pedro stretch.

A federal judge in October temporarily blocked further work, saying there seemed to be a rush to complete the project with only minimal review.

Rather than wait for the outcome of the case, though, Chertoff used his power, spelled out under the 2005 federal Real ID Act, to say the project need not comply with the Endangered Species Act or 19 other federal laws. The judge threw out subsequent challenges to the validity of that law, a decision that was upheld with Monday’s Supreme Court action.

Chertoff first used his power in 2005 to building fencing near San Diego without conducting environmental studies.

That was followed last year by a waiver from all laws for a project along the edge of the Barry M. Goldwater Range in southwest Arizona and, later the San Pedro project.

And in April Chertoff again used his waiver powers for more than 470 miles worth of border projects, about half of those in Arizona.