Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Applicants v. Sierra Club, et al.

No. 19A60

In the Supreme Court of the United States

DONALD J. TRUMP, et al.,

v.

Applicants,

SIERRA CLUB, et al.,

Respondents.

ON APPLICATION FOR STAY PENDING APPEAL

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOTION FOR LEAVE TO FILE AND BRIEF FOR THE STATES

OF CALIFORNIA AND NEW MEXICO AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

HECTOR BALDERAS

Attorney General of New Mexico

TANIA MAESTAS

Chief Deputy Attorney General

NICHOLAS M. SYDOW

Civil Appellate Chief

JENNIE LUSK

Assistant Attorney General,

Civil Rights Bureau Chief

STATE OF NEW MEXICO

OFFICE OF THE ATTORNEY

GENERAL

P.O. Drawer 1508

Santa Fe, NM 87504-1508

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

ROBERT W. BYRNE

SALLY MAGNANI

MICHAEL L. NEWMAN

Senior Assistant Attorneys

General

JOSHUA A. KLEIN

Deputy Solicitor General

MICHAEL P. CAYABAN

CHRISTINE CHUANG

EDWARD H. OCHOA

Supervising Deputy

Attorneys General

HEATHER C. LESLIE

LEE I. SHERMAN

JANELLE M. SMITH

JAMES F. ZAHRADKA II*

Deputy Attorneys General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

1515 Clay Street, 20th Floor

Oakland, CA 94612-0550

(510) 879-1247

James.Zahradka@doj.ca.gov

*Counsel of Record

1

MOTION FOR LEAVE TO FILE

The States of California and New Mexico respectfully move this Court for leave to file the enclosed brief

as amici curiae in support of respondents and in opposition to the application for a stay.1 The brief seeks to

bring to the Court’s attention material information not

addressed in the application.

The amici States are plaintiffs in a separate case

that was litigated in tandem with this one in the district court, and recently consolidated with it for proceedings on appeal. In the States’ case, California and

New Mexico sought and obtained a declaratory judgment that the Executive Branch applicants here do

not have the legal authority to use transferred funds

to construct border barriers in those States. Those proposed new border barriers are also at issue in the Sierra Club case that is before this Court. However, in

the States’ case, the district court declined to decide

whether the States were entitled to an injunction running directly in their favor, in part on the ground that

any such injunction would be “duplicative” of the relief

the court was granting to the respondents in this case.

The States thus have a strong interest in the present

proceeding, because the district court viewed the injunction at issue here as protecting the States from

harm.

In the proposed amicus brief, the States offer distinct arguments not asserted by the private respondents here. Most importantly, the sovereign interests of

1 Due to the expedited briefing schedule set by the Court, it was

not feasible to give the ten-day notice ordinarily required by Rule

37.2(a). All parties have consented to the filing of the brief without that notice.

2

California and New Mexico in the enforcement of their

laws, as well as their direct interests in the protection

of sensitive environmental areas within their territorial jurisdictions and their residents’ public health,

would be irreparably harmed if the Executive Branch

applicants were allowed to proceed with construction

of border barriers, in derogation of state law, in a manner never authorized by Congress and contrary to the

Constitution. This Court should have the benefit of

that perspective in deciding how to rule on the present

application for a stay.

CONCLUSION

The Court should grant leave to file the enclosed

amicus brief in support of respondents’ opposition to

the application for stay.

3

Respectfully submitted,

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

ROBERT W. BYRNE

SALLY MAGNANI

MICHAEL L. NEWMAN

Senior Assistant Attorneys General

JOSHUA A. KLEIN

Deputy Solicitor General

MICHAEL P. CAYABAN

CHRISTINE CHUANG

EDWARD H. OCHOA

Supervising Deputy Attorneys

General

HEATHER C. LESLIE

LEE I. SHERMAN

JANELLE M. SMITH

JAMES F. ZAHRADKA II

Deputy Attorneys General

Attorneys for Amicus Curiae

State of California

HECTOR BALDERAS

Attorney General of New Mexico

TANIA MAESTAS

Chief Deputy Attorney

General

NICHOLAS M. SYDOW

Civil Appellate Chief

JENNIE LUSK

Assistant Attorney General,

Civil Rights Bureau Chief

Attorneys for Amicus Curiae

State of New Mexico

July 19, 2019

i

QUESTION PRESENTED

Whether this Court should grant a stay pending

appeal, which would allow the Executive Branch applicants to proceed immediately with the construction

