United States v. 2020-10-09 | 19-17501 | SIERRA CLUB V. DONALD TRUMP | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SIERRA CLUB; SOUTHERN
BORDER COMMUNITIES
COALITION,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, in his official
capacity as President of the
United States; MARK T. ESPER,
in his official capacity as Acting
Secretary of Defense; CHAD F.
WOLF, in his official capacity as
Acting Secretary of Homeland
Security; STEVEN TERNER
MNUCHIN, in his official capacity
as Secretary of the Treasury,
Defendants-Appellants.
No. 19-17501
D.C. No.
4:19-cv-00892-HSG

SIERRA CLUB V. TRUMP2
STATE OF CALIFORNIA; STATE OF
COLORADO; STATE OF HAWAII;
STATE OF MARYLAND; STATE OF
NEW MEXICO; STATE OF NEW
YORK; STATE OF OREGON;
STATE OF WISCONSIN;
COMMONWEALTH OF VIRGINIA,
Plaintiffs-Appellees,
and
STATE OF CONNECTICUT; STATE
OF DELAWARE; STATE OF MAINE;
STATE OF MINNESOTA; STATE OF
NEW JERSEY; STATE OF NEVADA;
STATE OF ILLINOIS; DANA
NESSEL, Attorney General, on
behalf of the People of
Michigan; STATE OF
MASSACHUSETTS; STATE OF
VERMONT; STATE OF RHODE
ISLAND,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the
United States of America;
UNITED STATES OF AMERICA;
UNITED STATES DEPARTMENT OF
DEFENSE; MARK T. ESPER, in his
official capacity as Acting
No. 19-17502
D.C. No.
4:19-cv-00872-HSG

SIERRA CLUB V. TRUMP3
Secretary of Defense; RYAN D.
MCCARTHY, in his official
capacity as the Secretary of the
Army; KENNETH J.
BRAITHWAITE, in his official
capacity as Secretary of the
Navy; BARBARA M. BARRETT, in
her official capacity as Secretary
of the Air Force; UNITED STATES
DEPARTMENT OF THE TREASURY;
STEVEN TERNER MNUCHIN, in
his official capacity as Secretary
of the Department of the
Treasury; U.S. DEPARTMENT OF
THE INTERIOR; DAVID
BERNHARDT, in his official
capacity as Secretary of the
Interior; U.S. DEPARTMENT OF
HOMELAND SECURITY; CHAD F.
WOLF, in his official capacity as
Acting Secretary of Homeland
Security,
Defendants-Appellants.
STATE OF CALIFORNIA; STATE OF
COLORADO; STATE OF HAWAII;
STATE OF MARYLAND; STATE OF
NEW YORK; STATE OF NEW
MEXICO; STATE OF OREGON;
COMMONWEALTH OF VIRGINIA;
STATE OF WISCONSIN,
Plaintiffs-Appellants,
No. 20-15044
D.C. No.
4:19-cv-00872-HSG
OPINION

SIERRA CLUB V. TRUMP4
and
STATE OF CONNECTICUT; STATE
OF DELAWARE; STATE OF MAINE;
STATE OF MINNESOTA; STATE OF
NEW JERSEY; STATE OF NEVADA;
STATE OF ILLINOIS; DANA
NESSEL, Attorney General, on
behalf of the People of
Michigan; STATE OF
MASSACHUSETTS; STATE OF
VERMONT; STATE OF RHODE
ISLAND,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the
United States of America;
UNITED STATES OF AMERICA;
UNITED STATES DEPARTMENT OF
DEFENSE; MARK T. ESPER, in his
official capacity as Acting
Secretary of Defense; RYAN D.
MCCARTHY, in his official
capacity as the Secretary of the
Army; KENNETH J.
BRAITHWAITE, in his official
capacity as Secretary of the
Navy; BARBARA M. BARRETT, in
her official capacity as Secretary

SIERRA CLUB V. TRUMP5
of the Air Force; UNITED STATES
DEPARTMENT OF THE TREASURY;
STEVEN TERNER MNUCHIN, in
his official capacity as Secretary
of the Department of the
Treasury; U.S. DEPARTMENT OF
THE INTERIOR; DAVID
BERNHARDT, in his official
capacity as Secretary of the
Interior; U.S. DEPARTMENT OF
HOMELAND SECURITY; CHAD F.
WOLF, in his official capacity as
Acting Secretary of Homeland
Security,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted March 10, 2020
San Francisco, California
Filed October 9, 2020
Before: Sidney R. Thomas, Chief Judge, and Kim McLane
Wardlaw and Daniel P. Collins, Circuit Judges
Opinion by Chief Judge Thomas;
Dissent by Judge Collins

SIERRA CLUB V. TRUMP6
SUMMARY
*
Standing / Administrative Procedure Act
The panel affirmed the district court’s judgment and held
that the emergency military construction authority provided
by 10 U.S.C. § 2808 (“Section 2808”) did not authorize
eleven border wall construction projects on the southern
border on the United States.
The panel held that the States and Sierra Club both had
Article III standing. The panel also held that the States had
a cause of action under the Administrative Procedure Act
(“APA”), and Sierra Club had a constitutional cause of action
under the Appropriations Clause to challenge the federal
defendants’ use of Section 2808 for border wall construction
projects.
The panel held that Section 2808 did not authorize the
challenged border wall construction projects. The panel
concluded that the projects failed to satisfy two of the
statutory requirements: they were neither necessary to
support the use of the armed forces, nor were they military
construction projects. Because the federal defendants’
construction exceeded the authority provided by Section 2808
and was unlawful, the panel affirmed the district court’s
declaratory judgment. The panel also held that, for purposes
of the emergency construction authority provided by Section
2808, the border wall construction projects were distinct from
Fort Bliss in El Paso, Texas, and that the border wall
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

SIERRA CLUB V. TRUMP7
construction projects at issue did not satisfy the meaning of
“other activity.”
The panel held that the district court did not abuse its
discretion in granting a permanent injunction to Sierra Club,
enjoining the federal defendants “from using military
construction funds appropriated for other purposes to build a
border wall in the” project areas challenged in this appeal.
The panel also held that the district court did not err in
denying, as duplicative and moot, the States’ request for a
separate permanent injunction.
Judge Collins dissented. He agreed that at least the Sierra
Club, California, and New Mexico established Article III
standing, and that they had a cause of action to challenge the
constructions projects under the APA. But in his view the
construction projects were lawful, and he would reverse the
district court’s partial judgments and remand for entry of
partial summary judgment in favor of the federal defendants.
COUNSEL
H. Thomas Byron III (argued), Edward Himmelfarb, and
Michael Shih, Appellate Staff; Hashim M. Mooppan, Deputy
Assistant Attorney General; Joseph H. Hunt, Assistant
Attorney General; Civil Division, United States
Department of Justice, Washington, D.C.; for Defendants-
Appellants/Cross-Appellees Donald J. Trump, United States
of America, United States Department of Defense, Mark T.
Esper, Ryan D. McCarthy, Kenneth J. Braithwaite, Barbara
M. Barrett, United States Department of the Treasury, Steven
Terner Mnuchin, U.S. Department of the Interior, David

SIERRA CLUB V. TRUMP8
Bernhardt, U.S. Department of Homeland Security, and Chad
F. Wolf.
Heather C. Leslie (argued), Brian J. Bilford, Sparsh S.
Khandeshi, Lee I. Sherman, Janelle M. Smith, and James F.
Zahradka II, Deputy Attorneys General; Michael P. Cayaban,
Christine Chuang, and Edward H. Ochoa, Supervising Deputy
Attorneys General; Joshua A. Klein, Deputy Solicitor
General; Harrison M. Pollack, Acting Senior Assistant
Attorney General; Robert W. Byrne and Michael L. Newman,
Senior Assistant Attorneys General; Xavier Becerra, Attorney
General; Attorney General’s Office, Sacramento, California;
Philip J. Weiser, Attorney General; Eric R. Olson, Solicitor
General; Office of the Attorney General, Denver, Colorado;
Clare E. Connors, Attorney General; Robert T. Nakatsuji,
First Deputy Solicitor General; Department of the Attorney
General, Honolulu, Hawaii; Brian E. Frosh, Attorney
General; Jeffrey P. Dunlap, Assistant Attorney General;
Attorney General’s Office, Baltimore, Maryland; Hector
Balderas, Attorney General; Tania Maestas, Chief Deputy
Attorney General; Nicholas M. Sydow, Civil Appellate Chief;
and Jennie Lusk, Civil Rights Bureau Chief; Office of the
Attorney General, Santa Fe, New Mexico; Letitia James,
Attorney General; Matthew Colangelo, Chief Counsel for
Federal Initiatives, Steven C. Wu, Deputy Solicitor General;
Eric R. Haren, Special Counsel; Gavin McCabe, Special
Assistant Attorney General; Amanda Meyer, Assistant
Attorney General; Office of the Attorney General, Albany,
New York; Ellen Rosenblum, Attorney General; Benjamin
Gutman, Solicitor General; J. Nicole Defever, Senior
Assistant Attorney General; Office of the Attorney General,
Salem, Oregon; Mark R. Herring, Attorney General; Toby J.
Heytens, Solicitor General; Michelle S. Kallen and Martine
E. Cicconi, Deputy Solicitors General; Jessica M. Samuels,

SIERRA CLUB V. TRUMP9
Assistant Solicitor General; Zachary R. Glubiak, Attorney;
Office of the Attorney General, Richmond, Virginia; Joshua
L. Kaul, Attorney General; Gabe Johnson-Karp, Assistant
Attorney General; Office of the Attorney General, Madison,
Wisconsin; for Plaintiffs-Appellees/Cross-Appellants.
Dror Ladin (argued), Noor Zafar, Jonathan Hafetz, Hina
Shamsi, and Omar C. Jadwat, American Civil Liberties Union
Foundation, New York, New York; Cecilia D. Wang,
American Civil Liberties Union, San Francisco, California;
Mollie M. Lee, American Civil Liberties Union Foundation
of Northern California Inc., San Francisco, California; David
Donatti and Andre I. Segura, American Civil Liberties Union
Foundation of Texas, Houston, Texas; Sanjay Narayan and
Gloria D. Smith, Sierra Club Environmental Law Program,
Oakland, California; for Plaintiffs-Appellees Sierra Club and
Southern Border Communities Coalition.
Josephine Morse (argued), Megan Barbero, and Adam A.
Grogg, Attorneys; Todd B. Tatelman, Principal Deputy
General Counsel; Douglas N. Letter, General Counsel; Office
of General Counsel, U.S. House of Representatives,
Washington, D.C.; Carter G. Phillips, Virginia A. Seitz,
Joseph R. Guerra, and Christopher A. Eisenwerth, Sidley
Austin LLP, Washington, D.C.; for Amicus Curiae U.S.
House of Representatives.
Lawrence J. Joseph, Washington, D.C.; for Christopher J.
Hajec, Immigration Reform Law Institute, Washington, D.C.;
for Amicus Curiae U.S. Representative Andy Barr.
Anton Metlitsky and Ephraim McDowell, O’Melveny &
Myers LLP, New York, New York; Kristy Parker, Justin
Florence, Deana K. El-Mallawany, Jessica Marsden, Erica

