On Friday, in a substantial win for American citizens harmed by the Biden-Harris administration’s open-borders policies, a federal judge for the first time held the Department of Homeland Security (DHS) accountable for violating the National Environmental Policy Act (NEPA) when taking immigration actions that “unsecured the border almost overnight”. The case is Massachusetts Coalition for Immigration Reform v. Department of Homeland Security.
Signed into law by President Nixon on January 1, 1970, NEPA was the first of several major environmental laws passed in the 1970s. NEPA declared a national policy to protect the environment, born out of a concern over population growth. To implement that policy, NEPA requires federal agencies to provide a detailed statement of environmental impacts, subsequently referred to as an environmental impact statement (EIS), for every recommendation or report on proposals for legislation and other major federal action significantly affecting the quality of the human environment.
Though deliberately letting millions of people into the country is an environmentally significant policy, neither DHS nor any of the federal agencies responsible for immigration policy, including the Department of State and legacy Immigration and Naturalization Service (INS) agencies, have ever performed NEPA compliance at any level before carrying out actions that expand immigration.
Though such a failure is manifestly a violation of NEPA, over the decades agencies have generally shirked their responsibilities under the law unless forced into compliance by persistent (and expensive) litigation. Unfortunately, the environmental movement, though extremely well-funded as a whole, has simply chosen to ignore the environmental effects of out-of-control immigration. The Center for Immigration Studies has stepped in and has, since 2021, been litigating claims against the Biden administration’s flagrant NEPA violations in the area of immigration in the U.S. District Court of the District of Columbia on behalf of a number of concerned citizens, including ranchers who live on the Arizona border.
After several rounds of briefing, U.S. District Judge Trevor McFadden determined that he would hold a bench trial to determine whether the Biden-Harris administration’s actions in terminating the border wall and ending Remain in Mexico had, by a preponderance of the evidence, caused the border crisis that harmed the border plaintiffs, reasoning that, if those policies had caused the crisis, the border plaintiffs would have standing to bring the case. In the environmental context, plaintiffs have standing if they can show they personally suffered environmental harms because of the policy at issue. The bench trial only addressed these narrow standing issues, rather than the merits. Give the comprehensive nature of DHS’s failure to comply with NEPA altogether, DHS focused on simply preventing the case from reaching the merits, rather than putting forth a serious argument that they had complied with the law.
The trial was held on July 31 and August 1. At trial, the Center called as expert witnesses on causation former Acting Commissioner of Customs and Border Protection Mark Morgan and former Chief of the Border Patrol Rodney Scott. While DHS tried aggressively to disqualify both witnesses as not credible experts on border security, the court found both to be qualified. They explained how the wall and the Remain in Mexico policy were critical pillars in their border security strategy, whose termination indubitably caused the crisis.
DHS attempted to discredit these high-level officials’ testimony by calling an economist from Northwestern University. This economist, having read 16 articles about immigration before coming to his conclusions, stated that he thought Chief Scott and Commissioner Morgan would have had to have used methods of social science in order to know if their policies were effective or not. In his opinion released Friday, Judge McFadden found the Center’s witnesses credible, holding that Chief Scott had credibly determined that “Overnight, the United States ‘went from having a very secure border’ back to a policy of ‘catch and release’ without any ‘physical deterrent’ to illegal crossings.” The judge also found that the economist DHS called as their sole expert witness testified to conclusions that “meandered beyond his area of expertise” and were “worthy of little value”.
Therefore, the court found that the Center had proved standing. Judge McFadden concluded: “Presidential administrations enjoy significant discretion in the enforcement of our Nation’s immigration laws and protection of our borders. But this latitude does not license violations of other laws.”
The Center’s case is not over, however: The question remains what kind of remedy would be appropriate in these particular circumstances. The court ordered briefing to occur on appropriate remedies for these NEPA violations from October 25 to December 20. Regardless of what results the briefing on remedies bring, the Center is extremely pleased to have vindicated the rights of American citizens under NEPA. Congress passed NEPA to stop reckless and environmentally destructive policies implemented without the slightest consideration of the needs of American citizens. The Biden-Harris administration has engaged in just such reckless policies since day one, and it is a very positive step for those harmed to finally have a voice that has been heard in the courts.