Supreme Court clears way for Big Bend border wall work to resume

Justice Ketanji Brown Jackson was the lone dissenter. The court set aside an injunction issued Oct. 2 by US District Judge Kathleen Cardone, who had paused construction after the Center for Biological Diversity, Friends of the Ruidosa Church, a river guide and a landowner challenged the administration’s decision to waive environmental protections.

The challenged laws include the Endangered Species Act, the National Wild and Scenic Rivers Act and the National Park Service Organic Act. The plaintiffs argued that the waivers violated the major questions doctrine, which requires congressional approval for actions with major economic and political consequences. The majority said Homeland Security Secretary Markwayne Mullin has authority under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to waive environmental laws and has “broad authority to construct border barriers and roads.” The lower court will continue considering the legality of the project.

Bulldozers began leveling part of the park in August, before Cardone’s injunction halted the work. Customs and Border Protection has indicated it plans to build vehicle barriers and patrol roads across the park, including in the remote Mariscal Mountain region. The Center for Biological Diversity says work there would require “extensive dynamite blasting.”

Laiken Jordahl, the group’s national public lands advocate, told The New York Times he was “completely devastated” by the ruling. In a statement, he said it could let contractors bulldoze desert and blast canyon walls before courts determine whether the work is lawful. US Rep. Greg Casar, a Texas Democrat, said the project would damage Big Bend’s nature and wildlife. Hillary Pierce of No Big Bend Wall said the justices had not decided whether Big Bend qualifies as an area of high illegal entry, a designation the administration used to justify the project and bypass environmental protections. Pierce said government figures show the area has the fewest Border Patrol apprehensions along the southern border; her group is challenging the rationale in a lawsuit in Washington.