In re: Border Infrastructure Environmental Litigation

The federal district court for the Southern District of California rejected challenges to waivers of environmental laws granted by the Department of Homeland Security (DHS) for certain types of border wall construction projects in San Diego County. DHS had waived the requirements of the National Environmental Policy Act, the Endangered Species Act, the Coastal Zone Management Act, and other laws pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. California and the California Coastal Commission—the plaintiffs in one of the three actions challenging the waivers—alleged that impacts of the projects’ construction on climate change were some of the impacts that would not be assessed as a result of the waivers. In its decision granting summary judgment to DHS and the other defendants, the court found that the defendants had not violated any “clear and mandatory” obligations in Section 102 and that in the absence of any such violations Section 102 established a jurisdictional bar to hearing any non-constitutional claims. The court rejected all of the plaintiffs’ constitutional claims. The court found that Section 102 did not violate the non-delegation doctrine or separation of powers principles; the Take Care Clause; Article I, Sections 2 and 3; the Presentment Clause (Article I, Section 7); constitutional protections of rights to petition the government and the courts; or the Tenth Amendment.

The People of the State of California and the California Coastal Commission filed a lawsuit in the federal district court for the Southern District of California alleging that the construction of a border wall and other border barrier projects would violate the National Environmental Policy Act, the Coastal Zone Management Act, and the Administrative Procedure Act. They contended that the Secretary and Acting Secretary of Homeland Security had acted outside their authority in authorizing and waiving review requirements for two border wall projects in California under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The complaint alleged that the impacts of the projects’ construction on climate change would not be quantified or assessed as a result of the waivers. The plaintiffs also asserted that the waivers and the section of the IIRIRA pursuant to which the secretaries acted were unconstitutional.

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