Immigration, particularly of illegal aliens at the US southern border, is a contentious issue in 21st century America. Federal Reserve Chairman Jerome Powell has expressed concern about immigration likely impact on the unemployment rate. Homebuyers and renters are concerned about its impact on house prices and rents. Law enforcement questions its impact crime rates. School districts are concerned about the growing number of immigrant students and their academic progress. And Americans are generally concerned about immigration issues, such as birthright citizenship and the assimilation of immigrants into the nation’s culture.

Now comes a lawsuit alleging that President Biden’s immigration executive orders, signed on his first day in office in 2021, violated provisions of the National Environmental Protection Act (NEPA). Yes, the immigration allowed by the Biden Department of Homeland Security (DHS) is seen as damaging the nation’s physical environment, the main environmental watchdog, the EPA, seemingly indifferent to this environmental damage.

The often criticized Environmental Impact Agency (EPA).

President Richard Nixon signed the National Environmental Protection Act (NEPA) in 1970, creating the Environmental Protection Agency (EPA). Americans were receptive at the time to a new independent executive agency responsible for protecting human health and the environment, influenced by Rachel Carsonhis best-selling book Silent springwhich gave rise to the modern environmental movement.

NEPA was designed to force all federal agencies to account for the environmental impact of proposed policies by requiring a detailed environmental impact statement (EIS) of any proposed agency action. This EIS requirement has sometimes led Americans to accuse the EPA of unnecessarily interfering with the personal use of their private property, perhaps even amounting to regulatory receipts in violation of the Fifth Amendment to the US Constitution, allegations that led to lawsuits against the EPA.

Two recent Supreme Court decisions, for example, are West Virginia v. EPA in 2022, which ruled that the EPA lacked authority under the Clean Air Act to regulate climate change-related carbon dioxide emissions and Sackett v. EPA in 2023, which stripped wetlands of their federal protections under the Clean Water Act.

More recently, 25 states sued the EPA to block it emissions regulations meant to encourage manufacture of electric vehiclesarguing that the EPA exceeded its legal authority. And now, a non-profit, pro-environment group is taking on the Department of Homeland Security (DHS) for failing to conduct an EIS analysis of the impact of immigration on the US environment.

Massachusetts Coalition for Immigration Reform (MCIR) v. US Department of Homeland Security (DHS) Citizenship and Immigration Services (USCIS):

In September 2023, the Massachusetts Coalition for Immigration Reform (MCIR), a pro-environment group, filed a process in the U.S. District Court, District of Columbia, alleging that mass immigration, including policies that induce population growth, has adversely affected the environment since the Biden administration replaced the Trump administration in January 2021. That suit argued that many of the Biden administration’s actions on immigration — Ending construction of Trump’s border wall, ending Trump’s “Remain in Mexico” policy, allowing Border Patrol agents to allow foreigners to board buses to other states, and preventing immigration officials from detaining and removing foreigners — should have be subject to EIS analysis.

Note, however, that two other federal agencies, rather than the EPA, are defendants in this recent lawsuit. Biden’s Department of Homeland Security (DHS) and US Citizenship and Immigration Services (USCIS) are the culprits who implemented the immigration changes. USCIS is a component agency of DHS, along with other components such as US Immigration and Customs Enforcement (ICE), US Customs and Border Protection (CBP), the Federal Emergency Management Agency (FEMA), the Secret Service US, US Coast Guard and numerous other sub-divisions. DHS is a large, sprawling, cabinet-level department into which numerous entities have been moved since its creation in 2002.

As the suit was filed, two more individual plaintiffs who live near the southern border and four plaintiffs who live in non-border states joined the suit. Plaintiffs at the border have argued that the increase in illegal border crossings has damaged their local environment, with some illegal aliens even setting fire to their farm land. The other four plaintiffs from non-border states asserted that immigration-induced population growth harmed the environment, significant resettlement of immigrants in their communities exacerbated homelessness, and overburdened public services and local schools.

All of these plaintiffs argued that these results required a NEPA review that was never done. While many Americans would argue that allowing millions of aliens into the country is prima facie ecologically significant, neither the Department of Homeland Security, the State Department, nor predecessor agencies such as the Immigration and Naturalization Services (INS) ever met NEPA compliance before acting to expand immigration.

Trial en banc to determine plaintiff’s standing to sue

U.S. District Judge Trevor McFadden, a Trump appointee, scheduled a bench test in July 2024 to determine whether the Biden administration’s actions caused the border crisis that affected border claimants. If prejudiced, plaintiffs would have standing to pursue the merits of their case further. The court statement concluded that, “Presidential administrations enjoy significant discretion in enforcing our nation’s immigration laws and protecting our borders. But this latitude does not authorize violations of other laws.”

Translation: While Biden’s DHS and USCIS have some discretion in enforcing US immigration laws, that discretion does not allow violations of NEPA requirements to investigate and report environmental damage resulting from these presidential immigration policies. The judge thus granted the plaintiffs the right to continue their lawsuit against DHS and USCIS on the merits, scheduling a hearing to be held from October 25 to December 20, 2024, in his court, regarding the appropriate remedies for DHS’s NEPA violations.

The Center for Immigration Studies (CIS), which filed an amicus brief on plaintiff’s behalf, hopes the plaintiffs will succeed on the merits of their case. CIS is a non-profit think tank considered to be left-wing by the Southern Poverty Center racist and anti-immigrationforeshadowing likely controversy when this issue comes up again in court.

Ruminations on this lawsuit against the Department of Homeland Security and US Citizenship and Immigration Services

How does one make sense of two cabinet-level executive agencies—DHS and USCIS—allowing dramatically changed immigration policies at the southern border, but ignoring or disregarding NEPA’s requirement that EPA investigate the potential environmental harms of those immigration policies? And how would a presidential administration that would allow this outcome make sense to them? And what do we do, moreover, with a major cabinet-level department and one of its component agencies that allegedly failed in its legal responsibility to protect the environment against presidential immigration policies when these entities report directly to this president? How about a cabinet department that ultimately depends on a non-profit citizen group to go to court to seek remedies for what they claim are environmental damages from these immigration policies?

While NEPA is only indirectly implicated as a culprit in this story, however, it remains a law on the books since 1970 that has caused considerable pain to Americans over the years. It is now being used to shoulder some of the blame for presidential immigration policies that have harmed the environment that the EPA is charged with protecting.

It could be difficult to file a lawsuit against DHS and USCIS to stay charges against an aging president near the end of his failed presidency and two executive branch entities that report directly to him. It also speaks to the abysmal state of the Biden administration that the immigration situation has reached this conclusion.

On a more cynical level, one might conclude that bringing such a lawsuit for environmental damage when in fact the greater violation is a major border catastrophe is somewhat akin to charging Al Capone with income tax evasion, when , in fact, his real grave crime was murder.

In recent years, both alleged and self-identified defendants and victims of certain climate controversies have sought relief from the courts when, in fact, such relief might be more appropriately left to legislative bodies representative as climate controversies continue to affect politics today. sphere. There is little legal precedent for this type of court-adjudicated dispute resolution. How these controversies and lawsuits play out here is unclear at this time.