Court Applies Environmental Law to Biden-Harris Border Disaster

The Arizona Department of Environmental Quality estimates that each border crosser leaves approximately six to eight pounds of trash in the desert during his or her journey. If you do the rough math, the total amount of strewn garbage caused by DHS Secretary Alejandro Mayorkas greenlighting millions of illegal migrants, all trampling their way across the southern frontier, is stunning. 

Americans have probably wondered why federal environmental law does not prevent, or at least slow, Mayorkas from bringing about this mess. After all, the Biden-Harris administration has done much more than simply benignly tolerate or mildly encourage this massive human movement. The president and his cabinet have not only loudly proclaimed that they “welcome” the arrival of these illegals, but made it clear that this unprecedented immigration was central to their foreign and domestic policy. They have pushed their legal authorities beyond the limit, inventing out of thin air new immigration programs, mobilizing thousands of federal officers, and spending and reprogramming billions of dollars to make it all happen.

On our southern frontier, the resulting chaotic human activity—clandestine camping, trekking, consuming, and disposing—has had a profound impact on the natural environment as well as on towns, ranches, and small communities. Yet Biden-Harris environmental and health officials are silent about the countless heaps and tons of garbage, plastic, and abandoned human junk all over the border region. 

These illegal immigrants have thrown up makeshift encampments wherever they wanted, trampled through private property, disrupted normal activities and—lacking adequate sanitary facilities—deposited human waste all along extremely vulnerable waterways, like the Rio Grande, that are already too inadequate fully to serve the desert-like region. 

In normal times, in the wake of such violent human attacks on land and water, the American environmental protection community would have been on the warpath. But groups like the Sierra Club and the National Audubon Society, indeed the entire establishment environmental community, have all remained silent and done nothing to respond to the Biden-Harris reckless immigration policy. Resisting this kind of fly-by-the-seat-of-the-pants federal policy that enables destructive human activity hostile to the environment is, in theory, their raison d’être. 

Normally, reacting to such a catastrophic environmental situation, groups like Greenpeace would be mobilizing thousands of fanatical activists, some perhaps chaining themselves to close traffic on the bridges over the Rio Grande, while a battery of lawyers from the Environmental Defense Fund would be in federal court filing lawsuits. In theory, they all sincerely believe that man-made activities like the Mayorkas migrant diaspora contribute to climate change and leave lasting damage to unspoiled natural areas. 

Moreover, Biden’s “immigration program” is not only enticing waves of humanity to trample through an unprepared and vulnerable region, but it is also growing the country’s population, practically overnight, by millions of new people. For years, groups like the Sierra Club saw population growth—including by immigration—as fundamentally at odds with protecting the national environment. It is a fair question that conservatives, too, should ask: How many millions do we want living in our country? 

What happened to change the environmental movement was yet another Fabian victory of wokeism ideology. Wokeism (of which open-borderism is a direct offshoot) has seriously infected and subdued the entire U.S. environmental movement. Wokeism conquered the leaders of the American environmental movement just as it did their counterparts in organized labor.

When organized labor and its traditional political allies, like Bernie Sanders, stopped resisting the open-border extremists and signed on to cheering the arrival of millions of low-skilled workers surging into the country, it was a watershed political moment. Labor’s foundational principle, which had for more than a century resisted importing cheap foreign workers, was thrown under the bus to advance open-borders in the name of wokeist social justice. 

The same wokeist putsch was also occurring in the environmental movement. New woke leadership has remade the traditional green and conservationist cause so as to address the movement’s historic “exclusionary and racist ideas.” The woke executive director of the Sierra Club explains that his group now “fights for environmental and social justice.” John Muir is not to be remembered primarily for his great achievements as a naturalist and conservationist but for his unforgivable racist dicta. The environmental mission has been retrofitted into an examination of an intolerant past and atonement for its “substantial role in perpetuating white supremacy.”

That means that the green movement has simply put aside its core mission of protesting and fighting the defilement of the American environment in support of Biden-Harris-Mayorkas open borders. The establishment environmentalists will not resist nor even voice cautionary complaints as the White House is on a path to grow the U.S. population by up to 15 million new inhabitants.  

Astonished and disappointed by such a transformational sellout of America’s great traditions of protecting the country’s natural bounty, one astute writer for The American Conservative explained: 

For some time, environmentalists accepted that caring about population growth in the United States required caring about immigration policy. In 1989, the Sierra Club’s board adopted the policy position that “migration to the United States should be no greater than that which will permit achievement of population stabilization in the United States.” However, by the mid-1990s, political and donor pressure convinced the Sierra Club to declare first neutrality on the immigration issue and finally, in 2013, support for amnesty.

That writer was Julie Axelrod, who is director of litigation at the Center for Immigration Studies (CIS). Today, Axelrod is leading the CIS federal court lawsuit that asserted that the Biden administration’s open-border policies have unlawfully ignored the National Environmental Policy Act (NEPA). Under NEPA, any federal agency considering a “major federal action” must comprehensively evaluate its “environmental effects.” Axelrod’s lawsuit argued, correctly, that DHS did not do any such evaluation before encouraging, facilitating, and subsidizing millions of illegal migrants to “surge to our border.” 

President Nixon signed NEPA into law in 1970. Although it has mainly been a legal tool for leftwing environmental activists to thwart economic development activities, applied wisely, the statute can undergird main-street conservative values that seek to protect local communities from radical and reckless “social justice” projects.

Main-street America’s environment is much more threatened by Washington’s extreme social justice activism than anything that comes from fracking and burning fossil fuels. Nothing illustrates this better than today’s open-border extremism which is depositing uninvited illegal foreign migrants in communities all over the country. Americans must reach for any tool, including statutes like NEPA, to resist a lawless presidency that regularly commits ultra vires acts, while an ineffectual Congress does nothing.  

In Axelrod’s lawsuit, known as Massachusetts Coalition for Immigration Reform v. Department of Homeland Security, a federal district court judge ruled on September 30 that DHS has indeed violated NEPA by failing to conduct the statutorily required environmental impact analysis before opening the border. For the first time, a court has applied NEPA in a way that can help to slow Washington’s massive and extreme migration policies.

Yes, Alejandro Mayorkas has an environmental law problem. If, dear reader, you feel an authentic schadenfreude moment, please enjoy it. You can thank CIS and Axelrod, who explained:

This ruling represents a victory for American citizens harmed by the Biden-Harris administration’s open-border policies and reinforces the requirement for environmental reviews in federal policy-making. It is astonishing that no major environmental group took action on this, but the Center was proud to step in and lead the charge.

The judge ruled that “Presidential administrations enjoy significant discretion in the enforcement of our Nation’s immigration laws and protection of our borders. But this latitude does not license violations of other laws.”

We do not often find such wisdom on the federal bench. This is an important case to follow as it moves forward.