Petition for Writ of Certiorari — Whitewater Draw Natural Resource Conservation District, et al., Petitioners v. Alejandro N. Mayorkas, Secretary of Homeland Security, et al.

No. ______

In the

Supreme Court of the United States

WHITEWATER DRAW NATURAL RESOURCE

CONSERVATION DISTRICT, HEREFORD NATURAL

RESOURCE CONSERVATION DISTRICT, ARIZONA

ASSOCIATION OF CONSERVATION DISTRICTS,

CALIFORNIANS FOR POPULATION STABILIZATION,

SCIENTISTS AND ENVIRONMENTALISTS FOR

POPULATION STABILIZATION, NEW MEXICO

CATTLE GROWERS ASSOCIATION, GLEN COLTON,

and RALPH POPE,

Petitioners,

v.

ALEJANDRO MAYORKAS, in his official capacity as

Secretary of the Department of Homeland Security, and

the DEPARTMENT OF HOMELAND SECURITY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Julie B. Axelrod

Counsel of Record

Center for Immigration Studies

1629 K Street NW, Suite 600

Washington, DC 20006

(202) 466-8185

jba@cis.org

Counsel for Petitioners

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTIONS PRESENTED

1) The National Policy Act (“NEPA”), 42 U.S.C. §

4331 et seq. (2012) mandates that all federal

agencies consider environmental impacts before

acting. The Council on Environmental Quality

(“CEQ”), which is responsible for guiding the

implementation of NEPA, has mandated that all

agencies promulgate NEPA procedures through

Notice and Comment rulemaking to use for their

NEPA compliance. Do the final NEPA procedures

so promulgated fail the two pronged test in

Bennett v. Spear, 520 U.S. 154 (1997) for finality

under the Administrative Procedures Act if they

do not in themselves apply the rules they thus

created to actual programs or projects?

2) Does a plaintiff have standing to challenge

procedural violations of immigration related

actions if the plaintiff can show: 1) the agency

violated its procedural obligations; 2) these

procedural obligations were meant to protect

plaintiff’s concrete interests, and 3) it is

reasonably probable that the challenged action

will threaten plaintiff’s concrete interests?

i

PARTIES TO THE PROCEEDINGS AND RULE

29.6 DISCLOSURE STATEMENT

Petitioners, the plaintiffs in the district court

and appellants in the Ninth Circuit, are the

Whitewater Draw Natural Resource Conservation

District, the Hereford Natural Resource Conservation

District, the Arizona Association of Conservation

Districts, Californians for Population Stabilization,

Scientists and Environmentalists for Population

Stabilization,

New

Mexico

Cattle

Growers

Association, Glen Colton, and Ralph Pope.

The Whitewater Draw Natural Resource

Conservation District and the Hereford Natural

Resource Conservation District are governmental

entities statutorily authorized by A.R.S. § 37 Chapter

6. The Arizona Association of Conservation Districts

and Californians for Population Stabilization are

501(c)(3). Neither has a parent corporation and there

is no publicly held corporation that owns 10% or more

of their stock.

Scientists and Environmentalists for Population

Stabilization is an unincorporated, non-governmental

association.

New Mexico Cattle Growers Association is a

501(c)(5) nonprofit association. It has no parent

corporation and there is no publicly held corporation

that owns 10% or more of its stock.

Glen Colton and Ralph Pope are individuals.

ii

Respondents are Alejandro Mayorkas, in his

official capacity as Secretary of Homeland Security

and the Department of Homeland Security. The

Department of Homeland Security is a federal agency.

iii

RELATED PROCEEDINGS

United States District Court (Southern District

of California)

Whitewater Draw Natural Resource Conservation

District et. al v. Kirstjen Nielsen, Secretary of

Homeland Security et al., Case No. 16-cv-2583

(September 30, 2018)

Whitewater Draw Natural Resource Conservation

District et. al v. Kirstjen Nielsen, Secretary of

Homeland Security et al., Case No. 16-cv-2583 (June

1, 2020)

United States Court of Appeals (Ninth Circuit)

Whitewater Draw Natural Resource Conservation

District et al v. Alejandro Mayokas et al, No. 20-55777

(July 19, 2021)

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

PARTIES TO THE PROCEEDINGS AND RULE

29.6 DISCLOSURE STATEMENT ............................ ii

RELATED PROCEEDINGS ...................................... iv

TABLE OF CONTENTS ..............................................v

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR A WRIT OF CERTIORARI .............1

DECISIONS BELOW ...................................................1

JURISDICTION ............................................................1

RELEVANT STATUTORY PROVISIONS ................2

STATEMENT ................................................................8

I.

II.

III.

Introduction ..................................................8

Procedural History .................................... 13

The Ninth Circuit twisted basic principles

of administrative law beyond recognition to

avoid the possibility of public disclosure

and participation in the immigration

process. ....................................................... 15

A) Legal and Factual Background of

DHS’s NEPA Procedures .................. 15

B) The Manual is clearly reviewable

under the APA .................................... 19

v

C) The lower courts ruled the Manual also

IV.

