Whitewater Draw Natural Res. Conservation Dist. v. Mayorkas

• Decision Date: 19 July 2021
• Docket Number: No. 20-55777,20-55777
• Parties: 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 Cattlegrowers’ Association ; Glen Colton; Ralph Pope, Plaintiffs-Appellants, v. Alejandro MAYORKAS, in his official capacity as Secretary of Homeland Security; U.S. Department of Homeland Security, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

5 F.4th 997

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 Cattlegrowers’ Association ; Glen Colton; Ralph Pope, Plaintiffs-Appellants,

v.Alejandro MAYORKAS, in his official capacity as Secretary of Homeland Security; U.S. Department of Homeland Security, Defendants-Appellees.

No. 20-55777

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 11, 2021 Pasadena, California

Filed July 19, 2021

Julie Axelrod (argued), Washington, D.C.; John C. Eastman and Anthony T. Caso, Center for Constitutional Jurisprudence, Orange, California; Lesley Gay Glackner, Legal Fellow, Center for Immigration Studies, Washington, D.C.; for Plaintiffs-Appellants.

Kevin W. McArdle (argued), Barclay T. Samford, and Robert J. Lundman, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Environment and Natural Resources Disivion, United States Department of Justice, Washington, D.C.; Amber N. Napolitano, Attorney, Office of General Counsel, United States Department of Homeland Security, Washington, D.C.; for Defendants-Appellants.

Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges, and Kathleen Cardone,^* District Judge.

OPINION

BYBEE, Circuit Judge:

Plaintiffs are organizations and individuals who seek to reduce immigration into the United States because it causes population growth, which in turn, they claim, has a detrimental effect on the environment. Plaintiffs allege that the Secretary of the Department of Homeland Security (the Secretary or DHS) violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4331 – 4370m-12, by failing to consider the environmental impacts of various immigration programs and immigration-related policies. The district court dismissed two of Plaintiffs’ claims and granted summary judgment in favor of the Secretary on the remaining claims. We affirm.

I. BACKGROUND

We begin with a brief overview of NEPA and its corresponding regulations before turning to the facts of this case.

A. NEPA

Congress enacted NEPA in recognition of "the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth," and other enumerated factors. 42 U.S.C. § 4331(a). NEPA requires all federal agencies to "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" known as an "environmental impact statement" (EIS). Id. § 4332(2)(C). The EIS should address "the environmental impact of the proposed action"; "any adverse environmental effects which cannot be avoided"; "alternatives to the proposed action"; "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity"; and "any irreversible and irretrievable commitments of resources which would be involved in the proposed action." Id. § 4332(2)(C)(i)–(v). "Although these procedures are almost certain to affect the agency's substantive decision, it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (citations omitted). Even where an agency determines that there will be "adverse environmental effects of the proposed action," the agency may still "decid[e] that other values outweigh the environmental costs." Id. (citations omitted). The purpose of NEPA is "to insure that the agency has taken a ‘hard look’ at environmental consequences." Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) (citing Nat. Res. Def. Council v. Morton , 458 F.2d 827, 838 (D.C. Cir. 1972) ).

NEPA established in the Executive Office of the President a Council on Environmental Quality (CEQ) to promulgate regulations to implement NEPA. 42 U.S.C. § 4342. Under CEQ regulations, an agency must first assess the appropriate level of NEPA review. If it is clear that an EIS must be prepared, the agency should proceed with the EIS. 40 C.F.R. § 1501.4(a)(1) (2017).¹ Otherwise, the agency may prepare an "environmental assessment" (EA)—which is a "concise public document," id . § 1508.9(a)—to determine whether a proposed action requires an EIS, id. §§ 1501.4, 1508.9. If, after preparing an EA, the agency determines that an EIS is not required, the agency then may issue a "[f]inding of no significant impact" (FONSI). Id. §§ 1501.4(e), 1508.13 ; see also Metcalf v. Daley , 214 F.3d 1135, 1142 (9th Cir. 2000). The regulations also permit an agency to determine in advance that "a category of actions [will] not individually or cumulatively have a significant effect on the human environment ... and for which, therefore, neither an environmental assessment nor an environmental impact statement is required." 40 C.F.R. § 1508.4. These categories of actions are often referred to as CATEXs. Federal agencies must "adopt procedures to supplement [NEPA] regulations," id. § 1507.3(a), and "integrate the NEPA process with other planning at the earliest possible time," Andrus v. Sierra Club , 442 U.S. 347, 351, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979) (citation omitted).

