The fight over President Trump’s proposed border wall has been at the center of political controversy over the last two years and recently led to the longest government shutdown in the nation’s history.[1] Since the wall’s introduction, scientists and environmental groups have been among those vehemently protesting its construction due to the widespread negative effects it would have on the environment, including disrupted migratory patterns, fragmented or destroyed habitats, and increased greenhouse gas emissions.[2] Though this fight has largely played out within the walls of the Capitol and the White House, the Supreme Court was recently given, and quickly refused, the opportunity to address the issue. In December 2018, the Court declined to hear the appeal of three conservation groups hoping to block construction on sections of the wall by arguing that the administration’s noncompliance with key federal environmental laws was unconstitutional.[3]

The Animal Legal Defense Fund, Defenders of Wildlife, and the Center for Biological Diversity consolidated three individual lawsuits in October 2017 against the Department of Homeland Security (DHS) in the District Court for the Southern District of California. The lawsuits challenged the Secretary’s waiver of key environmental laws to allow construction projects to move forward that would replace existing fencing and construct border wall prototypes in southern California.[4] Following an Executive Order[5] from President Trump, in August and September 2017, then-Secretary John Kelly and Acting Secretary Elaine Duke, respectively, waived the application of the National Environmental Policy Act of 1969 (NEPA),[6] the Endangered Species Act (ESA),[7] and the Coastal Zone Management Act (CZMA)[8] to “various border infrastructure projects.”[9]  The waivers concerned two types of construction projects, including the replacement of fifteen miles of existing border fence in San Diego, which included part of California’s coastal zone governed by CZMA and one of the only two intact estuaries in California.[10] These waivers allowed construction along the border to continue without regard for whether it violated environmental regulations. Wall construction proceeded “without the necessary depth of environmental impact analysis, development of less-damaging alternative strategies, postconstruction environmental monitoring, mitigation, [or] public input . . .”[11]

The waivers were permitted by the Real ID Act, an amendment to Section 102(c) of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Section 102(c) now allows the Secretary of DHS to waive, at his or her sole discretion, all legal compliance with any federal law to “ensure expeditious construction” of barriers along the U.S.-Mexico border.[12] The law also restricts judicial challenges of the Secretary’s decisions to only those made on a constitutional basis and filed in federal district courts and requires appeals exclusively to the Supreme Court.[13] Since 2005, DHS has issued eight waivers, three of which have come from the Trump administration.[14]

In In re Border Infrastructure Environmental Litigation, the plaintiffs argued that this unfettered discretion of the Executive to waive federal laws violated the non-delegation doctrine and separation of powers and, therefore, the waivers of the environmental laws were improper.[15] The district court granted the government’s motion for summary judgment, holding that the IIRIRA amendment was a constitutional exercise of Congress’ authority and DHS acted well within its power under the statute.[16]  The plaintiffs promptly filed a petition for a writ of certiorari to the Supreme Court.[17]  Beyond the constitutional arguments, they emphasized the consequences of these waivers, discussing the environmental impact the border projects would have on the habitats of rare animals and plants, such as the burrowing owl and Tecate cypress.[18] However, these arguments were insufficient and, despite two amici briefs filed in support of Petitioners, the Supreme Court denied certiorari.[19]

This case represents just one small part of the much larger fight over border wall construction. Waivers of these environmental laws give the Executive seemingly unrestrained freedom to construct border walls and fencing as quickly as possible without consideration for the effects on the surrounding plant, animal, and water populations. Although this particular legal challenge was unsuccessful, continuous efforts are being made to shed light on these environmental risks. Scientists around the world have outlined recommendations for Congress and DHS to minimize this threat.[20] First, they urge adherence to the legal framework of these environmental laws, despite the ability to waive their applicability and enforcement. If waivers are utilized, scientists urge “analysis, mitigation, . . . and public participation” before acting. Second, before any construction or security operations take place, DHS should work with the U.S. and Mexican governments to survey the species and habitats at risk. Third, mitigation should be prioritized by designing the barriers in the least disruptive way to critical habitats, particularly those of endangered species. Finally, DHS should facilitate scientific research along the border by instructing Border Patrol agents when and where to expect researchers.[21]

Environmental issues will clearly continue to be one of the many factors complicating this heated political battle between Congress and the White House. One thing that is less clear, however, is when the Supreme Court will throw their hat in the ring, as well.

 

[1] Mihir Zaveri et al., The Government Shutdown Was the Longest Ever. Here’s the History, N.Y. Times (Jan. 25, 2019), https://www.nytimes.com/interactive/2019/01/09/us/politics/longest-government-shutdown.html.

[2] Erika Bolstad, Trump’s Wall Could Cause Serious Environmental Damage, Scientific American (Jan. 26, 2017), https://www.scientificamerican.com/article/trumps-wall-could-cause-serious-environmental-damage/.

[3] Animal Legal Def. Fund v. Homeland Sec., 139 S. Ct. 594 (2018); Andrew Chung, U.S. Top Court Snubs Environmental Challenge to Trump’s Border Wall, Reuters (Dec. 3, 2018), https://www.reuters.com/article/us-usa-court-border/u-s-top-court-snubs-environmental-challenge-to-trumps-border-wall-idUSKBN1O21QI.

[4] In re Border Infrastructure Envt’l Litig., 284 F. Supp. 3d 1092, 1102 (S.D. Cal. 2018).

[5] Exec. Order No. 13,767, 82 Fed. Reg. 8,793 (Jan. 25, 2017).

[6] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321, 4331—4335, 4341—4347 (2018).

[7] Endangered Species Act, 16 U.S.C. § 1531 (2018).

[8] Coastal Zone Management Act, 16 U.S.C. § 1451 (2018).

[9] In re Border Infrastructure Envt’l Litig., 284 F. Supp. 3d at 1106.

[10] Petition for Writ of Certiorari at 9, Animal Legal Def. Fund v. Homeland Sec., 139 S. Ct. 594 (2018) (No. 18-247).

[11] Robert Peters et al., Nature Divided, Scientists United: US-Mexico Border Wall Threatens Biodiversity and Binational Conservation, 68 BioScience 740, 740 (2018).

[12] Illegal Immigration Reform and Immigrant Responsibility Act of 1996 § 102(c)(1), 8 U.S.C. § 1103 note (1996), amended by Real ID Act of 2005, Pub. L. No. 109-13 Div. B, Title I § 102, 119 Stat. 231 (2005).

[13] Id. § 102(c)(2).

[14] Peters, supra note 11, at 740.

[15] In re Border Infrastructure Envt’l Litig., 284 F. Supp. 3d at 1131.

[16] Id. at 1126, 1137.

[17] Petition for Writ of Certiorari, supra note 10, at 1.

[18] Id. at 9.

[19] See Animal Legal Def. Fund, 139 S. Ct. 594; Brief for The Cato Institute as Amicus Curiae Supporting Petitioners, Animal Legal Def. Fund v. Homeland Sec., 139 S. Ct. 594 (2018) (No. 18-247); Brief for Nine Members of the U.S. House of Representatives as Amici Curiae Supporting Petitioners, Animal Legal Def. Fund v. Homeland Sec., 139 S. Ct. 594 (2018) (No. 18-247).

[20] Peters, supra note 11, at 742.

[21] Id. at 742-43.