V.

needed to include a specific

determination of an individual project

to be “final.” ........................................ 21

D) The Ninth Circuit’s freewheeling use of

the Bennett test in order to allow DHS

to maintain its blindspot to the environmental effects on immigration

creates extremely harmful precedent. . 25

The Ninth Circuit created an erroneous

standing standard to allow immigration

related actions to escape scrutiny ........... 26

Conclusion .................................................. 29

APPENDIX A, Opinion of the United States Court of

Appeals for the Ninth Circuit, Filed July 19, 2021 .... 1a

APPENDIX B, Order of the United States District

for the Southern District of California Denying

Plaintiffs’ Motion for Summary Judgment and

Granting Defendants’ Cross-Motion for Summary

Judgment, Filed September 30, 2018 ..................... 47a

APPENDIX C, Excerpts from Defendant's Memo of

Points and Authorities for Cross Motion for

Summary Judgment, Filed May 24, 2019 ............. 85a

vi

TABLE OF AUTHORITIES

Cases

Bennett v. Spear, 520 U.S. 154 (1997).... i, 19, 22, 25, 26

Calvert Cliffs’ Coordinating Comm., Inc. v. U.S.

Atomic Energy Comm’n , 449 F.2d 1109 (D.C. Cir.

1971) ............................................................................ 8-9

DOC v. New York, 139 S. Ct. 2551 (2019) ................ 27

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

Inc, 528 U.S. 167 (2000) ............................................. 26

Helgeson v. Bureau of Indian Affairs, 153 F.3d 1000

(9th Cir.1998)............................................................... 25

Kleppe v. Sierra Club, 427 U.S. 390 (1976).............. 28

Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992) ............................................................................ 26

Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015) .... 25

Oregon Natural Desert Ass’n v. United States Forest

Service, 465 F.3d 977 (9th Cir. 2006) ....................... 23

Robertson v. Methow Valley Citizens Council, 490

U.S. 332 (1989) ........................................................ 8, 17

Safer Chemicals, Healthy Families v. EPA, 943 F.3d

397 (9th Cir. 2019) ...................................................... 23

vii

Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir.

2007) ............................................................................. 25

Wild Watershed v. Hurklocker, 961 F.3d 1119 (10th

Cir. 2020)...................................................................... 24

Statutes

5 U.S.C. § 551(4)...................................................... 6, 19

5 U.S.C. § 553 ...................................................... 6, 7, 19

5 U.S.C. § 704 .............................................................. 19

42 U.S.C. § 4331 et seq. (2012) ....................i, 2-6, 8, 10

Other Authorities

40 CFR Part 1500.1 (1978 archived) ........................ 17

40 CFR § 1507.3 (1978 archived) ....................... 7-8, 18

46 Fed. Reg. 7,953 (Jan. 26, 1981) ............................ 15

79 Fed. Reg. 32,563 (June 5, 2014) ........................... 19

79 Fed. Reg. 70,538 (Nov. 26, 2014).......................... 20

83 Fed. Reg. 18556 (April 27, 2018).............................9

83 Fed. Reg. 39429 (Aug. 9, 2018)................................9

83 Fed. Reg. 46911 (Sept. 17, 2018) .............................9

86 Fed. Reg. 46906 (Aug. 20, 2021)........................... 20

viii

86 Fed Reg 53736 (Sept. 28, 2021) ............................ 16

Philip Cafaro, How Many Is Too Many? The

Progressive Argument for Reducing Immigration Into

the United States, Chicago: The University of

Chicago Press, 2015 .................................................... 11

Steven Camarota & Karen Zeigler, Projecting the

Impact of Immigration on the U.S. Population, CTR.

FOR IMMIGR. STUD. (Feb. 4, 2019) .............................. 12

COUNCIL ON ENV’T QUALITY, A CITIZEN’S GUIDE TO

NEPA (2021) ...................................................................9

E.O. 14012, Feb. 2, 2021 ............................................ 12

Leon Kolankiewicz, Immigration, Population

Growth, and the Environment, CTR. FOR IMMIGR.

STUD. (Apr. 17, 2015) .................................................. 10

Press Release, White House, FACT SHEET:

President Biden Sets 2030 Greenhouse Gas Pollution

Reduction Target Aimed at Creating Good-Paying

Union Jobs and Securing U.S. Leadership on Clean

Energy Technologies (April 22, 2021)....................... 12

Press Release, White House, Statement by President

Joe Biden on Refugee Admissions (May 3, 2021) .... 12

U.S. Department of Homeland Security Directive

023-01, Rev 01 ............................................................. 18

U.S. Department of Homeland Security Instruction

023-01-001-01 .............................................................. 18

ix

PETITION FOR A WRIT OF CERTIORARI

Petitioners

Whitewater

Draw

Natural

Resource Conservation District, the Hereford Natural

Resource Conservation District, the Arizona

Association of Conservation Districts, Californians for

Population

Stabilization,

Scientists

and

Environmentalists for Population Stabilization, New

Mexico Cattle Growers Association, Glen Colton, and

Ralph Pope respectfully petition this Court for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit.

DECISIONS BELOW

The Ninth Circuit’s opinion was entered on

July 19, 2021 and reported at 5 F.4th 991. The opinion

is reproduced in the appendix hereto (“App”) at 1a46a.

The district court’s September 30, 2018 opinion

is reported at 2018 U.S. Dist. LEXIS 169560 and its

June 1, 2020 opinion is reported at 2020 U.S. Dist.

LEXIS 96483 and 2020 WL 2849943. These opinions

are reproduced in the appendix hereto at App. at 47a84a.

JURISDICTION

The Ninth Circuit entered judgment on July

19, 2021. The jurisdiction of this Court is invoked

under 28 U.S. § 1254(1).