of new border barriers using funds they have diverted

from other purposes.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

INTERESTS OF AMICI CURIAE .............................. 1

ARGUMENT ................................................................ 3

I. Allowing Construction to Begin Pending

Appeal Would Substantially Injure

California and New Mexico .................................. 5

A. Unlawful Diversion of Funds to

Construct Border Barriers Allows the

Executive to Encroach on State

Sovereign Interests in Ways Never

Authorized by Congress.................................. 5

B. Harms to California’s Sovereign

Interests .......................................................... 7

1. Water Quality ........................................... 7

2. Air Quality ................................................ 8

3. Endangered Species ............................... 10

C. Harms to New Mexico’s Sovereign

Interests ........................................................ 10

1. Air Quality .............................................. 11

2. Wildlife Corridors and Endangered

Species .................................................... 11

D. The Harms to Amici States’ Sovereign

Interests Are Significant,

Irreparable, and Weigh Against the

Executive Branch Applicants’ Stay

Application .................................................... 12

II. A Stay Would Disrupt the Status Quo in

the States’ Parallel Litigation ............................ 15

III. The Court’s Decision in Winter Does Not

Support the Stay Application ............................. 16

CONCLUSION .......................................................... 20

iii

TABLE OF AUTHORITIES

Page

CASES

Alfred L. Snapp & Son, Inc. v. Puerto

Rico ex rel. Barez

458 U.S. 592 (1982) ................................................ 5

Clinton v. City of New York

524 U.S. 417 (1998) .......................................... 6, 14

Dalton v. Specter

511 U.S. 462 (1994) ............................................... 3

E. Bay Sanctuary Covenant v. Trump

909 F.3d 1219 (9th Cir. 2018) ................................ 6

Hills v. Gautreaux

425 U.S. 284 (1976) .............................................. 18

I.N.S. v. Chadha

462 U.S. 919 (1983) .............................................. 19

Kansas v. United States

249 F.3d 1213 (10th Cir. 2001) ............................ 13

Keystone Bituminous Coal Ass’n v.

DeBenedictis

480 U.S. 470 (1987) ............................................. 14

Lucas v. Townsend

486 U.S. 1301 (1988) .............................................. 4

Maine v. Taylor

477 U.S. 131 (1986) ................................................ 5

iv

TABLE OF AUTHORITIES

(continued)

Page

Maryland v. King

567 U.S. 1301 (2012) .............................................. 5

New Motor Vehicle Bd. of California v.

Orrin W. Fox Co.

434 U.S. 1345 (1977) .................................. 5, 12, 13

Nken v. Holder

556 U.S. 418 (2009) .................................... 4, 13, 17

Office of Personnel Management v.

Richmond

496 U.S. 414 (1990) .............................................. 19

Rent-A-Center, Inc. v. Canyon Television

& Appliance Rental Inc.

944 F.2d 597 (9th Cir. 1991) ................................ 13

Sorrell v. IMS Health Inc.

564 U.S. 552 (2011) ................................................ 5

TVA v. Hill

437 U.S. 153 (1978) .............................................. 19

Winter v. Natural Resources Defense

Council, Inc.

555 U.S. 7 (2008) ...................................... 16, 17, 18

STATE CONSTITUTIONAL PROVISIONS

N.M. Const., art. XX, § 21 ................................... 11, 13

v

TABLE OF AUTHORITIES

(continued)

Page

FEDERAL STATUTES

16 U.S.C.

§ 1536(a)(2) ........................................................... 10

33 U.S.C.

§ 1341(a)(1) ............................................................. 8

42 U.S.C.

§ 7401(b)(1) ............................................................. 9

§ 7506(c)(1) ....................................................... 9, 14

§ 7506(c)(1)(B)(ii)-(iii) ............................................. 9

Pub. L. No. 104-208, 110 Stat. 3009

(1996) ...................................................................... 6

Pub. L. No. 116-6, 133 Stat. 13 (2019) ........................ 1

STATE STATUTES

Cal. Fish & Game Code

§§ 2050-2089 ........................................................... 7

§ 2052 .................................................................... 10

Cal. Gov’t Code § 12600(b) ........................................ 13

Cal. Water Code

§ 13000 .................................................................... 8

§§ 13000-16104 ....................................................... 7

§ 13050 .................................................................... 8

§ 13260 .................................................................... 8

2019 N.M. Laws Chapter 97 ............................... 11, 12

vi

TABLE OF AUTHORITIES

(continued)

Page

N.M. Stat. Ann. § 17-2-41.......................................... 12

N.M. Stat. Ann. § 75-6-1(D) ...................................... 12

FEDERAL REGULATIONS

40 C.F.R.

§ 51.930 ................................................................. 11

§ 52.220(c)(345)(i)(E)(2) .......................................... 9

§ 93.150 ............................................................. 9, 14

75 Fed. Reg. 39,366 (July 8, 2010) .............................. 9

84 Fed. Reg. 17,185 (Apr. 24, 2019) ............................ 6

84 Fed. Reg. 21,800 (May 15, 2019) ............................ 6

STATE REGULATIONS

N.M. Admin. Code § 20.2.23.6................................... 11

N.M. Admin. Code §§ 20.2.23.108-113 ...................... 11

1

INTERESTS OF AMICI CURIAE

After rejecting the Executive Branch’s request for

billions of dollars in funding toward a border wall to

extend across the southern border of the United

States, Congress made a limited $1.375 billion appropriation in the Consolidated Appropriations Act of

2019, Pub. L. No. 116-6, 133 Stat. 13 (2019), for the

construction of border barrier fencing in a specific area

of Texas, subject to enumerated conditions. On the

same day that President Trump signed the 2019 Act

into law, he directed the diversion of $6.7 billion beyond what Congress had appropriated to be used for

the construction of additional barriers. These diverted

funds were not subject to the geographic limitations or

conditions of the 2019 Act. President Trump’s direction culminated in a plan by the Executive Branch applicants here to spend the diverted funds to build

border barriers in additional locations not approved by

Congress, including California and New Mexico.

