SAN DIEGO (CN) – A federal judge on Sunday denied a request by environmental groups and scientists who believe immigration contributes to climate change to review seven immigration statutes for possible violations of the National Environmental Policy Act.
Whitewater Draw Natural Resource Conservation District and multiple “population stabilization” groups from California, Arizona, Colorado, New Mexico and Florida sued the Department of Homeland Security in 2016 for failing to analyze the environmental impacts of immigration pursuant to terms outlined out by the act, commonly referred to as NEPA.
The groups claim immigration is a major cause of population growth, which in turn has a significant impact on the environment, and that “DHS is required to subject all proceedings having to do with immigration to a NEPA analysis, and its failure to do so harmed plaintiffs by degrading the environment.”
According to the Center for Immigration Studies, which is litigating the case, the lawsuit is the first legal challenge in the country to Department of Homeland Securities procedures under NEPA.
The groups brought suit under the Administrative Procedures Act, since NEPA itself does not provide for judicial review of agency actions. They claimed the department’s manual on NEPA procedures violates the act because it does not require immigration procedures comply with it.
They also claimed the department failed to engage in NEPA review with respect to seven immigration statutes: employment-based immigration; family-based immigration; long-term nonimmigrant visas; parole, Temporary Protected Status (TPS); refugees and asylum; and, the Deferred Action for Childhood Arrivals (DACA) program.
U.S. District Judge James Lorenz found in his 9-page order the Homeland Security manual on NEPA procedures does not represent a “final agency action” since it does not “make any decision” but is “a decision-making tool.”
“The manual informs agency employees of what to consider in evaluating a program under NEPA, provides guidance on which DHS actions NEPA applies to, and sets forth procedures for NEPA’s implementation. It does not make any decision,” Lorenz wrote.
Because “the manual does not impose any obligations or consequences” that are not already imposed by NEPA itself, it does not constitute a “final agency action” which the court could review under the Administrative Procedures Act, Lorenz found.
As for the request to review the seven immigration statutes, Lorenz rejected Whitewater Draw’s claim they are subject to judicial review because they are “programs” requiring “programmatic environmental analysis.”
“What plaintiffs propose here is broad programmatic review of DHS actions under seven immigration statutes and a non-enforcement policy relative to its NEPA obligations. This is precisely the type of APA review that was rejected … as not constituting the requisite ‘final agency action,’” Lorenz wrote.
The “whole categories of DHS actions, each of which includes many regulations and policy memoranda … are for the other branches” to review whether by the department itself or by Congress, Lorenz found.
Lorenz also rejected granting Whitewater Draw leave to amend its complaint, finding it would be “futile.”
The plaintiffs are represented by Julie Axelrod with the Center for Immigration Studies in Washington. She did not immediately return phone and email requests for comment.
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