1

RELEVANT STATUTORY PROVISIONS

Excerpts from the National

Environmental Policy Act

42 U.S.C. 4331

(a) The Congress, recognizing the

profound impact of man’s activity on

the interrelations of all components of

the natural environment, particularly

the profound influences of population

growth, high-density urbanization,

industrial

expansion,

resource

exploitation, and new and expanding

technological advances and recognizing

further the critical importance of

restoring

and

maintaining

environmental quality to the overall

welfare and development of man,

declares that it is the continuing policy

of the Federal Government, in

cooperation with State and local

governments, and other concerned

public and private organizations, to use

all practicable means and measures,

including financial and technical

assistance, in a manner calculated to

foster and promote the general welfare,

to create and maintain conditions

under which man and nature can exist

in productive harmony, and fulfill the

social,

economic,

and

other

requirements of present and future

generations of Americans.

2

(b) In order to carry out the policy

set forth in this chapter, it is the

continuing responsibility of the Federal

Government to use all practicable

means, consistent with other essential

considerations of national policy, to

improve and coordinate Federal plans,

functions, programs, and resources to

the end that the Nation may—

(1) fulfill the responsibilities of each

generation

as

trustee

of

the

environment

for

succeeding

generations;

(2) assure for all Americans safe,

healthful, productive, and esthetically

and culturally pleasing surroundings;

(3) attain the widest range of

beneficial uses of the environment

without degradation, risk to health or

safety, or other undesirable and

unintended consequences;

(4) preserve important historic,

cultural, and natural aspects of our

national heritage, and maintain,

wherever possible, an environment

which supports diversity and variety of

individual choice;

(5) achieve a balance between

population and resource use which will

3

permit high standards of living and a

wide sharing of life’s amenities; and

(6) enhance the quality of renewable

resources and approach the maximum

attainable recycling of depletable

resources.

(c) The Congress recognizes that

each person should enjoy a healthful

environment and that each person has

a responsibility to contribute to the

preservation and enhancement of the

environment.

42 U.S.C. § 4332(2)(C)

The Congress authorizes and

directs that, to the fullest extent

possible: ….

2) all agencies of the Federal

Government shall—

(C)

include

in

every

recommendation or report on proposals

for legislation and other major Federal

actions significantly affecting the

quality of the human environment, a

detailed statement by the responsible

official on—

(i) the environmental impact of the

proposed action,

4

(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.

Prior to making any detailed

statement, the responsible Federal

official shall consult with and obtain

the comments of any Federal agency

which has jurisdiction by law or special

expertise with respect to any

environmental impact involved. Copies

of such statement and the comments

and views of the appropriate Federal,

State, and local agencies, which are

authorized to develop and enforce

environmental standards, shall be

made available to the President, the

Council on Environmental Quality and

to the public as provided by section 552

of title 5, and shall accompany the

5

proposal through the existing agency

review processes;

Excerpts from the Administrative

Procedures Act

5 U.S.C. § 551(4)

“rule” means the whole or a part of

an agency statement of general or

particular applicability and future

effect designed to implement, interpret,

or prescribe law or policy or describing

the organization, procedure, or practice

requirements of an agency

5 U.S.C. § 553

General

notice

of

proposed

rulemaking shall be published in the

Federal Register, unless persons

subject thereto are named and either

personally served or otherwise have

actual notice thereof in accordance

with law. The notice shall include—

(1) a statement of the time, place,

and nature of public rule making

proceedings;

(2) reference to the legal authority

under which the rule is proposed; and

6

(3) either the terms or substance of

the proposed rule or a description of the

subjects and issues involved.

5 U.S.C. § 706

… the reviewing court shall decide

all relevant questions of law, interpret

constitutional

and

statutory

provisions, and determine the meaning

or applicability of the terms of an

agency action. The reviewing court

shall—

(2) hold unlawful and set aside

agency

action,

findings,

and

conclusions found to be—

(A) arbitrary, capricious, an abuse

of discretion, or otherwise not in

accordance with law;

Regulations

40 C.F.R. §1507.3 (1978 archived)

Agency procedures. (a) Not later than

eight months after publication of these

regulations as finally adopted in the

FEDERAL REGISTER, or five months

after the establishment of an agency,

whichever shall come later, each

agency shall as necessary adopt

procedures to supplement these

regulations. When the agency is a

department, major subunits are

7

encouraged (with the consent of the

department) to adopt their own

procedures. Such procedures shall not

paraphrase these regulations. They

shall

confine

themselves

to

implementing procedures. Each agency

shall consult with the Council while

developing its procedures and before

publishing them in the FEDERAL

REGISTER for comment.

STATEMENT

I.

Introduction

The National Environmental Policy Act, 42

U.S.C. § 4331 et seq. (2012) (“NEPA”), requires that

the federal government consider the environmental

impacts of their actions before making the decision to

act. NEPA ensures that the agency will both have

available and “carefully consider… detailed

information concerning significant environmental

impacts; it also guarantees that the relevant

information will be made available to the larger

audience that may also play a role in both the

decisionmaking process and the implementation of

that decision.” Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 349 (1989).

As long as NEPA has existed, federal agencies

have been tempted to simply ignore its mandate.

However, the courts’ first major interpretation of the

law made clear that NEPA is not merely aspirational.

In Calvert Cliffs’ Coordinating Comm., Inc. v. U.S.

Atomic Energy Comm’n, the D.C. Circuit held: “the

8

statute’s language does not provide an “escape hatch

for footdragging agencies; it does not make NEPA’s

procedural requirements somehow discretionary.

Congress did not intend the Act to be a paper

tiger.”449 F.2d 1109, 1114 (D.C. Cir. 1971) (citations

omitted). Since this ruling, NEPA has mandated

environmental review of hundreds of different kinds

of actions. As explained in A Citizens’ Guide to NEPA:

“The Federal Government takes hundreds of actions

every day that may be subject to NEPA, including

Federal construction projects, plans to manage and

develop federally owned lands, and Federal approvals

of non-Federal activities such as grants, licenses, and

permits.” COUNCIL ON ENV’T QUALITY, A CITIZEN’S

GUIDE TO NEPA 4 (2021).

