ICE Facility Suits to Test Scope of Federal Environmental Review

Efforts to block the Trump administration’s massive push to open immigrant detention facilities across the country will test the limits of a US Supreme Court decision that scaled back the scope of challenges under the National Environmental Policy Act.

States and advocacy groups are using NEPA to block the construction of new detention centers, including a case slated for argument Tuesday before the Eleventh Circuit over the makeshift holding facility dubbed “Alligator Alcatraz.”

At the same time, the states of Maryland, Michigan, and New Jersey are separately pursuing litigation under the same environmental law to stop Immigration and Customs Enforcement from converting warehouses in their respective territories into detention centers.

The states’ lawsuits target the federal government’s direct purchase and renovation of warehouses without considering nearby environments, while the Alligator Alcatraz appeal centers on whether a facility built by a state but operated by DHS is subject to any judicial review.

A strong through line in the cases is a decision by the Homeland Security Department to completely forgo all engagement with the NEPA process requirements despite the existence of environmental review guidelines for federal incarceration facilities, said Andrew Mergen, a professor at Harvard Law School.

“They know how to think about NEPA and what needs to be done, but they just have a complete disregard for this, which is just sort of remarkable,” said Mergen, who previously worked in the Justice Department’s Environmental & Natural Resources Division.

Even with the differing arguments, the various plaintiffs face a judiciary increasingly reluctant to strike down projects under NEPA after the Supreme Court last year instructed judges to largely defer to agencies’ impact reviews in Seven County Infrastructure Coalition v. Eagle County.

In the Alligator Alcatraz case, the DOJ told the US Court of Appeals for the Eleventh Circuit that a federal judge’s decision to halt operations at the Florida-run detention center—which remains open following a hold put on that order—ran afoul of the Supreme Court’s instructions.

The plaintiffs point to various potential environmental problems that could stem from the quick construction of large detention centers: the groups challenging Alligator Alcatraz mention unstudied impacts on the Big Cypress National Preserve and nearby habitats for endangered species like the Florida panther, while the states focus on the lack of studies on the warehouses’ limited sewage capabilities, which risk surrounding water systems.

A DHS spokesperson said in a statement that the legal challenges aren’t about the environment, but “trying to stop President Trump from making America safe again.”

“They’re feigning concern now because they want those same illegal aliens to stay forever and vote here,” the statement said.

President Donald Trump and Florida Gov. Ron DeSantis toured the “Alligator Alcatraz” detention center in Ochopee, Fla., ahead of its July 2025 opening.

Photographer: Andrew Caballero-Reynolds/AFP via Getty Images

‘Major Federal Action’

Tuesday’s Eleventh Circuit arguments will center on whether Alligator Alcatraz is under “substantial federal control,” and thus subject to NEPA requirements.

The detention facility was constructed with state-provided funds, but the appeals court panel will examine whether the federal government’s representations that it would refund the state, plus the DHS’ ultimate operation of the holding center, are enough to classify the development as a “major federal action” that triggers NEPA’s environmental review mandates.

Congress narrowed the definition of this threshold in the 2023 Fiscal Responsibility Act, stating that the term doesn’t include projects “with no or minimal federal funding” or those with federal funding assistance where the government doesn’t provide “sufficient control and responsibility over the subsequent use of such financial assistance.”

The courts have yet to rule on the scope of the FRA’s requirements for federal government involvement or representations of federal reimbursements, said Robert Glicksman, a professor of environmental law at the George Washington University School of Law.

Even if the panel accepts the government’s arguments that DHS didn’t control Alligator Alcatraz’s initial construction, if the federal funds are finalized and the agency ultimately takes control of the facility, “that would then trigger NEPA review,” Glicksman said.

The Eleventh Circuit previously stayed a court order blocking further development of the detention facility.

Judge Barbara Lagoa, a Trump appointee, said the judge’s preliminary injunction couldn’t apply under NEPA because DHS only announced it would commit $600 million and hadn’t finalized such funding, and because the state had control of construction.

Seven County Questions

The NEPA challenges against the detention facilities also test whether the Supreme Court’s instructions in Seven County can apply in cases where the federal government argues the environmental statute doesn’t apply.

Justice Brett Kavanaugh, who authored the unanimous opinion, said NEPA should be considered a “purely procedural statute,” and courts’ only role under the law is “to confirm that the agency has addressed environmental consequences and feasible alternatives.”

The DOJ said in its briefs that the lower court order barring further construction of the Florida facility “usurped agency discretion on the timing and scope of their NEPA analyses,” as Seven County includes “deference to decisions to wait to perform a NEPA analysis until a major federal action such as a funding request is proposed.”

However, environmental litigators note the Supreme Court’s “course correction” on NEPA relies on the existence of an environmental review in the first place.

“It’s a separate question whether or not the court should be deferential to determinations that NEPA doesn’t apply,” Glicksman said. “There is a good argument that the deferential posture in Seven County only applies once NEPA compliance has begun.”

The case is Friends of the Everglades, Inc. v. Sec’y of the US Dep’t of Homeland Sec., 11th Cir., No. 25-12873, oral arguments scheduled 4/7/26.