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WASHINGTON � The Yale Law School Supreme Court Clinic has filed a petition in the nation’s high court in which it challenges as “unprecedented” and unconstitutional a provision in the REAL ID Act giving the secretary of the Department of Homeland Security the authority to waive any and all laws necessary to expedite construction of the U.S.-Mexico border fence. The petition, filed on behalf of Defenders of Wildlife and the Sierra Club, contends the waiver provision is an unconstitutional delegation of legislative power. “By granting one government official the absolute power to pick and choose which laws apply to border wall construction, the REAL ID Act proves itself to be both inherently dangerous and profoundly un-American,” said Rodger Schlickeisen, president of Defenders of Wildlife. “The issue here is not security vs. wildlife, but whether wildlife, sensitive environmental values and communities along the border will be given fair consideration in the decisions the government makes.” Last October, the two groups sued the department and the Bureau of Land Management for failure to comply with environmental statutes in approving border wall construction within the San Pedro Riparian National Conservation Area in Arizona. After a federal district court found that the groups would likely prevail on their claims and issued an injunction blocking further construction of the wall, DHS Secretary Michael Chertoff waived 19 environmental and health laws to move forward with construction. “Laws such as the National Environmental Policy Act and the National Historic Preservation Act are part of America’s enduring legal framework, and no agency or public official should be allowed to ignore them,” said Carl Pope, executive director of Sierra Club. The waiver provision allows appeals only to the Supreme Court. The environmental groups are represented by the clinic, led by Professor Dan Kahan, and Andrew J. Pincus and Charles Rothfeld of the Washington, D.C., office of Chicago’s Mayer Brown. Defenders of Wildlife v. Chertoff, No. 07-1180.

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