However, one of the federal government’s most

environmentally significant policies—the government

controlled addition of tens of millions of people to the

population of the U.S. through immigration—has

never been reviewed under NEPA. Even as the federal

government

conducts

elaborate

reviews

of

comparatively environmentally trivial federal actions

on a regular basis,1 it simply ignores the massive

environmental significance of federally implemented

population growth and transfer. Such a considerable

1 To mention a few examples, federal agencies have conducted

environmental assessments of programs requiring owners of

antennas to register them with the Federal Aviation

Administration, see 83 Fed. Reg. 46911 (Sept. 17, 2018); the

effects of a network of moored buoys and coastal stations

operated by the National Oceanic and Atmospheric

Administration, see 83 Fed. Reg. 39429, (Aug. 9, 2018); and the

effects of the issuance of credit assistance under the Water

Infrastructure and Finance Act, 83 Fed. Reg. 18556 (April 27,

2018).

9

omission would have been confounding to the

architects of NEPA—the statute specifically names

population growth as a key reason for NEPA’s

passage. See 42 U.S.C. § 4331(a) (“The Congress,

recognizing the profound impact of man's activity on

the interrelations of all components of the natural

environment, particularly the profound influences of

population growth...”); id. at § 4331(b) (describing the

purpose of NEPA as “achiev[ing] a balance between

population and resource use”).

Concern about population growth was the issue

animating the environmental movement when NEPA

became law in 1970, and, in the U.S. today national

population growth continues to lead to a host of

significant effects. Examples include traffic

congestion, energy consumption, water resources,

wildlife and its habitats, our ecological footprint,

urban sprawl and the loss of rural lands, carbon

dioxide emissions, soil and air quality, vegetation,

noise, recreation, visual resources (aesthetics),

cultural and historic resources, and waste

management (including hazardous and toxic

wastes). 2 Discussion of all of these particular impacts

on particular citizens and locations are frequently

found within the environmental impact studies

produced by the government as part of their NEPA

compliance. But even when environmentalists object

to the building of a new road or reservoir because of

its destruction of natural habitats, proponents of

these projects will often win the debate by pointing

2 See Leon Kolankiewicz, Immigration, Population Growth, and

the Environment, CTR. FOR IMMIGR. STUD. (Apr. 17, 2015),

https://cis.org/Report/Immigration-Population-Growth-andEnvironment.

10

out that population growth makes these projects

necessary despite their environmental downsides.3

The idea that NEPA mandates discussion of

the inevitable consequences of population growth but

not the causes of population growth turns the purpose

of NEPA on its head. The effects of continued

population growth will only become more significant

in the future if the United States remains on its

current population growth trajectory, and Americans

continue to feel the effects of ever-greater

overcrowding in their daily lives. Within national

boundaries, the effects of urban sprawl and farmland

loss; habitat and biodiversity loss, and the increase of

water demands and water withdrawals from natural

systems have changed the way Americans live over

the past few decades. Globally, those effects include

an increase in worldwide levels of greenhouse gas

emissions. Immigrants and their children almost

universally are responsible for significantly more

greenhouse gas emissions than they would have been

if they never emigrated from their home countries.

The lack of the application of NEPA to

immigration has led to erratic and inconsistent

national environmental policy— the avoidance of

which was one of the original statute’s goals. For

instance, the current Presidential Administration has

placed a heightened focus on greatly augmenting the

population through the expansion of the pathways of

See PHILIP CAFARO, HOW MANY IS TOO MANY? THE

PROGRESSIVE ARGUMENT FOR REDUCING IMMIGRATION INTO THE

UNITED STATES 105-107 (2015).

3

11

immigration to the U.S. 4 At the same time, it has

called for the sharp reduction of national and global

greenhouse emissions as a matter of imminent

emergency. 5 A massive expansion in immigration acts

at cross purposes to reduce U.S. greenhouse gas

emissions by 50% of 2005 levels by 2030. In essence,

continuing to neglect the environmental effects of

immigration is incompatible with achieving NEPA’s

goal of environmentally enlightened decisionmaking.

Taking into account the effects of immigration

on population growth is so crucial, because, in recent

decades, the vast majority of national population

growth has been, and continues to be, due to

immigration, which is regulated by the Department of

Homeland Security (“DHS”). 6 DHS’s actions are

therefore largely the direct cause of national

population growth. If any kind of federal actions at all

4 See, e.g, “Our Nation is enriched socially and economically by

the presence of immigrants… The Federal Government should

develop welcoming strategies that promote integration,

inclusion, and citizenship E.O. 14012, Feb. 2, 2021; see also,

policy statements that the Administration will “use every tool

available” to increase the number of refugees settled in the

United States. Press Release, White House, Statement by

President Joe Biden on Refugee Admissions (May 3, 2021),

https://www.whitehouse.gov/briefing-room/statementsreleases/2021/05/03/statement-by-president-joe-biden-onrefugee-admissions/.

5 Press Release, White House, FACT SHEET: President Biden

Sets 2030 Greenhouse Gas Pollution Reduction Target Aimed at

Creating Good-Paying Union Jobs and Securing U.S. Leadership

on Clean Energy Technologies (April 22, 2021).

6 See Steven Camarota & Karen Zeigler, Projecting the Impact of

Immigration on the U.S. Population, CTR. FOR IMMIGR. STUD.