SIERRA CLUB V. TRUMP10
Newland, and Cameron Kistler, The Protect Democracy
Project Inc., Washington, D.C.; David Bookbinder, Niskanen
Center, Washington, D.C.; Laurence H. Tribe, Cambridge,
Massachusetts; Stuart Gerson, Epstein Becker Green,
Washington, D.C.; Richard Mancino and Shaimaa M.
Hussein, Willkie Farr & Gallagher LLP, New York, New
York; for Amici Curiae El Paso County, Texas; Border
Network for Human Rights; Protect Democracy; and
Niskanen Center.
Elizabeth Goitein and J. Andrew Boyle, Brennan Center for
Justice at NYU Law, Washington, D.C., for Amici Curiae
Brennan Center for Justice and Cato Institute.
Irvin B. Nathan, Robert N. Weiner, Andrew T. Tutt, Kaitlin
Konkel, and Samuel F. Callahan, Arnold & Porter Kaye
Scholer LLP, Washington, D.C.; Douglas A. Winthrop,
Arnold & Porter Kaye Scholer LLP, San Francisco,
California; for Amici Curiae Former Members of Congress.
Phillip Spector, Messing & Spector LLP, Baltimore,
Maryland; Harold Hongju Koh, Peter Gruber Rule of Law
Clinic, New Haven, Connecticut; Maxwell V. Pritt, Boies
Schiller Flexner LLP, San Francisco, California; for Amici
Curiae Former U.S. Government Officials.
Mark R. Conrad, William J. Cooper, and Courtney C. Aasen,
Conrad & Metlitzky LLP, San Francisco, California; Lindsay
L. Rodman, Iraq and Afghanistan Veterans of America, New
York, New York; for Amicus Curiae Iraq and Afghanistan
Veterans of America.

SIERRA CLUB V. TRUMP11
Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, and
Ashwin P. Phatak, Constitutional Accountability Center,
Washington, D.C., for Amici Curiae Federal Courts Scholars.
Robert W. Ferguson, Attorney General; Martha Rodriguez
López, Andrew R.W. Hughes, and Brendan C. Selby,
Assistant Attorneys General; Office of the Attorney General,
Seattle, Washington; for Amicus Curiae State of Washington.
OPINION
THOMAS, Chief Judge:
This appeal presents the question of whether the
emergency military construction authority provided by
10 U.S.C. § 2808 (“Section 2808”) authorized eleven border
wall construction projects on the southern border of the
United States. We conclude that it did not. We also consider
whether the district court properly granted the Organizational
Plaintiffs a permanent injunction and whether the district
court improperly denied the State Plaintiffs’ request for a
separate permanent injunction. We affirm the decision of the
district court on both counts.
I
Following the longest partial government shutdown in
United States history, Congress passed the 2019 Consolidated
Appropriations Act (“2019 CAA”) on February 14, 2019.
Pub. L. No. 116-6, div. A, 133 Stat. 13 (2019). Although the
President requested $5.7 billion for border wall construction,
the 2019 CAA made available only $1.375 billion “for the
construction of primary pedestrian fencing . . . in the Rio

SIERRA CLUB V. TRUMP12
Grande Valley Sector [in Texas].” On February 15, 2019 the
President signed the 2019 CAA into law, but announced
that he was “not happy” with the amount of border wall
funding he had obtained. Remarks by President Trump on the
National Security and Humanitarian Crisis on Our
Southern Border, White House at 12 (Feb. 15, 2019),
https://perma.cc/5SE7-FS7F (“Rose Garden Remarks”).
On the same day, the President invoked his authority
under the National Emergencies Act, 50 U.S.C. § 1601 et seq.
(the “NEA”) to declare that “a national emergency exists at
the southern border of the United States.” See Proclamation
No. 9844, 84 Fed. Reg. 4,949 (Feb. 15, 2019). The national
emergency proclamation also “declare[d] that this emergency
requires use of the Armed Forces,” and made available “the
construction authority provided in [Section 2808].” Id. The
President explained that, even though he had obtained some
border wall funding, he declared a national emergency
because although he “could do the wall over a longer period
of time” by going through Congress, he would “rather do it
much faster.” Rose Garden Remarks at 12.
Since February 2019, Congress has attempted to terminate
the national emergency on two separate occasions. On March
14, 2019, Congress passed a joint resolution to terminate the
emergency declaration, but it was vetoed the next day by the
President, and Congress failed to override the Presidential
veto. See H.R.J. Res. 46, 116th Cong. (2019); 165 Cong.
Rec. H2799, H2814–15 (2019). On September 27, 2019,
Congress passed a second joint resolution to terminate the
emergency declaration, but once again, the President vetoed
this resolution, and Congress failed to override the veto. See
S.J. Res. 54, 116th Cong. (2019); 165 Cong. Rec. S5855,
S5874–75 (2019).

SIERRA CLUB V. TRUMP13
Congress has an ongoing obligation to consider whether
to terminate the emergency every six months, but the
President renewed the declaration of a national emergency
on February 13, 2020. Message to Congress on the
Continuation of the National Emergency with Respect to the
Southern Border of the United States, White House (Feb. 13,
2020).
Although the President’s declaration of a national
emergency was issued in February 2019, the administration
did not announce that it had made a decision to divert the
funds until September 3, 2019, when the Secretary of Defense
announced that it was necessary to divert $3.6 billion from
military construction projects to border wall construction
projects.
The Secretary of Defense announced that the funds would
be diverted to fund eleven specific border wall construction
projects in California, Arizona, New Mexico, and Texas.
Altogether, the projects include 175 miles of border wall.
The projects fall into three basic categories: (1) two projects
on the Barry M. Goldwater Range military installation in
Arizona, (2) seven projects on federal public domain land that
is under the jurisdiction of the Department of the Interior, and
(3) two projects on non-public land that would need to be
acquired through either purchase or condemnation before
construction could begin. The first two projects would be
built on the Goldwater Range, and “the remaining nine will
be built on land assigned to Fort Bliss, an Army base,” with
its headquarters in El Paso, Texas.
On September 5, 2019, the Secretary of Defense
identified which military construction projects the
Department of Defense (“DoD”) intended to defer in order to

SIERRA CLUB V. TRUMP14
fund border wall construction. The Secretary authorized the
diversion of funding from 128 military construction projects,
64 of which are located within the United States, and 17 of
which are located within the territory of the Plaintiff
States—California, Colorado, Hawai’i, Maryland, New
Mexico, Oregon, Virginia, and Wisconsin—totaling over
$500 million in funds.
1
Pursuant to Section 2808, the
Secretary authorized the Federal Defendants to proceed with
construction without complying with environmental laws.
II
The Organizational Plaintiffs in this case, Sierra Club and
the Southern Border Communities Coalition (“SBCC”)
(collectively, “Sierra Club”) and the State Plaintiffs
2
filed
separate suits challenging the Federal Defendants’
3
anticipated diversion of federal funds to fund border wall
construction pursuant to various statutory authorities,
1
Although there are 19 total defunded projects within the Plaintiff
States, the States only assert harms from 17 of these projects.
2
Specifically, the action was filed by the following states: California,
Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland,
Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, the
Commonwealth of Virginia, and Attorney General Dana Nessel on behalf
of the People of Michigan. The complaint was later amended to add the
following states: Rhode Island, Vermont, Wisconsin, and the
Commonwealth of Massachusetts.
3
Both lawsuits named as defendants Donald J. Trump, President of
the United States, Patrick M. Shanahan, Former Acting Secretary of
Defense, Kirstjen M. Nielsen, former Secretary of Homeland Security, and
Steven Mnuchin, Acting Secretary of the Treasury in their official
capacities, along with numerous other Executive Branch officials
(collectively referenced as “the Federal Defendants”).

SIERRA CLUB V. TRUMP15
including Section 2808. See Sierra Club v. Trump, No. 19-
cv-00892-HSG; California v. Trump, No. 19-cv-00872-HSG.
In both cases, the parties first litigated the claims
challenging the Federal Defendants’ transfer of funds
pursuant to Section 8005 and Section 9002 of the Department
of Defense Appropriations Act of 2019, Pub. L. No. 115-245,
132 Stat. 2981 (2018) (“Section 8005”)—the claims that were
the subject of the prior appeals considered by this panel. The
parties agreed that while litigating the Section 8005 claims,
they would stay the summary judgment briefing schedule as
to the Section 2808 funds until the Acting Secretary of
Defense and U.S. Customs and Border Protection (“CBP”)
reached a final decision to fund specific border wall projects
using Section 2808. The Secretary of Defense reached this
final decision on September 3, 2019, and the Federal
Defendants filed a Notice of Decision in both cases pending
before the district court.
Nine states, including California, Colorado, Hawai’i,
Maryland, New Mexico, New York, Oregon, Wisconsin, and
the Commonwealth of Virginia (collectively, the “States”),
filed a motion for partial summary judgment on their Section
2808 claims on October 11, 2019 in California v. Trump. On
the same day, Sierra Club filed a motion for partial summary
judgment on its Section 2808 claims in Sierra Club v. Trump.
On December 11, 2019, in a single opinion addressing the
claims of both State and Sierra Club Plaintiffs, the district
court granted summary judgment and a declaratory judgment
to the Plaintiffs on their Section 2808 claims with respect to
the eleven border wall construction projects. It granted Sierra
Club’s request for a permanent injunction, enjoining
“Defendants Mark T. Esper, in his official capacity as

SIERRA CLUB V. TRUMP16
Secretary of Defense; and Chad F. Wolf, in his official
capacity as Acting Secretary of Homeland Security” as well
as “all persons acting under their direction” “from using
military construction funds appropriated for other purposes to
build a border wall” in the areas identified as “Yuma Project
2; Yuma Project 10/27; Yuma Project 3; Yuma Project 6; San
Diego Project 4; San Diego Project 11; El Paso Project 2; El
Paso Project 8; Laredo Project 5; Laredo Project 7; El Centro
Project 5; and El Centro Project 9.” The district court denied
the States’ “duplicative request for a permanent injunction as
moot.” However, the district court sua sponte stayed the
Sierra Club permanent injunction pending appeal pursuant to
Fed. R. Civ. P. 62(c). It explained that “the Supreme Court’s
stay of this Court’s prior injunction order appears to reflect
the conclusion of a majority of that Court that the challenged
construction should be permitted to proceed pending
resolution of the merits.” Therefore, the district court
determined that “the lengthy history of this action; the prior
appellate record; and the pending appeal before the Ninth
Circuit on the merits of Plaintiffs’ Section 8005 claim . . .
warrant a stay.” The district court properly considered the
relevant factors and certified its order for immediate appeal
pursuant to Fed. R. Civ. P. 54(b).
The Federal Defendants timely appealed the district
court’s grant of summary judgment and declaratory relief to
Sierra Club and the States and the grant of a permanent
injunction to Sierra Club. The States timely cross-appealed
the district court’s denial of their request for a permanent
injunction.

