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United States District Court, S.D. California

December 12, 2005.


The opinion of the court was delivered by: LARRY BURNS, Judge



The Illegal Immigration Reform And Immigrant Responsibility Act of 1996 ("IIRIRA") authorized the building of a 14-mile Border Infrastructure System ("BIS") along the U.S. border with Mexico in the San Diego area. 8 U.S.C. § 1103 Note. In addition to an existing reinforced fence along the border, the IIRIRA Section 102(b) authorized the building of second and third fences and roads between the fences (the "BIS" or "Triple Fence"). Plaintiffs in this action are several environmental protection groups who filed their Complaint in February 2004 for declaratory and injunctive relief, challenging the adequacy of the environmental impact reviews associated with the planning and construction of the Triple Fence. They sue to enforce the standards and requirements imposed by the National Environmental Policy Act of 1969 ("NEPA").*fn1 They name as defendants the Attorney General of the United States; the U.S. Dept. of Justice; the Secretary of the Department of Homeland Security ("DHS"); the DHS; and four other federal agencies and their head administrators. Plaintiffs allege six claims and seek declaratory and injunctive relief to block construction of the second and third fences until all NEPA requirements are satisfied.

  In June 2005, Congress enacted legislation delegating to the DHS Secretary the authority, in his sole discretion, to waive "all legal requirements" he determines necessary to expeditiously complete construction of the Triple Fence project, including but not limited to environmental laws (the "Waiver Legislation"). The Waiver Legislation also insulates BIS decisions from judicial review, other than for constitutional challenges. The DHS Secretary exercised his congressionally-delegated authority on September 13, 2005 by expressly waiving the applicability of NEPA and several other laws to the border fence construction.

  Plaintiffs' February 2004 Complaint alleges only that the DHS' proposed action would violate NEPA in various ways. On September 20, 2005, this Court issued an Order To Show Cause ("OSC") why this case should not be dismissed for lack of jurisdiction, in consideration of the legislative action and the DHS Secretary's exercise of his delegated authority. In response to the OSC, plaintiffs argue: (1) the Waiver Legislation violates the Constitution by impermissibly delegating legislative authority to the DHS Secretary; (2) application of the waiver to their case violates the Constitution by enabling the DHS Secretary to abolish the district court's jurisdiction over their case; and (3) application of the waiver to their case, pending before the legislation was enacted, is an impermissibly retroactive application of the Waiver Legislation. Defendants respond that this Court now lacks jurisdiction over the dispute and must dismiss the case.

  On December 12, 2005, the Court convened the OSC hearing. Cory Briggs, Esq. appeared for plaintiffs. Matthew LePore, Esq., Donna Fitzgerald, Esq., and Melissa Erny, Esq. appeared for defendants. After consideration of the papers submitted and arguments of counsel, as discussed below, the Court finds the Waiver Legislation divested the district courts of jurisdiction to hear plaintiff's NEPA challenges to the BIS completion when the DHS Secretary formally waived that statute's application to the project.*fn2 The dispute in this action has been mooted by legitimate process in the legislative and executive branches of the government. Accordingly, for the reasons discussed below, the case is DISMISSED in its entirety.


  As enacted in 1996, IIRIRA, Section 102 directed:

. . . the Attorney General . . . [to] take such actions as may be necessary to install additional physical barriers and roads, including removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States . . . [including specifically the construction] along the 14 miles of the international land border of the United States, starting at the Pacific ocean and extending eastward, of second and third fences, in addition to the existing reinforced fence, and for roads between the fences.
IIRIRA at § 102(b)(1). To ensure the authorized border fence would be constructed with deliberate speed, Congress expressly provided that the Endangered Species Act of 1973 ("ESA") and NEPA were "waived to the extent the Attorney General determines necessary to ensure expeditious construction" of the barriers and roads. IIRIRA, Section 102(c). The United States Border Patrol, then a sub-agency within the INS, began constructing the BIS as authorized by the IIRIRA, although the agency also prepared a series of NEPA analyses of the environmental impact, consulted with the U.S. Fish and Wildlife Service, and prepared a statement for the California Coastal Commission. See Def.'s Brief 4:11-21.

