Immigration, particularly by illegal aliens at the southern US border, is a contentious issue in 21st century America. Federal Reserve Chairman Jerome Powell has expressed concern about immigration’s probable impact on the unemployment rate. Homebuyers and renters are concerned about its impact on house prices and rents. Law enforcement questions its impact on crime rates. School districts are concerned about increased immigrant student enrollment and their academic progress. And Americans generally are concerned about immigration-related issues such as birthright citizenship and immigrant assimilation into the nation’s culture.
Now comes a lawsuit contending that President Biden’s immigration executive orders, signed on his first day in office in 2021, violated the provisions of the National Environmental Protection Act (NEPA). Yes, immigration allowed by the Biden Department of Homeland Security (DHS) is seen allegedly harming the nation’s physical environment, with the leading environmental watchdog agency, the EPA, seemingly indifferent to this environmental harm.
The Oft-Maligned Environmental Impact Agency (EPA)
President Richard Nixon signed the National Environmental Protection Act (NEPA) in 1970, creating the Environmental Protection Agency (EPA). Americans were receptive at the time to a new, independent, executive branch agency responsible for the protection of human health and the environment, influenced by Rachel Carson’s best-selling book Silent Spring, which spawned the modern environmental movement.
NEPA was designed to force all federal agencies to account for the environmental impacts of their proposed policies, by requiring a detailed environmental impact statement (EIS) of any proposed agency action. This EIS requirement has sometimes aroused Americans to accuse EPA of unnecessarily meddling in the personal use of their private property, potentially even amounting to regulatory takings in violation of the US Constitution’s Fifth Amendment, charges that have resulted in lawsuits against EPA.
Two recent Supreme Court rulings, for example, are West Virginia v. EPA in 2022, which ruled that EPA lacks authority under the Clean Air Act to regulate carbon dioxide emissions related to climate change, and Sackett v. EPA in 2023, which stripped wetlands of their federal protections under the Clean Water Act.
More recently, 25 states sued EPA to block emissions regulations intended to encourage electric vehicle manufacture, arguing that the EPA has exceeded its legal authority. And now a non-profit, pro-environment group is taking on the Department of Homeland Security (DHS) for failing to produce EIS analysis of immigration’s impact on the US environment.
Massachusetts Coalition for Immigration Reform (MCIR) v. US Department of Homeland Security (DHS) Citizenship and Immigration Services (USCIS):
In September 2023, the Massachusetts Coalition for Immigration Reform (MCIR), a membership pro-environment group, filed a lawsuit in US District Court, District of Columbia, charging that mass immigration, including policies inducing population growth, has negatively affected the environment since the Biden administration replaced the Trump administration in January 2021. This lawsuit alleged that many of the Biden administration’s actions on immigration—ending Trump’s construction of the border wall, terminating the Trump “Remain in Mexico” policy, allowing border patrol agents to permit aliens boarding buses to other states, and preventing immigration officials from detaining and removing aliens—should have undergone EIS analysis.
Note, however, that two other federal agencies, rather than EPA, are defendants in this recent lawsuit. Biden’s Department of Homeland Security (DHS) and US Citizenship and Immigration Services (USCIS) are the culprits that implemented the immigration changes. USCIS is a component agency of DHS, along with other components such as US Immigration and Customs Enforcement (ICE), US Customs and Border Protection (CBP), Federal Emergency Management Agency (FEMA), US Secret Service, US Coast Guard, and numerous other sub-department divisions. DHS is a large, sprawling, cabinet-level department into which were moved numerous entities after its creation in 2002.
As the lawsuit was filed, two other individual plaintiffs who live near the southern border, and four plaintiffs who live in non-border states, joined the suit. The border-state plaintiffs alleged that increases in illegal border crossings have damaged their local environment, some illegal aliens even setting fires on their ranch land. The four other plaintiffs in non-border states asserted that immigration-induced population growth had harmed the environment, with the significant resettlement of immigrants into their communities having exacerbated homelessness and burdened local public services and schools.
These plaintiffs all claimed that these outcomes required NEPA analysis that was never done. While many Americans would aver that allowing millions of aliens into the country is prima facie environmentally significant, neither Department of Homeland Security, State Department, nor predecessor agencies such as Immigration and Naturalization Services (INS) have ever performed NEPA compliance before acting to expand immigration.
Bench Trial to Determine Plaintiff’s Standing to Sue
US District Judge Trevor McFadden, a Trump appointee, scheduled a bench trial in July 2024 to determine whether the Biden administration’s actions had caused the border crisis that harmed the border plaintiffs. If so harmed, the plaintiffs would have standing to further pursue the merits of their case. The judge’s deciding statement concluded that, “Presidential administrations enjoy significant discretion in the enforcement of our nation’s immigration laws and protection of our borders. But this latitude does not license violations of other laws.”
Translation: While Biden’s DHS and USCIS have some discretion in enforcing US immigration laws, this discretion does not allow violation of NEPA’s requirements to investigate and report on environmental harm resulting from these presidential immigration policies. The judge thus granted standing to the plaintiffs to pursue their lawsuit against DHS and USCIS on the merits, scheduling a briefing to occur from October 25 to December 20, 2024, in his court, on appropriate remedies for DHS’s NEPA violations.
The Center for Immigration Studies (CIS), which had filed an amicus brief for plaintiff standing, is hopeful that the plaintiffs will be successful on the merits of their case. CIS is a non-profit think tank considered by the leftist Southern Poverty Center to be racist and anti-immigration, presaging likely controversy when this matter resumes in court.
Ruminations on This Lawsuit Against Department of Homeland Security and US Citizenship and Immigration Services
How can one make sense of two cabinet-level executive branch agencies—DHS and USCIS—that allow dramatically changed immigration policies at the southern border, but overlook or ignore the NEPA requirement that the EPA investigate possible environmental harm from these immigration policies? And how would they make sense of a presidential administration that allows this result to come about? And what do we make, moreover, of a major cabinet-level department and one of its component agencies that allegedly failed to fulfill their legal responsibility to protect the environment from presidential immigration policies, when these entities report directly to this selfsame president? What about a cabinet department that ultimately depends on a non-profit citizens group to resort to the court seeking remedies for what they allege to be environmental damage from these immigration policies?
While NEPA is only indirectly implicated as the culprit in this story, nonetheless, it remains a law on the books since 1970 that has caused considerable grief for Americans over the years. Now it is being used to shoulder some of the blame for presidential immigration policies that have harmed the environment that EPA is charged with defending.
It may be a stretch to file a lawsuit against DHS and USCIS in order to hang charges on an elderly president near the end of his failed presidency and on two executive branch entities that report directly to him. It also speaks to the abysmal state of the Biden administration that the immigration situation has arrived at this outcome.
On a more cynical level, one can conclude that filing such a lawsuit over environmental damage when, in fact, the larger violation is a major border catastrophe, is somewhat akin to nailing Al Capone on income tax evasion when, in fact, his serious genuine crime was murder.
In recent years, both alleged and self-identified perpetrators and victims of certain climate-related controversies have sought relief from courts when, in fact, such relief may more appropriately be left to representative legislative bodies as climate-related controversies continue to plague today’s political sphere. There is scant legal precedent for this type of court-adjudicated conflict resolution. How these controversies and lawsuits proceed from here is at this time unclear.