SIERRA CLUB V. TRUMP17
III
We first provide a brief background of the statutory
framework at issue: the National Emergencies Act. The NEA
empowers the President to declare national emergencies. It
states that “[w]ith respect to Acts of Congress authorizing the
exercise, during the period of a national emergency, of any
special or extraordinary power, the President is authorized to
declare such a national emergency.” 50 U.S.C. § 1621(a).
The statute invoked by the Federal Defendants is one such
Act of Congress that authorizes military construction in the
event of a national emergency. 10 U.S.C. § 2808 provides
that
In the event of a declaration of war or the
declaration by the President of a national
emergency in accordance with the National
Emergencies Act (50 U.S.C. 1601 et seq.) that
requires use of the armed forces, the Secretary
of Defense, without regard to any other
provision of law, may undertake military
construction projects, and may authorize the
Secretaries of the military departments to
undertake military construction projects, not
otherwise authorized by law that are necessary
to support such use of the armed forces.
Although the NEA empowers presidential action in
national emergencies, it also empowers Congress to check
that action. The NEA’s legislative history makes clear that it
was passed to “[e]nsure that the powers now in the hands of
the Executive will be utilized only in time of genuine
emergency and then only under safeguards providing for
Congressional review,” and that it “[was] not intended to

SIERRA CLUB V. TRUMP18
enlarge or add to Executive power.” The National
Emergencies Act (Public Law 94-412), Source Book:
Legislative History, Text, and Other Documents 50, 292
(1976) (“NEA Source Book”). Instead it was “an effort by the
Congress to establish clear procedures and safeguards for the
exercise by the President of emergency powers conferred
upon him by other statutes.” Id. at 292.
As originally enacted, the NEA allowed Congress to
terminate any national emergency declared by the President
by concurrent resolution. See Pub. L. 94-412, 90 Stat. 1255,
§202(a)(1) (1976) (“Any national emergency declared by the
President in accordance with this title shall terminate if . . .
Congress terminates the emergency by concurrent
resolution.”). However, the landmark Supreme Court
decision, INS v. Chadha, 462 U.S. 919, 959 (1983), held that
concurrent resolutions are unconstitutional, thus invalidating
Congress’s strongest check on the President’s emergency
powers. In response, Congress amended the NEA to allow
for the termination of an emergency declaration if “there is
enacted into law a joint resolution terminating the
emergency.” 10 U.S.C. § 1622(a)(1). Chadha, therefore,
made it more difficult for Congress to check the President’s
use of emergency powers than originally intended.
Until now, Chadha had little impact because, prior to the
President’s declaration of a national emergency on the
southern border, Congress had never once voted to terminate
a declaration of a national emergency. Indeed, Section 2808
has only been invoked once to fund construction on American
soil, and it has never been used to fund projects for which
Congress withheld appropriations. Thus, this case operates
against the background of the first serious clash between the

SIERRA CLUB V. TRUMP19
political branches over the emergency powers since the
passage of the NEA in 1976.
4
IV
We first consider whether Plaintiffs are the proper parties
to challenge the Federal Defendants’ actions. We conclude
that Plaintiffs have Article III standing and a cause of action
to challenge the border wall construction projects.
A
Although the Federal Defendants do not challenge either
the States’ or Sierra Club’s Article III standing, we have “an
independent obligation to assure that standing exists,
regardless of whether it is challenged by any of the parties.”
Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009). In
order to establish Article III standing, a plaintiff must have
(1) suffered an injury in fact, (2) fairly traceable to the
challenged conduct of the defendant, and (3) likely to be
redressed by a favorable judicial decision. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). When there are
multiple plaintiffs, “[a]t least one plaintiff must have standing
to seek each form of relief requested in the complaint.” Town
of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651
(2017). At summary judgment, a plaintiff cannot rest on
mere allegations, but “must set forth by affidavit or other
evidence specific facts.” Clapper v. Amnesty Int’l. USA,
568 U.S. 398, 412 (2013) (internal quotations and citations
omitted). However, these specific facts “for purposes of the
4
The U.S. House of Representatives is also involved in this litigation
as an amicus curiae supporting the Plaintiffs.

SIERRA CLUB V. TRUMP20
summary judgment motion will be taken to be true.” Lujan,
504 U.S. at 561.
1
The States put forth three different injuries in support of
Article III standing. We conclude that border wall
construction will inflict environmental and quasi-sovereign
injuries in fact upon California and New Mexico and
economic injuries in fact upon the remaining states. We
conclude that all nine states have standing.
a
California and New Mexico will suffer injuries similar to
those asserted in the prior appeals. States are “entitled to
special solicitude in our standing analysis.” Massachusetts v.
EPA, 549 U.S. 497, 520 (2007). As a quasi-sovereign, a state
“has an interest independent of and behind the titles of its
citizens, in all the earth and air within its domain.” Georgia
v. Tenn. Copper Co., 206 U.S. 230, 237 (1907). Thus, a state
may sue to assert its “quasi-sovereign interest in the health
and well-being—both physical and economic—of its
residents in general.” Alfred L. Snapp & Son, Inc. v. Puerto
Rico, ex rel., Barez, 458 U.S. 592, 607 (1982). In addition,
“[d]istinct from but related to the general well-being of its
residents, the State has an interest in securing observance of
the terms under which it participates in the federal system.”
Id. at 607–08.
California will suffer an injury in fact based on its
environmental injuries. California asserts that it “has an
interest in the natural resources of [its] State—such as
wildlife, fish, and water—that are held in trust by the State

SIERRA CLUB V. TRUMP21
for its residents and are protected by state and federal laws.”
If construction occurs, “dozens of sensitive plant and animal
species that are listed as ‘endangered,’ ‘threatened,’ or ‘rare’
will be seriously at risk,” and construction will “create
environmental harm.” For instance, the border wall
construction projects will undermine the recovery of several
federally listed endangered species and California Species of
Special Concern
5
and damage those species’ habitats. San
Diego Projects 4 and 11 fall within the California Floristic
Province, one of the world’s biodiversity hotspots, which
contains plants not found elsewhere in the United States, and
construction will likely have detrimental effects on the Quino
Checkerspot Butterfly, the Coastal California Gnatcatcher,
the Western Burrowing Owl, and vernal pool habitat and
species, among other species.
California has adequately set forth facts and other
evidence, which, taken as true, support these allegations for
the purpose of Article III standing. It has demonstrated that
border wall construction will injure its environmental
interests.
5
A species of special concern is “a species, subspecies, or distinct
population of an animal native to California that currently satisfies one or
more of the following (but not necessarily mutually exclusive) criteria: is
extirpated from the State . . .; is listed as Federally-, but not State-,
threatened or endangered; meets the State definition of threatened or
endangered but has not formally been listed; is experiencing, or formerly
experienced, serious (noncyclical) population declines or range retractions
(not reversed) that, if continued or resumed, could qualify it for State
threatened or endangered status; has naturally small populations exhibiting
high susceptibility to risk from any factor(s), that if realized, could lead to
declines that would qualify it for State threatened or endangered species.”
CAL. DEPT. OF FISH AND WILDLIFE, SPECIES OF SPECIAL CONCERN,
https://wildlife.ca.gov/Conservation/SSC.

SIERRA CLUB V. TRUMP22
The proposed construction areas for San Diego Projects
4 and 11 “would cut through designated critical habitat for the
endangered Quino Checkerspot Butterfly,” which has “been
documented immediately adjacent to the border fence and on
the surrounding slopes to the north, well within the proposed
project area.” The “proposed work, including resurfacing of
the roadways where the butterfly and its host plants have been
found, will crush and bury diapausing larvae and host plant
seed bank in the area,” causing “irreparable harm to the
Quino Checkerspot Butterfly population and its critical
habitat on Otay Mesa.”
Gnatcatchers are found within the project area for San
Diego Project 4, and construction activities “will result in
significant displacement of California gnatcatchers into
already diminished and limited habitat areas.” Because the
species is “restricted to coastal southern California in areas
of open coastal sage scrub,” and gnatcatcher “territories
average approximately 9 acres,” gnatcatchers affected by
construction “will either be required to move or challenge
adjacent pairs for their occupied territories,” ultimately
resulting in “a substantial reduction of the population in the
area, and irreparable harm to the species and its habitat.”
San Diego Project 4 would also harm the Western
Burrowing Owl. The owl is “restricted to the western U.S.
and northern Mexico,” owls occur in the project area, and
eastern Otay Mesa, where San Diego Project 4 is expected to
occur, “is the last stronghold for the species in the County.”
The “loss of both occupied burrows and foraging habitat
[where construction takes place] will only hasten [the owl’s]
decline.” The owl will be further impacted because it is
“especially sensitive to construction due to [its] unique
behavior,” and it is “easily flushed [from its burrows] by

SIERRA CLUB V. TRUMP23
adjacent human disturbance or activities.” “Repeated
flushing during periods of incubation or while feeding chicks
has extremely negative effects, including cooling of eggs,
reduced feeding of chicks, or increased exposure to predators,
reducing the percentage of chicks surviving to adulthood.”
San Diego Project 4 will also impact and harm delicate
vernal-pool habitats, which are home to a number of
endangered species, like the San Diego Fairy Shrimp. The
landscape “leading to San Diego 4[] supports numerous
vernal pools,” and “[s]everal of these pools occur within and
adjacent to dirt roads that will be utilized by heavy
equipment, and where additional grading, vegetation clearing
and filling may occur,” which “would damage vernal pools
and cause irreparable harm to the fairy shrimp and other
vernal pool species.”
New Mexico will also suffer an injury in fact based on its
environmental injuries. If the New Mexico Projects are built,
they will “impose environmental harm to the State” and the
damage “would include the blocking of wildlife migration,
flooding, and habitat loss.” The New Mexico Projects will be
built primarily in the “Bootheel” of New Mexico in the
Animas and Playas Valleys, an area in southwestern New
Mexico that is a “pinch point for ecological diversity,
migration, and dispersal in the western North American
continent.” Border wall construction “for the New Mexico
Projects will create fragmented habitat and block wildlife
corridors for numerous protected species” such as the white-
sided jackrabbit, a rare and threatened species under New
Mexico law, and the jaguar, a federally endangered species.
New Mexico has also adequately set forth facts and other
evidence, which, taken as true, support these allegations for

