Whitewater Draw Natural Resource Conservation District
DHS Secretary Kirstjen Nielson
This case addresses a class of discretionary actions taken by the Department of Homeland Security (“DHS”) and DHS Secretary Jeh Johnson. These myriad actions concern the entry and settlement of multitudinous foreign nationals into the United States. Like its predecessor agency, the Immigration and Naturalization Service (“INS”), DHS has turned a blind eye regarding the environmental impacts, including the cumulative impacts, of its actions concerning foreign nationals who enter and settle into the United States pursuant to the agency’s discretionary power. The resulting environmental impacts from these actions are significant and an analysis of these impacts by DHS is required pursuant to the National Environmental Policy Act (“NEPA”) and its implementing regulations. But DHS, like INS before it, undertakes no such NEPA review. Accordingly, DHS is acting in contravention of its legal obligations.
The core purpose of NEPA is to ensure that, before a federal agency undertakes a federal action, its decision makers consider the range of potential environmental impacts the action may have on the environment. NEPA embodies the nation’s policy of ensuring that decisions affecting the human environment are made with eyes wide open and in full view of the public so that all stakeholders may understand the implications of federal actions on the natural resources that we all depend on, in one way or another. NEPA “help[s] public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.” 40 C.F.R. § 1500.1 (2016) (Council on Environmental Quality (“CEQ”) regulations). DHS is woefully deficient in carrying forth this mandate.
After DHS was established in 2003, it adopted its own NEPA procedures, which were finalized in 2014. But these new procedures continue to perpetuate its blindspot to the manifold environmental consequences of its actions concerning the entry and settlement of mass numbers of people into the U.S. Moreover, in recent years DHS has, with increasing frequency, undertaken discretionary actions on a greater scale to allow such entry and settlement of a myriad of foreign nationals into the United States. These frequent, large scale, related actions by DHS result in significant environmental impacts throughout the entire United States. Nonetheless, DHS continues to fail to undertake NEPA review, in direct contravention of its mandate, before commencing such actions.
Given DHS’s failure, those members of the public (like the Plaintiffs) particularly affected by or interested in such environmental consequences have no opportunity to voice their views before the agency takes action. Not only does DHS take actions of great environmental significance with increasing frequency, it also often does not explain or present to the public in any formal way what it has actually done. In the worst cases, DHS never even publishes its actions, and the public only realizes what has happened at all because of leaks to the media. Meanwhile, the environmental consequences reverberate around the country, with the public largely in the dark about why and how it is happening. The intention of NEPA is to prevent exactly this scenario.
In order to establish the scope and magnitude of the environmental impacts at issue, Plaintiffs have undertaken extensive research and retained experts to:
a) identify and delineate those specific, ongoing discretionary actions that DHS has undertaken concerning the entry and settlement into the United States of multitudinous foreign nationals; and
b) identify and delineate environmental impacts to Plaintiffs resulting from these and past actions, including, but not limited to, the impacts from massive population growth directly attributable to DHS actions and environmental damage along the Southwest border of the United States.
Plaintiffs seek to compel DHS to properly comply with NEPA in connection with its agency actions that concern the entry and settlement of multitudinous foreign nationals into the United States. Plaintiffs seek both a declaration from the court that DHS is violating NEPA and an injunction to require DHS to comply with the law. Further, Plaintiffs assert that, in the course of approving its agency actions concerning the entry and settlement of foreign nationals into the United States, DHS violated its fundamental obligation to engage in well-reasoned, non-arbitrary decision-making under the Administrative Procedure Act, (“APA”).
In Count I, the Plaintiffs assert that the DHS Instruction Manual violates the APA and NEPA by failing to require NEPA compliance with respect to its actions relating to the entry into and settlement of foreign nationals in the United States. In Count II, the Plaintiffs assert that DHS is violating the APA and NEPA by failing to engage in any NEPA review with respect to its eight programs regulating the entry into and settlement of foreign nationals in the United States. In Count III, the Plaintiffs assert that the categorical exclusion A3 established by DHS on November 6, 2014, violates the APA. In Count IV, the Plaintiffs assert that the categorical exclusion A3 is arbitrary and capricious as applied to four actions regulating the entry into and settlement of foreign nationals in the United States. Finally, in Count V, the Plaintiffs assert DHS has failed to take a “hard look” at the environmental impacts of the June 2, 2014, action “Response to the Influx of Unaccompanied Alien Children” in violation of NEPA and the APA.