  The Homeland Security Act of 2002 ("HSA") created the DHS, consolidating various departments, including the INS. The DHS acquired the Border Patrol functions, power, and duty to control and guard U.S. borders against illegal entry. The HSA also specifically addressed the BIS: it is "the sense of the Congress that completing the 14-mile border fence project required to the carried out under section 102(b) of [IIRIRA] should be a priority for the Secretary." 6 U.S.C. § 256.*fn3

  Congress enacted the REAL ID Act in May 2005. Part of that Act amended the IIRIRA provisions applicable to the BIS to accord sole discretion to the DHS Secretary to "waive all legal requirements" the Secretary determines are "necessary to ensure expeditious construction" of the barriers and roads authorized by Section 102(c) of IIRIRA. Section 102(c) of Pub.L. No. 109-13, 119 Stat. 231, 8 U.S.C. § 1103 Note ("Waiver Legislation") (emphasis added). The Secretary waiver determinations become effective upon their publication in the Federal Register. Id.


  Section 102(c) of the [IIRIRA] is amended to read as follows: "(c) WAIVER. — (1) IN GENERAL — Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure expeditious construction of the barriers and roads under this section. Any such decision by the Secretary shall be effective upon being published in the Federal Register. U.S.P.L. 109-13, HR 1268, Div. B — REAL ID Act of 2005, 119 Stat 231 (May 11, 2005) (the "Waiver Legislation" or "§ 102(c)").

  The Waiver Legislation also addressed the subsequent role of federal courts:

(A) IN GENERAL. — The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1) [of Section 102(c)]. A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph.
. . . .
Section 102(c)(2) (emphasis added).

  DHS Secretary Chertoff exercised the discretion vested in him by the Waiver Legislation on September 13, 2005, and published waivers in the Federal Register on September 22, 2005. He expressly found the application of eight statutes (including NEPA) impeded the "expeditious construction" of the BIS. 70 Fed.Reg. 55,622-23. In waiving those requirements, the Secretary emphasized Congress' desire that he make the BIS completion a "priority" and noted that nine years had already passed since IIRIRA was enacted, with the project still incomplete. Id. at 55,623. The published notice "Summary" recites:

The Secretary of Homeland Security has determined, pursuant to law, that it is necessary to waive certain laws, regulations and other legal requirements in order to ensure the expeditious construction of barriers and roads along the international land border of the United States in California.
70 FR 5562-02, 55563, 2005 WL 2295005 (F.R.). The Notice continues, in pertinent part:
. . . In [amended] section 102(c) of the IIRIRA, . . . Congress granted me the authority to waive all legal requirements that I, in my sole discretion, determine necessary to ensure the expeditious construction of barriers and roads under section 102 of IIRIRA.
In section 102(b) of the IIRIRA, Congress specifically provided for the construction along the 14 miles of the international land border of the United States . . . of second and third fences, in addition to the reinforced fence, and for roads between the fences. . . . Congress expressed its sense that completing the 14-mile border project under section 102(b) of the IIRIRA should be a priority for the Secretary of Homeland Security. Nearly nine years after the passage of the IIRIRA, the project prescribed in section 102(b) of the IIRIRA remains incomplete.
In order to ensure the expeditious construction of the barriers and roads that Congress prescribed, . . . I have determined that it is necessary that I exercise the authority that was transferred to me by sections 1511 and 1517 of the [HSA] and that vested in me by section 102(c) of the IIRIRA. . . . I hereby waive in their entirety, with respect to the construction of the barriers and roads prescribed in section 102(b) of the IIRIRA . . . all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of, the following laws as amended: The National Environmental Policy Act [NEPA] . . . (42 U.S.C. 4321 et seq.), the Endangered Species Act . . . (16 U.S.C. 1531 et seq.), the Coastal Zone Management Act . . . (16 U.S.C. 1451 et seq.), the Federal Water Pollution Control Act (commonly referred to as the Clean Water Act) . . . (33 U.S.C. 1251 et seq.), the National Historic Preservation Act . . . (16 U.S.C. 470 et seq.), the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), and the Administrative Procedure Act (5 U.S.C. 551 et seq.). . . . to accomplish the provisions of section 102 of IIRIRA.
Id. (emphasis added).


