The U.S. Federal District Court of the D.C. District has held that the Biden Administration’s failure to build a border wall between the United States and Mexico and its termination of the Trump Administration’s “Remain in Mexico” policy violates federal environmental law.
In so holding, the court confirmed that the federal government must consider the economic and environmental impacts of discontinuing federal projects. The court’s decision is critical for farmers, ranchers, and other property owners along or near the Southern border.
What is 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. NEPA established the Council on Environmental Quality in the Office of the President, which assists and advises the President in preparing an annual environmental quality report for Congress.
In 1970, under NEPA, President Richard Nixon created the Environmental Protection Agency (EPA) as an independent agency within the executive branch that dealt with environmental matters. The creation of the EPA was Congress’ response to nationwide pressure to adopt 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 proposed project’s environmental cost and benefit, the optimal location for a new facility in terms of limiting adverse environmental effects, and the use of the 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 and out of compliance with NEPA.
The Arizona Border Matter
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 recent court case involving 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 undocumented migrants to Mexico (“Remain in Mexico” policy) would impact the environment.
The court, determining that the plaintiff had standing, noted the plaintiff’s testimony that undocumented migrants 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’s Decision
The court determined that the federal government has a duty under NEPA to conduct an environmental analysis before ending an existing federal project, especially one that creates undue environmental harm or damage to private property.
The court rejected the government’s argument that ending the border wall construction project was not a significant federal action and, thus, did not 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 unresolved matter was determining an appropriate remedy for the rancher to 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. It provides a construction of NEPA that ensures that environmental impacts are considered when federal government projects are proposed and when an existing project might be discontinued. That is particularly key when the purpose of the federal project at issue is to prevent activity that violates federal law.
