Product Liability & Toxics Law News

Trump’s Border Barriers Survive California Environment Challenge

Feb. 11, 2019, 5:54 PM

California can’t use a lack of environmental compliance to halt the Trump administration’s plans to construct border barriers near San Diego and Calexico, Calif., the Ninth Circuit ruled.

The projects may proceed because they are statutorily authorized and the U.S. Department of Homeland Security waived the applicable environmental laws, the court said.

In Federal Register notices issued in August and September 2017, the agency, citing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), said it was waiving applicable environmental laws “with respect to the construction of roads and physical barriers.”

The state and several environmental groups—the Center for Biological Diversity, Defenders of Wildlife, Sierra Club, and Animal Legal Defense Fund—filed suit, challenging the waivers and seeking to enjoin the barrier projects.

The plaintiffs said the DHS exceeded its statutory authority in working on the border barrier projects and issuing the waivers, thus violating the Administrative Procedure Act.

They also alleged that in planning and building the border barrier projects, the DHS violated the National Environmental Policy Act and the Coastal Zone Management Act.

Rejecting the claims, the U.S. Court of Appeals for the Ninth Circuit Feb. 11 said the San Diego and Calexico projects are authorized under the plain language of the IIRIRA.

And the claims related to environmental noncompliance are barred by the DHS’s waiver of the other statutes, the court said.

Judge M. Margaret McKeown wrote the opinion, joined by Judge Jacqueline H. Nguyen. Judge Consuelo M. Callahan dissented, saying the IIRIRA restricts appellate review to the U.S. Supreme Court.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is In re Border Infrastructure Env. Litig., (Center for Biological Diversity v. United States) , 9th Cir., No. 18-55474, 2/11/19.

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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