SIERRA CLUB V. TRUMP24
the purpose of Article III standing. It has demonstrated that
border wall construction will injure its environmental
interests.
“Currently, the only area that the white-sided jackrabbit
. . . inhabits in the United States is in the Animas and Playas
Valleys, where the proposed El Paso 2 and 8 Projects are
being constructed.” The “species is already in distress and its
numbers are falling due to habitat loss and roadkill incidents
from U.S. Border Patrol vehicles which increased
dramatically after Customs and Border Protection completed
road improvements in 2008.” The current population “is
estimated to be 61 hares.” The hares “cross back and forth”
across the US-Mexico border “to avoid predators, and to
access food, water and mates,” but construction would block
crossings because the border wall’s “steel concrete-filled
bollards [are] spaced four inches apart,” and “jackrabbits
cannot fit through the 4-inch gaps.” El Paso Project 8 and the
eastern portion of El Paso Project 2 block important habitat
corridors for the hare, including “the sole route the hares can
utilize to access habitat on both sides of the border because
they cannot navigate the mountainous terrain that surrounds
the Animas and Playas Valleys.” Construction would
therefore “cut off the last remaining population of the white-
sided jackrabbit in the United States,” and “[t]he outlook for
the jackrabbit’s survival in New Mexico and the United
States [would be] dismal if El Paso 2 and 8 are built.”
Likewise, “[c]onstruction of El Paso 2 and 8 will also
harm the federally endangered jaguar . . . as both projects are
immediately adjacent to the jaguar’s critical habitat.” Jaguars
have been documented in the region, including on “lands that
directly adjoin the location of El Paso 2 Project in the Animas
Valley.” “Habitat connectivity is critical to the jaguar’s

SIERRA CLUB V. TRUMP25
survival,” because “[t]he jaguar’s survival depends on it
being able to access habitat on both sides of the U.S.-Mexican
border to access prey, mate and suitable habitat,” but the “El
Paso Projects impede the jaguar’s recovery by blocking a key
wildlife corridor.”
In addition, California will suffer an injury in fact to its
quasi-sovereign interests. California has alleged that it has
“an interest in its exercise of sovereign power over
individuals and entities within the State, including
enforcement of its legal code.” The Federal Defendants
ordinarily would have to comply with various California laws
designed to protect public health and the environment to
proceed with construction, but Section 2808 authorizes
construction “without regard to any other provision of law,”
and the Secretary of Defense has explicitly directed that the
projects be undertaken “without regard to any other provision
of law that could impede . . . expeditious construction.” This
impacts California’s ability to enforce its state laws,
including, among others, the Porter-Cologne Water Quality
Control Act, Cal. Water Code §§ 13000–16104, the
California Endangered Species Act, Cal. Fish and Game Code
§§ 2050–2089.26, and California’s state implementation
program under the Clean Air Act, see 42 U.S.C. § 7506(c)(1).
Thus, California will suffer an injury to its quasi-sovereign
interest in enforcing its own laws, interfering with the terms
under which it participates in the federal system.
California has adequately set forth facts and other
evidence, which, taken as true, support these allegations for
the purpose of Article III standing.
Under California law, the California State Water
Resources Control Board and nine regional boards establish

SIERRA CLUB V. TRUMP26
water quality objectives and standards, and, for the California
Projects, where the discharge of dredged or fill material into
waters of the United States is expected to occur, a regional
board must ordinarily certify compliance with water quality
standards. The record indicates that El Centro Projects 5 and
9 and Yuma Project 6 are “to be constructed, at least in part,
in areas under the jurisdiction of the Colorado River Basin
Water Board.” Therefore, absent the use of Section 2808
authority, these projects “could normally not proceed without
a Section 404 dredge and fill permit issued by the United
States Army Corp of Engineers, which would in turn compel
a Section 401 water quality certification” by the Colorado
River Basin Water Board. The record further indicates that,
“[d]ue to their nature and location of construction, El Centro
Projects 5 and 9, and Yuma Project 6 normally would also
require enrollment in the State Water Board’s statewide
[National Pollutant Discharge Elimination System (NPDES)
General Permit for Storm Water Discharges Associated with
Construction and Land Disturbance Activities.]”
Additionally, but for the use of Section 2808, the Federal
Defendants would be required to comply with the Endangered
Species Act, which protects species threatened, endangered,
or of special concern under California law and allows
California to continue implementing habitat conservation
agreements with federal agencies that impose limitations on
habitat-severing projects like the border wall construction
projects. The use of Section 2808 therefore undermines
California’s ability to enforce the California Endangered
Species Act and the “policy of the state to conserve, protect,
restore, and enhance any endangered species or any
threatened species and its habitat.” Cal. Fish & Game Code
§ 2052.

SIERRA CLUB V. TRUMP27
Likewise, the use of Section 2808 authority undermines
California’s enforcement of its air quality standards. In
particular, the Clean Air Act prohibits any construction
within California that does not conform to California’s State
Implementation Program (“SIP”). 40 C.F.R. § 93.150(a).
Moreover, local air districts with jurisdiction over the
California Project areas enforce rules to reduce the amount of
fine particulate matter generated from construction projects
by requiring those responsible to develop and implement a
dust control plan. Although the Federal Defendants assert
they “will implement control measures,” implementing
control measures is not the same as implementing a complete
dust control plan, and there is no indication that the Federal
Defendants intend to comply fully with California’s air
quality laws.
New Mexico will also suffer an injury in fact to its quasi-
sovereign interests. The Federal Defendants would ordinarily
have to comply with various New Mexico laws designed to
protect public health and the environment. Such laws include
the dust control plan New Mexico adopted under the Clean
Air Act and its Wildlife Corridors Act, N.M. Stat. Ann.
§§ 17-9-1–17-9-4. Thus, New Mexico too suffers an injury
to its quasi-sovereign interest in enforcing its own laws,
interfering with the terms under which it participates in the
federal system.
New Mexico has adequately set forth facts and other
evidence, which, taken as true, support these allegations for
the purpose of Article III standing.
Absent the use of Section 2808 authority, the Federal
Defendants would normally be required to comply with New
Mexico’s fugitive dust control rule and the High Wind

SIERRA CLUB V. TRUMP28
Fugitive Dust Mitigation Plan that New Mexico adopted
under the Clean Air Act in order to construct El Paso Project
2. 40 C.F.R. § 51.930(b); see N.M. Admin. Code
§§ 20.2.23.109-112 (mandating that “[n]o person . . . shall
cause or allow visible emissions from fugitive dust sources
that: . . . pose a threat to public health . . . interfere with
public welfare, including animal or plant injury or damage,
visibility or the reasonable use of property” and “[e]very
person subject to this part shall utilize one or more dust
control measures . . . as necessary to meet the requirements of
[this section]”). Although the Federal Defendants assert that
they plan to implement control measures, they have not
indicated that they intend to be bound in any way by New
Mexico’s law.
Likewise, the Federal Defendants’ use of Section 2808
authority impedes New Mexico’s ability to implement its
Wildlife Corridors Act, which aims to protect large
mammals’ habitat corridors from human-caused barriers such
as roads and walls and requires New Mexico agencies to
create wildlife corridors action plans to protect species’
habitat. 2019 N.M. Laws Ch. 97. Several important wildlife
corridors run through, or adjacent to, the New Mexico
Projects in Hidalgo and Luna Counties. “El Paso Projects 2
and 8 will . . . block habitat corridors,” in these counties for
“wildlife species that currently cross back and forth over the
border to access habitat, vegetation, water and other
resources.” “[P]articularly when viewed cumulatively with
other recent border-barrier projects such as El Paso Project
1,” the loss of wildlife corridors will impede species’ “access
to resources necessary for their survival.”
Moreover, the New Mexico Projects will harm species
that New Mexico’s laws were enacted to protect, such as the

SIERRA CLUB V. TRUMP29
white-sided jackrabbit, as previously explained. The Projects
will bisect important habitats, impairing the access of the
Mexican wolf to those habitats. In sum, California and New
Mexico have adequately shown one or more injuries in fact
supported by facts and evidence.
Turning to the causation requirement, we conclude that
California and New Mexico will suffer both environmental
and sovereign injuries that are fairly traceable to the Federal
Defendants’ conduct. The declarations in support of the
environmental harms clearly demonstrate how the proposed
construction will harm species, and Section 2808 itself
provides the authority for the Secretary of Defense to
override state environmental laws.
It is also clear that a favorable judicial decision would
redress California and New Mexico’s asserted injuries.
Without Section 2808 authorization, DoD has no authority to
undertake border wall construction, and, if construction is
prohibited, California and New Mexico will not suffer the
alleged harms. We therefore conclude California and New
Mexico have Article III standing to challenge the construction
projects on their borders.
b
The remaining states assert theories of economic loss and
the loss of tax revenues as the basis for standing. Economic
loss and the loss of tax revenues can be sufficient to establish
Article III injury in fact. See, e.g., Wyoming v. Oklahoma,
502 U.S. 437, 447 (1992) (holding that the loss of specific tax
revenues conferred standing); City of Oakland v. Lynch,
798 F.3d 1159, 1163–64 (9th Cir. 2015) (recognizing that an
expected loss of tax revenues constitutes a “constitutionally

SIERRA CLUB V. TRUMP30
sufficient” injury for Article III standing); City of Sausalito
v. O’Neill, 386 F.3d 1186, 1194, 1198–99 (9th Cir. 2004)
(recognizing financial harm from decreased tax revenues as
a cognizable injury). It may be appropriate to deny standing
where a state claims only that “actions taken by United States
Government agencies . . . injured a State’s economy and
thereby caused a decline in general tax revenues.” Wyoming
v. Oklahoma, 502 U.S. at 448 (citing Pennsylvania v. Kleppe,
533 F.2d 668 (D.C. Cir. 1976), cert. denied, 429 U.S. 977
(1976), as an example). But where there is “some fairly
direct link between the state’s status as a collector and
recipient of revenues and the legislative or administrative
action being challenged,” lost tax revenues can support
Article III standing. Kleppe, 533 F.2d at 672.
The States have each individually alleged that the Section
2808 diversion of funds will result in economic losses,
including lost tax revenues. The loss of tax revenues here is
analogous to those in Wyoming v. Oklahoma. There,
Wyoming challenged an Oklahoma law requiring Oklahoma
utility companies using coal-fired generating plants to blend
ten percent Oklahoma coal with their existing coal sources,
which had been purchased almost entirely from Wyoming.
Id. at 443, 445. Wyoming did not sell coal directly, but it
imposed a severance tax on any person or company extracting
coal from within its borders. Id. at 442. The Supreme Court
agreed that Wyoming had standing because there was “a
direct injury in the form of a loss of specific tax revenues.”
Id. at 448, 451. Here, the States have alleged analogous,
direct injuries in the form of lost tax revenues resulting from
the cancellation of specific military construction projects.
Colorado has standing based on its economic injury and
loss of tax revenues because it faces the defunding of a Space

SIERRA CLUB V. TRUMP31
Control Facility at the Peterson Air Force Base resulting in an
estimated loss of $1 million in state and local tax revenues.
Hawai’i has standing based on its economic injury and
loss of tax revenues because it faces the defunding of two
projects—a consolidated training facility at the Joint Base
Pearl Harbor-Hickam and security improvements at the
Marine Corps base at Kaneohe Bay—resulting in an
estimated loss of $2.5 million in state and local tax revenues.
Maryland has standing based on its economic injury and
loss of tax revenues because it faces the defunding of three
projects—an expansion of cantonment area roads at Fort
Meade, construction of a hazardous cargo loading and
unloading pad and an explosive ordinance disposal training
range at Joint Base Andrews, and construction of a child
development center at Joint Base Andrews—resulting in an
estimated loss of $5 million in state and local tax revenues.
New Mexico also has standing based on its economic
injury and loss of tax revenues because it faces defunding of
two projects—the construction of an air combat training
facility for unmanned vehicles at Holloman Air Force Base
and an Information Systems Facility at White Sands Missile
Range—resulting in an estimated loss of $9 million in state
and local tax revenues.
New York has standing based on its economic injury and
loss of tax revenues because it faces the defunding of two
projects—an Engineering Center and Parking Structure at the
U.S. Military Academy at West Point—resulting in an
estimated loss of $13 million in state and local tax revenues.