  Plaintiffs here characterize the DHS Secretary's action as pulling "NEPA out from underneath Plaintiffs" who purportedly "have firm rights and settled expectations to participate meaningfully in the design of the Triple Fence and obtain information about how to minimize or avoid its environmental impacts." Pl's Brief 20:21-23. They contend the Waiver Legislation if applied to this case "would deprive them of their rights, undermine their settled expectations, and frustrate their years of relying on NEPA's applicability to the Triple Fences." Pl's Brief 20:24-25. They argue the Court cannot simply "refuse to apply that statutory provision here" because plaintiffs will suffer "certain injury to [their] rights [under NEPA to have information about the environmental consequences of the project], long-held expectations, and reasonable reliance [on the NEPA process]." Pl's Brief 23:1-3. See Sierra Club v. Andrus, 581 F.2d 895, 900 n. 16 (1978), reversed on other grounds in Andrus v. Sierra Club, 442 U.S. 347 (1979) ("an organization with an institutional concern with informing both its members and the public on matters of public policy and decisions which fall within the concern of NEPA has a statutory right to the information which NEPA obliges the agency to compile in an EIS").

  More specifically, plaintiffs raise three discrete legal challenges to the Waiver Legislation and Secretary Chertoff's exercise of delegated authority: (1) the Waiver Legislation represents an unconstitutional delegation of legislative authority to the DHS Secretary; (2) the Waiver Legislation is unconstitutional because it permits the DHS Secretary to abolish federal statutory jurisdiction that would ordinarily govern this dispute; and (3) the Waiver Legislation operates in an impermissibly retroactive manner. Plaintiffs' legal challenges are discussed in detail below.

  A. The Delegation Is Not Unconstitutional

  Plaintiffs argue "the Waiver Legislation violates the non-delegation doctrine embodied in Article I of the U.S. Constitution by delegating a legislative function to the Secretary of Homeland Security without articulating an intelligible principle to guide the exercise of discretion." Pl's Brief 3:23-4:1. Article I Section I of the Constitution vests all legislative powers in the Congress, and Congress is not permitted "to abdicate, or to transfer to others, the essential legislative functions with which it is vested." Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935).

  Congress is permitted, however, to authorize another branch of government to carry out its law-making responsibilities if it provides adequate guidance accompanying the delegation. To be a legitimate delegation, Congress must "lay down by legislative act an intelligible principle to which the person or body authorized [to exercise the delegated authority] is directed to conform." Mistretta v. United States, 488 U.S. 361, 372, 372-73 (1989) (it is enough to satisfy the Constitution that the "intelligible principle" delegating authority to one of the coordinate Branches "clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority"). "[T]he degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred." Whitman v. American Trucking Ass'ns, 531 U.S. 457, 475 (2001) (upholding Clean Air Act regulations against challenge based on the non-delegation doctrine). When the area to which the legislation pertains is one where the Executive Branch already has significant independent constitutional authority, delegations may be broader than in other contexts. Loving v. United States, 517 U.S. 748, 772 (1996).

  Plaintiffs argue that granting the DHS Secretary "discretion to pick and choose" which laws to waive does not pass the "intelligible principle" test because the delegation permits the exercise of "unbridled discretion." Pl. Brief 4:24-27. They contend Congress gave the Secretary no guiding principle for his selection of which laws to waive, creating "an unlimited scope of discretion conferred upon the Secretary to waive all laws," a purportedly "derelict" delegation. Pl. Brief. 10:19-24. To underscore this point, plaintiffs attempt to distinguish the revised Waiver Legislation from original IIRIRA Section 102(c). In the original version, Congress expressly referenced NEPA and ESA in the text of the legislation as provisions of law that were waivable in the BIS construction process "to the extent the Attorney General determines necessary to ensure expeditious construction of the barriers and roads under this section." See Pub.L. 104-208, 110 Stat. 3009 (8 U.S.C. § 1103 note). Plaintiffs do not dispute the constitutionality of the initial delegation: "There was no unlawful delegation of the legislative function under the original version because Congress itself decided to waive NEPA, subject only to the Attorney General's determination that the waiver was `necessary to ensure expeditious construction of the roads and barriers under this section." Pl's Brief 11: 1-5, fn 5. In supposed contrast, plaintiffs argue: "Under the current version of Section 102(c), however, Congress has made no decision about what laws should and should not be waived. That decision was delegated — unconstitutionally — to the Secretary of Homeland Security." Pl. Brief 11:5-7.

