A novel border argument: Immigration policy requires an environmental impact statement

Arizona Attorney General Mark Brnovich has filed a suit in federal court in which he claims that Biden’s immigration policy has violated the National Environmental Policy Act (NEPA).

Brnovich’s complaint alleges that Biden should have filed environmental impact statements before increasing population growth in the State of Arizona by halting Trump’s border wall construction and ending his Migrant Protection Protocols (MPP) — commonly known as the “Remain in Mexico” policy.

NEPA’s environmental assessment requirements do apply to population growth; in fact, Congress was “particularly” concerned about “the profound influences of population growth” on the environment when it wrote the NEPA requirements. 

Moreover, Ninth Circuit courts have been holding that federal government actions that cause population growth may require an environmental impact statement at least since 1975.

If Brnovich prevails, which may be possible, Biden would have to resume border wall construction and reinstate the MPP.

Legal basis for Brnovich’s suit

NEPA requires federal agencies to evaluate the impact of all major federal actions that may significantly affect the quality of the human environment and to issue an environmental impact statement for the ones that would.

Environmental impact statements should include the following information:

(1) the environmental impacts of the proposal;

(2) unavoidable adverse environmental effects;
(3) alternatives to the proposed action;

(4) the relationship between the short-term uses of the environment and maintenance of long-term productivity; and

(5) any irretrievable resource commitments involved if the proposal is implemented

The Supreme court has held that NEPA requires federal agencies to take a hard look at the environmental consequences of their major actions, to consider alternatives if there are significant environmental impacts, and to publicly disseminate the information they acquire from their assessment before taking final action. But they do not have to elevate environmental concerns above other considerations.

Brnovich’s complaint alleges that Biden’s border actions are causing population growth in Arizona that is having a direct and substantial impact on Arizona’s environment and therefore that he should have issued environmental impact statements before implementing them.

Migrants, like everyone else, “need housing, infrastructure, hospitals, and schools. They drive cars, purchase goods, and use public parks and other facilities. Their actions also directly result in the release of pollutants, carbon dioxide, and other greenhouse gases into the atmosphere, which directly affects air quality. All of these activities have significant environment impact.”

The facts 

On Jan. 20, 2021, Biden took the oath of office for the presidency, and later that same day, he issued a proclamation directing DHS to pause construction on the southern border wall.

The complaint alleges that as a direct and foreseeable consequence of the gaps in the border wall that were left when construction was halted, migrants have been crossing the border in Arizona in greater numbers than ever before and that many of them have settled and continue to settle in Arizona.

CBP has reported that it apprehended 171,700 migrants making illegal crossings in March, including a record number of unaccompanied alien minors.

The complaint alleges further that, according to internal government estimates, the U.S. is on track to encounter more than 2 million migrants at the US‐Mexico border by the end of the fiscal year.

This should not surprise Biden. When he was campaigning for the presidency, he told reporters that he would establish a more humane policy at the border but that his administration would need “probably the next six months” to rebuild a system to process migrants and secure funding for more immigration judges.

He warned that changing Trump’s policies immediately would be “the last thing we need” because it might lead to having “two million people on our border.”

Yet he stopped construction of the wall Trump was building within hours of being sworn in as the president, and he didn’t issue an environmental impact statement before doing it.

On Feb. 2, 2021, two weeks after he was sworn in, Biden issued an executive order which, among other things, ordered DHS to review the MPP program and determine whether it should be terminated or modified. The MPP program permitted certain aliens who were entering or seeking admission to the U.S. from Mexico illegally or without proper documentation to be returned to Mexico to wait outside of the U.S. for the duration of their immigration proceedings.

The decision was to terminate it.

On Feb. 19, 2021, Biden began bringing MPP migrants into the country. Thousands of them have been released into Arizona, according to the lawsuit. Many, if not most, will be able to remain and reside in Arizona.

Biden did not issue an environmental impact statement for this action either.

CBP does environmental assessments on such things as the construction, operation, and maintenance of various facilities, tactical infrastructure, and electronic surveillance systems, especially along the U.S./Mexico and U.S./Canada international borders. For instance, on Feb. 22, 2021, CBP announced an environmental assessment it had done of a tactical communications network system it was considering for CPB officers working in Arizona’s Agua Dulce mountains. CBP does these assessments with help from local governments, State, Native American, and Federal land managers, and interested members of the public.

Environmental impact statements are popularly associated with shovel-in-the-ground projects, and the majority of cases cited by Arizona’s lawsuit are construction projects of some sort — from a freeway interchange near an agricultural area to the communications network cited above. Requiring an environmental impact statement for “policy” decisions might seem like a stretch, but one of the cases cited in the suit would seem to offer precedent for courts to consider more theoretical applications.

In San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n, the Ninth Circuit court held that the Nuclear Regulatory Commission had violated NEPA by failing to consider the possibility of terrorist attacks on Diablo Canyon nuclear facility.

It’s worth noting that Brnovich also claims that the gaps that Biden left in the border wall fragment the habitat of wildlife that live in the border region and that it does so in a manner that that is arbitrary, unplanned, and unstudied.

Should the Arizona Attorney General win this suit, presidents may have to issue environmental impact statements from now on before taking final action on measures — immigration and otherwise — that would cause an increase in population. This could force them to assess the consequences of such measures before implementing them and to share that information with the public.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.