Last week, a district court ruled that CIS’s lawsuit, Massachusetts Coalition for Immigration Reform (MCIR) et al, vs. Department of Homeland Security et al, can proceed against the Biden administration for failing to conduct environmental analysis under the National Environmental Policy Act (NEPA) of its major immigration policies that have vastly increased the numbers of people crossing the border unlawfully.
NEPA has been the law of the land since 1970, when it was passed by Congress, driven in large part due to concern over “the profound influences of population growth”. The function of NEPA (42 U.S.C, § 4331(a)) was to provide a mechanism that would provide a degree of public transparency and accountability over the environmentally significant decisions of the federal bureaucracy. Despite this explicit congressional concern, federal agencies never initiated NEPA review for any of their immigration actions, even as increasingly higher immigration levels became responsible for a larger and larger proportion of the country’s total population growth.
CIS filed its amended complaint last September against the Department of Homeland Security, the Department of State, and the Department of Justice in the U.S. District Court for the District of Columbia on behalf of the MCIR, a citizen group that believes immigration levels should be lowered for environmental reasons, and six individual citizens that includes residents of Arizona, Minnesota, and Pennsylvania. Our amended complaint alleged that the Biden administration’s failure to do any environmental analysis before implementing the immigration policies that created the crisis at the border violated NEPA.
The policies being challenged include the administration's attempt to end the Migrant Protection Protocols, better known as the Remain in Mexico, ending construction of the border wall, the creation of parole programs for Afghani and Central American nationals, the expansion of refugee programs, placing limitations on enforcement actions by both Customs and Border Protection and Immigration and Customs Enforcement, and the reinstatement of administrative closure in deportation proceedings. CIS also challenged the Department of Homeland Security's NEPA procedures, alleging that DHS should have conducted a programmatic environmental impact statement over all of these policies.
NEPA requires that federal agencies conduct environmental analysis and solicit public input before carrying out policies that “significantly impact the human environment”. These policies were implemented unilaterally by the Biden administration and have led to millions of foreign nationals entering and settling in the United States. They are the quintessential type of actions that NEPA, which was passed out of a concern for population growth, seeks to address.
The federal government filed a motion to dismiss CIS’s claims, arguing that plaintiffs had not been injured by the government’s conduct but by the actions of foreign nationals, and therefore did not have standing to bring any claims against the government for the actions it took on immigration. The government also argued that the Immigration and Nationality Act (INA) prevents citizens from bringing many of the claims and that the Biden administration could use the Trump administration’s NEPA waiver to build the wall to halt construction on the wall. It also argued that CIS could not challenge DHS’s NEPA procedures themselves and could not seek programmatic relief.
The district court rejected the government’s standing argument, its arguments that the INA prevents plaintiffs from bringing NEPA claims against these immigration actions, and its NEPA waiver arguments. The court only accepted the government’s arguments that plaintiffs could not challenge DHS’s NEPA procedures themselves and could not seek a programmatic impact statement. (See plaintiff’s opposition to the government’s motion to dismiss, here).
The court ruled that at least one of CIS’s plaintiffs, Chance Smith, a rancher who lives and works on the southern border in Arizona, has standing to sue at this stage of litigation. (Plaintiffs in general have the burden to prove they have standing at each phase of litigation.) In his ruling, Judge Trevor McFadden noted that Smith had alleged that “increased illegal immigration across the southern border has harmed his ranch and the surrounding environment” and that border crossers have set fires and left “trash, campsites and blankets in their wake”. Judge McFadden noted “that the number of border crossers has skyrocketed since President Biden’s inauguration.” To reject Smith’s case for standing at this stage of litigation, the judge found, would “unduly” narrow standing even when the government’s conduct had a “determinative” effect on the actions of a third party.
Judge McFadden also rejected the government’s arguments that the Biden administration could use the Trump administration’s NEPA waiver to expedite border wall construction in order to terminate border wall construction. He noted that “it is highly doubtful that the justification for an action can also explain its opposite.” The ruling also found that the Immigration and Nationality Act does not strip jurisdiction from the courts in the context of plaintiff’s challenging the government for failing to conduct NEPA review.
According to plaintiff Smith, the crossings at the border are worse than ever. Now that most of the claims have survived a motion to dismiss, the case will proceed to litigate the merits of whether the Biden administration’s actions on immigration have had significant environmental impacts, and if those impacts have been felt by the plaintiffs in this case.