Ctr. for Biological Diversity v. McAleenan

Ctr. for Biological Diversity v. McAleenan

Opinion

 [*223]  MEMORANDUM OPINION

More than 20 years ago, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("the IIRIRA" or "the Act"), an immigration and border-security reform statute that was  [*224]  intended, in substantial part, "to improve deterrence of illegal immigration to the United States[.]" H.R. Rep. No. 104-828, at 1 (1996) (Conf. Rep.); see also Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C., Title I, 110 Stat. 3009-546 (1996). To that end, Congress expressly authorized the erection of physical barriers and roads "in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry[,]" Pub. L. No. 104-208, Div. C., Title I, § 102(a), 110 Stat. 3009-546, 554 (1996), and it specifically identified the border near San Diego, California, as one such area, id. § 102(b). Moreover, in order to facilitate swift construction of these new border barriers, Congress authorized [**3]  the Attorney General of the United States to waive otherwise-applicable provisions of two environmental statutes—the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. § 1531-44, and the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321-4370m-12—to the extent "necessary[,]" as determined by the Attorney General. Pub. L. No. 104-208, Div. C., Title I, § 102(c), 110 Stat. 3009-546, 554 (1996). Significantly for present purposes, in the 23 years that have transpired since the initial passage of the IIRIRA, Congress has amended the statute not only to identify additional priority areas for construction, see Secure Fence Act of 2006, Pub. L. No. 109-367, § 3, 120 Stat. 2638, 2638-39 (2006); Dep't of Homeland Sec. Appropriations Act, 2008, Pub. L. No. 110-161, § 564, 121 Stat. 1844, 2090-91 (2008), but also to expand the waiver authority to include all laws (not just the two environmental statutes), and to limit significantly the jurisdiction of the federal courts to adjudicate challenges to waivers that are issued pursuant to the IIRIRA's rapid-construction mandate, see REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, Title I, § 102, 119 Stat. 231, 306 (2005).

The scope of the IIRIRA's waiver authorization and this Court's ability to consider legal actions that contest the government's waiver of environmental laws to speed the construction of border barriers are the core legal issues in the instant case. On January 22, 2018, the [**4]  Secretary of the Department of Homeland Security ("DHS") announced that DHS was invoking the IIRIRA to waive the application of 25 laws with respect to the construction of physical barriers along a 20-mile stretch of the border in New Mexico (hereinafter "the New Mexico Waiver"). See Determination Pursuant to Section 102 of the IIRIRA, as Amended, 83 Fed. Reg. 3,012, 3,013-14 (Jan. 22, 2018). Plaintiffs Center for Biological Diversity, Southwest Environmental Center, Defenders of Wildlife, and Animal Legal Defense Fund ("Plaintiffs") have brought the instant action to contest the DHS Secretary's waiver decision; they claim, primarily, that the Secretary's waiver determination is ultra vires and unlawful "because it exceeds the limited grant of authority for such waivers contained in IIRIRA Section 102," (Compl., ECF No. 1, ¶ 2), and that the New Mexico Waiver "will have numerous negative impacts on the wildlife, plants, and the sensitive biological habitats on and near the proposed" project site (id. ¶ 60). Plaintiffs also insist that the IIRIRA's waiver authority is unconstitutional in various ways. (See id. ¶ 2 ("[A]ny interpretation of [IIRIRA] Section 102 that would sanction the issuance of the New Mexico Waiver would render this statutory provision so broad and unbounded in scope that it [**5]  would run afoul of the [c]onstitutional principles of Separation of Powers, the Non-Delegation Doctrine, the Presentment Clause and other constitutional provisions.").)

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