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Emergency Declarations vs. Environmental Laws: Ninth Circuit Blocks Use of Defense Funding for Border Wall Construction

A federal court of appeal has blocked President Donald Trump’s efforts to build a border wall using military funds and circumventing compliance with environmental laws and regulations. The Ninth Circuit ruled on October 9, 2020 that the Trump administration improperly ordered the diversion of $3.6 billion in defense funding for the construction of border wall projects in California, Arizona, New Mexico and Texas. The case is Sierra Club, et al. v. Trump, Ninth Circuit Case No. 19-17501.

In February 2019, Congress provided $1.375 billion to fund border wall construction – far less than the $5.7 billion requested by the President. President Trump subsequently issued a proclamation pursuant to the National Emergency Act (NEA), declaring that “a national emergency exists at the southern border” and that the use of the Armed Forces would be required. The NEA proclamation invoked emergency authority for construction of the border wall as a military project, using funds that were previously committed to military spending. The Trump administration sought to construct 175 miles of the proposed southern border wall without any environmental review under the National Environmental Protection Act (NEPA), permitting under the Clean Water Act, or consultation under the Endangered Species Act.

On two occasions, the U.S. Congress adopted resolutions to revoke the NEA proclamation. President Trump vetoed both of those resolutions. In September 2019, the Secretary of Defense announced that it was necessary to divert $3.6 billion from 128 military construction projects to fund 11 border wall projects. Twenty states and two environmental organizations sued to prevent any transfer of funds pursuant to the NEA proclamation. This case represents the first significant dispute over military spending under the NEA since its adoption in 1976.

Appellate Court’s Ruling on Standing
The court first reviewed the issue of “standing” to confirm that the plaintiffs were proper parties to challenge the border wall projects. To establish standing, plaintiffs must show that (1) they were injured by the NEA proclamation, (2) the injury is traceable to the defendant’s conduct, and (3) courts are empowered to address the injury. In this case, the fast-tracking of construction under the NEA gave rise to various environmental injuries as a basis for standing for both the states and the environmental organizations. The states would suffer injuries to their quasi-sovereign interests in enforcing their own environmental laws, including statutes protecting air and water quality and endangered species. For example, the court found that border wall construction could cause environmental harm to endangered species such as the jaguar, Quino Checkerspot butterfly, white-sided jackrabbit, and others located in environmentally sensitive areas in California, Arizona, New Mexico and Texas. States also had standing due to the economic impact of lost taxes and revenues from projects that were defunded for the border wall construction.

Appellate Court’s Ruling on Scope of President’s Authority under NEA
After finding that all plaintiffs had standing, the court ultimately ruled that the proclamation exceeded the President’s authority under the NEA. First, the border wall did not constitute military construction because border operations are conducted by the Department of Homeland Security, not the Department of Defense. Second, the Ninth Circuit found that the wall was not necessary to support related activities of the Armed Forces. The court rejected an argument that the Department of Defense had discretion to determine when construction was necessary to support the use of Armed Forces. The court also rejected the administration’s characterization of the border wall projects as a military installation. The opinion concluded that while “in times of national emergency we generally owe great deference to the decisions of the Executive,” the power to legislate for emergencies nonetheless belongs to Congress. Given the legislature’s decision to withhold border wall funding and two attempts to terminate the NEA proclamation, the court refused to allow the President to override the U.S. Congress. The Ninth Circuit also upheld the permanent injunction granted to the environmental organizations, including the Sierra Club.

U.S. Supreme Court’s Review Stays Injunction
Despite the strong language in the Court of Appeal’s ruling, the U.S. Supreme Court previously stayed, (i.e., postponed) enforcement of the injunction against border wall construction. As a result, construction of the border wall has been allowed to proceed. On October 19, 2020, the Supreme Court granted review of cases related to the funding of the border wall construction, therefore the legality of the transfer of military funds and related construction will be before the U.S. Supreme Court in the coming term.

Impact on Use of Emergency Declarations to Circumvent Environmental Laws
The Ninth Circuit’s decision on the border wall funding – and subsequent Supreme Court ruling – could have far-reaching implications. Beyond the specific authority of the President under the NEA, the appellate opinion raises questions about similar efforts by the Trump administration to use emergency declarations to circumvent environmental laws and other regulatory hurdles.

For example, in June 2020, President Trump signed an executive order urging federal agencies to expedite transportation and infrastructure projects by streamlining compliance with environmental laws including NEPA, the Endangered Species Act and the Clean Water Act. That executive order cited emergency authorization based on the economic downturn resulting from the COVID-19 pandemic. As with the NEA proclamation, the President’s emergency order was opposed by several states and environmental organizations.

The Supreme Court’s ruling on the border wall cases could provide the executive branch with greater leeway in determining what constitutes a national emergency, and a redefinition of emergency powers that could profoundly re-shape the checks and balances between the executive and legislative branches, as well as the ability of states and non-governmental organizations to challenge executive decisions.