(Feb.

4,

2019),

https://cis.org/Report/Projecting-ImpactImmigration-US-Population.

12

should be subject to environmental review under

NEPA, they would be those that implement policies

adding tens of millions of people to the American

population. However, DHS has not conducted any of

the environmental impact assessments required by

NEPA, allowing it to turn a blind eye for decades to

the substantial environmental impacts, including

cumulative impacts, resulting from immigration

programs and policies.

The Ninth Circuit’s and Southern District

Court’s opinions were animated not by a consistent

application of environmental and standing case law

but by an attempt to preserve this same agency blind

spot to the environmental consequences of

immigration from the possibility of challenge. As

such, the Ninth Circuit’s decision wreaks havoc on

administrative law and must be overturned by this

Court.

II.

Procedural History

Plaintiffs

are

environmental

activists,

scientists, and ranchers who live on the border. All

have personally felt the environmental impacts of

immigration on their lives and submitted affidavits

detailing how the environmental impacts caused by

immigration to specific areas they recreate, study, or

live in, have personally affected them. Some of the

plaintiffs swore to the effects of immigration driven

population growth, resulting from both legal and

illegal immigration. Others, those who live on ranches

on the southwest border, averred to the devastating

impacts on their homes and communities that that

13

illegal border crossing, driven by deliberately lax

immigration enforcement policies.

The plaintiffs brought this NEPA challenge

under the Administrative Procedure Act (“APA”)

against DHS for failing to conduct any NEPA review

of their ongoing immigration policies, for adopting

NEPA procedures that fail to consider immigration,

for adopting “categorical exclusions”7 impermissibly

broad, for unlawfully applying those categorical

exclusions to immigration programs, and for

conducting an environmental assessment of its

response to the 2014 border crisis that failed to

consider the environmental effects of the border

crisis. DHS brought a motion to dismiss against the

first two claims on the basis that the APA did not

allow review of its NEPA procedures or its

immigration programs, and a summary judgment

motion on the final three on the basis of standing. The

district court granted both of DHS’ motions and the

Ninth Circuit affirmed the district court’s rulings, and

wrote a broader opinion on standing meant to

eliminate any plaintiffs’ ability to challenge any

immigration programs altogether.

7 The adoption of a categorical exclusion in an agency’s NEPA

procedures allows an agency to promulgate actions without

conducing either an “environmental assessment” to determine

whether the action will have effects, or an “environmental

impact statement” to study what those effects are. The action is

considered to be simply part of a category of actions that

generally don’t have significant environmental impacts.

14

III.

The Ninth Circuit twisted basic

principles of administrative law

beyond recognition to avoid the

possibility of public disclosure and

participation in the immigration

process.

A) Legal and Factual Background of

DHS’s NEPA Procedures

Prior to this lawsuit, DHS (and the

Immigration and Naturalization Service “INS” before

it8) took no official position on the environmental

review of immigration, it simply failed to conduct any

or mention the subject. The gravamen of DHS’s

practical defense since this lawsuit began has been

that its failure to apply NEPA to immigration has

simply been too diffuse and pervasive to correct. DHS

has all but admitted on a number on a number of

recent occasions during its rulemaking processes that

it believes it does not have to apply NEPA to

immigration because it does not know how to do so.

For instance, most recently, DHS claimed in a

Notice of Proposed Rulemaking that even if the

Deferred Action for Childhood Arrivals (DACA)

program 9 “might have effects on the environment,...

8 Before the

Homeland Security Act of 2002, the immigration

functions that are now housed in DHS were located in a

subagency of the Department of Justice, the INS. In 1981, the

INS promulgated extremely brief NEPA regulations that gave

consideration only to the analysis of the environmental footprint

of detention centers. 46 Fed. Reg. 7,953 (Jan. 26, 1981)

9 The DACA program was one of the challenged actions in this

case.

15

DHS believes analysis of such effects would require

predicting a myriad of independent decisions by a

range of actors… at indeterminate times in the

future. Such predictions are unduly speculative and

not amenable to NEPA analysis.” 86 Fed Reg 53736

(Sept. 28, 2021). In other words, obtaining a full

understanding of the environmental impacts of a

program that would ultimately grant 800,000 foreign

nationals the right to stay and work in the U.S. (a

population greater than Washington D.C.), might

require consideration of a number of factors,

therefore, DHS is free from an obligation to do so.

Contrary to DHS’s assertion, rather than not

being “amenable to NEPA analysis,” such is the very

stuff of NEPA analysis. NEPA would not be necessary

at all if agency decision-makers were always

enlightened about the environmental effects of their

decisions. Every day, agencies hire environmental

scientists for projects like proposed power plants or

water supply facilities in order to call upon their

expertise in wide scale trends in energy or water

consumption and to make projections buttressed by

informed assumptions, of what future needs will be

based on those trends. Given that population size is a

fundamental factor driving basically all the needs

NEPA analysts are called to project, there is a wealth

of knowledge and expertise for DHS to drawn upon to

project, for example, the level of infrastructure,

energy, and water consumption that constitutes the

environmental impact of 800,000 extra people in the

population. This analysis is exactly the kind of

“relevant information” NEPA aims to make “available

to a larger audience that may also play a role in both

16

the decisionmaking process and the implementation

of that decision.” Robertson 490 U.S. at 349.

