The secretary of homeland security just announced what appears to be a major policy shift for the Biden administration: The administration will begin building a 20-mile border wall along the Lower Rio Grande Valley at the U.S.-Mexico border. To expedite its construction, the secretary suspended 25 distinct environmental laws plus the Administrative Procedure Act (APA). The secretary highlighted that there is “presently an acute and immediate need to construct physical barriers” as part of his reasoning in waiving environmental legal protections. This raises two questions. First, did President Biden have to build this section of the border wall? Second, was waiving this flurry of environmental laws required?
Yes and no.
Yes: The president was legally obligated to use the money from an earlier 2019 congressional appropriation for its intended purpose—the border wall. This is nondiscretionary. Failure to do this would violate fiscal law principles and the Impoundment Control Act of 1974.
No: The president did not have to waive environmental laws in spending the money for the border wall. This is purely discretionary and is the first time the Biden administration has used this waiver authority. By one count, this is the ninth time the secretary of homeland security waived environmental laws in the four border states (President Trump was responsible for three of those waivers). To be sure, if these environmental laws were not waived, border wall construction would likely be delayed—probably for years. Under the National Environmental Policy Act (NEPA), for example, the average time to complete an environmental impact statement exceeds four years. No construction can occur until a final Record of Decision is issued.
Rather than picking and choosing what specific environmental laws would be waived, the secretary of homeland security chose to tap into his powers in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which strengthens immigration laws and empowers the secretary to waive all legal requirements in constructing physical barriers. The secretary’s Federal Register Notice waived all environmental requirements with one stroke of the pen, in a move somewhat akin to using a statutory sledgehammer when an environmental scalpel was available.
To be sure, the migration crisis is a serious issue that appears to be growing, especially after Title 42 restrictions were lifted in May. There have been more than 2 million arrests at the southwestern border this year, and 245,000 took place in the Rio Grande Valley Sector in Starr County, Texas. There are differing views on the efficacy of the border wall, with some think tanks arguing it does not work, while others find that border barriers reduce migration by 35 percent. Representatives from Biden’s Customs and Border Protection have even gone on record highlighting the border wall system’s role in impeding illicit cross-border activity by “increasing response time and greater opportunity for successful law enforcement resolution.”
But waiving this full menu of environmental laws was ultimately not required and will cause real environmental harm. Scientists have persuasively argued that the border wall “harms wildlife populations by eliminating, degrading, and fragmenting habitats.”
President Biden’s announcement that he intends to build 20 miles of new border wall is a continuation of presidential policy that has been in place with varying levels of fervor since the 1990s.
Since President Clinton’s 1993 decision to construct a border fence along the San Diego border, every president has added to the U.S.-Mexico border wall. This includes Clinton himself (14 miles), President George W. Bush (700 additional miles), and President Obama (130 additional miles). What’s more, President Biden even supported funding back in 2006 as a U.S. senator. President Trump was, by far, the most vocal in advocating for a border wall and ordered large deployments of military forces to the border. Trump similarly invoked the IIRIRA to waive environmental laws to expedite their construction—an authority that the U.S. Court of Appeals for the Ninth Circuit subsequently ruled was legal and a “broad grant of authority.”
In 2019, when Congress failed to appropriate money for a wall at the U.S.-Mexico border, the government shut down for 35 days—its longest period in history. President Trump soon declared the situation at the U.S.-Mexico border a “national emergency.” Using his authority under the National Emergencies Act, Trump tapped into military construction funds to fund the wall. Litigation quickly followed, and Trump ultimately repaired or replaced 458 miles of border barrier to include 87 miles of new barriers.
President Biden’s Actions
In contrast to the Trump border wall emergency and reallocation of military construction funds to build the wall, Biden discontinued Trump’s emergency declaration at the border in one of his first acts as president. This proclamation ended the diversion of funds for border wall construction from military projects and announced that “[i]t shall be the policy of [the Biden] Administration that no more American taxpayer dollars be diverted to construct a border wall.”
In an announcement in the Federal Register on Oct. 5, Biden’s secretary of homeland security announced the creation of a new segment of the border wall (“additional physical barriers”) in the Rio Grande Valley. Rather than using the National Emergencies Act—which taps into specialized emergency authorities—Secretary Alejandro Mayorkas turned to the IIRIRA to announce the construction of the border wall while waiving a slew of environmental laws to streamline construction.
What Is the IIRIRA?
The IIRIRA and its three amendments (REAL ID Act, Secure Fence Act of 2006, and Homeland Security Appropriations Act of 2008) grant the secretary of homeland security various authorities. First, Congress provides that the secretary “shall take such measures to install physical barriers and roads … in the vicinity of the United States border to deter illegal crossings in areas of ‘high illegal entry’ into the United States.” Second, the Real ID Act added Section 102(c) to the IIRIRA, which granted the secretary the authority to “waive all legal requirements” whose waiver the secretary determines—in his sole discretion—is necessary to ensure the expeditious construction of the border wall. The key language reads:
The Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary’s sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this Section. Any such decision by the Secretary shall be effective upon being published in the Federal Register. [Emphasis added.]
Pursuant to §102(a) of the IIRIRA, Secretary Mayorkas designated 10 distinct project areas as “high illegal entry” areas within the Border Patrol’s Rio Grande Valley Sector. Further, the Department of Homeland Security determined that “there is presently an acute and immediate need to construct physical barriers and roads in the vicinity of the border United States in order to prevent unlawful entries[.]” Tapping into his authority, Mayorkas waived all legal requirements from 25 environmental statutes as well as the APA. This includes the NEPA and the Endangered Species Act (ESA).
