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Next battle over border fence may be Texas
SCOTUS Border Fence 5311396
In a Tuesday, April 1, 2008 file photo, the U.S.-Mexico border fence is seen from the outskirts of Nogales, Mexico. The Supreme Court on Monday, June 23, 2008, turned down a plea by environmental groups to rein in the Bush administration's power to waive laws and regulations to speed construction of a fence along the U.S.-Mexican border. - photo by Associated Press
    McALLEN, Texas — A U.S. Supreme Court decision paving the way for a 670-mile federal fence along the U.S.-Mexico border drew swift criticism from environmentalists, who promised to make another legal stand in Texas.
    The justices’ turned down a plea Monday to hear a lawsuit opposing a two-mile section of the fence in Arizona brought by the Sierra Club and Defenders of Wildlife.
    The section of fence in question in that case has already been built and even if the court had taken the case, oral arguments would not have been heard until October.
    But Monday’s decision could have the most immediate implications for Texas, where opposition has been most widespread and fence construction is expected to begin next month.
    The Audubon Society has already said that if the fence is built as planned in South Texas it would have to close its 557-acre Sabal Palm Audubon Center near Brownsville. The center would be left entirely in the no man’s land behind the fence north of the Rio Grande.
    The Nature Conservancy’s Lennox Foundation Southmost Preserve also would be affected, as would portions of the 90,000-acre Lower Rio Grande Valley National Wildlife Refuge, assembled over decades along the river to protect one of the most biologically diverse ecosystems in the country.
    ‘‘We were all pinning a lot of hope on something happening at the Supreme Court level,’’ said Merriewood Ferguson, a Brownsville environmentalist who has spent 25 years working to protect habitat near the river. ‘‘We’re not giving up hope, there’s just too much at stake.’’
    The case rejected by the high court Monday involved a two-mile section of fence in the San Pedro Riparian National Conservation Area near Naco, Ariz.
    Homeland Security Secretary Michael Chertoff waived 19 environmental, conservation and cultural laws in October to resume construction of the fence section after a federal judge halted it because there had not been enough environmental study.
    Fourteen House Democrats — including seven committee chairs — had filed a brief in support of the environmentalists’ appeal.
    Russ Knocke, a Department of Homeland Security spokesman, said, ‘‘As fence construction proceeds, the department will continue to be a good steward of the environment, and consult with appropriate state, local, and tribal officials.’’ Some 331 miles of fencing had been constructed as of June 13.
    The 2005 Real ID Act allowed Chertoff to waive laws that could impede the fence’s construction. Chertoff has used the authority once each in California and Texas, twice in Arizona and once for portions of all four border states. When he last issued waivers in April, Chertoff said, ‘‘Criminal activity at the border does not stop for endless debate or protracted litigation.’’
    By giving Chertoff sweeping authority and setting an inflexible end-of-the-year deadline for the completion of 670 miles of fencing, Congress created a climate with little time or space to maneuver through the myriad issues at the intersection of national security, immigration policy and environmental conservation.
    ‘‘This decision leaves one man — the Secretary of the Department of Homeland Security — with the extraordinary power to ignore any and all of the laws designed to protect the American people, our lands, and our natural resources,’’ said Oliver Bernstein, a Sierra Club spokesman. ‘‘The government has paid only lip service to public processes and to integrating environmental protection into border security efforts.’’
    While most Americans hold an image of the border as a barren hinterland, the nearly 1,950-mile frontier has varied terrain and rich biodiversity. Private citizens, nonprofit organizations and federal agencies have spent decades protecting critical habitat for birds and endangered cats, including the ocelot and jaguarundi.
    Jim Chapman, president of Frontera Audubon, said the Supreme Court decision was just another indication of the prevailing ‘‘strange times.’’
    ‘‘If you don’t stop and examine what the impacts may be, you won’t know what they were until whatever you’re trying to protect is gone,’’ he said.
    Associated Press writer Eileen Sullivan contributed to this report from Washington, D.C.

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