The United States Court of Appeals for the Ninth Circuit sided with the Trump administration on Monday in a ruling that authorizes construction of a prototype wall along the U.S.-Mexico border and which also allows the administration to repair an existing barrier there.
In a 2-1 decision issued against the State of California and several environmental groups, the Ninth Circuit upheld a prior opinion by Obama-appointed U.S. District Judge Gonzalo Curiel which determined that Trump’s Department of Homeland Security (DHS) was in the right when they attempted to waive environmental laws in order “to expedite construction” of three separate border barriers near two cities in the Golden State.
To wit, the Monday ruling explicitly authorizes DHS to begin: (1) “construction and evaluation of wall ‘prototypes’ in San Diego County;” (2) the “replacement of fourteen miles of primary fencing and fourteen miles of secondary fencing in San Diego County;” and (3) the “the replacement of primary fencing along a three-mile segment of the border near [the City of] Calexico.”
The decision authored by Judge M. Margaret McKeown notes:
The [DHS] Secretary authorized the San Diego and Calexico Projects because the existing barriers in those areas were built in the 1990s using a fence design “that is no longer optimal for Border Patrol operations.” According to DHS, the new construction erects stronger and taller barriers. The Calexico Project will replace “[t]he existing fourteen foot, landing mat-style fencing . . . with an eighteen to twenty-five foot barrier that employs a more operationally effective design.” Similarly, the San Diego Project “will replace existing primary fencing” with a “new primary barrier” that “use[s] an operationally effective design.” These are “additional physical barriers.”
In August of September of 2017, DHS Secretary Kirstjen Nielsen authorized “waivers of applicable environmental laws” under the auspices of “section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996.”
The plaintiffs then sued by alleging “that DHS exceeded its statutory authority in working on the border barrier projects and issuing the related waivers in violation of the Administrative Procedure Act (APA),” according to the court’s order. Specifically, the plaintiffs claimed that two additional subsections–102(a) and 102(c)–of the same statute were violated by DHS and that issuing the waivers was “arbitrary and capricious.” This, essentially, was an argument that longstanding procedural rules of federal administrative law were violated when DHS used the above-noted waivers.
The plaintiffs also tendered separate environmental claims which “alleged that in planning and building the border barrier projects, DHS violated federal environmental laws,” the court noted. Specifically, the plaintiffs argued that DHS violated the National Environmental Policy Act and the Coastal Zone Management Act–which DHS effectively conceded by issuing the waivers from those laws in the first place and then later confirmed before the court.
The Ninth Circuit–often derided by President Donald Trump and other conservatives for its purported “liberal” slant–disagreed with the liberal-leaning plaintiffs–California and multiple environmental organizations–on both grounds.
“In short…section 102(a) grants DHS authority to construct the Prototype, San Diego, and Calexico Projects, and that grant of authority is not limited by section 102(b),” the court declared. “The district court correctly granted DHS summary judgment.”
The decision also spelled out exactly why the environmental claims were dismissed:
Having determined that the border barrier projects were authorized under section 102(a), we have little trouble concluding that the environmental claims were also properly dismissed. The Secretary has waived the legal requirements that California and the environmental groups allege DHS violated…we lack jurisdiction to consider any argument challenging the waivers themselves.
[Image via the hill screengrab]