On January 25, 2017, President Donald Trump issued an executive order purporting to effectuate promises made during his campaign to prioritize border security through the construction of a physical barrier. More specifically, the order directs the Secretary of the Department of Homeland Security, Gen. John F. Kelly (Ret.), to “immediately plan, design, and construct a physical wall” along our southern border. Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017). Irrespective of the socio-economic and political arguments, pro and con, the erection of a border wall poses novel environmental and eminent domain legal questions, the answers to which could affect the feasibility of the development that the order envisions.
Building a wall along the full extent of our border with Mexico contemplates construction that would stretch nearly 2,000 miles (3,200 km) in length. A federal project of this magnitude raises a host of environmental issues, including impacts to existing nature reserves and sanctuaries, threatened and endangered species in designated critical habitats, and the genetic diversity of cross-border populations of flora and fauna. The impacts of similar major federal actions on the environment and wildlife are regularly addressed through a suite of local, state, and federal laws, which are specifically crafted to preserve the environment, protect wildlife, and mitigate environmental externalities associated with new project development. The discussion below addresses some of the most significant federal environmental laws relating to these issues.
The National Environmental Policy Act. The National Environmental Policy Act (NEPA) represents a prominent statute aimed at providing input into potential environmental impacts caused by federal projects. Under NEPA, federal agencies are required to conduct environmental assessments, outlining the prospective impacts of their activities. Moreover, in circumstances where an assessment reveals that a proposed “major federal action” will “significantly affect the quality of the human environment,” federal agencies must also prepare a detailed Environmental Impact Statement (EIS), covering the following items:
(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
42 U.S.C. § 4332(C). Some would argue that by requiring federal agencies to engage in a substantive analysis of the projected environmental impacts of their proposed actions, “the profound impact of man’s activity on . . . the natural environment” may be effectively mitigated or circumvented when completing federal projects, such as damns, highways, and power plants. 42 U.S.C. § 4331(a). However, it is also important to note that the NEPA/EIS is a multistep process requiring, among other things, public notice and comment, all of which can take a substantial amount of time to complete, with a minimal estimate of 24 months. The expansive magnitude of the envisioned border wall will almost certainly fall within the definition of a major federal action, thereby causing increased delay under NEPA’s EIS requirements.
The Endangered Species Act. The Endangered Species Act (ESA) also affords substantial protection for wildlife biodiversity within areas potentially impacted by federal actions. The ESA requires consultation with other federal agencies to ensure that a prospective agency action “is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification” of identified critical habitats of such species. 16 U.S.C. § 1536(a)(2). Moreover, federal agencies are required to conduct a biological assessment, identifying any endangered or threatened species likely to be adversely affected by a proposed agency action. 16 U.S.C. § 1536(c)(1). As part of that assessment, federal agencies must document the likely effects of the proposed action on listed species and their critical habitats, as well as specify measures that the agency plans to undertake to minimize impacts on such species. 16 U.S.C. § 1536(b)(4). These requirements help to effectuate federal agency conservation management. However, similar to NEPA, the ESA’s biological assessment process can take a significant amount of time to complete, commonly taking a minimum of six months. Again, the large-scale nature of the southern border wall will undoubtedly trigger various requirements of the ESA, further delaying its proposed construction.
Waiver of Applicable Environmental Statutes—Section 102 of the Real ID Act
Despite the environmental, procedural safeguards addressed above, the Illegal Immigration Reform and Immigrant Responsibility Act (Real ID Act) could be interpreted to authorize the fast-tracking of President Trump’s border wall, thereby avoiding the delay that would otherwise be caused by environmental review. Section 102(a) of the Real ID Act equips the Secretary of the Department of Homeland Security with the authority to “take such actions as may be necessary to install additional physical barriers and roads . . . in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.” Pub. L. No. 109-13 (Jan. 4, 2005). More importantly, Section 102(c)(1) of the Real ID Act further authorizes the Secretary to “waive all legal requirements” deemed “necessary to ensure [the] expeditious construction of [such] barriers and roads.” Id. This statutory text could mean that the secretary may circumvent all local, state, and federal laws, including NEPA and ESA, to facilitate construction of a southern border wall. Some would argue that such power to waive legal requirements undermines the purpose and utility of environmental protection laws, in effectively managing prospective environmental impacts attributable to federal projects and activities. On the other hand, others would argue that national security concerns outweigh any mandated environmental review, thereby justifying the waiver power contained in the Real ID Act.