  However, the "barriers and roads" alluded to are the same in both articulations of Section 102(c): the Triple Fence project located along the U.S-Mexico border in the vicinity of San Diego. Pl. Brief p. 8, fn. 3, citing Pub.L. 104-208, 110 Stat. 3009-554, amended by Pub.L. 109-13, 119 Stat. 306 (8 U.S.C. § 1103 note), subsections (a) & (b). In both versions of Section 102(c), Congress delegates to an Executive Branch official the authority to make the determination whether NEPA (or, now, any other law or administrative procedure) needs to be waived in order to expedite completion of the BIS. Here, it is significant that plaintiff's Complaint relies solely on NEPA to state their claims. Congress did not revoke its prior express authorization that NEPA could be waived "to the extent the [delegated decision maker] determines necessary to ensure expeditious construction of the barriers and roads under this subsection." 8 U.S.C. § 1103 Note. Rather, Congress simply broadened the scope of the waiver authority of the pre-existing delegation to "all laws," but again only for the narrow purpose of expeditious completion of the Triple Fence authorized by the IIRIRA. Thus, the Waiver Legislation effected no change in the already plenary scope of the delegated discretion to waive NEPA provisions that existed before plaintiffs filed their Complaint in this case.

  Moreover, the Court finds that improvement of U.S. border protection is the "clearly delineated general policy," required for a proper delegation, and that Congress adequately circumscribed the actions permitted to be taken as those "necessary to install additional physical barriers and roads" (specifically, the "construction of fencing and road improvements in the border area near San Diego, California") for the purpose of "deter[ing] illegal crossings in areas of high illegal entry into the United States." Section 102(b). Congress thus articulated a policy to guide the DHS Secretary (i.e., improved border protection as a high congressional priority), as well as the means by which to advance the policy (i.e., the "boundaries of this delegated authority"). See Mistretta, 488 U.S. at 372-73. Those boundaries are waiver of laws and regulations which the DHS Secretary determines impede completion of this particular 14-mile California border Triple Fence authorized by IIRIRA, and only upon the Secretary making a determination of necessity. The delegation is restricted to waiver of laws solely in the context of construction of this Triple Fence, not their "repeal."

  Applying a standard of "necessity" to Congress' delegation of authority passes constitutional muster. In Whitman, the Supreme Court found constitutionally permissible a delegation to Environmental Protection Agency of authority "to set air quality standards at the level that is `requisite,' that is, not lower or higher than is necessary — to protect public health." Whitman, 531 U.S. at 474-76. Such a "necessity" standard is articulated in the Waiver Legislation. The Court finds Congress provided an adequate standard for the exercise of the DHS Secretary's delegated waiver authority over laws impeding the completion of the BIS: "necessity," i.e., when needed "to ensure expeditious construction of the barriers and roads under this section." Section 102(c)(1).

  Finally, the Court observes that Congress' delegation of authority to the Executive Branch at issue here relates to matters over which the Executive Branch has independent and significant constitutional authority: immigration and border control enforcement and national security. See Knauff v. Shaughnessy, 338 U.S. 537, 542-43 (1950) (immigration policy falls within the inherent executive powers); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) ("we have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials `exercise especially sensitive political functions that implicate questions of foreign relations'") (citations omitted). To reiterate, Congress may delegate in broader terms than generally used when the power given involves taking action in an area over which the Executive Branch already maintains significant independent control. Loving, 517 U.S. at 772 ("same limitations on delegation do not apply `where the entity exercising the delegated authority itself possesses independent authority over the subject matter'") (citations omitted); see Freedom To Travel v. Newcomb, 82 F.3d 1431, 1438 (9th Cir. 1996) ("It is well settled that `Congress — in giving the Executive authority over matters of foreign affairs — must of necessity paint with a brush broader than it customarily wields in domestic areas'") (citation omitted). That the delegation of authority in this instance implicates immigration enforcement and national security — matters in which the Executive Branch already exercises considerable independent authority — underscores the conclusion that the delegation was proper.

  The cases cited by plaintiffs do not compel a different conclusion. In Panama Refining, the Supreme Court found Congress' delegation of powers to the President was unconstitutional for lack of any intelligible principle because the delegation failed to "state whether or in what circumstances or in what conditions" the President was to prohibit the transport of petroleum products and for failure to "require any finding by the President as a condition of his action." Panama Refining, 293 U.S. at 415, 421 (reviewing the National Industrial Recovery Act, after the President issued an executive order under that delegated authority delegated to prohibit the interstate and foreign transportation of petroleum products in excess of the amount permitted by state laws, and holding the Act unconstitutionally delegated legislative power to the President). The constitutional infirmity of that delegation was that Congress "declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited," imposing no limitations on Presidential authority to make law. Id. at 430.

