Environmental Groups Sue to Block Trump’s National Emergency Declaration

The Center for Biological Diversity, Defenders of Wildlife, and Animal Legal Defense Fund filed a lawsuit against Donald Trump, Acting Secretary of Defense Patrick Shanahan, Secretary of the Treasury Steve Mnuchin, Secretary of Homeland Security Kirstjen Nielsen, and Acting Secretary of the Interior David Bernhardt in the District Court for the District of Columbia on Saturday February 16. The lawsuit stems from Trump’s National Emergency Declaration announced on Friday morning February 15, in which he instructed the Department of Defense and Department of Homeland Security to take acts to build the border wall he promised to build during his campaign. A White House press release of the same day enumerates the breakdown of financial resources that the President plans to appropriate from in order to fund the building of his border wall through his national emergency declaration. Out of $8.1 billion dollars so far identified by the President, $601 million would come from a Treasury Department Forfeiture Fund, up to $2.5 billion would come from Department of Defense funds earmarked for support for counterdrug activities, and up to $3.6 billion would be reallocated from Department of Defense military construction projects.

The complaint begins by noting that although the National Emergencies Act does not define the term “emergency”, the colloquial use of the word connotes suddenness or urgency. Given that the President has been discussing declaring a national emergency for the “border crisis” for around two months, along with his statement while announcing the declaration that he did not need to declare an emergency, but was doing so in order to build the wall faster, all belie the suddenness or urgency of this situation.  The complaint alleges that this is the first time a national emergency has been declared in order to fund a policy goal after being unsuccessful in so doing through foreign diplomacy (his original claim that Mexico would pay for the wall) or through the normal Congressional appropriations process.

The Center for Biological Diversity notes that it has worked for over two decades to oppose border fencing and security projects which might pose a threat to border species like jaguars, ocelots, peninsular bighorn sheep, Sonoran pronghorn, Mexican gray wolf, Quino checkerspot butterfly, and coastal California gnatcatcher. Defenders of Wildlife claims it has actively participated in policy and litigation matters involving the U.S.-Mexico border for over a decade. Animal Legal Defense Fund notes that it too has participated in border litigation and has members who live on the affected border.

Section E of the complaint details the environmental impacts of the emergency proclamation. The building of the wall in high priority areas includes San Diego, El Centro, Yuma, El Paso, Laredo, and Rio Grande Valley. Construction would impact threatened and endangered species listed under the Endangered Species Act (ESA); impact critical habitats for endangered and threatened species; impact federal lands including National Parks, National Monuments, wildlife refuges, wilderness areas, and wild and scenic rivers; and impact Waters of the United States that are protected by the Clean Water Act. More specifically, there are examples of how animals regularly cross the border. For instance, the jaguar is endangered in the U.S. and all of those spotted in the U.S. over the past twenty years have been born in Mexico and not the U.S. Some of the currently areas in San Diego that are not fenced include the critical habitat for the coastal California gnatcatcher, Quino checkerspot butterfly, and Arroyo toad. Some of the unfenced area in El Centro provides the critical habitat for the peninsular bighorn sheep and includes the only area linking the U.S. habitat for the sheep with the habitat in Mexico. Unfenced areas of the Yuma area serve as the critical habitat for the Sonoran pronghorn and include the Cabeza Prieta National Wildlife Refuge. The New Mexico bootheel area in El Paso which is not fenced is the critical habitat for the jaguar and Chiricahua leopard frog. The area is also rich in mule deer, antelope, and mountain lions, and bison herds. The lower Rio Grande Valley includes some of the most biologically diverse land in the U.S. and serves as a crucial habitat for migratory birds.

Additionally, the complaint notes that some of the funds that would be reallocated under the emergency are used to combat organized crime. International wildlife trafficking, which is considered a major problem in the U.S. and around the world, is conducted by organized criminal networks. Although organized criminal networks do not solely operate wildlife trafficking schemes, such may be part of their larger portfolio of crimes and any loss in investigative funds could be immensely detrimental to combating the problem.

The complaint requests 1) that the national emergency declaration and any actions taken or directed under it be declared unlawful under the National Emergencies Act and invoked emergency provisions of the U.S.C.; 2) that the national emergency declaration and any actions taken or directed under it be declared unconstitutional under the Article I Appropriations Clause and Article II Take Care Clause; 3) set aside and vacate the national emergency declaration and any actions taken or directed under it; 4) enjoin the reallocation of appropriated funds taken under the emergency declaration; 5) retain jurisdiction to ensure compliance with court orders; 6) award plaintiffs reasonable costs of litigation; and 7) grant any other relief the court deems proper.

 

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