SAN DIEGO (CN) – The Ninth Circuit affirmed 2-1 Monday that the federal government was authorized to speed up border-wall construction near San Diego and Calexico, California, by waiving dozens of environmental laws.
In a 30-page opinion, U.S. Circuit Judges M. Margaret McKeown and Jacqueline Nguyen affirmed summary judgment in favor of the Department of Homeland Security. A handful of environmental organizations and California had brought the lawsuits, challenging the federal government’s waiver of 37 environmental laws under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Monday’s ruling says “the plain text” of the act “granted DHS authority to construct the border barrier projects.” The majority also found jurisdiction lacking to consider any challenge to the waivers themselves.
“Because the projects are statutorily authorized and DHS has waived the environmental laws California and the environmental groups seek to enforce, we affirm the district court’s grant of summary judgment to DHS,” McKeown wrote.
But Judge Consuelo Callahan disagreed the Ninth Circuit even had the authority to review the appeal, saying the act requires any appeal to go directly to the Supreme Court. Callahan, a George W. Bush appointee, made the same point during oral arguments in the case this past August, where she noted the government doesn’t “want it tied up in court forever.”
She said she would have dismissed the appeals entirely.
The litigation stemmed from one of President Donald Trump’s first actions upon taking office in 2017: the issue of an Executive Order directing federal agencies to secure the U.S.-Mexico border. By March, plans were in place to build border wall prototypes in the Otay Mesa area of San Diego County, in addition to replacing 14 miles of fencing from the Pacific Ocean eastward in San Diego.
In August 2017, Homeland Security waived over three dozen environmental laws to spur construction of the two projects. The waiver pointed out “San Diego Sector remains an area of high illegal entry for which there is an immediate need to construct additional border barriers and roads.”
Center for Biological Diversity senior attorney Brian Segee said in a statement the group is “disappointed the court is allowing the Trump administration’s abuse of power to continue.”
“Congress has ceded its authority to Trump, who has swept aside fundamental public safety and environmental laws to build walls that won’t work. This lawlessness is destroying irreplaceable ecosystems and militarizing communities. We’ll keep fighting against Trump’s wall in every way possible,” Segee said.
A spokesperson for California Attorney General Xavier Becerra also expressed disappointment with the ruling but is “pleased that the court recognized the Trump administration does not have unlimited power and that the administration’s authority to build a barrier along our border is subject to judicial review.”
In its order, the panel found the environmental groups’ and California’s ultra vires claims that Homeland Security exceeded its statutory authority in working on the border wall projects in violation of the Administrative Procedure Act don’t hold up.
The groups argued the Illegal Immigration Reform and Immigrant Responsibility Act only authorizes the construction of “additional physical barriers” but not replacing existing border fencing; the Ninth Circuit panel found “no such limitation.”
“Common sense also supports our analysis. To suggest that Congress would authorize DHS to build new border barriers but (impliedly) prohibit the maintenance, repair, and replacement of existing ones makes no practical sense,” McKeown wrote.
The panel also rejected arguments San Diego and Calexico are not “high areas of illegal entry” compared to other sectors along the Southwest border, and thus the waivers under the Illegal Immigration Reform and Immigrant Responsibility Act could not apply.
“The fact that there are areas with ‘higher illegal entry’ says nothing about whether the San Diego and El Centro sectors are ‘areas of high illegal entry.’ Even assuming that ‘areas of high illegal entry’ are identified relative to other border sectors, San Diego and El Centro are in the top 35 percent of border sectors with respect to the number of undocumented immigrants apprehended,” the panel found.
As for a portion of the act which called for completing construction of fencing by Dec. 31, 2008, the Ninth Circuit found the deadline did not establish limits on border infrastructure construction authorized under the act.
“Limits on the priority projects apply to those projects alone, not the wider universe of construction authorized by [the act],” the panel found.
Other lawsuits challenging border wall construction in the Rio Grande Valley and near the Santa Teresa Port of Entry in New Mexico are pending.
In other border-related news Monday, the American Immigration Council filed administrative claims for monetary damages on behalf of six-asylum seeking mothers and their children for trauma they suffered while separated under Trump’s now-abandoned zero-tolerance immigration policy. The parents and children claim they are suffering ongoing psychological trauma related to their separation.
Each claimant seeks $3 million.