  In contrast to the Panama Refining delegation, the DHS Secretary under the Waiver Legislation must make a finding of necessity to expedite completion of the particular BIS described in IIRIRA before invoking his waiver authority. In consideration of the broad homeland security responsibilities vested in the Executive Branch, and the deference owed the Executive Branch in matters of national security and foreign affairs, this case is distinguishable from both Panama Refining and the second case plaintiffs cite, A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541-50 (1935) (holding a delegation that had "conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring `fair competition'" was unconstitutional for failure to provide any standards for any trade, industry, or activity, converting Congress' delegation into an "unfettered" and impermissible authorization for the President essentially to enact laws regulating trade and industry). As noted by defendants: "The limited delegation to the Secretary of DHS here solely to facilitate the speedy construction of [the Triple Fence] to improve U.S. border security — simply does not compare." Def.'s Brief 11:2-4.

  B. Exercise Of The Waiver Does Not Violate Article III, Section I*fn4

  Plaintiffs contend application of the waiver to their case is unconstitutional because it enables the DHS Secretary to abolish the district court's jurisdiction, which existed at the time they filed their lawsuit alleging the BIS was proceeding in violation of the regulatory requirements of NEPA. Pl's Brief 11:16-17. They argue the Secretary's exercise of his waiver authority violates separation of powers if applied to this case because "[o]nly Congress may oust a federal court's jurisdiction over a pending case, which it opted not to do here," and the Secretary "will have effectively repealed the statute on which this Court's jurisdiction is based — NEPA. . . ." Pl's Brief 12:6-9, 23:23-24 (giving retroactive effect to the Waiver Legislation "would raise serious separation-of-powers concerns over matters of delegation and federal-court jurisdiction"). Plaintiffs argue congressional delegation of authority to "waive" statutory requirements, even for one particular project, is tantamount to allowing the Executive Branch to "repeal" statutes and to divest courts of congressionally-conferred jurisdiction:

[The waiver] is unconstitutional because it effectively repeals NEPA, the federal statute on which this Court's jurisdiction over Plaintiffs' case is based. . . . If Waiver is invoked here in a manner that exempts Defendants from having to comply with NEPA, then it will have been the Secretary of Homeland Security's unilateral action that removed the statutory basis for this Court's jurisdiction. Such action by an officer of the executive branch, rather than by Congress, is prohibited by the Constitution.
Pl. Brief 13:19-14:3, citing U.S. Const. art. III, § 1.

  "[H]ow far Congress may go in delegating authority to designate or limit the jurisdiction of the federal courts is a complex question that has not yet received a definitive answer."*fn5 Rein v. Socialist People's Libyan Arab Jamahiriya, 162 F.3d 748, 762-64 (2nd Cir. 1998). The DHS Secretary's decision to exclude the BIS construction from NEPA requirements eliminates the theory of plaintiffs' Complaint. However, the Waiver Legislation expressly reserves to the federal district courts jurisdiction "to hear all causes or claims arising from" the Waiver that "alleg[e] a violation of the Constitution of the United States." Section 102(c)(2)(A). Congress did not delegate authority to designate or limit the jurisdiction of federal courts. The Waiver Legislation itself restricted judicial review of any claims to constitutional challenges. Thus, contrary to plaintiffs' argument, Congress, not the DHS Secretary, circumscribed the judicial review available for decisions of the Secretary in the exercise of delegated authority to expedite construction of this particular BIS. Congress expressly contemplated from the outset that NEPA could be suspended for that purpose. This court may not now adjudicate claims or causes based on non-compliance with enacted procedural requirements the DHS Secretary has determined must be waived in order to expedite completion of the BIS.

