One of the most hotly politicized issues in the United States this year is whether the President has the authority to direct the construction of a wall on the southern border between the United States and Mexico. Passionate arguments arose from all sides of the issue, and even made its way through the court system. In 2019, the Supreme Court ruled that the Trump administration has the authority to redirect funds allocated to the military towards construction of a border wall. However, this issue has been far from resolved.
Backlash from the Supreme Court’s ruling has taken many forms, including subsequent legal action springing from various areas of the law. Some environmental groups have sought to halt the building of the border wall by asserting breaches of environmental statutes. During the ongoing project of building the border wall in recent years, the Department of Homeland Security has granted waivers of a plethora of statutes, including some major environmental legislation, in the hopes of expediting construction. Most notably, waivers for the National Environmental Policy Act (NEPA) and the Endangered Species Act were given. Before examining the Department of Homeland Security’s decisions and authority to administer these waivers, it is important to take a look at what each statute requires, and how they would affect the continued building of the border wall.
“Man And Nature Can Exist In Productive Harmony”
The National Environmental Policy Act is an environmentally conscious statute passed in 1970. NEPA was designed to incorporate an environmental perspective into decisions made by the federal government. The Act requires federal agencies, when proposing any action or project, to identify and evaluate environmental concerns of those actions. Similarly, the social and economic considerations that accompany the environmental issues must be examined as well.
Under NEPA, the federal government is given specific requirements to abide by. Above all, NEPA contains a Declaration of National Environmental Policy, which asserts that governmental entities must “use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony.” This policy is perhaps best embodied under Section 102 of the statute, which calls for environmental impact statements (EIS) and environmental assessments (EA). When completing these requirements, federal entities must provide detailed explanations of the environmental impacts that would accompany any proposed action by the entity, as well as any available alternatives to the proposed action(s).
Furthermore, NEPA created the Council on Environmental Quality (CEQ). The CEQ is tasked with overseeing proper implementation of NEPA. Such responsibilities include promulgating regulations to guide federal agencies, plus monitoring and ensuring appropriate adherence to the Act’s requirements.
Is The Wall Not Likely To Jeopardize The Continued Existence Of Any Listed Species?
Another waiver the Trump administration has granted in the building of the border wall regards the Endangered Species Act. Like NEPA, the Endangered Species Act similarly limits some governmental activity in projects conducted by federal agencies.
Pursuant to the Act, Federal entities must refer to the Fish and Wildlife Service to ensure that any proposed action would not likely “jeopardize the continued existence” or any species listed as endangered or threatened. Additionally, governmental activity may not destroy or adversely modify the habitats of endangered or threatened species.
While the statute seems self-explanatory, the determination of what species qualify for protection under the Act can be difficult. When making this decision, the Fish and Wildlife Service examines a multitude of factors to decide whether a species needs protection. While the Fish and Wildlife Service considers many aspects, importantly, attention is given to the habitat needed for the survival of the species and other manmade issues that could negatively affect survival.
Likewise, the limitation on developments of habitats of endangered species is a restriction solely imposed on the Federal government. As previously mentioned, if an area is designated as a habitat subject to the Endangered Species Act, the Federal government may not conduct any activity that would destroy or adversely effect the habitat. The key is that, when this determination is made, the Federal government does not only have to show effects that are likely to occur, but any effects that may occur at all.
Vitally, however, even if an area is designated as a protected habitat, governmental action may be excluded from statutory restrictions if the Fish and Wildlife Service determines that the benefits of the governmental action outweigh the benefits of protecting the species. This is particularly relevant when considering economic purposes and national security considerations. That being said, even though a government activity may qualify for exclusion, it may still be denied if the resulting harm would lead to extinction of the species.
The point of contention in this debate is whether the Trump administration has the authority to grant waivers to such impactful environmental legislation, and whether these statutes can even be waived. In 1996, Congress gave the Executive Branch certain waiver powers in the Illegal Immigration Reform and Immigrant Responsibility Act. Section 102(c) of the statute, an amendment added in 2005, specifically allots the power to waive the requirements of NEPA and the Endangered Species Act to the extent that such waiver is necessary to expeditiously construct barriers. The statute is silent, however, on any threshold or level of discretion needed in making the decision to waive the statutory requirements. As construction of the wall on the southern border has commenced, the Department of Homeland Security has granted numerous waivers to these statutes (among others).
“Impacts Less Tangible But No Less Destructive To Our Democracy”
The waivers issued by the Trump administration have not come without fervent criticism. Recently, the Center for Biological Diversity (the “Center”) brought the Department of Homeland Security, and its acting secretary Chad Wolf, to court. On January 31, 2020, the Center petitioned the Supreme Court to hear their case. In their petition, alongside NEPA claims, the Center challenged the constitutionality of the 2005 amendment that allows waiver of NEPA and the Endangered Species Act. In their argument, the Center stated that the waiver violates the doctrine of separation of powers, the non-delegation doctrine, and the Presentment Clause. Furthermore, the Center cites that border wall construction is causing irreparable damage to species and their habitats protected under the Endangered Species Act.
Last month, the Harvard Animal Law and Policy Clinic filed a brief in support of the Center’s petition to the Supreme Court. Coinciding with the Center’s statements, the Harvard Clinic cited concerns that continued construction of the border wall would result in “forever destroying the already extremely fragile ecosystem . . . .”
As previously mentioned, the Endangered Species Act provides an exclusion to governmental immunity if the action undertaken may result in the complete extinction of a species. While this may be difficult to prove, it could be a persuasive argument.
What Is Next Looking Forward?
It is unclear whether the nine justices of the Supreme Court will hear this case. The Center and other environmental groups have taken this issue to court in several states around the country, yet none have been successful so far. Furthermore, the Supreme Court declined to hear a case similar to this in 2018.
However, earlier this year, the Supreme Court ruled that the Trump administration must file an answer to the Center’s petition in this case. While this is no time for conjecture, it adds an interesting wrinkle to the ongoing legal battle over this issue.
Due to precautionary measures concerning the COVID-19 pandemic, the Supreme Court’s schedule has been disrupted. But, most recently, the justices met privately to discuss future cases for their docket. Given the extraordinary time the world is currently in, a ruling on whether this case will be heard may have to be placed on hold.