The upshot is that the Biden border wall will be constructed without a NEPA environmental impact statement or public comment. Nor will the secretary comply with ESA mandates that prohibit the “take” of endangered species. “Take” is broadly defined under the ESA to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
The ESA waiver is of particular importance for the affected area, which is home to the Lower Rio Grande Valley National Wildlife Refuge and several endangered species. Beyond being an immigration hotspot, the Lower Rio Grande Valley represents a “transition between temperate and tropical conditions and contains an exceptionally high diversity of plants and animals—some of them found in few, or no other places in the United States.” This includes the northern ocelot leopard and northern aplomado falcon—both listed as endangered species by the U.S. Fish and Wildlife Service.
U.S. environmental statutes apply to federal agencies—to include the Department of Defense and the Department of Homeland Security—in the same manner and to the same extent as any other nonfederal entity. And many environmental laws have waivers built into their statutory scheme. But this requires the president to make an independent determination that waiving an environmental law is in the nation’s “national security” or “paramount interest.” Further, many environmental laws have citizen suit provisions to ensure judicial review of agency actions. Any federal agency action is subject to judicial review under the APA. An agency decision may be set aside if a court holds that an agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Fiscal Law Constraints
President Biden and Secretary Mayorkas argue their hands are tied by an earlier 2019 appropriation that required the Department of Homeland Security to fund a “construction border barrier” in the Rio Grande Valley. The Biden administration attempted to get Congress to reappropriate these funds but ultimately failed. Executive agencies are required to use congressionally appropriated money for their intended purpose and therefore—consistent with the president’s constitutional duty to take care that the laws are faithfully executed—Biden was unable to simply reallocate the congressional funds. Further, the president did not want to violate the 1974 Impoundment Control Act, which establishes procedures to prevent the president from substituting his own funding decisions for those of Congress.
Border Wall Litigation: Emergency Military Construction and Environmental Waivers
In anticipation of potential legal battles about Biden’s decision to waive the environmental laws to move forward with border wall construction, it is helpful to examine previous litigation on similar matters. For example, during Trump’s presidency, environmental groups challenged the administration’s various attempts to build the border wall, with mixed success. Lawsuits challenging the use of emergency military construction authority had considerable success, while challenges brought to the IIRIRA environmental waiver authority largely went nowhere. No lawsuits have been filed (yet) against the Biden administration, but it is worth noting that environmental groups were sharply critical of the decision to waive environmental laws. While there is virtually no chance that the Biden administration will follow a similar path as Trump and use emergency military construction authorities, it is helpful to differentiate between this type of challenge and any prospective IIRIRA challenge.
More Successful: Emergency Military Construction Challenges
In May 2020, environmental groups challenged the Trump administration’s decision to use funds appropriated for the military to be diverted to the border wall in lawsuits filed by the Sierra Cluband the Center for Biological Diversity. Environmentalists won at the Ninth Circuit, and the Supreme Court agreed to hear arguments on the legality of Trump’s emergency military construction funding when President Biden was elected. While President Biden “undeclared” the border emergency upon assuming office, the Department of Defense and the Department of Homeland Security worked with environmental groups to reach a settlement agreement in March 2022 to fund environmental remediation work along the border.
This settlement agreement between environmental groups and four heads of agencies (Defense, Homeland Security, Interior, and the Army Corps of Engineers) stated that the Defense and Homeland Security departments would halt the construction of border barriers. Furthermore, the Department of Defense and the Department of Homeland Security agreed to do environmental remediation and mitigation work to address earlier border wall construction. Finally, Customs and Border Patrol agreed to fund a study that “will assess the impacts of barrier infrastructure construction at the Project Sites on the connectivity of wildlife populations between the United States and Mexico.”
Less Successful: IIRIRA Environmental Waiver Challenges
In April 2017, environmental groups were joined by Rep. Raul Grijalva (D-Ariz.) in challenging the secretary of homeland security’s failure to conduct NEPA environmental impact statements as part of the administration’s southern border enforcement program. This lawsuit argued that the waiver of environmental laws violated the nondelegation doctrine and principles of separation of powers and was subject to judicial review. They ultimately lost in federal district court, which granted the government’s motion for summary judgment. The district court took a narrow view of its ability to review the decision to waive environmental laws, concluding that the IIRIRA barred judicial review of nonconstitutional challenges. The Supreme Court has direct review authority over the district court’s decision, but the Supreme Court denied certiorari in 2018 after the district court ruled in favor of the Trump administration. It is difficult to imagine that the Court would be eager to revisit the issue.
In 2019, a Ninth Circuit panel issued an opinion on the scope of the environmental waiver authority. It held that the IIRIRA granted the secretary of homeland security “a broad grant of authority” to waive environmental statutes if the director finds it necessary to quickly complete security projects.
Making matters more challenging for prospective environmental litigants, the Ninth Circuit addressed the IIRIRA’s unique jurisdictional provision. The IIRIRA vests district courts with exclusive jurisdiction to hear claims “arising from” actions undertaking or decisions made “pursuant to” the waiver provision.” The Ninth Circuit panel read this clause narrowly, holding that it lacked jurisdiction to consider any argument challenging the waivers themselves while acknowledging “a valid waiver of the relevant environmental laws … is an affirmative defense to all the environmental claims.”
This wholesale waiver of the APA and environmental laws is sure to be challenged, but it is hard to see how they will be successful after the Ninth Circuit’s ruling. Still, lawsuits are likely to emerge from environmental groups. These lawsuits face an uphill battle. My prediction is that this 20-mile border wall section will likely be built. This will dismay environmentalists but be celebrated by those supporting stricter, physical border protections.
– Mark Nevitt is an Associate Professor of Law at the Emory University School of Law. LAWFARE