Like the respondents here, California and New

Mexico filed suit in the Northern District of California

alleging that these transfers of funds exceeded the Executive Branch applicants’ statutory authority and violated the constitutional separation of powers. The

cases were not formally consolidated, but were litigated together in the district court. On June 28, the

district court granted partial summary judgment both

to respondents and to California and New Mexico. In

each case the court entered a declaratory judgment

that the Executive Branch applicants acted unlawfully in diverting $2.5 billion in Department of Defense funds appropriated for other purposes by

Congress toward the construction of border barriers.

2

In the Sierra Club case, the district court also

granted respondents’ request for a permanent injunction barring the diversions. But in the States’ case, the

court denied, without prejudice, the States’ motion for

injunctive relief. The court reasoned in part that it had

already “enjoined the relevant Defendants in [respondents’] action from proceeding with . . . construction,” and that therefore “no irreparable harm to

California and New Mexico [would] result from the denial (without prejudice) of their duplicative requested

injunction.” Order of June 28, 2019, ECF No. 185, at

8, California v. Trump, No. 19-00872 (N.D. Cal.) (California MSJ Order); see also Stay App. 22a n.9.

The Executive Branch applicants have appealed in

both cases, and California and New Mexico have crossappealed from the denial of injunctive relief in the

States’ case. The Executive Branch applicants moved

to consolidate the appeals from both cases, acknowledging among other things that there would be no

need to address the States’ cross-appeal so long as the

injunction granted in Sierra Club remained in effect,

and that “consolidation would permit [the States] to

address their interests in the injunction directly.” ECF

No. 7, Sierra Club v. Trump, No. 19-16102 (9th Cir.),

at 3. On July 15, the court of appeals granted that motion and consolidated the appeals. ECF No. 78, Sierra

Club v. Trump, No. 19-16102 (9th Cir.).

For the same reasons that led to consolidation in

the court of appeals, the States have a plain interest

in the outcome of this stay proceeding. The district

court viewed the injunction at issue here as protecting

the States from harm, and denial of a stay would continue that protection. Conversely, granting a stay

would cause the States distinct injuries, injuries

3

which this Court must take into account as it considers the application. Rather than repeating the legal

arguments that the direct respondents are already

making here, this brief brings the States’ parallel case

to the Court’s attention, focusing on the States’ particular harms as they affect the balance of equities and

the public interest.

ARGUMENT

The Executive Branch applicants ask the Court to

grant a stay pending appeal, severely disrupting the

status quo by allowing them to begin construction of

disputed border barriers while the court of appeals

considers (on an expedited basis) the district court’s

conclusion that their proposed funding is unlawful.

Stay Appl. 1, 40.

This Court should deny the stay for the reasons explained by the direct respondents here. Briefly, the

Executive Branch applicants lack authority to spend

the funds at issue on border barrier construction because, among other reasons: (a) Congress denied the

Executive Branch’s request for those funds; (b) the

planned construction is not an “unforeseen” need; and

(c) building the border barriers is not a “military requirement.” Additionally, respondents are correct that

they have an independent constitutional cause of action which is not foreclosed by Dalton v. Specter, 511

U.S. 462 (1994). Further, the Executive Branch applicants cannot evade judicial review of their unlawful

conduct here. Even if the zone of interests test applies

(which it does not), respondents (as well as the States)

would easily satisfy it. Finally, the Executive Branch

applicants have not shown irreparable injury, and the

balance of harms and public interest weigh heavily in

respondents’ favor, particularly given the significant

environmental harms they stand to incur.

4

As this brief will show, the unique sovereign interests of California and New Mexico—two of the states

where the disputed barriers would be built—further

tip the balance of the equities against the application

for a stay. The Executive Branch applicants make no

mention of those interests, the States’ separate but

closely related lawsuit, or the separate declaratory

judgment issued in favor of California and New Mexico on identical legal grounds. See Stay Appl. 38-40.

