The legal arm of a Washington organization that favors lower levels of immigration is pursuing a novel strategy for achieving that goal — challenging the Department of Homeland Security on environmental grounds.
The Immigration Reform Law Institute filed a federal lawsuit Monday in San Diego on behalf of seven plaintiffs against the Department of Homeland Security and its secretary, Jeh Johnson, under the National Environmental Policy Act.
“This is really an environmental case.”
The suit seeks a court order ruling that the department has failed to perform adequate reviews under the 1970 statute in 33 separate actions. The suit also seeks orders setting aside a finding of no environmental impact on a decision regarding the border surge of unaccompanied minors from Central America in 2014 and instructing the Department of Homeland Security to reconsider a rule granting expanded opportunities for foreign students to work in the United States after graduation.
The law requires federal executive branch agencies to assess the impact on the environment before taking a variety of actions. Never before have the courts ruled that it applies to immigration. But even though the Immigration Reform Law Institute is the legal arm of the Federation of American Immigration Reform — which favors restricting immigration — attorney Julie Axelrod said the principle is the same as any other NEPA issue.
“This is really an environmental case,” she said.
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The civil complaint cites a provision of NEPA requiring the government to coordinate programs to “achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities.”
The complaint also includes figures showing how many people have been added to the country through various decisions by the federal government since 1989, ranging from rules governing various visa programs to executive actions taken by President Obama to shield millions of people who came illegally. It also cites enforcement priorities of the Obama administration to focus on some deportations over others.
The estimated number exceeds 19 million and is many times more than that if U.S.-born children of and relatives sponsored by the new immigrants are taken into account.
“The public’s really in the dark about how many discretionary decisions affect the population,” said Axelrod, director of investigations and staff counsel at the immigration law group.
The suit points to a Pew Research Center report last year indicating that the 72 million immigrants and their children since Congress changed immigration law in 1965  account for the majority of U.S. population growth. It constitutes 87 percent of population growth from 2010 to 2014, according to the Center for Immigration Research.
Axelrod said the plaintiffs have a strong case on the merits. The law is unambiguous, she said. Government decisions cannot be “arbitrary and capricious,” and since the government has not incorporated an environmental analysis into immigration policy, “That’s pretty much as arbitrary and capricious as you can get.”
A more challenging hurdle could be the requirement that plaintiffs demonstrate that they have suffered specific and personal harm, a legal concept known as “standing.”
The plaintiffs include conservation districts and ranchers who have dealt with numerous issues related to mass immigration, Axelrod said. The suit also includes affidavits from a number of people, including former Colorado Gov. Richard Lamm, a longtime population control advocate. He wrote that the primary driver of population growth is entirely within the government’s control.
“Our immigration levels are ultimately a policy choice,” he wrote. “DHS is the federal agency that actually implements our nation’s immigration policies, and so DHS is responsible for carrying out the federal policy that has the greatest impact on the environment of all. And yet, DHS has done zero environmental review of its immigration related actions. Zero!”
Axelrod said it has “never been more clear that there are environmental impacts” from immigration. Even if the plaintiffs win, however, it is unclear how immigration policy might change as a result. Undoing immigration decisions from decades ago would be problematic, and performing an environmental analysis would by no means guarantee different policies. But she said it would be an important step.
“We’ll see how the process works,” she said. “We’re at the beginning.”