In re Border Infrastructure Envtl. Litig.

These three consolidated cases involve challenges to Waiver Determinations made by former Secretaries of the Department of Homeland Security on August 2, 2017 and September 12, 2017 pursuant to section 102 of IIRIRA 1 waiving the legal requirements of NEPA, 2 the ESA, 3 the CZMA 4 and more than 30 additional laws not at issue in these cases. The Waiver Determinations concern two types of border wall construction projects in San Diego County: (1) the "border wall prototype project"; and (2) the replacement of fifteen miles of existing border fence in the San Diego Sector and three miles of existing border fence in the El Centro Sector ("border fence replacement projects"). The Plaintiffs allege variously that (1) the Waivers are ultra vires acts that exceed the authority delegated by Congress; and (2) the Waivers are unconstitutional acts under a variety of legal doctrines.

The Court is aware that the subject of these lawsuits, border barriers, is currently the subject of heated political debate in and between the United States and the Republic of Mexico as to the need, efficacy and the source of funding for such barriers. In its review of this case, the Court cannot and does not…