History of use. With the passage of the Secure Fence Act in 2006, Congress explicitly directed the Secretary of Homeland Security to “take all actions . . . determine[d] necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.” Pub. L. No. 109-367 (Oct. 26, 2006). More specifically, Congress required the Secretary to construct physical barriers along designated stretches of the southern border—from California to Texas. Against the backdrop of 9/11, former Secretary of Homeland Security Michael Chertoff exercised his right under Section 102(c) of the Real ID Act to waive all local, state, and federal laws impeding the construction of physical barriers at multiple locations along the southern border from 2005 to 2008. Given these prior instances in which the waiver power was successfully invoked to bypass applicable laws, the Trump Administration may argue that it already possesses the legal authority to avoid consideration of associated environmental impacts in constructing the border wall.
Constitutionality challenges. While the Secretary of Homeland Security appears to have the discretion to bypass applicable laws impeding the necessary construction of federal border projects, such authority is not unchecked. Under Section 102(c)(2)(A) of the Real ID Act, Congress explicitly granted federal district courts the “exclusive jurisdiction” to hear constitutional challenges to the Act’s waiver provision. Pub. L. No. 109-13 (Jan. 4, 2005). An opportunity to seek appellate review of a federal district court’s final judgment is only available “upon petition for a writ of certiorari to the Supreme Court of the United States.” Id. at § 102(c)(2)(C). Prior challenges to the waiver provision have included claims that it represents an unconstitutional delegation of congressional authority to an executive agency and that the waiver provision unconstitutionally restricts the judicial review process. See Sierra Club v. Ashcroft, 2005 U.S. Dist. LEXIS 44244 (Dec. 13, 2005); Defenders of Wildlife v. Chertoff, 527 F. Supp. 2d 119 (D.D.C. 2007); County of El Paso v. Chertoff, 2008 WL 4372693 (W.D. Tex. Aug. 29, 2008) (Memorandum Opinion and Order Denying Plaintiffs’ Application for Preliminary Injunction).
Typically, federal statutory waiver provisions grant the head of an agency the authority to waive laws or processes within the confines of that agency’s own jurisdiction. The Real ID Act’s waiver provision, however, grants the Secretary of Homeland Security the authority to waive laws and processes across the entire jurisdiction of the executive branch. Moreover, some would argue that the restrictions on judicial review remove a vital safeguard on the executive branch’s exercise of such congressionally delegated authority. As the aforementioned cases indicate, while several challenges to the waiver provision have been previously advanced, federal district courts have consistently upheld the constitutionality of the waiver provision as a proper delegation of congressional authority to the executive branch. Furthermore, the Supreme Court has consistently denied petitions for certiorari, requesting judicial review of the constitutionality of the waiver provision. Although federal courts have thus far been reluctant to conclude that the Real ID Act’s waiver provision is unconstitutional, judicial review, in the context of the construction of a controversial border wall, could pose a lengthy legal battle for the Trump Administration.
The Looming Battle over Eminent Domain Takings for the Border Wall
Another challenge for the Trump Administration will be the acquisition of an unprecedented number of privately held properties along the southern border, necessary for the construction of a federal project of such magnitude. Only 33 percent (or 632 miles) of the total 2,000-mile span of our border with Mexico is comprised of federal and tribal lands. See U.S. Gov’t Accountability Office, Southwest Border: Issues Related to Private Property Damage 5 (Apr. 2015), available at http://gao.gov/assets/670/669936.pdf. As such, approximately 67 percent of remaining southern borderlands are privately and state-owned. Thus the development of the border wall will require an unprecedented exercise of eminent domain power by the Trump Administration, in terms of the scope and extent of rights taken from landowners, who are not otherwise inclined to sell or gift their properties to the federal government for such a purpose.