But this Court must consider the possibility that a

stay of the injunction would “substantially injure” California and New Mexico, who are manifestly “other

parties interested in the proceeding.” Nken v. Holder,

556 U.S. 418, 434 (2009); see also Lucas v. Townsend,

486 U.S. 1301, 1304 (1988) (Kennedy, J., in chambers).

The Executive Branch applicants seek to proceed

with their proposed El Centro Project 1 and El Paso

Project 1 without complying with California’s and New

Mexico’s environmental laws that would otherwise apply to proposed federal projects. To do so they would

invoke extraordinary waiver authority. But the Executive Branch applicants can only practically exercise

that authority if they have the funds available to proceed with a project. And here, as the district court concluded, Congress provided only limited funding for

border barriers in a select area of Texas in the 2019

Act, and no funding to construct barriers in California

or New Mexico. What the Executive Branch applicants

seek through their stay application is permission to

change the status quo—in direct contravention of that

judicial conclusion—without first convincing the court

of appeals or this Court, after full briefing and argument, that the district court erred. That would irreparably harm the States and the public interest by

undercutting the States’ sovereign interests in enforcing their environmental laws protecting their water

5

quality, air quality, wildlife, and public health. The

Court should reject any such request.

I.

ALLOWING CONSTRUCTION TO BEGIN PENDING APPEAL WOULD SUBSTANTIALLY INJURE CALIFORNIA AND NEW MEXICO

A. Unlawful Diversion of Funds to Construct Border Barriers Allows the

Executive to Encroach on State Sovereign Interests in Ways Never Authorized by Congress

States possess undeniable sovereign interests in

their “power to create and enforce a legal code,” Alfred

L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458

U.S. 592, 601 (1982), as well as in protecting the natural resources, wildlife, and public health within their

borders. See, e.g., Maine v. Taylor, 477 U.S. 131, 151

(1986) (state has “broad regulatory authority to protect the health . . . of its citizens and the integrity of

its natural resources”); Sorrell v. IMS Health Inc., 564

U.S. 552, 596 (2011) (“The protection of public health

falls within the traditional scope of a State’s police

powers”). And any time a State is prevented “from effectuating statutes enacted by representatives of its

people, it suffers a form of irreparable injury.” New

Motor Vehicle Bd. of California v. Orrin W. Fox Co.,

434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers); see also Maryland v. King, 567 U.S. 1301 (2012)

(Roberts, C.J., in chambers) (state’s inability to “employ a duly enacted statute . . . constitutes irreparable

harm”).

Moreover, the public at large has an interest in ensuring that the States’ sovereign interests in enforcing

valid state laws are protected from unlawful federal

actions that undermine those interests, particularly

when those actions are taken by one of the branches

6

at the expense of another. As the district court correctly recognized, the public “has an interest in ensuring that statutes enacted by their representatives are

not imperiled by executive fiat.” App. 113a (quoting E.

Bay Sanctuary Covenant v. Trump, 909 F.3d 1219,

1255 (9th Cir. 2018)). And as Justice Kennedy observed, “[c]oncentration of power in the hands of a single branch is a threat to liberty.” Clinton v. City of New

York, 524 U.S. 417, 450 (1998). (Kennedy, J., concurring).

Here, the Executive Branch applicants propose to

dedicate $2.5 billion of diverted funding to building

border barriers throughout the southwest border of

the United States, including 52 miles of barriers in

California and New Mexico. Notwithstanding its federal character, such construction would ordinarily be

subject to substantial state oversight because of its effect on air, water, and biological resources. A number

of specific examples are set out below. If, however, the

Executive Branch applicants are permitted to proceed

with the projects they propose here, they will invoke

special waivers issued by the Department of Homeland Security under the Illegal Immigration Reform

and Immigrant Responsibility Act (IIRIRA), Pub. L.

No. 104-208, § 102(c), 110 Stat. 3009 (1996), for construction in the El Paso and El Centro Sectors, overriding “all federal, state, or other laws, regulations,

and legal requirements of, deriving from, or related to

the subject of” federal statutes identified in the

waiver. 84 Fed. Reg. 17,185, 17,187 (Apr. 24, 2019); 84

Fed. Reg. 21,800-01 (May 15, 2019).

The legality of those waivers as such is not at issue

here. But the waivers cannot practically be exercised

unless there are funds lawfully available to build border projects like the ones proposed here. It is only the

7

unlawful diversion of the funds challenged in this litigation that makes it possible for the Executive Branch

applicants to employ that waiver authority to override

otherwise applicable state laws, sharply infringing on

the States’ sovereign interests.

B. Harms to California’s Sovereign Interests

California has many laws designed to protect the

State’s water and air quality; wildlife, land, and other

environmental resources; and public health. See, e.g.,

Porter-Cologne Water Quality Control Act, Cal. Water

Code §§ 13000-16104; California Endangered Species

Act, Cal. Fish and Game Code §§ 2050-2089. Pursuant

to this body of law, California agencies develop air

quality, water quality, and wildlife resource management plans intended to accomplish California’s environmental protection objectives. And, as described

below, federal law normally permits or even requires

application of these state laws to federal construction

projects like the border barriers at issue here. But the

Executive Branch applicants’ unlawful diversion of

funds to construct El Centro Project 1 and invocation

of IIRIRA waivers prevents California from exercising

its sovereign right to enforce its (1) water quality; (2)

air quality; and (3) species protection laws.

1.