  C. Application Of The Waiver Legislation To This Case Is Not Impermissibly Retroactive

  For the reasons discussed in detail below, the Court finds this is not a case of retroactive application of new legislation. The BIS has been authorized for over nine years, including from its inception Congress' express authorization, delegated to the Executive Branch, to waive the application of NEPA to the Triple Fence project if necessary to accomplish its construction. The exercise of that delegated authority in September 2005 exempted the BIS from NEPA requirements. Plaintiffs' standing to sue to enforce NEPA, as well as this Court's jurisdiction to review NEPA issues — or any issues other than constitutional questions under the Waiver Legislation — with respect to the Triple Fence project were lost with the DHS Secretary's exercise of his delegated authority.

  Plaintiffs argue "because this proceeding was initiated long before the Waiver Legislation was enacted, its application — and a fortiori the Waiver's application — would violate the rule against the retroactive application of legislation." Pl's Brief 4:3-5. They contend their litigation should not be affected by those subsequent events. They rely on INS v. St. Cyr, 533 U.S. 289 (2001) for the proposition that the comprehensive overhaul of major immigration legislation through the 1996 IIRIRA only applies retroactively to pending cases when specific provisions of the IIRIRA expressly so provide, and Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result") (emphasis added). Plaintiffs contend the 2005 Waiver Legislation lacks retroactive application language. Defendants argue plaintiffs' failure to raise any distinct constitutional challenge based on their retroactivity challenge divests the court of jurisdiction to consider their claims, under Section 102(c)(2)(A).*fn6

  The parties agree the two-part test for retroactivity appears in Landgraf, 511 U.S. 244.


When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.
Landgraf, 511 U.S. at 280 (emphasis added).

  Courts thus first determine whether Congress has expressly prescribed the statute's proper scope. A statute is not deemed to have retroactive effect "merely because it is applied in a case arising from conduct antedating the statute's enactment, or upsets expectations based in prior law." Landgraf, 511 U.S. at 269. Even if the statute would operate retroactively, if congressional intent clearly favors such a result, the statute may still operate retroactively. The subject matter of Section 102(c) pertains to this particular BIS project. The amendment simply increases the authority of the DHS Secretary (already vested in the Executive Branch expressly with respect to NEPA and ESA waiver) "to ensure expeditious construction of the barriers and roads under this section." 8 U.S.C. § 1103 Note. Plaintiffs' posit the hyper-technical requirement that Congress must articulate a "clear command or directive in a statute requiring retroactive application" from a "point in time from which the statute applies retroactively" to argue there is "no express command for retroactive application of the waiver legislation." Pl. Brief 16:10-14. However, congressional intent in the revision is clear from the subject matter of Section 102(c): expedite completion of the BIS Triple Fence. The "language" of the "congressional enactment" cannot be construed otherwise than as specifically targeting the subject matter of this case. The "express statutory grant" plaintiffs insist courts must find before retroactive application is proper arises from the narrow focus of the legislation. A finding of intended "retroactive" application of the waiver could be sustained on that basis.

  In addition, the injunctive relief plaintiffs seek pertains to current and future construction, i.e., that "any and all construction activities on the [BIS be enjoined] until Defendants fully comply with NEPA." Some NEPA compliance actions already had been undertaken (even if plaintiffs consider them inadequate). When "the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive." Landgraf, 511 U.S. at 273 ("relief by injunction operates in futuro") (citation omitted); see also 511 U.S. at 293 (Scalia, J. concurring) ("Since the purpose of prospective relief is to affect the future rather than the past, the relevant time for judging its retroactivity is at the very moment at which it is ordered"). The DHS Secretary exercised his delegated discretion to waive application of NEPA on a going-forward basis. His exercise of NEPA waiver authority was not an application of new executive powers delegated by Congress after plaintiffs filed this lawsuit, but rather a decision with respect to the BIS Congress had authorized at the inception of the IIRIRA.

  Plaintiffs acknowledge the Supreme Court has "emphasized that an inquiry into whether a statutory provision will have an impermissible retroactive effect demands a `common sense, functional judgment about whether the new provision attaches new legal consequences to events completed before its enactment.'" Pl's Brief 19:26-20:3, quoting Martin v. Hadix, 527 U.S. 343, 357-58 (1999). Defendants argue the challenged legislation imposes no new and significant legal burdens on plaintiffs. Cf., e.g., St. Cyr, 533 U.S. at 321-25 (elimination of alien's eligibility for a waiver of deportation had retroactive effect because alien reasonably relied on the availability of such relief at the time he agreed to plead guilty). NEPA was expressly singled out as waivable in the prior version of Section 102(c), years before plaintiffs filed this lawsuit. It was thus reasonably foreseeable that the BIS could at some point be exempted from NEPA requirements. These considerations undermine plaintiffs' argument they had an "expectation" that the NEPA legislation would necessarily always be enforceable in connection with the BIS. No reasonable argument can be made that a pre-existing private lawsuit to compel compliance with NEPA should override the exercise of congressionally-delegated authority to waive NEPA requirements in the completion of a project uniquely within the national security and immigration policy provinces of the Executive Branch, and in connection with which NEPA waiver was always a congressionally-sanctioned possibility.

