AuthorFitzgerald, Edward A.
  1. INTRODUCTION II. PRIOR HISTORY AND EVOLUTION OF THE STATUTORY FRAMEWORK III. IN RE BORDER INFRASTRUCTURE ENVIRONMENTAL LITIGATION A. Ultra Vires-Step One 1. Text 2. Legislative History 3. Statutory Purposes B. Ultra Vires-Step Two C. Non-Delegation Doctrine 1. Judicial Review and the Non-Delegation Doctrine 2. Foreign Affairs IV. POST-LITIGATION DEVELOPMENTS A. General Accounting Office Criticism B. Scientific Criticism C. Congressional Opposition V. NINTH CIRCUIT APPEAL VI. BORDER WALL FUNDING CONTROVERSY VII. CONCLUSION I. INTRODUCTION

    On January 25th, 2017, President Donald Trump issued Executive Order 13,767, Border Security and Immigration Enforcement Improvements, which instructed the Department of Homeland Security (DHS) to construct a wall (1) along much of the 2000 mile-long U.S. Mexico border. (1) (2) DHS began to consider proposals for two border wall prototypes. DHS also planned to replace the existing fourteen-mile primary and secondary border fences in the San Diego (SD) sector (3) and two miles of border fences in the El Centro sector. (4) In August 2017, Secretary of Homeland Security (SHS) John Kelley determined that the San Diego Project Area "is an area of high illegal entry" (5) and exercised his authority under section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (6) (IIRIRA) to waive National Environmental Protection Act (7) (NEPA), Endangered Species Act (8) (ESA), Coastal Zone Management Act (9) (CZMA) and thirty additional laws not at issue in In Re Border Infrastructure Environmental Litigation (Curiel). (10) Two projects specified in the waiver determination included the replacement of approximately fifteen miles of existing primary fencing near San Diego and the construction of border-wall prototypes on the eastern end of the secondary barrier near San Diego. (11)

    In September 2017, acting SHS Elaine Duke declared that the "El Centro Sector is an area of high illegal entry" and waived compliance within NEPA, ESA, and numerous other statutes. (12) DHS planned to build a replacement fence in the El Centro Sector "along an approximately three mile segment of the border that starts at the Calexico West Land Port of Entry and extends westward." (13)

    The State of California, the California Coastal Commission, and several environmental groups brought suits, challenging the SHS waivers. (14) The claimants alleged that the waivers were ultra vires because they were not authorized by Congress in section 102(b) of IIRIRA. (15) Other statutory and constitutional violations were also asserted. (16) In February 2018, the U.S. District Court for the Southern District of California in Curiel held that SHS waivers that allowed the aforementioned projects to proceed were not ultra vires. (17) The court also held that the section 102(c) waivers did not violate the non-delegation doctrine. (18) The Ninth Circuit upheld the district court decision. (19)

    This Article asserts that the district court and Ninth Circuit decisions were erroneous. It traces the history of the conflict regarding California's border fencing and the evolution of IIRIRA sections 102(b) and (c). The Article demonstrates that the courts should have found the SHS two waivers for the three projects were ultra vires because the SHS waiver authority under section 102(c) is limited to the fencing authorized in section 102(b). The waivers also violated the nondelegation doctrine. Several post-litigation developments are discussed, particularly the ongoing controversy over border wall funding. The Article concludes that Congress should terminate the SHS waiver authority, reconsider the costs of the border walls and enact legislation that balances environmental protection and national security along the southwest border.


    The U.S.-Mexico "[b]order was established with the Treaty of Guadalupe Hidalgo in 1848 and the Gadsden Purchase in 1853." (20) Numerous fences were proposed and constructed along the southwest border from 1924 through 1955. (21) The Immigration and Naturalization Service (INS) in 1977-1978 approved funding for constructing border fences in El Paso, Texas; San Ysidro, California (on the border south of San Diego); and San Luis, Arizona (on the border south of Yuma). (22) The new fences would replace the older dilapidated fences and divert illegal immigrants away from the cities into the desert where they could easily be captured. (23) In October, 1978, INS announced that the new twelvefoot high fences would be capped with barbed wire. These fences became known as the "Tortilla Curtain." (24)

