Ctr. for Biological Diversity v. McAleenan

404 F.Supp.3d 218

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.Kevin MCALEENAN, Acting Secretary of the Department of Homeland Security, et al., Defendants.

No. 18-cv-655 (KBJ)

United States District Court, District of Columbia.

Filed September 4, 2019

Signed September 5, 2019

Anthony T. Eliseuson, Animal Legal Defense Fund, Chicago, IL, Brian Paul Segee, John P. Rose, Center for Biological Diversity, Los Angeles, CA, Howard M. Crystal, Anchun Jean Su, Center for Biological Diversity, Jason C. Rylander, Defenders of Wildlife, Washington, DC, for Plaintiffs.

Galen Nicholas Thorp, Rhett Preston Martin, John Russell Tyler, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

More than 20 years ago, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("the IIRIRA" or "the Act"), an immigration and border-security reform statute that was intended, in substantial part, "to improve deterrence of illegal immigration to the United States[.]" H.R. Rep. No. 104-828, at 1 (1996) (Conf. Rep.); see also Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C., Title I, 110 Stat. 3009-546 (1996). To that end, Congress expressly authorized the erection of physical barriers and roads "in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry[,]" Pub. L. No. 104-208, Div. C., Title I, § 102(a), 110 Stat. 3009-546, 554 (1996), and it specifically identified the border near San Diego, California, as one such area, id. § 102(b). Moreover, in order to facilitate swift construction of these new border barriers, Congress authorized the Attorney General of the United States to waive otherwise-applicable provisions of two environmental statutes—the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. §§ 1531 – 44, and the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 – 4370m-12 —to the extent "necessary[,]" as determined by the Attorney General. Pub. L. No. 104-208, Div. C., Title I, § 102(c), 110 Stat. 3009-546, 554 (1996). Significantly for present purposes, in the 23 years that have transpired since the initial passage of the IIRIRA, Congress has amended the statute not only to identify additional priority areas for construction, see Secure Fence Act of 2006, Pub. L. No. 109-367, § 3, 120 Stat. 2638, 2638–39 (2006); Dep't of Homeland Sec. Appropriations Act, 2008, Pub. L. No. 110-161, § 564, 121 Stat. 1844, 2090–91 (2008), but also to expand the waiver authority to include all laws (not just the two environmental statutes), and to limit significantly the jurisdiction of the federal courts to adjudicate challenges to waivers that are issued pursuant to the IIRIRA's rapid-construction mandate, see REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, Title I, § 102, 119 Stat. 231, 306 (2005).

The scope of the IIRIRA's waiver authorization and this Court's ability to consider legal actions that contest the government's waiver of environmental laws to speed the construction of border barriers are the core legal issues in the instant case. On January 22, 2018, the Secretary of the Department of Homeland Security ("DHS") announced that DHS was invoking the IIRIRA to waive the application of 25 laws with respect to the construction of physical barriers along a 20-mile stretch of the border in New Mexico (hereinafter "the New Mexico Waiver"). See Determination Pursuant to Section 102 of the IIRIRA, as Amended, 83 Fed. Reg. 3,012, 3,013 –14 (Jan. 22, 2018). Plaintiffs Center for Biological Diversity, Southwest Environmental Center, Defenders of Wildlife, and Animal Legal Defense Fund ("Plaintiffs") have brought the instant action to contest the DHS Secretary's waiver decision; they claim, primarily, that the Secretary's waiver determination is ultra vires and unlawful "because it exceeds the limited grant of authority for such waivers contained in IIRIRA Section 102," (Compl., ECF No. 1, ¶ 2), and that the New Mexico Waiver "will have numerous negative impacts on the wildlife, plants, and the sensitive biological habitats on and near the proposed" project site (id. ¶ 60). Plaintiffs also insist that the IIRIRA's waiver authority is unconstitutional in various ways. (See id. ¶ 2 ("[A]ny interpretation of [ IIRIRA] Section 102 that would sanction the issuance of the New Mexico Waiver would render this statutory provision so broad and unbounded in scope that it would run afoul of the [c]onstitutional principles of Separation of Powers, the Non-Delegation Doctrine, the Presentment Clause and other constitutional provisions.").)

