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In re Border Infrastructure Environmental Litigation

ELR Citation: 48 ELR 20034
Nos. 17cv1215, (S.D. Cal., 02/27/2018) (Curiel, J.)

A district court upheld the U.S. Department of Homeland Security's (DHS') decision to waive the legal requirements of NEPA, ESA, and CZMA for two border wall construction projects in San Diego, California. DHS made its waiver determination under §102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. A number of plaintiffs filed suit, arguing that the waiver determinations are ultra vires acts that are not authorized under §102 and therefore violate NEPA, ESA, CZMA and the APA. They also alleged several constitutional claims. But based on arguments presented, the court could not clearly conclude that DHS acted in excess of its delegated power. The DHS Secretary is granted broad discretion in determining how to “achieve and maintain operational control” of the border, and plaintiffs failed to identify "clear and mandatory" statutory language that the Secretary violated to establish the claimed ultra vires conduct.