Overview
The U.S. Federal District Court of the D.C. District has held that the failure of the Biden Administration to stop construction on the U.S./Mexico border wall and the termination of the Trump Administration “Remain in Mexico” policy is a violation of federal environmental law. In so holding the court has confirmed that the government must consider the economic impact on the environment of discontinuing federal projects. The court’s decision is critical for farmers, ranchers and other property owners along or near the border area.
NEPA
The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. §§ 4321-4370b) was one of the first modern environmental statutes and remains one of the most important. The NEPA established the Council on Environmental Quality in the Office of the President which functions to assist and advise the President in preparing an annual environmental quality report to the Congress. Under NEPA, President Nixon created the Environmental Protection Agency (EPA) in 1970 as an independent agency within the executive branch to deal with environmental matters. The creation of the EPA was Congress' response to nationwide pressure for the adoption of a national policy designed to protect the environment. The congressional declaration of national environmental policy is set forth at 42 U.S.C. § 4331.
Perhaps NEPA's most significant feature is that it requires government agencies to file an environmental impact statement (EIS) before taking any action that would have a significant environmental impact. An EIS must address the environmental cost and benefit of the proposed project, the optimal location for a new facility in terms of limiting adverse effects on the environment, and the use of best available technology to minimize risks. NEPA also requires the consideration of alternatives for a project or aspects thereof in terms of environmental impact. For example, in Union Neighbors United, Inc. v. Jewell, 831 F.3d 564 (D.C. Cir. 2016), the court held that the U.S. Fish and Wildlife Service did not consider the benefit that implementing a cut in the blade speed of wind energy generators at an energy company’s commercial wind energy project would have on bats rather than simply implementing a shut-down at night. This failure to consider any economically feasible alternative that would take fewer bats (a federally listed endangered species) meant that the EIS lacked a reasonable range of alternatives (as required by 42 U.S.C. §4332 (C)(iii)) and rendered the issuance of an incidental take permit under the Endangered Species Act arbitrary and capricious. NEPA was not complied with.
To date, the courts have considered whether a NEPA violation occurs when a project is proposed to be undertaken. There has been no consideration of whether a NEPA violation could occur when a federal project was being discontinued. Does NEPA require an EIS in that situation? If the concern of NEPA is on the environment, that question would clearly be answered in the affirmative. The discontinuation of an existing project could have environmental impacts just the same as the proposal and operation of a project could. That was the claim of a rancher in a recent case.
The Arizona Border Matter
In Massachusetts Coalition for Immigration Reform, et al. v. United States Department of Homeland Security, et al., No. 1:20-cv-03438, 2024 U.S. Dist. LEXIS 175303 (D. D.C. Sept. 27, 2024), a rancher whose property was on the Arizona/Mexico border, claimed that the Biden Administration violated NEPA because the federal government failed to analyze how stopping construction on the Trump Administration’s border wall and terminating the Trump policy of returning illegal immigrants to Mexico (“Remain in Mexico” policy) would impact the environment. The court, determining that the plaintiff had standing, noted the plaintiff’s testimony that illegal immigrants trespassed onto his land, stole his water and trashed his property. The court also found critical the testimony of federal border officials that the Biden Administration’s policy (or lack thereof) caused a massive increase in illegal immigration that overwhelmed resources and caused damage to the environment and the local ecology. Some of the rancher’s cattle ate the trash left behind and died.
The court determined that the federal government has a duty under NEPA to conduct an environmental analysis as a prerequisite to ending an existing federal project, especially one that created such great environmental harm and damage to private property. The court rejected the government’s argument that ending the border wall construction project was not a major federal action and, thus, didn’t require a NEPA analysis. The court also rejected the government’s claim that obtaining a construction waiver under the Illegal Immigration Reform and Immigration Responsibility Act absolved the government of its NEPA obligations. The court specified that the only matter left for resolution is the appropriate remedy for the rancher that would make him whole and protect his property rights – a fundamental constitutional right.
Conclusion
The court’s decision involving the Arizona rancher is a victory for property rights and provides a construction of NEPA that ensures that the environmental impacts of federal government projects is taken into account when a project is proposed as well as when an existing project is discontinued. That is particularly key point when the purpose of the federal project at issue is to prevent activity that is in violation of federal law.