Supreme Court rejects border fence challenge

The Supreme Court's refusal Monday to question the federal government's expedited approach toward erecting the border fence crushed one of the most promising attempts to delay the barrier in South Texas.

Opponents of the fence are now left to search for another viable judicial or legislative approach to put brakes on the government's plan.

"Unfortunately, the decision leaves one person, (Homeland Security Secretary) Michael Chertoff, with extraordinary power to waive all laws designed to protect natural resources," said Oliver Bernstein, a spokesman for National Sierra Club, one of the groups that filed the lawsuit.

Though several lawsuits and pending congressional statutes aimed against the fence's architects remain, the Sierra Club's case - filed in conjunction with Defenders of Wildlife - was the first piece of litigation that broached the barrier's impact on environmental resources along the border.

"The decision is disappointing," said Matt Clark, southwest representative for Defenders of Wildlife. "It's a sad day for democracy."

In late May, Frontera Audubon Society, Friends of the Santa Ana National Wildlife Refuge and Friends of the Laguna Atascosa National Wildlife Refuge filed suit in El Paso, questioning the 36 environmental laws that Chertoff waived to speed up fence construction.

Unlike the Sierra Club lawsuit, the second case focuses specifically on the fence's impact on the Lower Rio Grande Valley National Wildlife Refuge. But after the Supreme Court's decision Monday, it faces an uncertain future.

"The court seems to prefer that Congress go back and revoke the waiver authority," Bernstein said.

The Borderlands Conservation and Security Act, introduced by U.S. Rep. Raul Grijalva, D-Ariz, does just that. But the bill currently sits idle with the Subcommittee on Border, Maritime and Global Counterterrorism.

Another remaining lawsuit filed by the Texas Border Coalition, a group of mayors, judges and other officials, has also been filed against the Department of Homeland Security. TBC's lawsuit, though not focused on environmental concerns, questions the process by which the government has gone about acquiring land to build the fence.

TBC attorney Peter Schey said Monday's Supreme Court decision would not affect the group's lawsuit.

"The law that our case relies upon is the one law (Homeland Security) Secretary Michael Chertoff cannot waive because it is the law that gives him the power to condemn land in the first place," Schey said.

TBC's case also names several of the government's other alleged failures, including its refusal to provide for those whom the barrier would displace, he said.

But with the fence's construction slated to start in South Texas in July, opponents don't have much time to reformulate their strategy.

Supporters of both remaining lawsuits, environmentalists and politicians alike, suggest that government is going to see a lot more resistance as it moves into South Texas.

"They don't seem to have a good understanding of the Texas border, " the Sierra Club's Bernstein said. "And they still haven't come up with a plan to address that."