This urge to simply ignore NEPA’s review

requirements because an agency does not know where

to start is exactly why agencies have NEPA

procedures. DHS—an agency created well after the

development of a great deal of NEPA precedent and

practice available as a guide, had the responsibility to

under the law to consider the environmental effects of

its newly created mandates, to take notice and correct

any blind spots of its predecessor agencies, and to set

up a framework to correct them in the future. That

opportunity was when it promulgated final NEPA

procedures after notice and comment from the public.

Agencies are mandated to promulgate NEPA

procedures that are legally adequate to ensure agency

compliance with the statute. When Congress passed

NEPA, it not only imposed new transparency

obligations on federal agencies, but it also created an

office within the Executive Office of the President—

the Council on Environmental Quality (“CEQ”)—to

instruct these agencies how to meet these obligations.

In 1978, the CEQ first issued regulations to “provide

the direction” to agencies so that the NEPA process

could “help public officials make decisions that are

based

on

understanding

of

environmental

consequences, and take actions that protect, restore,

and enhance the environment.” NEPA, 40 CFR Part

1500.1, (1978 archived). 10 That is, the point of these

These NEPA regulations have since been substantially

updated but were in effect when DHS adopted agency

procedures.

Available

at

10

17

procedures was to make compliance with NEPA

possible for agencies which did not know how to do so.

The CEQ also mandated that each agency,

including, in the future, any newly formed agencies,

“shall as necessary adopt procedures to supplement

these regulations,” which will “confine themselves to

implementing procedures.” § 1507.3 (1978 archived).

The CEQ also mandated that “such procedures shall

be adopted only after an opportunity for public review

and after review by the Council for conformity with

the Act and these regulations.” Id. Then, “[o]nce in

effect they shall be filed with the Council and made

readily available to the public.” Id.

Accordingly, every federal agency adopted

NEPA procedures—including DHS. DHS adopted its

NEPA procedures through the publication of two

documents, U.S. Department of Homeland Security

Directive 023-01, Rev 01, (the “Directive”) and U.S.

Department of Homeland Security Instruction 02301-001-01 (the “Manual”).11 The Manual contains the

substance of the compliance procedures. The adoption

of NEPA procedures was not the equivalent of an

employee handbook or set of guidance documents that

an agency has the option to adopt if it chooses and can

https://www.energy.gov/sites/default/files/NEPA40CFR1500_1508.pdf

11 These documents can be found at the DHS website at

https://www.dhs.gov/publication/directive-023-01-rev-01-andinstruction-manual-023-01-001-01-rev-01-and-catex,

with

Manual

specifically

available

at

https://www.dhs.gov/sites/default/files/publications/DHS_Instru

ction%20Manual%20023-01-00101%20Rev%2001_508%20Admin%20Rev.pdf

18

alter at will—despite DHS’s choice to name its

procedures a “manual.” It is binding and necessary.

Plaintiffs challenged the adoption of this

manual for failing to set up any kind of framework to

comply with NEPA when promulgating immigration

related actions.

B) The Manual is clearly reviewable

under the APA

The APA provides for judicial review of the

final actions of federal agencies. 5 U.S.C. § 704.

Actions are final when they: 1) mark the

consummation of the agency’s decision making

process, and 2) create legal consequences. Bennett v.

Spear, 520 U.S. 154 (1997). The Manual, which

established the policy and procedures DHS uses to

comply with NEPA, is a straightforward example of a

“rule” under 5 U.S.C. § 551(4): “an agency statement

of general or particular applicability and future effect

designed to implement, interpret, or prescribe law or

policy or describing the organization, procedure, or

practice requirements of an agency.” DHS followed

the required rulemaking process under 5 U.S.C. §

553. As set out in § 553(b), DHS provided notice in the

Federal Register that it was submitting its draft

NEPA procedures for the purpose of giving interested

members of the public an opportunity to participate

in the rule making, as prescribed in § 553(c). 79 Fed.

Reg. 32,563, 32,563 (June 5, 2014).

After a notice and comment period, DHS

adopted its final NEPA procedures, “contained in” the

Directive and Manual, and duly published its “Notice

19

of Final National Environmental Policy Act

Implementing Procedures” 79 Fed. Reg. 70,538 (Nov.

26, 2014) (emphasis added). This notice also informed

the public that these NEPA procedures would become

effective after four months, on March 26, 2015.

Finally, it responded to the comments it received on

the draft NEPA procedures.

This history could not be any clearer than the

Directive and Manual were the consummation of the

agency’s rulemaking process. These adopted NEPA

procedures—like all NEPA procedures adopted by

agencies according to the command of the CEQ, were

mandatory for agency NEPA compliance, not merely

hortatory. The DHS Manual explicitly sets out the

procedures and requirements its constituent

components “must” follow in implementing NEPA. 79

Fed. Reg. 70538, 70538 (Nov. 26, 2014) (emphasis

added).

The

procedures

also

created

legal

consequences. DHS still regularly uses the final

NEPA procedures it adopted. For instance, DHS

published a proposed rule to alter the screening

procedures of the asylum program in August. 86 Fed.

Reg. 46906 (Aug. 20, 2021). It stated that the Manual

“establish[ed]” the policies and procedures DHS uses

to comply with NEPA, and that this Manual

established

categorical

exclusions,

including

categorical exclusion A3(d) and categorical exclusion

A3(a).12 Furthermore, it claimed these categorical

12 These are the same two categorical exclusions that Plaintiffs

brought claims against in this lawsuit, and are regularly used by

DHS in order to claim changes to its immigration programs are

categorically excluded.

