As previously reported by ELM (here), the U.S. District Court for the Southern District of Florida last year enjoined the federal government from “installing any additional industrial-style lighting … or doing any paving, filling, excavating, or fencing; or doing any other site expansion” of the detention center known as “Alligator Alcatraz.” The District Court further ordered the government to refrain from sending additional detainees to the facility. However, a motions panel stayed the injunction and the underlying action pending appeal. Then, last week on April 21, the Eleventh Circuit Court of Appeals held, in part, that the District Court abused its discretion by entering the injunction because the environmental groups and the Miccosukee Tribe failed to prove a final agency action and failed to prove a major federal action.
In particular, the environmental groups and Miccosukee Tribe argued that the decision not to issue an environmental impact statement or to conduct an environmental assessment and to then construct a detention camp qualifies as final agency action. However, the Administrative Procedure Act (APA) only permits review of “circumscribed, discrete agency actions.” In other words, it does not allow federal courts to review flaws in an agency’s entire program of decision-making. Rather, it requires courts to follow a “case-by-case approach” that reviews challenged actions one at a time.
The Court of Appeals found that Florida, not federal officials, constructed the facility and that the state controlled the land and entirely built the facility at its own expense. The only federal action identified by the environmentalists and the Miccosukee Tribe was the decision not to conduct an environmental review, which the Court of Appeals found, and the parties agreed, is not a final agency action. The Court of Appeals also opined that a request by the federal government to construct and to fully fund the facility is not a final agency action. The Court of Appeals further determined that federal detention criteria and the decision to enter into section 287(g) agreements with the federal government to assist in immigration enforcement does not constitute a final agency action because adoption of federal standards cannot transform a state or local project into a federal one. In other words, the adoption of those standards is a state action, not a federal one. Therefore, the District Court abused its discretion when it entered the preliminary injunction.
With respect to the National Environmental Policy Act (NEPA), which only applies to “major [f]ederal actions significantly affecting the quality of the human environment”, the Court of Appeals stated that the 2023 amendments clarified that a non-federal action, like the state construction of a facility, may be converted into a federal action only when both federal funding and federal control are present. Therefore, to qualify as a major federal action, it must receive more than minimal federal funding and be subject to more than minimal federal control.
The environmental groups and Miccosukee Tribe argued that any action, including a non-federal action, that is “subject to substantial [f]ederal control and responsibility” under subsection (10)(A), must satisfy NEPA. However, the Court of Appeals found that the general definition only addresses federal actions, not non-federal actions and that it refers to an “agency carrying out [an] action” and leaves the determination whether the agency exercises substantial control to the agency itself. Thus, this definition would not encompass an action not undertaken by a federal agency because the 2023 amendments confirm that the rules for non-federal actions are different. Therefore, the environmentalists and Miccosukee Tribe must prove both that the facility was federally funded and that it was subject to federal control.
However, the Court of Appeals held that they failed to do so because the facility is not federally controlled. The facility was constructed with no or minimal federal involvement, and Homeland Security could not control the outcome of the project. In addition, Florida officials retained final authority over every decision regarding the project, including the size of the detention facility, how many beds it has, who will build it, and what materials will be used. In other words, federal officials made no construction decision capable of triggering NEPA.
The Court of Appeals explained that the District Court disregarded this fact in its reasoning that any state officials working on site with detainees are doing so as deputized federal immigration officers. In fact, federal supervision of and support for immigration enforcement at the facility is not the subject of the claim under NEPA – the construction of the facility is. Moreover, states have sovereign power to choose to assist federal law enforcement and the need for federal approval to use a project for a purpose does not establish federal control because the non-federal actor still chooses the purpose of its project.
Ultimately, the Eleventh Circuit Court of Appeals vacated and remanded the District Court’s decision for further proceedings. Therefore, time will tell whether we have seen the last of “Alligator Alcatraz.”