Welcome
Environment & Energy Report

Environmental Groups Challenge Border Wall on Multiple Fronts

Nov. 13, 2019, 10:01 AM

The Sierra Club faced off with government lawyers in court this week to fight the U.S.-Mexico border wall backed by President Donald Trump, the latest in a lineup of lawsuits over the issue.

Lawyers for the environmental group, as well as for the Southern Border Communities Coalition and some states, appeared at the U.S. Court of Appeals for the Ninth Circuit on Nov. 12 to argue against President Donald Trump’s emergency order authorizing creative funding for border protections.

The president issued the order in February to move money from Defense Department accounts and other sources to fund construction, after Congress declined to authorize $5.7 billion for the project.

Environmentalists are concerned about the impacts to border communities and public lands, including national wildlife refuges, national monuments, and other Southwestern sites. Justice Department lawyers maintain the president has broad authority to combat the flow of illegal drugs across the border, and they say the case involves a political question that’s best left to the political branches of government, not to the courts.

The Ninth Circuit is expected to issue a decision in the next few months. But the issue will likely end up at the Supreme Court, which in July greenlighted border wall construction while the litigation is pending.

Gloria Smith, a managing attorney for the Sierra Club’s environmental law program, said the group feels confident.

“We’re actually feeling extremely positive because the way the government has argued this below, frankly, boxes them in a little bit because they’re saying these sorts of decisions are unreviewable,” she said.

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

Other Wall Lawsuits

Environmental groups are involved in a variety of other border wall lawsuits, all moving forward on different timelines in federal courts across the country.

The Center for Biological Diversity, Defenders of Wildlife, and the Animal Legal Defense Fund have a separate case pending in the U.S. District Court for the District of Columbia.

The groups told the court they’ve worked for decades to preserve lands along the border, and construction activities would destroy wildlife habitat, kill individual animals, and prevent members of the organizations from visiting the area.

The Trump administration pushed to toss the case, arguing the court lacks jurisdiction. A hearing is scheduled for Dec. 16 before Judge Trevor N. McFadden.

Earthjustice, meanwhile, is representing Texas landowners, environmental organizations, and Latino advocacy groups that are taking aim at Trump’s emergency order in another lawsuit in the same court.

The Trump administration has moved to dismiss that case, too. The court hasn’t yet made a decision on the request.

Raul Garcia, legislative director for Earthjustice’s Healthy Communities program, said the closer the bulldozers get to the Texas landowners and an indigenous group involved in the case, the more his team is considering asking the court to issue an injunction.

Similar cases are pending from the House of Representatives and El Paso, Texas.

Waivers

The Center for Biological Diversity, Defenders of Wildlife, and the Animal Legal Defense Fund are also opposing the border wall on a second front, challenging the Trump administration’s decision to exempt border wall projects from environmental laws.

The Department of Homeland Security has routinely issued waivers for various segments of the border, allowing construction without compliance with the National Environmental Policy Act, Endangered Species Act, and other statutes.

Congress gave the Department of Homeland Security waiver authority under amendments to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Advocacy groups say the Trump administration is taking that power too far. They’ve filed an array of lawsuits in California, Arizona, and Washington, D.C.—all unsuccessful so far.

The groups have until February to petition the Supreme Court to get involved. The justices declined to take up a similar case in 2018.

Eminent Domain

The North American Butterfly Association is waging its own fight against the Trump administration’s efforts to expand border barriers.

The group runs the National Butterfly Center, a 100-acre protected area along the border in Hidalgo County, Texas. The Trump administration has targeted the area for construction of a wall and a service road.

The butterfly association says the plans violate the group’s property rights. A district court dismissed the lawsuit earlier this year, and it’s now at the U.S. Court of Appeals for the District of Columbia Circuit.

The Trump administration says the D.C. Circuit lacks jurisdiction, in part because the case touches on the Illegal Immigration Reform and Immigrant Responsibility Act, which sends appeals directly to the Supreme Court.

The D.C. Circuit hears oral arguments Dec. 5.

The funding cases are Sierra Club v. Trump, 9th Cir., No. 19-16102, Ctr. for Biological Diversity v. Trump, D.D.C., No. 1:19-cv-00408, and Rio Grande Int’l Study Ctr. v. Trump, D.D.C., No. 1:19-cv-00720.

The waiver cases are Ctr. for Biological Diversity v. McAleenan, D.D.C., No. 1:19-cv-02085 and Ctr. for Biological Diversity v. McAleenan, D.D.C., No. 1:18-cv-00655.

The butterfly case isNorth Am. Butterfly Ass’n v. McAleenan, D.C. Cir., No. 19-05052.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com