Center for Biological Diversity v. Department of Homeland Security, No. 18-55474 (9th Cir. 2019)
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The Ninth Circuit affirmed the district court's grant of summary judgment for DHS in an action challenging DHS's authority to expedite construction of border barriers near San Diego and Calexico, California. On January 25, 2017, President Trump issued Executive Order 13,767, directing federal agencies to deploy all lawful means to secure the Nation's southern border. A focal point of the directive was to immediately construct a physical wall.
As a threshold matter, the panel held that it had jurisdiction to consider the "predicate legal question" of whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) authorizes the contested projects. On the merits, the panel held that IIRIRA section 102(a)'s broad grant of authority, which was not limited by section 102(b), authorized the construction projects. The panel affirmed the district court's grant of summary judgment to DHS, holding that the projects were statutorily authorized and therefore not ultra vires. The panel also held that DHS has waived the environmental laws California and environmental groups sought to enforce. Furthermore, the panel lacked jurisdiction to consider any argument challenging the Secretary of DHS's August and September 2017 waivers of applicable environmental laws.
Court Description: Environmental Law / Homeland Security. The panel affirmed the district court’s summary judgment entered in favor of the U.S Department of Homeland Security (“DHS”) in cases involving challenges by the State of California and environmental groups to DHS’s authority to expedite construction of border barriers near San Diego and Calexico, California, and the Secretary of DHS’s August and September 2017 waivers of applicable environmental laws. Pursuant to Executive Order 13,767, the Secretary of DHS invoked section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) to waive federal laws with respect to border barrier construction projects along the border between the United States and Mexico. The plaintiffs’ “ultra vires claims” alleged that DHS exceeded its statutory authority in working on the border barrier projects and issuing the related waivers in violation of the Administrative Procedure Act (“APA”). The plaintiffs’ “environmental claims” alleged that in planning and building the border barrier projects, DHS violated federal environmental laws. As a threshold matter, the panel held that they had jurisdiction to consider the “predicate legal question” of
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