Water Quality

Construction of El Centro Project 1 in Imperial

County, California will disturb the soil in and near

ephemeral streams and the Pinto Wash, tributaries of

the New River. California, supra, Env. App’x in Supp.

of Mot. Partial Summ. J. Ex. 2 (Dunn Decl. ¶¶ 8-13),

ECF No. 176-2 (Env. App’x). Ordinarily, before such

dredge and fill activities can proceed, federal officials

would be required to obtain certification of compliance

8

with California’s water quality standards from a California regional water quality agency. Cal. Water Code

§ 13260 (imposing requirements on “persons” prior to

discharging waste); id. § 13050 (defining “person” to

include “the United States, to the extent authorized by

federal law”); see also 33 U.S.C. § 1341(a)(1) (state water quality certification required as part of federal permit). Indeed, federal officials have previously sought

such certifications for construction projects in this

area. Dunn Decl. ¶¶ 9-13. Further, pursuant to the

federal Clean Water Act, the Executive Branch applicants would need to adopt water pollution mitigation

measures in the course of obtaining a permit and state

certification from the California regional water board.

Id. ¶¶ 18-20. However, by effectuating the IIRIRA

waiver through this funding diversion, the Executive

Branch applicants would, if allowed to do so, bypass

these requirements. This would undermine California’s sovereign interests “in the conservation, control,

and utilization of the water resources of the state” and

in protecting “the quality of all the waters of the state

. . . for use and enjoyment by the people of the state.”

Cal. Water Code § 13000. Their proposals are particularly injurious to California given that El Centro Project 1 “poses a high risk for storm water run-off

impacting on water quality during the construction

phase.” Dunn Decl. ¶ 19. But due to the IIRIRA

waiver, California is precluded from requiring the Executive Branch applicants to obtain the relevant permit through its regional water quality agency, and

from ensuring that they implement best management

practices for the preservation of water quality when

constructing the border barriers.

2.

Air Quality

As with water quality, applicants would ordinarily

9

be required to ensure El Centro Project 1 conforms

with California’s air quality standards by complying

with the federal Clean Air Act as set forth in California’s State Implementation Plan (SIP). 42 U.S.C.

§ 7506(c)(1). The Clean Air Act prohibits federal agencies from engaging in, supporting, or financing any activity that does not conform to a SIP. 40 C.F.R.

§ 93.150. “Conformity” violations include “increas[ing]

the frequency or severity of any existing violation of

any standard in any area,” or “delay[ing] timely attainment of any standard . . . in any area.” 42 U.S.C.

§ 7506(c)(1)(B)(ii)-(iii). These safeguards prevent federal agencies from interfering with states’ abilities to

comply with the Clean Air Act, which is meant to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare

and the productive capacity of its population.” Id.

§ 7401(b)(1).

If not for the funding diversion and accompanying

waiver, the local air district would enforce a rule (part

of California’s SIP) to reduce the amount of fine particulate matter generated from applicants’ construction and earth-moving activities. California, supra,

Request for Jud. Not. in Supp. of Partial MSJ Ex. 4

(Imperial County Air Pollution Control Dist. R. 801),

ECF No. 176-3 (RJN). That rule requires the development and implementation of a dust-control plan for

construction projects to prevent, reduce, and mitigate

particulate matter emissions. 42 U.S.C. § 7506(c)(1);

40 C.F.R. § 52.220(c)(345)(i)(E)(2); 75 Fed. Reg. 39,366

(July 8, 2010); R. 801. In addition to protecting Californians by supporting federal health standards, these

rules help mitigate blowing dust that can cause additional acute regional or local health problems. RJN Ex.

5. Thus, by proceeding with the unlawfully funded

construction without complying with California’s

10

laws, the Executive Branch applicants would impair

not only California’s sovereign interest in protecting

its environment, but also its interest in protecting

public health.

3.

Endangered Species

Finally, but for Executive Branch applicants’ diversion of funds and use of the IIRIRA waiver, Executive

Branch applicants could not build El Centro Project 1

without first ensuring the project “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction

or adverse modification of habitat of such species.” 16

U.S.C. § 1536(a)(2); Env. App’x Ex. 1 (Clark Decl.

¶ 15). Compliance with this provision would protect

species that are threatened or endangered under California law and allow California to continue to implement habitat conservation agreements with federal

agencies that impose limitations on habitat-severing

projects like El Centro Project 1. Clark Decl. ¶¶ 17-19;

RJN Ex. 6 (“Flat-tailed Horned Lizard Rangewide

Management Strategy”). Executive Branch applicants’ plan to exercise their waiver of these requirements protecting such threatened and endangered

species to build border barriers with unlawfully diverted funds undermines California’s ability to enforce the California Endangered Species Act and

accomplish “the policy of the state to conserve, protect,

restore, and enhance any endangered species or any

threatened species.” Cal. Fish & Game Code § 2052.