  Defendants rely on the Waiver Legislation text as further support for a finding of intended retroactive effect, with its use of the broad and unequivocal clause: "Notwithstanding any provision of law, . . ." Def's Brief 14:10-14 (emphasis added). They further argue delegating to the Secretary the authority to waive "all legal requirements" that he "determines necessary to ensure expeditious construction of the barriers and roads" does not exclude any that might have been the subject of litigation at the time. Def's Brief 14:20-25 (emphasis added). In addition, if the court were to determine the Waiver Legislation "may not be used to waive NEPA because [conformity with NEPA] is the subject of pending litigation, then the sole purpose for the Waiver would be frustrated." Def's Brief 15:3-5


Congress enacted (and amended) the Waiver Legislation to permit the Secretary to expedite construction of this fence by removing certain legal impediments that presented an obstacle (thereby defeating Congress's homeland security directive to improve border security). The Secretary has determined that one such impediment is NEPA; Plaintiffs' position would, if credited, directly contradict the will of Congress by requiring the continued compliance with a statute that the Secretary has determined is impeding the expedited construction of the fence.
Def's Brief 15:5-11. Defendants' argument is persuasive and supported by the Section 102(c) text, without recourse to a legislative history analysis.*fn7 Accordingly, there appears to be "no need to resort to judicial default rules" in this case. See Landgraf, 511 U.S. at 280; see also Lyons v. Agusta S.P.A., 252 F.3d 1078, 1084-85 (9th Cir. 2001) (courts must give statutes their "intended scope"). Even if the court were to reach the second step of the Landgraf retroactivity inquiry, defendants dispel any doubt that the Waiver Legislation was intended to apply to this pre-existing lawsuit by quoting from the House report:
Continued delays caused by litigation have demonstrated the need for additional waiver authority with respect to other laws that might impede the expeditious construction of security infrastructure along the border.
Def's Brief 15:22-25, quoting H.R. No. 109-72, 2005 U.S.C.C.A.N. 240, 296 (May 3, 2005).

  Defendants represent:

[T]his action is the only litigation that has been filed regarding the San Diego border fence. Thus, Congress's direct reference to the delays caused by litigation demonstrates its intent to permit the Secretary to take necessary actions to waive all laws even where the result would be to affect this pending suit. The Waiver Legislation's text, legislative history, and clear purpose warrant its application to this pending suit.
Def's Brief 15:25-16:4 (emphasis added).

  The only justiciable controversies Congress left for the courts to decide in this connection are constitutional claims. It is not enough to be found impermissibly retroactive that a statute "upsets expectations based on prior law." Landgraf, 511 at 269. This case, alleging only claims arising under NEPA, became moot with the exemption of the BIS from the application of NEPA requirements. This Court has been divested of jurisdiction to decide the claims, and plaintiffs have lost their standing to obtain an adjudication regarding NEPA compliance.


  In summary, the intent of Congress' Waiver Legislation is clear: expedite completion of the particular 14-mile Triple Fence along the U.S.-Mexico Border in the San Diego area. The means and limitations to facilitate that result are augmentation of the DHS Secretary's delegated authority to waive not only NEPA and ESA, but also any other laws or regulations, when necessary to remove impediments to that end. The DHS Secretary exercised that delegated authority in the limited context approved by Congress and published explicit waivers of multiple specific environmental laws, including NEPA, in a section of the September 2005 Federal Register. The waivers became effect upon publication. NEPA requirements no longer apply to the BIS Triple Fence construction process. For the foregoing reasons, the Court finds NEPA compliance in the construction of the BIS is no longer an enforceable claim. No constitutional claim is alleged in the Complaint or has survived the OSC briefing. The issues presented in this Complaint are accordingly moot, and the action is DISMISSED in its entirety as to all claims and all parties.



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