Federal land acquisition authority. The Trump Administration could first attempt to acquire the privately held land needed to build a wall along the southern border through instituting an extensive purchase negotiation process. Under 8 U.S.C. § 1103(b)(1), the Secretary of Homeland Security, acting through the attorney general, “may contract for or buy an interest in land . . . adjacent to or in the vicinity of an international land border,” when such land is deemed to be “essential to control and guard the boundaries and borders of the United States.” While voluntary sales may enable the Trump Administration to acquire a substantial portion of privately owned land along the southern border, the federal government will likely have to utilize its power of eminent domain to forcibly secure the remainder of such private lands. When voluntary sales negotiations break down, the federal government has the authority to “commence condemnation proceedings.” 8 U.S.C. § 1103(b)(3). Under 40 U.S.C. § 3113, the federal government may “acquire real estate” by condemnation “for the erection of a public building or for other public uses” when the federal government “believes that it is necessary or advantageous to the Government to do so.”
Despite its broad statutory authority, history has demonstrated the uphill battle faced by the federal government in trying to acquire private property through either voluntary sales or condemnation proceedings. Similar action was previously undertaken by former Secretary Michael Chertoff during the second Bush Administration. In 2008, the United States Department of Homeland Security filed hundreds of eminent domain lawsuits in an effort to construct physical barriers along select portions of the southern border. See Hilary Hylton, Texas Judge No Stranger to Border Fights, Time (Feb. 18, 2015), http://time.com/3713667/judge-andrew-hanen-obama-deportation/. However, based on the 480 acquisitions required to construct fencing along a 370-mile stretch of border in 2008, the Trump Administration’s expanded vision of constructing a wall spanning the full 2,000 miles of our southern border would likely require upwards of an estimated 1,200 comparable acquisitions. See David Graeler, Trump’s Border Wall: Will Eminent Domain be National News Again, Cal. Eminent Domain Report (Jan. 27, 2017), http://californiaeminentdomainreport.com/2017/01/articles/new-legislation/trumpsborder -wall-will-eminent-domain-be-national-news-again/.
Judicial review of condemnation under Kelo v. City of New London. In addition to federal statutory authority, a 2005 Supreme Court decision arguably provides the Trump Administration with the legal precedent necessary to condemn private property along the southern border for the construction of a border wall. In Kelo v. City of New London, Conn., a municipal authority initiated condemnation proceedings against homeowners who had refused to enter into voluntary sales negotiations with the City of New London after it had “approv[ed] an integrated development plan designed to revitalize its ailing economy.” 545 U.S. 469, 469 (2005). The owners of the condemned properties subsequently challenged the City’s exercise of its eminent domain power on the ground that its “taking of their properties would violate the ‘public use’ restriction in the Fifth Amendment’s Takings Clause.” Id.
In conducting its analysis, the Court reasoned that the government would be prohibited from obtaining private land, through condemnation proceedings, in circumstances where private land is being acquired “for the purpose of conferring a private benefit on a particular private party”; “[n]or would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.” Id. at 477, 478. However, it ultimately concluded that the government may properly exercise its eminent domain powers in furtherance of private economic development where the government action is intended to serve a “public purpose.” Id. at 478–80. Given the fact that Kelo involved a municipality’s acquisition of private land for mere economic development purposes, the Trump Administration may argue that this binding precedent reinforces the federal government’s existing eminent domain authority to acquire privately owned lands for the seemingly stronger public purpose of safeguarding our southern border.
Setting politics aside, the construction of a 2,000-mile southern border wall will likely raise, and through legal proceedings answer, numerous novel environmental and eminent domain legal questions in the forthcoming years.
Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).