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In re Border Infrastructure Environmental Litigation

ELR Citation: 49 ELR 20023
Nos. 18-55474, (9th Cir., 02/11/2019)

The Ninth Circuit affirmed a grant of summary judgment to the Department of Homeland Security for waiving applicable environmental laws to expedite construction of border barriers near San Diego and Calexico, California. Environmental groups argued that the Department exceeded its statutory authority under §102(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in working on the border barrier projects and issuing the waivers. But the court found that §102(a) granted the Department authority over the projects because they would replace existing barriers, which constituted "additional physical barriers" under the IIRIRA, and they were located in areas of "high illegal entry." The groups also argued that the Department's planning and construction of the projects violated NEPA, the CZMA, and the APA. The court concluded the groups' environmental claims were precluded by the Department's waiver of these statutes and that it lacked jurisdiction to consider any argument challenging the waivers themselves. Because the projects were statutorily authorized and the Department waived the laws that the groups sought to enforce, the court affirmed the district court's grant of summary judgment.