SIERRA CLUB V. TRUMP32
Oregon has standing based on its economic injury and
loss of tax revenues because it faces the defunding of the
construction of an indoor small arms training range at the
Klamath Falls International Airport resulting in an estimated
loss of $600,000 in state and local tax revenues.
Virginia has standing based on its economic injury and
loss of tax revenues because it faces the defunding of four
projects—the construction of a cyber operations facility at
Joint Base Langley-Eustis, the replacement of two different
Hazardous Materials Warehouses at Norfolk Naval Station in
Norfolk and the Norfolk Naval Shipyard in Portsmouth, and
the conversion and repair of a major Ships Maintenance
Facility at the Naval Support Station in Portsmouth—
resulting in an estimated loss of $5 million in state and local
tax revenues.
Wisconsin has standing based on its economic injury and
loss of tax revenues because it faces the defunding of the
construction of an indoor small arms training range at Truax
Field resulting in an estimated loss of $600,000 in state and
local tax revenues.
The injuries are “fairly traceable” to the Federal
Defendants’ conduct. The States have illustrated that there is
a “line of causation between the [Federal Defendants’] action
and [their] harm” that is “more than attenuated.” Wash.
Envtl. Council v. Bellon, 732 F.3d 1131, 1141 (9th Cir. 2013)
(citation omitted). The States have illustrated that the lost
revenues stem from identifiable projects, directly linking the
States’ statuses as collectors and recipients of revenues to the
challenged actions. Moreover, the States’ expert calculated
the estimated loss of tax revenues with the widely-used
IMPLAN economic model that takes into account specific

SIERRA CLUB V. TRUMP33
details about each defunded military construction project
from the Federal Defendants’ own information regarding
each project. The expert’s “analysis conservatively included
only projects within the plaintiff states’ boundaries because
the diversion of those projects would have primary effects on
the plaintiff states,” and the analysis did not consider “the
secondary effects of defendants’ diversion of military
construction projects located in other states and counties,”
thus ensuring that the calculated losses accounted for here are
not too attenuated for purposes of Article III.
A favorable judicial decision barring Section 2808
construction would prevent the military construction funds at
issue from being transferred from projects within the States
to border wall construction projects, thereby preventing the
alleged injuries. Therefore, the States’ losses, as outlined
here, satisfy the demands of Article III standing. We
conclude that all nine states have standing to challenge the
border wall construction projects.
2
Sierra Club and SBCC also have standing. An
organization has standing to sue when “its members would
otherwise have standing to sue in their own right,” and when
“the interests it seeks to protect are germane to the
organization’s purpose.” United Food and Commercial
Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544,
553 (1996) (quoting Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977)). An organization may
also have standing to sue on its own behalf when it suffers
“both a diversion of its resources and a frustration of its
mission.” La Asociacion de Trabajadores de Lake Forest v.
City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010)

SIERRA CLUB V. TRUMP34
(quoting Fair Housing of Marin v. Combs, 285 F.3d 899, 905
(9th Cir. 2002)). The organization “must . . . show that it
would have suffered some other injury if it had not diverted
resources to counteracting the problem.” Id.
Sierra Club has standing to sue on behalf of its members.
It has alleged that the Federal Defendants’ actions will cause
particularized and concrete injuries to its members. Sierra
Club has more than 400,000 members in California, over
9,700 of whom belong to its San Diego Chapter. Sierra
Club’s Grand Canyon Chapter, which covers the State of
Arizona, has more than 16,000 members. Sierra Club’s Rio
Grande Chapter includes over 10,000 members in New
Mexico and West Texas. Sierra Club’s Lone Star Chapter,
which covers the State of Texas, has over 26,100 members,
more than 440 of whom live in the Lower Rio Grande Valley.
These members visit border areas such as: the Tijuana
Estuary (California), the Otay Mountain Wilderness
(California), the Jacumba Wilderness Area (California), the
Sonoran Desert (Arizona), Cabeza Prieta National Wildlife
Refuge (Arizona), the Chihuahan Desert (New Mexico),
Santa Ana National Wildlife Refuge (Texas), the Lower Rio
Grande Valley National Wildlife Refuge (Texas), Bentsen-
Rio Grande Valley State Park (Texas), La Lomita Historical
Park (Texas), and the National Butterfly Center (Texas).
Sierra Club’s members obtain recreational, professional,
scientific, educational, and aesthetic benefits from their
activities along the U.S.-Mexico border, and from the wildlife
dependent upon the habitat in these areas. The construction
of a border wall and related infrastructure will acutely injure
these interests because the Department of Homeland Security
(“DHS”) is proceeding with border wall construction without

SIERRA CLUB V. TRUMP35
ensuring compliance with any federal or state environmental
regulations designed to protect these interests.
Sierra Club has adequately set forth facts and other
evidence, which, taken as true, support these allegations for
the purpose of Article III standing.
For instance, Sierra Club member Bill Broyles has a
“substantial professional and personal connection to the lands
identified for construction as projects Yuma 2 and 10/27 (on
the Goldwater Range) and Yuma 3 (on Cabeza Prieta).” He
has “written and edited several books and articles on Cabeza
Prieta and the Goldwater Range,” and he “also co-wrote and
co-published a visitor’s guide to the historic trail, El Camino
del Diablo, that the proposed wall parallels and crosses, and
that would be harmed by construction vehicle traffic.” He
participated in many meetings sponsored by the Range and
Refuge concerning their management plans over the years.
He believes that the “proposed wall is antithetical to [the]
successful cooperative efforts of the Range and Refuge
partners,” and it would “desecrate” the historic El Camino del
Diablo. He asserts that harm to wildlife species, “the
incessant lighting associated with the wall and its
construction,” and the “attendant noise and dust” of
construction will harm his enjoyment of these areas.
Sierra Club member Orson Bevins lives near the U.S.-
Mexico border and states that Yuma Sector Project 6 would
“fragment” the vista he usually enjoys. He also states that the
“tall and intrusive pedestrian barrier would disrupt the desert
views and inhibit [him] from fully appreciating this area,”
and that a border wall “would greatly degrade [his]
experience visiting and living in this area.”

SIERRA CLUB V. TRUMP36
Richard Guerrero is a Sierra Club member who resides in
San Diego, California, and he hikes the trails in and around
the Otay Open Space Preserve “about once a month,” and
“often hike[s] in areas that are within the sightline of where
[he] understand[s] the government plans to construct San
Diego Project 4.” The “wall would directly impact [his]
ability to enjoy recreating in this area” by adding “a
destructive human-created element to this otherwise peaceful
open desert landscape.”
Likewise, Sierra Club member Daniel Watman, who leads
“border tours” through the Otay Mountain Wilderness, will
be harmed by San Diego Project 4 and San Diego Project 11.
If San Diego Project 4 is built, he will “no longer be able to
lead [his] border tours because the purpose of the tours—to
see nature continuing unimpeded across the border—would
be lost.” Moreover, he enjoys visiting the bi-national town of
Tecate, and he believes “San Diego 11 project would
seriously reduce the enjoyment [he] get[s] from the area,
because seeing this large, out-of-place wall would mar [his]
views of the beautiful mountain range on the American side”
and “cause extensive and possibly irreparable damage to the
native flora” in the area.
Sierra Club member Robert Ardovino “currently
recreate[s] in what [he] understand[s] to be the El Paso
Project 2 and 8 areas,” and has “done so for several decades.”
He claims that construction will “drastically change [his]
ability to appreciate [the] views” of the “sprawling vistas near
Antelope Wells,” because the lighting planned for the
construction projects “would completely change the
landscape,” and the construction would harm the species he
appreciates while camping, “permanently ruin[ing]” his “use
and enjoyment of these areas.”

SIERRA CLUB V. TRUMP37
Thomas Miller is a Sierra Club member who works at
Laredo College conducting environmental research with
students in the Rio Grande Valley, and he asserts that Laredo
Project 7 will injure him “professionally, recreationally, and
aesthetically.” For the last 15 years, his “research has largely
focused on the now endangered Texas Hornshell Mussel.”
He is “concerned that [Laredo Project 7] and its construction
will destroy essential habitat for freshwater mussels and other
species of plants and animals,” because the “construction
process and the existence of a wall would lead to river
siltation when parts of the desert soil and rocks are displaced”
and could potentially lead to “chemicals polluting the water
sources” in the area. Likewise, Jerry Thompson, a Sierra
Club member and Professor of History at Texas A&M
International University, whose research focuses on “Texas
history, border history, and the history of the American Civil
War” asserts that Laredo Project 7 “would be extremely
detrimental to [his] research and career as it would foreclose
[his] ability to do site visits and visualize the area before
writing about it.” He has written numerous books about the
Texas-Mexico border, has visited the Laredo 7 Project area
around twenty times in the course of his research, intends to
return within the next few years to view the section of the Rio
Grande where Laredo 7 project is slated for construction, and
“plan[s] to continue to write about the Texas-Mexico border.”
Carmina Ramirez is a Sierra Club member who “will be
harmed culturally and aesthetically” if construction proceeds
for El Centro Projects 5 and 9 because she has spent her
entire life in the area surrounding the U.S.-Mexico Border,
including the El Centro Sector, and she believes that border
wall construction would “obstruct [the] view [of the Valley
area],” “divide [her community],” “further militariz[e] the
border,” and “drastically impact [her] ability to enjoy the