C. Harms to New Mexico’s Sovereign

Interests

New Mexico also has enacted and enforces a variety of environmental laws to protect its air quality and

wildlife. By using the funds at issue here to construct

El Paso Project 1 in Doña Ana and Luna Counties

11

without complying with these laws, Executive Branch

applicants would impair New Mexico’s “protection of

the state’s beautiful and healthful environment”

which is “of fundamental importance to the public interest, health, safety and the general welfare.” N.M.

Const., art. XX, § 21.

1. Air Quality

First, the federal border barrier construction project normally would be required to comply with a dust

control plan that New Mexico adopted under the Clean

Air Act. RJN Ex. 7; 40 C.F.R. § 51.930; N.M. Admin.

Code §§ 20.2.23.108-113. The purpose of this plan is

“to limit human-caused emissions of fugitive dust into

the ambient air by ensuring that control measures are

utilized to protect human health and welfare.” N.M.

Admin. Code § 20.2.23.6. As a result of Executive

Branch applicants’ unlawful funds transfer and

IIRIRA waiver, New Mexico’s ability to vindicate its

sovereign interest in protecting human health and

welfare by applying this plan to El Paso Project 1 is

impaired.

2. Wildlife Corridors and Endangered Species

The funding diversion, waiver of all laws under

IIRIRA, and resulting construction also will impede

New Mexico’s ability to implement its Wildlife Corridors Act, which aims to protect large mammals’ habitat corridors from human-caused barriers such as

roads and walls. 2019 N.M. Laws Ch. 97. The Act requires New Mexico state agencies to create a “wildlife

corridors action plan” to protect species’ habitat. Env.

App’x Ex. 6 (Traphagen Decl. ¶ 27). Several important

wildlife corridors run through, or adjacent to, the El

Paso Project 1 site. Id. ¶¶ 27-28. Pronghorn antelope,

12

mule deer, mountain lions, and bighorn sheep are included within the definition of “large mammals” that

are specifically protected under the Act. 2019 N.M.

Laws Ch. 97. El Paso Project 1 will completely block

habitat corridors for these species. Traphagen Decl.

¶¶ 17, 27-31. New Mexico will be limited in its ability

to “engag[e] in investigation and examination” to protect these important wildlife corridors if the stay is

granted, thus undermining New Mexico’s ability to enforce its laws. New Motor Vehicle Bd., 434 U.S. at

1351.

Further, a stay would harm species that New Mexico’s laws were enacted to protect; many (such as the

Mexican Wolf) are endangered under both New Mexico and federal endangered species acts. See N.M. Stat.

Ann. § 17-2-41; Traphagen Decl. ¶ 18. As noted above,

the El Paso Project 1 border wall will bisect important

wildlife habitats, impairing the Mexican Wolf and

other endangered species’ access to those habitats.

Traphagen Decl. ¶¶ 14-24, 26-27. Endangered plant

species also likely would be harmed by the construction of El Paso Project 1, including two cactus species

that are endangered under New Mexico law. N.M.

Stat. Ann. § 75-6-1(D); Env. App’x Ex. 3 (Lasky Decl.

¶ 14). Applicants’ proposed El Paso Project 1 would directly impair New Mexico’s ability to protect these interests.

D. The Harms to Amici States’ Sovereign Interests Are Significant, Irreparable, and Weigh Against the

Executive Branch Applicants’ Stay

Application

These harms to the States’ “sovereign interests and

public policies” cannot be remedied by monetary damages, and are the type of irreparable harm that can

13

justify the imposition of injunctive relief against federal executive actions. Kansas v. United States, 249

F.3d 1213, 1227 (10th Cir. 2001); see also Rent-A-Center, Inc. v. Canyon Television & Appliance Rental Inc.,

944 F.2d 597, 603 (9th Cir. 1991) (“intangible injuries”

that cannot be remedied by monetary damages “qualify as irreparable harm”). Moreover, because the public interest is served by the implementation of duly

enacted state laws, New Motor Vehicle Bd., 434 U.S.

at 1351, the Executive Branch applicants’ interference—by their funding diversions and waivers—with

the States’ ability to enforce their laws tips the scales

further toward denying the stay application. Nken,

556 U.S. at 426 (identifying “where the public interest

lies” as a factor in the stay analysis).

While Executive Branch applicants’ assertion that

the private respondents’ interests here would be

“largely protected . . . by the removal of any barriers

found to be unlawful,” Stay Appl. 39, is questionable

even on its own terms, it is a non sequitur when applied to California’s and New Mexico’s sovereign interests. These would clearly still be irrevocably harmed

even if the border wall were removed after construction, as the States would have permanently incurred

the harm to their sovereign interests of being prevented from enforcing their own laws.

The public’s interest in the enforcement of state

laws that are designed to protect environmental resources from harm also weighs toward preserving the

permanent injunction. See Cal. Gov’t Code § 12600(b)

(“[i]t is in the public interest to provide the people of

the State of California . . . with adequate remedy to

protect the natural resources of the state of California

from pollution, impairment or destruction”); N.M.

