A federal appeals court ruled that the Trump administration did not exceed its powers by waiving environmental rules to speed up construction of prototypes and replacement of the U.S.-Mexico border wall.
The 9th U.S. Circuit Court of Appeals on Monday rejected arguments by the state of California and environmental groups who tried to block work that has mostly been completed near San Diego and Calexico.
The 2-1 opinion upheld a lower court decision that found the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 allows the Department of Homeland Security to avoid lengthy environmental reviews to speed construction of border barriers.
The one dissenting judge said the case should have been thrown out because such appeals belong before the Supreme Court.
The ruling came as Congress worked out a government funding deal that includes some but not all of the money President Donald Trump wants for his cherished border wall expansion. A dispute over that funding, which does not include the sections of wall challenged in court, led to an unprecedented 35-day government shutdown that ended last month.
The appeals court case argued in Pasadena in August revolved around whether the Homeland Security secretary had authority to waive dozens of laws including the National Environmental Policy Act and Endangered Species Act. Reviews required by those laws can often delay or derail projects.
The administration has issued several waivers to build sections of border wall in California, New Mexico and Texas. Lawsuits opposed to some of those projects are pending, but legal challenges to such barriers have failed over the years amid national security concerns.
At issue in court were waivers the secretary issued in 2017 to cover fencing in two California cities.
The waivers were for eight prototypes built in San Diego and 2 miles (3 kilometers) of replacement fencing completed in downtown Calexico. Construction is almost complete on one 14-mile (23-kilometer) section of barrier in San Diego and work is about to start on another of the same length.
Attorney General Xavier Becerra and environmentalists argued that the secretary’s authority to waive laws had expired and that the federal government overstepped and must comply with environmental laws.
The state was joined in the appeal by the Center for Biological Diversity, the Sierra Club, Defenders of Wildlife and Animal Legal Defense Fund.
“We’re disappointed that the court is allowing the Trump administration’s abuse of power to continue,” said attorney Brian Segee of the Center for Biological Diversity. “Congress has ceded its authority to Trump, who has swept aside fundamental public safety and environmental laws to build walls that won’t work.”
The attorney general’s office said it would evaluate its options, but wouldn’t be deterred from continuing to challenge the Trump administration.