    The North American Free Trade Association negotiations in the early 1990s focused attention on environmental concerns along the southwest border. (25) Programs and institutions were created to deal with binational environmental issues, including Border XXI and the Border Environmental Cooperation Commission. (26) The North American Development Bank funded efforts for environmental improvements along the border. (27) However, the U.S. Border Patrol (USBP), which was part of DHS, was reluctant to comply with environmental statutes in its interdiction efforts. (28)

    The USBP completed the construction of the primary fence in the San Diego sector in 1993. (29) The fence cut across the first fourteen miles of the southwest border, "starting from the Pacific Ocean, and was constructed of 10-foot-high welded steel." (30) The USBP in 1994 began an aggressive effort to stop illegal immigration through major urban areas. The USBP's Southwest Border Strategy stressed "prevention through deterrence" and was designed to "make it so difficult and so costly to enter this country illegally that fewer individuals would try." (31) The Clinton administration launched "Operation Gatekeeper" south of San Diego in October 1994, which involved more agents and technology in specific areas. (32) These measures and the primary fence proved to be successful, but "fiscally and environmentally costly." (33) President Clinton in his January 1996 State of the Union message declared, "[a]fter years and years of neglect, this administration has taken on a strong stand to stiffen protection on our borders." (34) The INS noted, "[t]he border is harder to cross now than at any time in history." (35)

    Congress strengthened border security by enacting the IIRIRA in 1996, (36) which was attached as a rider on an appropriation bill. (37) The IIRIRA was the first legislative enactment, which specifically mandated the construction of "physical barriers and roads." (38) Section 102(a) granted the U.S. Attorney General (AG) authority to construct border barriers. (39) Section 102(b) authorized the building of secondary and tertiary fences and roads between the fences in the San Diego sector. (40) The concept of the three-tiered fence came from a 1993 study prepared by Sandia Laboratories. (41) Section 102(c) allowed the AG to waive only NEPA and ESA requirements for the construction of fourteen miles of fencing along the San Diego sector. (42)

    After 9/11, Congress intensified its effort to improve border security. In 2002, the newly created DHS assumed responsibility for border security. (43) The Homeland Security Act specifically addressed the San Diego fencing, stating it was "the sense of the Congress that completing the 14-mile border fence project required to be carried out under section 102(b) of the [IIRIRA] should be a priority for the Secretary." (44) INS was dissolved and its duties were transferred to the Bureau of Customs and Border Protection (CBP). (45) Binational efforts to protect and manage the environment along the southwest border suffered during the Bush Administration. (46)

    Efforts to complete the San Diego fencing were halted because of environmental concerns. The first 9.5 miles from east of the San Ysidro border crossing was finished shortly after 2001, but completion of the remaining 4.5 miles west of San Ysidro to the Pacific proved controversial. (47) The remaining fence extension would have to traverse the south side of the Tijuana River National Wildlife Refuge, the Tijuana River National Estuarine Research Reserve, Border Field State Park, and the San Diego County Regional Park. (48) The construction of the secondary fence and twenty-four-foot wide patrol road required the movement of 2.1 million cubic feet of solid fill into Smugglers Gulch. (49) Opponents pointed out that soil erosion from the construction would adversely affect 2,531 acres of federal estuary at the mouth of the Tijuana River, which is a stopover for 370 species of migratory birds, including six endangered species. (50)

    The California Coastal Commission (CCC) halted construction of the remaining 4.5 miles of San Diego fencing in 2004. The CCC, utilizing its consistency authority under the CZMA, (51) determined that the planned fencing was not consistent "to the maximum extent practicable" with the federally approved California Coastal Zone Management Act. (52) The CCC was specifically concerned with potentially significant adverse effects on 1) the Tijuana River National Estuarine Research and Reserve; 2) state and federally listed threatened and endangered species; 3) lands set aside for protection within California's Multiple Species Conservation Program; and 4) other aspects of the environment. (53) The CCC alleged that the CBP failed to show that other less environmentally damaging alternatives, which were rejected, would have prevented compliance with the IIRIRA. (54) Representative Filner (D. Cal.), declared, "[t]he waiving of all environmental rules for this is just criminal. It's just too extensive a trade-off for the limited security advantage." (55) Environmental groups also opposed the construction. (56) Legislative efforts to complete the San Diego border fencing continued. (57) The Real ID Act of 2005 (RIDA) expanded the SHS waiver authority under section...

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