B. Proceedings

Plaintiffs identify themselves as environmentalists, environmental groups, natural resource conservation groups, and cattle ranchers from Arizona, New Mexico, Colorado, and California.² The gravamen of Plaintiffs’ complaint is that "[t]he primary factor driving U.S. population growth is international migration"—the entry of "approximately 35 million foreign nationals"—and that such growth has caused "enormous impacts" to the human environment, such as urban sprawl, loss of biodiversity, and increasing CO₂ emissions. Plaintiffs complain that, despite the impact of immigration on the human environment, "DHS has failed to initiate any NEPA review" for "its programs regulating the entry and settlement of foreign nationals [in the United States]"; instead, DHS has "simply ignore[d] the impacts that foreign nationals themselves have on the human environment."

The First Amended Complaint (FAC) contains five counts. Count I challenges DHS's 2015 Instruction Manual (the Manual), which implements NEPA and CEQ regulations. The FAC alleges that the Manual failed to require DHS to comply with NEPA and is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). Count II asserts that DHS implements eight "programs" for which it failed to comply with NEPA: (1) employment-based immigration; (2) family-based immigration; (3) long-term nonimmigrant visas; (4) parole; (5) Temporary Protected Status (TPS); (6) refugees; (7) asylum; and (8) Deferred Action for Childhood Arrivals (DACA). In Count III, Plaintiffs allege that DHS's Categorical Exclusion A3 (CATEX A3) is arbitrary and capricious, in violation of the APA. CATEX A3 applies to the "[p]romulgation of rules, issuance of rulings or interpretations, and the development and publication of policies, orders, directives, notices, procedures, manuals, advisory circulars, and other guidance documents" that are "strictly administrative or procedural"; "implement, without substantive change, statutory or regulatory requirements ... procedures, manuals, and other guidance documents"; or "interpret or amend an existing regulation without changing its environmental effect." CATEX A3 is published in the appendix of the Manual.

In Count IV, Plaintiffs challenge DHS's application of CATEX A3 to four DHS actions as contrary to NEPA and arbitrary and capricious under the APA:

1. Adjustments to Limitations on Designated School Official Assignment and Study by F-2 and M-2 Nonimmigrants (DSO Rule), 80 Fed. Reg. 23680 (Apr. 29, 2015), which amended DHS's Student and Exchange Visitor Program by allowing for (1) more designated school officials to oversee the program; and (2) spouses and children of visiting students to take classes on a part-time basis. Id. at 23,681 –82.

2. Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students (STEM Rule), 81 Fed. Reg. 13,040 (Mar. 11, 2016), which allows nonimmigrant students with degrees in STEM fields from U.S. universities to apply for a 24-month visa extension (replacing the previously available 17-month extension). Id. at 13,041. It also strengthens DHS's oversight of the program. Id. at 13,041 –42.

3. Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers (AC21 Rule), 81 Fed. Reg. 82,398 (Nov. 18, 2016), which aims to improve "the ability of U.S. employers to hire and retain high-skilled workers" with employment-based visas, and to increase the ability of visa-holding workers to change positions or employers. Id. at 82,398.

4. International Entrepreneur Rule, 82 Fed. Reg. 5,238 (Jan. 17, 2017), which establishes criteria for DHS to use its discretionary parole authority to grant temporary parole to "entrepreneurs of start-up entities" with significant potential for rapid growth and job creation. Id. at 5,238.

Finally, in Count V, Plaintiffs challenge EAs and FONSIs issued by DHS in August 2014. On June 2, 2014, President Barack Obama issued a memorandum entitled "Response to the Influx of Unaccompanied Alien Children Across the Southwest Border," in which he directed the Secretary to address a dramatic increase in children and families crossing our border with Mexico. DHS responded with a proposal to expand infrastructure for temporary detention...