Const. art. XX, § 21 (“[t]he legislature shall provide for

14

control of pollution and control of despoilment of the

air, water and other natural resources of this state”);

see also Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 488 (1987) (recognizing the significance of a state exercising its police power to “protect

the public interest in health [and] the environment”).

This is even more so because many of the state laws

are in furtherance of federal environmental laws and

policies, and thus, advance a public interest recognized by the federal government. Pertinent here, California’s SIP ensures compliance with the federal

Clean Air Act, see 42 U.S.C. § 7506(c)(1); 40 C.F.R.

§ 93.150, and California’s regional water board requires compliance with the federal Clean Water Act,

Dunn Decl. ¶¶ 18-19. Thus, if enforcement of these

laws is improperly compromised, federal, as well as

state, interests are harmed. And the Executive Branch

applicants’ “remedy” of removing border barriers postconstruction would utterly fail to protect these interests, as it obviously would not prevent or reverse the

environmental impacts associated with construction

in the first place, including harms to water quality, air

quality, and endangered species. Indeed, later demolition activities might well cause additional environmental harm.

As discussed above, applicants contend that Congress has given them the authority to waive all of

these laws when building barriers at the border. But

state law’s displacement by federal law depends upon

the federal government—in this case, the executive

branch—acting in accordance with the Constitution,

including separation of powers principles. See City of

New York, 524 U.S. at 450 (Kennedy, J., concurring)

(“when the people delegate some degree of control to a

remote central authority, one branch of government

ought not possess the power to shape their destiny

15

without a sufficient check from the other two”). At the

very least, to maintain the proper structural balance

that our Constitution demands, the Executive Branch

applicants should not be allowed to impose harm on

the States’ sovereign interests unless and until they

can secure reversal of the district court’s judgments on

appeal.

II. A STAY WOULD DISRUPT THE STATUS QUO

IN THE STATES’ PARALLEL LITIGATION

A stay of the injunction that the district court

granted to respondents would be particularly inappropriate because of the interrelationship between this

case and the parallel litigation brought by the amici

States. As described above, the district court denied

injunctive relief to California and New Mexico, without prejudice, based in part on its view that an injunction running directly in favor of the States would be

“duplicative” of the one it granted to respondents. California MSJ Order at 8; see also Stay App. 22a n.9. The

States cross-appealed that denial, while making clear

that the cross-appeal would not need to be adjudicated

if the Sierra Club injunction remained in place. The

Executive Branch applicants now seek a stay that they

might interpret as in effect also precluding relief for

the States (although they do not currently urge this

point).

Notably, while the district court did not enter an

injunction running specifically in favor of the States,

it did grant a declaratory judgment in their favor on

their claim that applicants’ “use of funds . . . is unlawful” for border barrier construction in California and

New Mexico. California MSJ Order at 10. Whether

and to what extent the Executive Branch applicants

would treat that judgment as binding on their rela-

16

tions with California and New Mexico—despite the absence of an injunction—is unclear given the government’s statements in recent litigation. See, e.g., Tr. of

9/5/2018 Hrg., ECF No. 228, at 103, Texas v. United

States, No. 18-167 (N.D. Tex.) (Deputy Assistant Attorney General’s statement that a declaratory judgment against the Government “operates in a similar

manner as an injunction” because “[t]he government

is presumed to comply with the law”); Resp. to Mot. for

Expedited Consideration, Clarification or Stay at ECF

p. 6-7, Texas v. United States, supra, (Dec. 21, 2018),

ECF No. 216 (federal defendants’ statement that “a

declaratory judgment is the functional equivalent of

an injunction against the federal government,” but

such defendants need not “immediately . . . comply

with [a] declaratory judgment” that is not a final order).

Thus, while denying a stay here will clearly preserve the status quo while the expedited appellate process proceeds, granting a stay of the injunction

entered only in Sierra Club could, under the unusual

circumstances here, lead to uncertainty and further

requests for relief in the parallel California case.

III. THE COURT’S DECISION IN WINTER DOES

NOT SUPPORT THE STAY APPLICATION

While the Sierra Club respondents’ interests alone

were sufficient for the district court to grant an injunction to maintain the status quo, the interests of the

amici States discussed above even more decidedly tip

the balance of the harms toward denying the request

for a stay under the factors listed in Winter v. Natural

Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).

The court of appeals conducted a thorough assessment

of the Executive Branch applicants’ purported harms

and of the public interest, and concluded that they

17

failed to produce sufficient evidence that their asserted interests would be irreparably harmed in the

absence of a stay. App. 69a-72a. Although the outcome

of the Ninth Circuit’s analysis was unfavorable to the

Executive Branch applicants, that does not mean that

the balancing was done incorrectly. Cf. Winter, 555

U.S. at 26 (“Of course, military interests do not always

trump other considerations, and we have not held that

they do.”).

The Executive Branch applicants’ assertion that

Winter’s analysis of the balance of harms supports

their argument here, Stay Appl. 39-40, fails in three

critical respects—each of which justifies the imposition of injunctive relief and denial of the United States’

stay application.

