PHOENIX — A federal judge has tossed out a bid by Arizona Attorney General Mark Brnovich to use environmental laws to immediately force the Biden administration to resume construction of the border wall.
U.S. District Court Judge Dominic Lanza said there is no legal basis to Brnovich's claim that the decision to halt construction first required the federal government to conduct a study to determine the environmental impact of the change in policy. The judge said such challenges cannot be brought under the National Environmental Policy Act.
But in a sometimes-sharply- worded, 32-page ruling, Lanza said the arguments by Brnovich linking border wall construction and illegal immigration are both legally and factually flawed. He said the attorney general failed to show any actual link between the issues.
Brnovich spokeswoman Katie Conner said Lanza’s ruling makes no sense.
"With illegal crossings at all-time highs and an unprecedented surge in fentanyl trafficking across the border, the court’s conclusion that Arizona is not suffering any injuries traceable to the Biden Administration's policies is difficult to understand,'' she said in a prepared statement. And Conner said while Lanza refused to order that wall construction be immediately restarted, the ruling does not preclude Brnovich from pursuing his claim and asking for a trial.
Lanza said Brnovich's lawsuit, filed last year, is based on the theory that existing gaps in border wall are enticing aliens, who otherwise would remain in Mexico, to stream into Arizona. With that goes the assumption that if those gaps had been filled through continued construction of the wall, those would-be entrants would have been deterred from crossing the border.
“There are two problems with this logic,” Lanza wrote.
The first, he said, is that the Biden administration showed that the canceled projects in Arizona amount to no more than 18 miles. The judge said there are still areas of Arizona without a border barrier and those gaps would have remained even if the original project had been completed.
“The state does not argue otherwise,” Lanza said. “Thus, regardless of defendants' action or inaction, Arizona would have been left with an incomplete wall on its southern border filled with gaps. It is speculative that the less-incomplete version of the border wall the state wishes to compel defendants to build would necessarily deter migrants from entering Arizona.”
The other problem, Lanza said, is that Brnovich fails to acknowledge “that aliens committed to entering the United States have time and again found ways to overcome and bypass walls on the southern border.” The judge said the state is asking him to speculate about why people enter the country illegally and whether the construction of certain impediments would result in effective deterrence.
“This chain of reasoning ... is marred by attenuation unsupported by well-pleaded facts and impermissibly ignores the myriad other economic, social, and political realities that might influence an alien's decision to risk life and limb to come to the United States,” Lanza wrote.
The judge acknowledged that there has been a dramatic increase in migration since the proclamation ending wall construction. But here, too, he said, Brnovich has failed to show that increase is linked to halting the project versus other factors.
“Nor would it make sense to attribute the immediate increase in migration to cessation of construction activities, given the border all would not have otherwise been completed overnight,” Lanza said. And then there's the fact that 190 miles of additional border wall between 2018 and 2020 “was unable to stop this increase in migration.”
The judge was no more impressed by Brnovich’s arguments that termination of wall construction has led to an increase of fentanyl coming into Arizona. He pointed out that the state's statistics include amounts seized at ports of entry.
“To the extend there has been an uptick in drug smuggling activities via Arizona’s ports of entry since the challenged policies and programs went into effect, this undermines rather than supports the notion that the unfilled gaps in the border wall attributable to defendants’ cessation plans are the cause of more crime,” Lanza wrote.
And the judge said Brnovich’s case is not helped by the declaration of James Chilton, a cattle rancher whose property is located along about 5.5 miles of the international border between Nogales and Sasabe.
Chilton said the government had almost finished extending the wall across the southern border of his property but left about a half mile unprotected except for a four-strand barbed-wire fence designed to discourage cattle from crossing. And Chilton said even where the wall was built it is unfinished as it does not contain operating lights, electronic sensors or other technology.
The bottom line, Chilton said, has been “a dramatic increase” in the number of people coming through his border since wall construction ceased.
But Lanza said even if the entire five miles had been completed, there would be other gaps along the border where other ranches and individuals live.
“It is entirely speculative that aliens willing to risk life and limb to cross the border via the gap on Mr. Chilton’s property would have decided the risk wasn’t work it if their next-best option was to cross via the many other gaps that would have remained regardless of defendants’ conduct,” the judge wrote.
Finally, Lanza said Brnovich’s argument that wall construction harmed wildlife made no sense.
He said that federal appeals courts have recognized that construction of the wall itself can result in environmental damage, such as separating certain animal populations and decreasing biodiversity.
“It doesn’t necessarily follow that the cessation of border all construction activities will also cause such harms,” Lanza said.
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