SIERRA CLUB V. TRUMP38
local natural environment.” Construction will make her “less
likely to hike Mount Signal and enjoy outdoor recreational
activities; and when [she does] undertake those activities,
[her] enjoyment of them will be irreparably diminished.”
Lastly, the interests of Sierra Club’s members in this
lawsuit are germane to the organization’s purpose. Sierra
Club is “a national organization . . . dedicated to exploring,
enjoying, and protecting the wild places of the earth; to
educating and enlisting humanity to protect and restore the
quality of the natural and human environment; and to using
all lawful means to carry out these objectives.” Sierra Club’s
organizational purpose is at the heart of this lawsuit, and it
easily satisfies this secondary requirement.
SBCC has also alleged facts that support its standing to
sue on behalf of itself and its member organizations. SBCC
alleged that, since the Federal Defendants proposed border
wall construction, it has had to “mobilize[] its staff and its
affiliates to monitor and respond to the diversion of funds and
the construction caused by and accompanying the national
emergency declaration.” These “activities have consumed the
majority of SBCC staff’s time, thereby interfering with
SBCC’s core advocacy regarding border militarization,
Border Patrol law-enforcement activities, and immigration
reform,” but it has had no choice because it “must take these
actions in furtherance of its mission to protect and improve
the quality of life in border communities.”
SBCC has adequately set forth facts and other evidence,
which, taken as true, support these allegations for the purpose
of Article III standing. SBCC Director Vicki Gaubeca has
confirmed that the border wall construction projects have
“caused [SBCC] to reduce the time that [it] devote[s] to [its]

SIERRA CLUB V. TRUMP39
core projects,” and “frustrated SBCC’s mission of advancing
the dignity and human rights of border communities.” SBCC
has “been forced to expend resources on countering the
emergency instead of on [its] other initiatives, including
Border Patrol accountability, community engagement on
local health and education issues, and public education about
immigration policies more broadly.”
Moreover, Southwest Environmental Center (“SWEC”),
an organization that forms part of the SBCC, has also been
harmed by the proposed construction. SWEC was founded
“to reverse the accelerating loss of plants and animals
worldwide through protection and restoration of native
wildlife and their habitats in the southwest,” and it “has been
actively involved in restoring riparian and aquatic habitats
along the Rio Grande in southern New Mexico and west
Texas.” Border wall construction projects, however, have
“required SWEC to shift its focus to more urgent, defensive
campaigns,” and “[s]taff time and resources that would
normally go towards [its] longer-term restoration efforts to
protect landscapes and wildlife species . . . are instead being
channeled to immediate border wall advocacy.” Without
such defensive efforts, however, the wall will “cause[]
irreversible damage to border lands that SWEC’s members
enjoy and cherish.”
The Texas Civil Rights Project (“TCRP”) is also a
member organization of the SBCC and is comprised of
separate programs, including a Racial and Economic Justice
Program, a Voting Rights Program, and a Criminal Justice
Reform Program. The “announcement of imminent land
seizure and ‘military construction’ across 52 miles of
borderlands in Laredo, Texas has caused and will continue to
cause TCRP to divert scarce resources in protection of Texas

SIERRA CLUB V. TRUMP40
landowners.” TCRP has had to expand its operations into
Laredo, Texas, even though Laredo is “a substantial distance
from the nearest TCRP office” in Alamo, Texas, and it is
“prohibitive to directly represent anyone in a region where
[TCRP] do[es] not have a physical TCRP office.” TCRP has
had no choice but to take on this additional burden because
declining to represent these landowners would undermine the
organization’s goal to fight for a “Texas where all
communities thrive with dignity and justice and without
fear.”
These allegations are sufficient to establish that, if funds
are diverted to the border wall construction projects, Sierra
Club members and SBCC will suffer injuries in fact.
Sierra Club and SBCC have also shown that such injuries
are “fairly traceable to the challenged action[s] of the
[Federal Defendants], and not the result of the independent
action of some third party not before the court.” Mendia v.
Garcia, 768 F.3d 1009, 1012 (9th Cir. 2014) (quoting Bennett
v. Spear, 520 U.S. 154, 167 (1997)). Section 2808 is the
statutory authorization for the construction, and it is therefore
the direct cause of the alleged injury.
The injury to Sierra Club and SBCC is likely to be
redressed by a favorable judicial decision. The Federal
Defendants have no authority to undertake the border wall
projects if the Court holds that Section 2808 does not
authorize construction. Thus, Sierra Club and SBCC have
established that they satisfy the demands of Article III
standing to challenge the Federal Defendants’ actions.

SIERRA CLUB V. TRUMP41
B
The Federal Defendants assert that the Plaintiffs do not
have a cause of action. We hold that the States have a cause
of action under the APA and Sierra Club has a constitutional
cause of action.
1
The APA provides for judicial review of “final agency
action for which there is no other adequate remedy in a
court.” 5 U.S.C. § 704. Where a statute imposes obligations
on a federal agency but the obligations do not “give rise to a
‘private’ right of action against the federal government[,] [a]n
aggrieved party may pursue its remedy under the APA.” San
Carlos Apache Tribe v. United States, 417 F.3d 1091, 1099
(9th Cir. 2005). The States must, however, establish that they
fall within the zone of interests of the relevant statute to bring
an APA claim. See Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012)
(“This Court has long held that a person suing under the APA
must satisfy not only Article III’s standing requirements, but
an additional test: The interest he asserts must be ‘arguably
within the zone of interests to be protected or regulated by the
statute’ that he says was violated.” (quoting Ass’n of Data
Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153
(1970))).
Section 2808 does not confer a private right of action.
Instead, like Section 8005, it delegates a narrow slice of
Congress’s power of the purse to DoD so that it can react
quickly in the event of a declaration of war or a declaration of
a national emergency. In doing so, the statute imposes certain
obligations upon DoD—i.e., DoD cannot invoke Section

SIERRA CLUB V. TRUMP42
2808 except for military construction that is necessary to
support the use of the armed forces in the event of a
declaration of a national emergency that requires the use of
the armed forces. The States argue that DoD did not satisfy
these obligations, and therefore, as aggrieved parties, they
may pursue a remedy under the APA, so long as they fall
within Section 2808’s zone of interests.
As a threshold matter, Section 2808 constitutes the
relevant statute for the zone of interests test. “Whether a
plaintiff’s interest is ‘arguably . . . protected . . . by the
statute’ within the meaning of the zone-of-interests test is to
be determined not by reference to the overall purpose of the
Act in question . . . but by reference to the particular
provision of law upon which the plaintiff relies.” Bennett,
520 U.S. at 175–76 (emphasis added). Because the States
invoke Section 2808’s limitations in asserting their APA
claim, this statute defines the relevant zone of interests.
The Supreme Court has clarified that, in the APA context,
the zone of interests test does “not require any ‘indication of
congressional purpose to benefit the would-be plaintiff.’”
Patchak, 567 U.S. at 225 (quoting Clarke v. Sec. Indus. Ass’n,
479 U.S. 388, 399–400 (1987)). Furthermore, the Court has
repeatedly emphasized that the zone-of-interest test is “not
‘especially demanding.’” Lexmark Int’l Inc. v. Static Control
Components, Inc., 572 U.S. 118, 130 (2014) (quoting
Patchak, 567 U.S. at 225). Instead, for APA challenges, a
plaintiff can satisfy the test in either one of two ways: (1) “if
it is among those [who] Congress expressly or directly
indicated were the intended beneficiaries of a statute,” or
(2) “if it is a suitable challenger to enforce the statute—that
is, if its interests are sufficiently congruent with those of the
intended beneficiaries that the litigants are not more likely to

SIERRA CLUB V. TRUMP43
frustrate than to further . . . statutory objectives.” Scheduled
Airlines Traffic Offices, Inc. v. Dep’t of Def., 87 F.3d 1356,
1359 (D.C. Cir. 1996) (alterations in original) (citations
omitted). “We apply the test in keeping with Congress’s
‘evident intent’ . . . ‘to make agency action presumptively
reviewable,’” and note that “the benefit of any doubt goes to
the plaintiff.” Patchak, 567 U.S. at 225 (quoting Clarke,
479 U.S. at 399).
Section 2808’s restrictions constrain DoD’s ability to
fund emergency military construction projects while
deferring other military construction projects. The Federal
Defendants concede as much, noting that the “limitations in
the statute at most reflect constraints on the decision to fund
certain projects while deferring others.”
6
The States are suitable challengers to enforce Section
2808’s limitations because they have asserted such economic
interests here and thus they are either the intended
beneficiaries of the statute, or at the very least, their interests
are unlikely to frustrate the purpose of the statute. Absent the
invocation of Section 2808, the States stood to benefit
significantly from federal military construction funding. The
Federal Defendants diverted funding from 17 separate
6
When considering the analogous role played by Section 8005, Judge
N.R. Smith, in dissent, acknowledged that a plaintiff who suffered an
economic injury as a result of a statutory diversion of funds would likely
have a cause of action to challenge whether the diversion satisfied the
terms of the statute. See Sierra Club v. Trump, 929 F.3d 670, 715 (9th
Cir. 2019) (N.R. Smith, J., dissenting) (“This statute [Section 8005]
arguably protects Congress and those who would have been entitled to the
funds as originally appropriated; and as a budgetary statute regarding the
transfer of funds among DoD accounts, it arguably protects economic
interests.”).

SIERRA CLUB V. TRUMP44
military construction projects within the borders of the
Plaintiff States, totaling over $493 million. According to the
States’ expert, the diversion of funds “would result in a total
of $366 million in total lost business sales within the States
for the next three calendar years, 2020–2022,” even taking
“into consideration the offsetting benefits to the States caused
by the $1.0 billion of U.S. funds that would be spent in
California and New Mexico to build the proposed border
barriers.”
7
Moreover, “the gross regional product (GRP) of
the States would be reduced by $165 million as a result of this
diversion of military funds,” and the tax revenues for state
and local governments would be reduced by over $36 million.
Section 2808’s restrictions ensure that, ordinarily, its
authority cannot be used to divert funding for military
construction projects unless the construction satisfies certain
criteria. Therefore, the States fall within the statute’s zone of
interests and can enforce its criteria.
Moreover, Patchak establishes that when a statute deals
with land use, the “neighbors to the use” may sue and their
“interests, whether economic, environmental, or aesthetic,
come within [the statute’s] regulatory ambit.” 567 U.S.
at 227–28. Here, Section 2808 is a construction statute. It
allows the Secretary of Defense to “undertake military
construction projects,” in “the event of a declaration of war
or the declaration by the President of a national emergency.”
10 U.S.C. § 2808. Construction of this sort naturally requires
land use, and California and New Mexico, as border states
immediately adjacent to the border wall construction projects,
7
Excluding California from this analysis, the expert estimates that
total would be much greater: the total lost business sales within the
remaining states would be $789 million.