First, in Winter, the district court’s injunction upset the status quo, because the Department of the

Navy had been conducting sonar training exercises

“for 40 years with no documented episode of harm.”

Winter, 555 U.S. at 33. Here, it is Executive Branch

applicants’ proposed border wall that would upend the

status quo by constructing impenetrable barriers in

areas where there currently are none. Thus, the

United States’ application seeks the opposite of what

a stay is supposed to achieve. See Nken, 556 U.S. at

429 (“[a] stay ‘simply suspend[s] judicial alteration of

the status quo’”).2

2 Further, the Executive Branch applicants have provided no

evidence to justify their entitlement to extraordinary relief,

which would allow them to alter the status quo by constructing a

border wall while the Ninth Circuit considers this matter on an

expedited schedule. The Executive Branch applicants point to

their interest in drug interdiction as justification for constructing

18

Second, the Court’s decision in Winter turned in

part on the fact that more limited relief could have

remedied plaintiffs’ injuries, which were caused by defendants’ alleged violation of the National Environmental Policy Act (NEPA), which is not the case here.

NEPA itself “does not mandate particular results,” but

“imposes only procedural requirements to ‘ensur[e]

that the agency, in reaching its decision, will have

available, and will carefully consider, detailed information concerning significant environmental impacts.’” Winter, 555 U.S. at 23. Accordingly, in Winter

the district court could afford complete relief to plaintiffs under NEPA without a broad injunction. Id. at 33.

Here, in contrast, a permanent injunction preventing

the Executive Branch applicants from undertaking

border barrier construction in California and New

Mexico is the only relief that can effectively remedy

the harm caused to the States by the Executive

Branch’s violation of law. And there is no claim here

that the district court failed to “tailor the scope of the

remedy to fit the nature and extent of the constitutional violation.” Hills v. Gautreaux, 425 U.S. 284, 294

(1976) (internal quotation marks omitted).

Third, Winter did not involve the serious separation of powers problems, specifically those surrounding Congress’s power of the purse, that the Executive

Branch applicants’ actions raise here. It is “the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects,

but also to establish their relative priority for the Nathe wall, but do not explain why a wall is needed in these particular locations, nor why they are needed immediately when, as

applicants acknowledge, the alleged number of drug seizures in

the relevant sectors to date in FY 2019 is “comparable” to the

drug seizures in those same sectors in FY 2018. Stay Appl. 7-8.

19

tion.” TVA v. Hill, 437 U.S. 153, 194 (1978). The Appropriations Clause empowers Congress, not the executive branch, to direct these priorities by “assur[ing]

that public funds will be spent according to the letter

of the difficult judgments reached by the Congress as

to the common good, and not according to the individual favor of Government agents.” Office of Personnel

Management v. Richmond, 496 U.S. 414, 428 (1990).

The court of appeals was thus correct to conclude that

since “Congress did not appropriate money to build the

border barriers Defendants seek to build here[,] Congress presumably decided such construction at this

time was not in the public interest.” App. 74a-75a.

*

*

*

Executive Branch applicants’ complaint that the

“funds at issue ‘will no longer remain available for obligation after the fiscal year,’” Stay Appl. 35-36, is only

a harm to the public interest if Congress intended that

these funds be available for barrier construction. But

Congress did not appropriate funds for a barrier in the

areas where the Executive Branch applicants seek to

build, and instead specifically refused to appropriate

billions of dollars toward the proposed border wall in

multiple states, including California and New Mexico.

The Executive Branch applicants may be frustrated by

this injunction and its underlying premise that they

need congressional approval to take the actions at issue here. But that is a feature, not a bug, of our system

of checks and balances. I.N.S. v. Chadha, 462 U.S. 919,

944 (1983) (“[c]onvenience and efficiency are not the

primary objectives—or the hallmarks—of democratic

government”).

20

CONCLUSION

This Court should deny the application for a stay

pending appeal.

21

Respectfully submitted,

XAVIER BECERRA

Attorney General of California

EDWARD C. DUMONT

Solicitor General

ROBERT W. BYRNE

SALLY MAGNANI

MICHAEL L. NEWMAN

Senior Assistant Attorneys General

JOSHUA A. KLEIN

Deputy Solicitor General

MICHAEL P. CAYABAN

CHRISTINE CHUANG

EDWARD H. OCHOA

Supervising Deputy Attorneys

General

HEATHER C. LESLIE

LEE I. SHERMAN

JANELLE M. SMITH

JAMES F. ZAHRADKA II

Deputy Attorneys General

Attorneys for Amicus Curiae

State of California

HECTOR BALDERAS

Attorney General of New Mexico

TANIA MAESTAS

Chief Deputy Attorney

General

NICHOLAS M. SYDOW

Civil Appellate Chief

JENNIE LUSK

Assistant Attorney General,

Civil Rights Bureau Chief

Attorneys for Amicus Curiae

State of New Mexico

July 19, 2019