20

exclusions gave it the right to forego analyzing its

changes to the asylum program. DHS, therefore,

considers the Manual to have a legal effect that

establishes its right not to conduct environmental

analysis of many changes to its immigration

programs. DHS’ classification of the Manual as

“tentative” and failing to create legal consequences

was so specious, it did not even maintain that posture

consistently throughout this very litigation. After

convincing the district court that the Manual was

neither final nor binding in its motion to dismiss,

DHS sought to prevail in its summary judgment

motion on the basis that the agency’s NEPA

procedures were final and created legal consequences.

App at 85a-87a13

C) The lower courts ruled the Manual

also needed to include a specific

determination of an individual

project to be “final.”

Ignoring the promulgation history and

application of the Manual entirely, the District Court

and the Ninth Circuit decided DHS’ adoption of NEPA

procedures failed to meet the finality test of Bennett

v. Spear. The lower courts to a large extent conflated

the two prongs of the Bennett test—arguing in essence

that the establishment of NEPA procedures couldn’t

Defendants’ brief defended the Categorical Exclusion A(3)

from challenge by explaining that it was part of DHS’s CEQ

approved NEPA procedures—“published in final f[or]m in

November 2014. App at 86a: The procedures were developed in

“year-long process by a panel of experts” and approved by CEQ.

App at 87a. Through much of its second brief DHS referred to

the various legal consequences and requirements of the Manual.

13

21

be considered final or of legal consequence because

the procedures failed to make decisions regarding

individual projects or programs in advance.

For the first Bennett prong, the lower courts

concluded that the Manual “does not make any

decisions,” such as about what level of review specific

projects would undergo, and therefore it cannot mark

the consummation of the agency’s decision-making

process. Appendix at 17a-18a. However, the Manual

certainly made the kind of decisions appropriate for a

rule of general applicability. The Manual made

hundreds of decisions about the types of actions that

would require the preparation of Environmental

Assessments, such as construction projects in

environmentally sensitive areas, projects that impact

wetlands and federal waters, regulations for activities

that impact environmentally sensitive areas, security

measures that involve reduced public access, and new

law enforcement activities with undetermined

environmental impacts. It also specified when

Supplemental Environmental Assessments shall be

prepared, and when an Environmental Impact

Statement or Programmatic Environmental Impact

Statement is to be prepared. Manual at V-9. The

Manual also adopted 152 (generally multi-part)

categorical exclusions. Id. at A-1-A30.

The lower courts found the Manual failed the

second prong of Bennett on the same basis: it did not

identify legal consequences that would apply to

particular individuals or programs. But, Manual did

indeed have the appropriate kind of legal

consequences for a rule. For instance, the itemization

of those DHS activities that require preparation of an

22

Environmental

Assessment or Programmatic

Assessment, clearly created legal consequences,

referred to above, are not only decisions, but have

legal consequences. Id. at V-9. Legal consequences

also clearly flow from the 152 categorical exclusions

(many of which were multi-part) that the Manual

established, giving DHS the power to forego

environmental analysis in a host of situations. Id. at

A1-A-30.

In order to conceal the insufficiencies of their

reasoning, the lower courts simply pointed out cases

where entirely different kinds of agency actions

consummated their decision making processes in

different ways. For example, the Ninth Circuit

pointed out that in Oregon Natural Desert Ass’n v.

United States Forest Service, the action at issue

determined whether a permittee got to graze cattle on

a certain piece of land or not, whereas DHS’s NEPA

procedures themselves did not decide on the destiny

of individual projects. 465 F.3d 977 (9th Cir. 2006).

The courts simply ignored Plaintiffs’ argument that

going through the Notice and Comment rulemaking

process in the APA, and being published in “final”

form with a future effective date,14 is dispositive in

proving an action is not “tentative or interlocutory.”

The Ninth Circuit attempted to ground its ruling in

precedent from Safer Chemicals, Healthy Families v.

EPA, 943 F.3d 397, 405 (9th Cir. 2019). That case

ruled that the “preamble” to some rules are not final

agency actions. Appendix at 18a. The Manual,

however, was not a preamble to a rule—but the rule

14 Even the Defendant admitted in its Summary Judgment brief

that its “NEPA regulations were approved by CEQ… and

published in final from [sic] in November 2014.” App at 86a.

23

itself. The Ninth’s Circuit’s suggestion that a rule

itself is preliminary until it has been applied to a

specific project is, very simply, confusing two different

kinds of actions: one that applies a rule versus one

that creates a rule. Actions that create rules are final

under the APA.

No court precedent has ever declared that the

adoption of final NEPA procedures are not agency

action under the APA. Until this case, no court had

ever suggested that merely because agency NEPA

procedures describe “how” an agency “will implement

NEPA” rather than “prescribe any action in any

particular manner” or “provide a procedural

framework” they are not final agency actions.

Appendix at 19a, 79a. The CEQ regulations

themselves, which apply to all agencies, do not

“prescribe any action in any particular manner”

either, but courts do not refuse to view CEQ’s

regulations under the APA. See e.g. Wild Watershed

v. Hurklocker, 961 F.3d 1119, 1122 (10th Cir. 2020)

(describing how “NEPA's implementing regulations

establish a tiered framework for agencies to consider

in deciding whether an EIS is necessary.”) Each

agency’s NEPA procedures constitute a supplement

that binds only itself to CEQ’s regulations in

establishing NEPA compliance.

The document itself states: “The requirements

of this Instruction Manual apply to the execution of

all NEPA activities across DHS.” Manual at III-1. The

language is therefore mandatory and binding—it is

not simply guidance that agency person. The Ninth

Circuit has taken the position that the adoption of a

categorical exclusion itself is a final agency action

24

under the APA. See Sierra Club v. Bosworth, 510 F.3d

1016 (9th Cir. 2007). If the Instruction Manual were

“tentative” and has no legal consequences, all 152 of

these categorical exclusions must be void.