SIERRA CLUB V. TRUMP45
are quasi-sovereign neighbors to that use and plainly fall
within its zone of interests.
Therefore, the States fall within Section 2808’s zone of
interests and they have a cause of action to challenge the
construction.
2
The Supreme Court’s decision in Bond, and our decisions
in McIntosh and the prior Sierra Club appeal, provide ample
support that Sierra Club has a cause of action under the
Appropriations Clause to challenge the Federal Defendants’
use of Section 2808 for border wall construction.
8
“[I]ndividuals, too, are protected by the operations of
separation of powers and checks and balances; and they are
not disabled from relying on those principles in otherwise
justiciable cases and controversies.” Bond v. United States,
564 U.S. 211, 223 (2011). “[B]oth federalism and separation-
of-powers constraints in the Constitution serve to protect
individual liberty, and a litigant in a proper case can invoke
such constraints ‘[w]hen government acts in excess of its
lawful powers.’” United States v. McIntosh, 833 F.3d 1163,
1174 (9th Cir. 2016) (discussing and quoting Bond, 564
U.S. at 222). “[The Appropriations Clause] constitutes a
separation-of-powers limitation that [litigants] can invoke to
challenge” actions that cause justiciable injuries. Id. at 1175.
8
We address only whether Sierra Club has a constitutional cause of
action because Sierra Club did not argue in any detail that it has a cause
of action under the APA in its opening brief.

SIERRA CLUB V. TRUMP46
Although the terms of Section 2808 are different from
Section 8005, Section 2808’s role here is analogous to the
role of Section 8005 in the prior appeal: Section 2808 permits
DoD to fund construction outside the normal appropriations
process, if certain criteria are met, but it operates against the
backdrop of the Appropriations Clause. Because, as
explained below, we conclude that the Federal Defendants
have not satisfied the statute’s criteria, any construction
undertaken purportedly using its authority violates the
explicit prohibition of the Appropriations Clause that “[n]o
Money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law . . . .” U.S. Const. art.1, § 9,
cl. 7. Sierra Club has invoked this prohibition.
If the zone of interests test applies at all here, the
Appropriations Clause of the Constitution defines the zone of
interests because it is the “particular provision of law upon
which [Sierra Club] relies” in seeking relief. Bennett,
520 U.S. at 175–76. Section 2808 is relevant only because,
to the extent it applies, it authorizes executive action that
otherwise would be unconstitutional or ultra vires. That a
statute is relevant does not transform a constitutional claim
into a purely statutory one. Sierra Club’s cause of action
stems from the Federal Defendants’ violation of the
Appropriations Clause because Sierra Club seeks to enforce
the Clause’s express prohibition.
To the extent the zone of interests test ever applies to
constitutional causes of action, it asks only whether a plaintiff
is “arguably within the zone of interests to be protected . . . by
the . . . constitutional guarantee in question.” Boston Stock
Exch. v. State Tax Comm’n, 429 U.S. 318, 320 n.3 (1977)
(quoting Data Processing Serv., 397 U.S. at 153). This
renders the test nearly superfluous: so long as a litigant is

SIERRA CLUB V. TRUMP47
asserting an injury in fact to his constitutional rights, he has
a cause of action. See ERWIN CHEMERINSKY, FEDERAL
JURISDICTION 112 (7th ed. 2016) (citing LAURENCE TRIBE,
AMERICAN CONSTITUTIONAL LAW 446 (3d ed. 2000)).
Applying that generous formulation of the test here,
Sierra Club falls within the Appropriations Clause’s zone of
interests. Because the diversion of funds was not authorized
by the terms of Section 2808, it is unconstitutional. See City
and Cty. of San Francisco v. Trump, 897 F.3d 1225, 1233–34
(9th Cir. 2018) (“[W]hen it comes to spending, the President
has none of ‘his own constitutional powers’ to ‘rely’ upon.”
(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 637 (1952) (Jackson, J., concurring)). Sierra Club is an
organization within the United States that is protected by the
Constitution. The unconstitutional transfer of funds here
infringed upon Sierra Club’s members’ liberty interests,
harming their environmental, aesthetic, and recreational
interests. Thus, Sierra Club falls within the Clause’s zone of
interests and has a cause of action to challenge the transfers.
V
Next, we consider whether the terms of Section 2808
authorize the challenged border wall construction projects.
We conclude that the projects fail to satisfy two of the
statutory requirements: they are neither necessary to support
the use of the armed forces, nor are they military construction
projects. Although the statute supplies other limitations, we
do not address them because we conclude that these two
limitations are more than sufficient to render the border wall
construction projects unlawful.

SIERRA CLUB V. TRUMP48
A
Section 2808 allows the Secretary of Defense to
undertake military construction projects in the event of a
national emergency requiring the use of the armed forces, but
the statute specifies that such projects must be “necessary to
support such use of the armed forces.” The district court’s
analysis is persuasive on this issue, and we hold that border
wall construction is not necessary to support the use of the
armed forces with respect to the national emergency on the
southern border. The Federal Defendants have not
established that the projects are necessary to support the use
of the armed forces because: (1) the administrative record
shows that the border wall projects are intended to support
and benefit DHS—a civilian agency—rather than the armed
forces, and (2) the Federal Defendants have not established,
or even alleged, that the projects are, in fact, necessary to
support the use of the armed forces.
First, the record illustrates that the border wall projects
are intended to benefit DHS and its subagencies, CBP and
U.S. Border Patrol (“USBP”), not the armed forces. The
record demonstrates that DoD primarily considered the many
benefits to these civilian agencies in determining that
physical barriers are necessary. DoD determined that
physical barriers would “[i]mprove CBP’s detection,
identification, classification, and response capabilities,”
“[r]educe vulnerabilities in key border areas and the time it
takes Border Patrol agents to apprehend illegal migrants,”
“improv[e] CBP force allocation,” “reduce the challenges to
CBP,” “effectively reduce the enforcement footprint and
compress USBP operations to the immediate border area,”
“serve to channel illegal immigrants towards locations that
are operationally advantageous to DHS,” “enable CBP agents

SIERRA CLUB V. TRUMP49
to focus less on the rugged terrain,” and “give a distinct and
enduring advantage to USBP as a force multiplier.”
To the extent DoD decision-makers believed that
construction would benefit DoD at all, the record
demonstrates that the construction is merely expected to help
DoD help DHS. DoD determined that the barriers would
serve as “force multipliers,” by allowing military personnel
to cover other high-traffic border areas without existing
barriers, a benefit plainly intended to assist DHS, which, by
statute, is tasked with “[s]ecuring the borders, territorial
waters, ports, terminals, waterways, and air, land, and sea
transportation systems of the United States.” 6 U.S.C. § 202.
Moreover, border wall construction would “enable more
effective and efficient use of DoD personnel, which could
ultimately reduce the demand for DoD support at the southern
border over time.” Thus, the record makes clear that the
primary objective of border wall construction is to benefit a
civilian agency, DHS, and that the construction strives to
ultimately eliminate the need for DoD support to DHS
altogether.
Second, the Federal Defendants have not even alleged, let
alone established as a matter of fact, that the border wall
construction projects are “necessary” under any ordinary
understanding of the word. See MERRIAM-WEBSTER ONLINE
DICTIONARY (defining “necessary” as “absolutely needed:
required”); OXFORD ENGLISH DICTIONARY ONLINE (defining
“necessary” as “[i]ndispensable, vital, essential”). In
assessing the necessity of the border wall construction
projects, the Federal Defendants concluded: “In short, these
barriers will allow DoD to provide support to DHS more
efficiently and effectively. In this respect the contemplated

SIERRA CLUB V. TRUMP50
construction projects are force multipliers.” Efficiency and
efficacy are not synonymous with necessity.
The Federal Defendants contend that “Section 2808’s
reference to necessity does not entail the stringent level of
indispensability,” assumed by the district court, and they
request that the Court adopt a more relaxed definition of the
term here. The Federal Defendants cite United States v.
Comstock, 560 U.S. 126, 133–34 (2010), for the proposition
that the word “necessary” “often means merely” “convenient,
or useful,” or “conducive.” But Comstock provides little
support for that proposition. The Court in Comstock
considered what powers were entrusted to Congress by the
Necessary and Proper Clause of the United States
Constitution. Examining the import of the entire clause, the
Court observed that “the Necessary and Proper Clause makes
clear that the Constitution’s grants of specific federal
legislative authority are accompanied by broad power to enact
laws that are ‘convenient, or useful’ or ‘conducive’ to the
authority’s ‘beneficial exercise.’” Comstock, 560 U.S. at
133–34 (quoting M’Culloch v. Maryland, 17 U.S. 316, 413,
418 (1819)). The Court noted that in the specific context of
the Necessary and Proper Clause, “the word ‘necessary’ does
not mean ‘absolutely necessary.’” Id. at 134. Contrary to the
Federal Defendants’ assertion, however, the Court in
Comstock did not set forth a universal definition of the word
“necessary,” but instead, one narrowly cabined to its
constitutional context. The Federal Defendants provide no
reason why we must apply the logic of the Court’s approach
in that specific context to the military construction authority
at issue here.
The Federal Defendants also cite Commissioner v.
Heininger, 320 U.S. 467, 471 (1943). In Heininger, the Court

SIERRA CLUB V. TRUMP51
interpreted a Revenue Act provision allowing for the
deduction of “ordinary and necessary expenses paid or
incurred during the taxable year in carrying on any trade or
business.” Id. at 468 n.1. There, not only was the word
“necessary” coupled with “ordinary,” suggesting that a more
relaxed definition of “necessary” may be appropriate, but the
Court was interpreting the language of a business expense tax
deduction provision. Within that context, dealing with a
statutory provision intended to foster business development
and growth, it makes sense to interpret the term in a more
relaxed fashion in furtherance of that purpose. Again, the
Federal Defendants provide no explanation why Heininger’s
logic applies to the very different statutory context at issue in
this case.
“Necessary” as it appears in Section 2808 is best
understood as retaining its plain meaning, which means, at
the very least, “required,” or “needed.”
9
The fact that border
9
Ayestas v. Davis, 138 S. Ct. 1080, 1093 (2018) is not to the contrary.
In Ayestas, the Supreme Court interpreted the use of the term “necessary”
within the context of 18 U.S.C. § 3599, a statute that “authorizes federal
courts to provide funding to a party who is facing the prospect of a death
sentence and is ‘financially unable to obtain adequate representation or . . .
other reasonably necessary services.’” Ayestas, 138 S. Ct. at 1092
(emphasis added). The Court acknowledged that “necessary” may have
one of two meanings: either “essential” or “something less than essential.”
Id. at 1093. It concluded that “necessary” carried the latter meaning in
Section 3599 because it would “make[] little sense to refer to something
as being ‘reasonably essential.’” Id. In other words, the Court’s
interpretation hinged on the fact Section 3599 did not merely use the
standalone term “necessary,” but used the phrase “reasonably necessary.”
Thus, here, where “necessary” is a part of no such statutory phrase, it
makes little sense to follow the Court’s approach in Ayestas. Moreover,
Section 3599’s statutory context—the provision of funding to ensure the
adequate defense of individuals facing the prospect of a death

SIERRA CLUB V. TRUMP52
wall construction might make DoD’s support more efficient
and effective does not rise to the level of “required” or
“needed”—and the Federal Defendants have failed to show
that it does. That Congress declined to provide more
substantial funding for border wall construction and voted
twice to terminate the President’s declaration of a national
emergency underscores that the border wall is not, in fact,
required or needed. Thus, the Federal Defendants fail to
satisfy the statutory requirement that the construction projects
be “necessary to support the use of such armed forces.”
The remainder of the Federal Defendants’ arguments do
not compel an opposite conclusion. First, the Federal
Defendants assert that the determination of whether military
construction is necessary to support the use of the armed
forces is “committed to the discretion of the Secretary of
Defense by law.” They argue that questions of military
necessity turn on “a complicated balancing of a number of
factors which are peculiarly within [the Secretary’s]
expertise” and that the Court should defer to such expertise.
Heckler v. Chaney, 470 U.S. 821, 831 (1985).
“[T]he claim of military necessity will not, without more,
shield governmental operations from judicial review.” Koohi
v. United States, 976 F.2d 1328, 1331 (9th Cir. 1992). A
decision is generally committed to an agency decision by law
only when a court would have “no meaningful standard
against which to judge the agency’s exercise of discretion.”
Perez Perez v. Wolf, 943 F.3d 853, 860 (9th Cir. 2019)
penalty—additionally supports the sensibility of a more flexible definition
to serve that statutory purpose. That context is unrelated to emergency
military construction authority, however, and so Ayestas does not alter our
decision to adopt the plain meaning of “necessary” here.