Before this Court at present are two dispositive cross-motions that the parties in this matter have filed. Plaintiffs have moved for summary judgment on their ultra vires and constitutional claims, and DHS has moved to dismiss Plaintiffs' claims or, in the alternative, request summary judgment. (See Pls.' Mot. for Summ. J. ("Pls.' Mot."), ECF No. 16; Defs.' Mot. to Dismiss & Alternatively Cross-Mot. for Summ. J. ("Defs.' Mot."), ECF No. 21.) DHS maintains, as a threshold matter, that this Court lacks subject-matter jurisdiction to determine whether the New Mexico Waiver is ultra vires , because "Congress has expressly withdrawn district court jurisdiction to review non-constitutional challenges to the [DHS] Secretary's exercise of waiver authority[.]" (Defs.' Opp'n to Pls.' Mot. & Mem. in Supp. of Defs.' Mot. ("Defs.' Mem."), ECF No. 21-1, at 21.)¹ In addition, DHS asserts that Plaintiffs' claims are meritless, because the Secretary has not exceeded the agency's statutory authority in issuing the New Mexico Waiver (see id. at 26–42), and because the IIRIRA's grant of waiver authority is not so broad as to violate the Constitution (see id. at 42–50). Plaintiffs respond that the Court has jurisdiction to hear their ultra vires claims despite the statutory restrictions on judicial review because the New Mexico Waiver was not properly issued pursuant to the IIRIRA (see Pls.' Mem. in Supp. of Pls.' Mot. ("Pls.' Mem."), ECF No. 16-1, at 42–45), and they further maintain that they are entitled to summary judgment with respect to their ultra vires and constitutional claims (see id. at 26–42, 45–54).

For the reasons explained fully below, this Court concludes that Congress has unambiguously precluded all non-constitutional legal challenges to the exercise of the DHS Secretary's waiver authority, including ultra vires claims. Adding a belt to these suspenders, Congress has further removed this Court's subject-matter jurisdiction over any non-constitutional waiver challenges; therefore, this Court is without power to address the merits of Plaintiffs' ultra vires contentions. The Court also finds that Plaintiffs' constitutional claims cannot proceed, based on the reasoning of a persuasive prior opinion from this district that addresses the constitutionality of the IIRIRA's section 102(c) waiver authority in substantially similar circumstances and holds that Congress has provided sufficient limitations to the agency's exercise of power to comport with the Constitution's separation-of-powers requirements. Consequently, Plaintiffs' motion for summary judgment will be DENIED , and Defendants' cross-motion will be GRANTED, insofar as both the ultra vires and the constitutional claims will be dismissed. A separate Order consistent with this Memorandum Opinion will follow.

I. BACKGROUND

A. Section 102 Of The Illegal Immigration Reform and Immigrant Responsibility Act

Congress enacted the IIRIRA in 1996, seeking to amend the Immigration and Nationality Act of 1965 ("INA"). As described in the Conference Report, the purpose of the IIRIRA was

to improve deterrence of illegal immigration to the United States by increasing border patrol and investigative personnel, by increasing penalties for alien smuggling and for document fraud, by reforming exclusion and deportation law and procedures, by improving the verification system for eligibility for employment, and through other measures, to reform the legal immigration system and facilitate legal entries into the United States, and for other purposes[.]

H.R. Rep. No. 104-828, at 1. The IIRIRA "marked one of the most significant reforms to immigration since the [INA]," Marshal Garbus, Environmental Impact of Border Security Infrastructure: How Department of Homeland Security's Waiver of Environmental Regulations Threatens Environmental Interests Along the U.S.-Mexico Border , 31 Tul. Envtl. L.J. 327, 334 (2018), and it was developed in the midst of a "political shift to increase border security during the Clinton administration's Southwest Border Strategy, which made control of unauthorized immigration a top priority[,]" id. at 335. Leading up to the enactment of the IIRIRA, a measure known as "Operation Gatekeeper was the Clinton administration's initiative to control unauthorized immigration along the San Diego/Tijuana border, which had been one of the highest traffic locations for unauthorized border crossings." Id.²

1. Congress commands construction of physical barriers in "areas of high illegal entry into the United States"

As originally enacted, section 102(a) of the IIRIRA provided that the Attorney General "shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States." Pub. L. No. 104–208, Div. C., Title I, § 102(a), 110 Stat. 3009-546, 554 (1996) (codified at 8 U.S.C. § 1103 note).³ The statute itself did not delineate what qualifies as an "area[ ] of high illegal entry," except insofar as section 102(b) provided specifically for "construction of fencing and road improvements in the border area near San Diego, California," id. § 102(b) (capitalization...