Oppose DHS Waiver From All Laws In The Supplemental Appropriations Bill

American Rivers · Center for Biological Diversity · Defenders of Wildlife · Earthjustice · Endangered Species Coalition · League of Conservation Voters · Natural Resources Defense Council · U.S. PIRG

March 30, 2005

Dear Senator,

The House of Representatives recently took the extraordinary step of attaching H.R. 418, the REAL ID Act, as a rider to H.R. 1268, The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, without first giving Members of Congress the opportunity to vote on whether they want this unrelated and controversial measure added to a spending bill meant to fund the Iraq war and tsunami relief efforts. We urge you to oppose the inclusion of the REAL ID Act in the Senate’s supplemental appropriations bill as it is considered by the chamber in the coming weeks.

On behalf of our millions of members, we strongly oppose language in H.R. 418 that would provide the Secretary of the Department of Homeland Security (DHS) with sweeping new authority to waive any federal or state law, including those that protect public health, safety and the environment, that would otherwise apply to the construction of roads, walls, fences and other barriers along U.S. borders. The language would also make the Secretary unaccountable to any court in the land, including the U.S. Supreme Court. Our members, like all Americans, want our nation’s borders to be secure. However, Section 102 of H.R. 418 attempts to place a federal official above all law and shield him or her from accountability in a manner that is itself an affront to our democracy.

It is critical to note that Section 102 is not limited to a single fencing project along the San Diego border, but would apply to all areas along and “in the vicinity” of our international boundaries with both Mexico and Canada. Under this sweeping waiver, DHS would be free to undertake large construction projects anywhere along our borders without oversight, accountability, or legal constraints – from the densely populated border communities in California, Texas and Washington, to the remote wilderness of Cabeza Prieta National Wildlife Refuge in Arizona, to the pristine islands and waters of the Boundary Waters Canoe Area in northern Minnesota. Never before has any federal agency or official been provided with such a breadth of unjustified exemptions from law.

As environmental organizations, we are especially concerned about those laws that will directly impact public health and the environment. Public health laws like the Clean Water Act, Clean Air Act and the Safe Drinking Water Act exist to protect citizens from an unhealthy environment. Additionally, our border areas contain an enormous amount of protected federal lands, including National Parks, Wildlife Refuges, Forests and wilderness areas, all of which could be subject to this provision.

We are a nation founded on the rule of law. To place any federal official above literally any law of his or her choosing – whether environmental, labor, civil rights or contract law – is a step that should not be taken lightly. Yet DHS has not demonstrated a need to waive any or all laws. In fact, there has not been a single Congressional hearing illustrating a need for these broad exemptions. Furthermore, H.R. 418’s removal of all avenues of judicial review is a direct affront to our most basic Constitutional principles of checks and balances and separation of powers. We believe that it is possible to ensure border security while shielding the public and the environment from harm and maintaining democratic principles, and we have not seen evidence otherwise.

We strongly urge you to oppose language in the Senate supplemental appropriations bill that would allow DHS to waive environmental laws or other important health and safety statutes and shield itself from all judicial review.

Marty Hayden, Legislative Director
Earthjustice

Betsy Loyless, Vice President of Policy and Lobbying
League of Conservation Voters

Mary Beth Beetham, Director of Legislative Affairs
Defenders of Wildlife

Liz Godfrey, Program Director
Endangered Species Coalition

Karen Wayland, Legislative Director
Natural Resources Defense Council

Daniel R. Patterson, Ecologist & Desert Program Director
Center for Biological Diversity

Tiernan Sittenfeld, Acting Legislative Director
U.S. PIRG

S. Elizabeth Birnbaum, Vice President for Government Affairs
American Rivers