ICE Changes Environmental Review Plan for Detention Centers

US Immigration and Customs Enforcement appears to be shifting its strategy as it faces environmental review headwinds in its campaign to buy and convert warehouses into detention centers across the country.

The Department of Homeland Security is now conducting National Environmental Policy Act reviews for two proposed facilities in New Jersey and Maryland, marking a policy shift after the agency initially exempted the projects from the months-long study process.

On Wednesday, a federal judge in Michigan will hold a status conference in the state’s lawsuit over a proposed facility in Romulus, signaling another potential agreement to conduct a NEPA review may have been reached following the cancellation of a preliminary injunction hearing earlier in the week.

Michigan’s lawsuit says the warehouse is located in a floodplain and has only one sewer line that can’t handle the needs of the planned 500 detainees and staff.

While Maryland and New Jersey reached agreements with DHS to study impacts to local water supply and sewage systems, a spokesperson for Wayne County, Mich., said the agency hasn’t reached out or engaged in the consultation process required for a building retrofitting project of this caliber.

“We’ve received no permitting request whatsoever,” said Matt Allen, a director of communications for Wayne County.

Addressing Impacts

The NEPA processes at least temporarily delay parts of the Trump administration’s Detention Reengineering Initiative, a $38.3 billion plan that calls for acquiring eight large-scale detention centers. Even with fewer guidelines on the extent of environmental studies, states argue ICE must consider cumulative impacts and open the findings to public comment.

Maryland and New Jersey also challenged the agency’s plan to convert commercial properties into federal detention facilities, alleging the renovations would change the functional nature of the properties and require a study on possible impacts on local sewage systems and water supplies. Several of these warehouses only have a few working bathrooms and are slated to hold up to 1,500 detainees.

A DHS spokesperson said in a statement that “ICE carefully evaluates the use of existing facilities to help minimize environmental impacts, including potential impacts to protected species, sensitive natural resources, and valued cultural resources.”

The agency’s initial rapid pace of buying properties and issuing categorical environmental review exclusions to expedite construction echoes a strategy the Trump administration has applied to changing historic sites in Washington and allowing more development on federal lands.

Last month, a federal judge in Maryland struck down the categorical exclusions DHS invoked, stating the agency didn’t clear the “low bar” of highly deferential judicial review under the Administrative Procedure Act. The warehouse acquisition and renovation change the functional use of the property and will exceed existing support infrastructure capacities, the opinion said.

Justin Pidot, a law professor at the University of Arizona and former counsel for the White House Council on Environmental Quality, said categorical exclusions from NEPA review are supposed to be applied to routine activities, and this campaign to convert industrial warehouses into immigration detention centers “raises understandable skepticism.”

“I don’t think it’s the kind of activity that we’ve ever seen agencies engaged in, certainly not this scale where there is a concerted effort to make very aggressive use of categorical exclusions for entirely new kinds of things,” he said.

Laurel Jobe, an attorney with the conservation nonprofit Center for Biological Diversity, said there’s a chance DHS would forego a more extensive environmental impact study for the detention center slated for Williamsport, Md. However, she said challengers can target the department’s resulting potential “finding of no significant impact” for ignoring risks to a municipality’s protected waterways.

“If you put additional human health development, there’s an additional risk of overloading the system,” Jobe said. “There’s a lot more to consider than simply the species inhabiting the area. There’s a wide range of effects and we just don’t know the extent of them right now.”

Alligator Alcatraz Status

Florida’s temporary facility dubbed “Alligator Alcatraz” was also the subject of environmental litigation that once blocked its operation. Environmental groups argue recent federal reimbursement for the state’s construction of the detention center triggers NEPA review.

In a statement Tuesday, plaintiff Friends of the Everglades cited reporting from the outlet Florida Phoenix that the state received $58.2 million from the Federal Emergency Management Agency last week, marking the first federal reimbursement for the facility.

Groups will argue the federal funds trigger the environmental statute as the detention center now falls under the definition of a “major federal action.” The federal district court has yet to resume jurisdiction of the case after the Eleventh Circuit ruled the facility’s construction didn’t amount to a major federal action.

Gov. Ron DeSantis (R) said earlier this month that the potential closure of the facility was in discussion. However, DHS denied that it was exerting pressure to close the facility.