- The Washington Times
Monday, February 11, 2019

A federal appeals court ruled Monday that the Trump administration has the power to waive environmental laws in order to speed up border wall construction, dealing a major symbolic blow to the president’s opponents.

The three-judge panel of the 9th U.S. Circuit Court of Appeals, which President Trump regularly likes to chide as too liberal, sided with him this time.

The judges said federal law gives the administration broad powers to waive any laws in order to get the wall built.

“In short, the plain text [of the law] grants DHS authority to construct the prototype, San Diego and Calexico projects,” the judges ruled.

They were referring to some of the earliest wall-building projects the young Trump administration pursued.

Since then, Homeland Security has constructed new fencing across the southwest border, replacing vehicle barriers and upgrading old, substandard fence. And last week the government began to build the first new barriers on the border that was previously unprotected by any barriers.

In each of those cases, the Homeland Security Department has also issued waivers.

The waivers cover some of the country’s most iconic protections, including the Endangered Species Act, the Clean Water Act, the Clean Air Act, the Religious Freedom Restoration Act, the Antiquities Act, the Native American Graves Protection and Repatriation Act and the Eagle Protection Act.

In the past, some of those laws had been used to slow border wall construction, so Congress approved the waiver authority in the 1990s and expanded it under the Bush administration.

California Attorney General Xavier Becerra and several environmental groups had challenged the Trump administration’s use of the waivers, arguing the waivers went too far.

Monday’s decision was 2-1, with two Democratic appointees rejecting the environmentalists’ challenge.

A third judge, a Republican appointee, dissented, saying the courts didn’t even have jurisdiction to hear the challenge in the first place. She said if the courts did have jurisdiction, she would have agreed with her two colleagues’ reasoning.

The case has taken more than a year to wind through the courts, and construction is already complete on some of the projects and has begun on others.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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