D) The Ninth Circuit’s freewheeling

use of the Bennett test in order to

allow DHS to maintain its blindspot

to the environmental effects on

immigration creates extremely

harmful precedent.

The Ninth’s Circuit’s holding that a rule has to

include an application to a specific situation to be

“final” under Bennett is akin to insisting that a

criminal statute passed by the legislature and signed

by the executive is not part of the law if fails to include

a direction to prosecute at least one specific

individual.

There is a “strong presumption” that Congress

intends judicial review of agency action under the

APA rather than precludes it. Helgeson v. Bureau of

Indian Affairs, 153 F.3d 1000, 1003 (9th Cir. 1998).

The agency “bears a heavy burden in attempting to

show that Congress prohibited all judicial review of

the agency’s compliance with a legislative mandate.”

Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015)

(citations omitted and cleaned up). The lower courts

here have dispensed with this burden altogether. If

this precedent is allowed to stand and is actually

applied in any other context, agencies could avoid

challenges to all of their rules.

25

IV.

The Ninth Circuit created an

erroneous standing standard to

allow immigration related actions

to escape scrutiny

A) The Standard for Procedural

Injuries in Environmental Cases

To establish Article III standing, Plaintiffs

must show: (1) injury in fact, 2) causation, and 3)

redressability. Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. Inc, 528 U.S. 167, 183 (2000). Lujan v.

Defenders of Wildlife, 504 U.S. 555 (1992). In a NEPA

case, in which plaintiffs assert procedural rights, the

causation and redressability standards are relaxed.

Lujan 504 at 573, n.7. Members of the public who are

not the direct targets of a government action must

specifically allege how the action caused them harm.

See Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992). “Environmental plaintiffs adequately allege

injury in fact when they aver that they use the

affected area and are persons for whom the aesthetic

and recreational values of the area will be lessened by

the challenged activity.” Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. Inc, 528 U.S. 167, 183 (2000).

Their concerns about their “recreational, aesthetic,

and economic interests” need to be “reasonable.” Id.

at 183-184.

While this injury in fact cannot be the result of

“independent” action of a third party not before the

court, they can be the result of third party action

“produced by determinative or coercive effect.”

Bennett v. Spear at 169 (emphasis in original). The

“predictable effect of Government action on the

26

decisions of third parties” is enough to establish

injury in fact in a procedural case. DOC v. New York,

139 S. Ct. 2551, 2566 (2019). Article III “requires no

more than de facto causality.” Id (citations omitted).

B) The Impossible standing standard

the Ninth Circuit created for

plaintiffs challenging procedural

injury in immigration cases

The Ninth Circuit held in its ruling that the

decisions of foreign nationals to enter, or to remain in

U.S. once here are “independent,” or at the most

connected by an attenuated “chain of reasoning…

worthy of Rube Goldberg” to immigration related

actions of the federal government and therefore

Plaintiffs cannot meet the standing established in

Friends of the Earth v. Laidlaw. App at 33a. In the

Ninth Circuit’s view, even Plaintiffs who live on the

border, subject to illegal aliens continually crossing

and trashing their own property, ebbing and flowing

predictably over the years in response to government

policy, are not allowed to draw the obvious connection.

In so holding, the Ninth Circuit erred—particular in

so ruling on a disputed factual matter with no record

evidence on a summary judgment motion. Plaintiffs

introduced evidence to the contrary in the form of

expert affidavits, border intelligence reports based on

interviews with migrants, and the affidavits

documenting the personal experience of those who

live on the border. Contrary to the Ninth’s Circuit fiat,

that foreign nationals, in the aggregate, predictably

respond to incentives created by DHS to cross the

border.

27

The Ninth Circuit’s conclusion that DHS’

decisions have very little effect on the numbers defies

common sense. The current world population is 7.8

billion, and 7.5 billion of them do not currently live in

the U.S., and thus are potential candidates to

immigrate, both legally and illegally. When DHS

creates and expands legal pathways to enter, work, go

to school, and remain in the U.S., it is eminently

foreseeable that there will be large numbers foreign

nationals that will take advantage of them.

Furthermore, it is eminently foreseeable that when

DHS takes action to make it more feasible and

economically rewarding to take advantage of illegal

pathways to enter and remain in the U.S., that large

numbers of foreign nationals will take advantage of

those too.

Throughout its analysis, the Ninth Circuit,

much as DHS does itself, attempted to obscure the

predictability of the effects of DHS’ immigration

related actions by viewing them and their various

effects in strict isolation. But isolating effects and

ignoring the way actions can work in concert has

never been appropriate for NEPA analysis: actions

that have “cumulative or synergistic environmental

impact” must be considered together. Kleppe v. Sierra

Club, 427 U.S. 390, 410 (1976). The U.S. is currently

undergoing a massive border and immigration crisis.

If allowed to stand, the Ninth Circuit’s decision to

create a separate and legally unsupportable standing

standard that will allow DHS’s procedural violations

in the area of immigration to escape all scrutiny from

the citizens, states, and any members of the public

that bear the costs of its ultra vires actions will have

great public consequences.

28

V.

Conclusion

For the Foregoing reasons, Petitioners

respectfully request that their writ of certiorari

should be granted.

Respectfully submitted,

Julie B. Axelrod

Counsel of Record

Center for Immigration Studies

1629 K Street NW, Suite 600

Washington, DC 20006

(202) 466-8185

Counsel for Petitioners

29