SIERRA CLUB V. TRUMP53
(quoting Pinnacle Armor, Inc. v. United States, 648 F.3d 708,
719 (9th Cir. 2011)).
As we have explained, the Federal Defendants have
simply claimed “military necessity” without more, and this
alone cannot shield their actions from judicial review.
Further, as we have noted, the judgment at issue here is not a
military one. The border wall construction projects further
the goals of DHS—a civilian law enforcement agency—and
the determination that the projects are necessary, in any
sense, is a law enforcement calculation, not a military one.
Such determinations involve distinctly different calculations
than those present in the military deference cases cited by the
Federal Defendants, like Gilligan v. Morgan, which involved
the ongoing judicial oversight of the Ohio National Guard.
See Gilligan v. Morgan, 413 U.S. 1, 6 (1973) (considering
whether the district court should “assume and exercise a
continuing judicial surveillance over the Guard to assure
compliance with whatever training and operations procedures
may be approved by [the] court.”). The determinations at
issue here, while important, are lawmaking decisions that are
“a job for the Nation’s lawmakers, not for its military
authorities.” Youngstown, 343 U.S. at 587. Thus, the Federal
Defendants cannot evade judicial review of these
determinations by simply labeling them “military” ones.
What is more, nothing in the language of the statute
suggests that this determination is committed to the discretion
of the Secretary of Defense. Here, the phrase “that are
necessary to support such use of the armed forces,” provides
standards against which to judge that exercise of discretion;
as demonstrated above, the statutory language is susceptible
to basic statutory interpretation. If Congress had committed
these issues to the unfettered discretion of the Secretary, we

SIERRA CLUB V. TRUMP54
would—of course—defer. But it did not, so it is our task to
determine whether the Secretary has complied with the
statutory requirements.
Further, judicial review of statutes conferring specific
emergency powers to the President is critical because, as
explained by the Senate Committee on Government
Operations in passing the NEA, the NEA left “the definition
of when a President is authorized to declare a national
emergency . . . to the various statutes which give him
extraordinary powers.” NEA Source Book at 292. Therefore,
the President’s emergency authority is conferred only by
statute. Were we to conclude that judicial review of such a
statute was precluded, the President’s emergency authority
would be effectively unbounded, contravening the purpose of
the NEA. Thus, the language of Section 2808 is not only
susceptible to judicial review, but its statutory context
requires it.
Alternatively, the Federal Defendants assert that “[e]ven
if the Secretary’s military-necessity determinations were
reviewable, this Court . . . should defer to the Secretary’s
conclusion that the challenged projects are necessary to
improve the effectiveness and efficiency of DoD personnel
deployed to the border.” But, as we have discussed, it does
not follow from the idea that a project is designed to improve
effectiveness and efficiency that a project is necessary in any
ordinary sense. And absent from the record is any
determination by the Secretary that the projects are actually
necessary. Under these circumstances, deference, in the
classic administrative law sense, is not appropriate.
In sum, based on the record, we conclude that the
construction of the challenged border wall projects does not

SIERRA CLUB V. TRUMP55
comply with the statutory requirements of Section 2808.
Therefore, because the Federal Defendants’ construction
exceeds the authority provided by Section 2808 and is
unlawful, and we affirm the declaratory judgment of the
district court.
B
Section 2808 permits the Secretary of Defense to
“undertake military construction projects.” Section 2801
defines the term “military construction” “as used in this
chapter or any other provision of law” as “any construction,
development, conversion, or extension of any kind carried out
with respect to a military installation, whether to satisfy
temporary or permanent requirements, or any acquisition of
land or construction of a defense access road.” 10 U.S.C.
§ 2801(a). It further defines “military installation” as “a base,
camp, post, station, yard, center, or other activity under the
jurisdiction of the Secretary of a military department.” Id. at
§ 2801(c)(4).
Because the border wall construction projects plainly
qualify as “construction,” the key inquiry here is whether they
are being “carried out with respect to a military installation.”
“Interpretation of a statute must begin with the statute’s
language.” Rumsey Indian Rancheria of Wintun Indians v.
Wilson, 64 F.3d 1250, 1257 (9th Cir. 1994) (citations
omitted). “[S]tatutory language must always be read in its
proper context,” and courts must look to the “design of the
statute as a whole and to its object and policy,” UMG
Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d
1006, 1026 (9th Cir. 2013) (quotations omitted), for “the
words of a statute must be read in their context and with a

SIERRA CLUB V. TRUMP56
view to their place in the overall statutory scheme,” Home
Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019).
The Federal Defendants make two separate arguments
that border wall construction satisfies the requirements of
Section 2808 based on one key fact: the land on which the
projects would be built has been brought under military
jurisdiction and assigned to a military installation—Fort Bliss
in El Paso, Texas. First, the Federal Defendants argue that
the individual border wall construction projects are actually
one and the same as Fort Bliss because according to the
Assistant Secretary of the Army, Alex A. Beehler, when a
“site is assigned to a military installation for real property
accountability purposes,” it “is considered to be part of that
installation, even if remotely located from the Army Garrison
[of that installation].” Alternatively, they argue that because
the projects have been brought under military jurisdiction, the
construction projects are “other activity under the jurisdiction
of the Secretary of a military department.” 10 U.S.C. § 2801.
We must, then, determine (1) whether administratively
assigning the projects to Fort Bliss renders them one and the
same as Fort Bliss for purposes of the statute, and if not,
(2) whether bringing land under military jurisdiction for real
property accountability purposes renders the border wall
“other activity under the jurisdiction of the Secretary of a
military department.”
We hold that, for purposes of the emergency construction
authority provided by Section 2808, the border wall
construction projects are distinct from Fort Bliss itself, and

SIERRA CLUB V. TRUMP57
that the border wall construction projects at issue here do not
satisfy the meaning of “other activity.”
10
1
Although the border wall construction projects may be
considered part of Fort Bliss for purposes of real property
accounting, we find that a number of reasons support that the
projects should not be considered a part of Fort Bliss for
purposes of Section 2808.
First, we state the most obvious reason why the border
wall construction projects need not be considered a part of
Fort Bliss in this context. To begin, the projects are not
physically connected to Fort Bliss—on their face, they are not
“part” of that military installation. In fact, most projects are
hundreds of miles away from Fort Bliss.
Moreover, the projects are not functionally part of Fort
Bliss. The Federal Defendants cite no operational ties
between the projects and any of the military activities
conducted at Fort Bliss. This is contrary to other examples of
sites which are geographically separate from the military
installation to which they have been assigned. For example,
the Federal Defendants highlight that the Green River Test
Complex site in Utah is considered part of the White Sands
Missile Range in New Mexico, even though the two are in
10
The Plaintiffs do not challenge that the projects on the Goldwater
Range satisfy the definition of “military construction,” and we do not
consider this issue; therefore, our holding is limited only to the remaining
nine construction projects. Our determination that the funding of the
projects is not necessary to support the use of the armed forces is
sufficient to hold all eleven projects unlawful.

SIERRA CLUB V. TRUMP58
different states and located hundreds of miles apart. But
these sites share a close functional connection. Throughout
the 1960s, the military tested Athena missiles by launching
them from the Green River Test Complex to detonate on the
White Sands Missile Range. No such functional nexus exists,
or has even been alleged, here. Although a functional nexus
may not be required for administrative assignment, it matters
for purposes of Section 2808.
Additionally, the Federal Defendants cite no other
purpose underlying the administrative assignment, besides
pure administrative convenience, that compels the conclusion
that the projects should be considered part of Fort Bliss for
purposes of Section 2808. The Federal Defendants state that
the projects were assigned to Fort Bliss “because it is the
largest, most capable active Army installation in the vicinity
of the southern border”; it “has a sizable existing installation
management office”; it has “experience working with the
U.S. Army Corps of Engineers on military construction
projects”; “it is more efficient for command of all the real
property associated with the projects undertaken pursuant to
§ 2808 to be vested in one Army installation”; and it has an
“existing support relationship with the U.S. Border Patrol.”
While these are, of course, practical reasons for
administratively assigning the land to Fort Bliss, they convey
no underlying purpose more significant than administrative
convenience. They signify no reason why the border wall
construction projects must be considered part of Fort Bliss for
any reason beyond administrative assignment.
Further, reading the words of Section 2808 “in their
context and with a view to their place in the overall statutory
scheme,” it would make little sense to equate the
requirements of Section 2808 with the administrative

SIERRA CLUB V. TRUMP59
assignment process in order to conclude that the projects are
a part of Fort Bliss. Home Depot U.S.A., Inc., 139 S. Ct. at
1748. The text of Section 2808 supplies boundaries for the
authority provided—such as, that construction be conducted
with respect to a military installation, meaning a base, camp,
station, yard, center, or other activity under military
jurisdiction. By contrast, there appear to be no boundaries
whatsoever restricting when the government can
administratively assign a geographically distant site to a
military installation. The Federal Defendants even specify
that “[t]here is no legal, regulatory, or policy requirement
[that] geographically separate sites . . . be assigned to a
‘nearby’ military installation,” nor a requirement that the
“sites or lands that comprise a given military installation . . .
be located in the same State or within a certain distance of
other sites associated with the military installation.” And a
site may exist as “land only, where there are no facilities
present,” “facility or facilities only, where the underlying
land is neither owned nor controlled by the government,” or
“land and facilities thereon.” To construe the limited text of
Section 2808 to incorporate a wholly unlimited process would
be contrary to its structure and context.
Moreover, to construe the statute so broadly would also
be contrary to the purpose of the statutory scheme of which
Section 2808 is a part—the NEA. See Brooks v. Donovan,
699 F.2d 1010, 1011 (9th Cir. 1983) (rejecting a literal
interpretation that “would thwart the purpose of the over-all
statutory scheme or lead to an absurd result” (quotations and
citations omitted)); see generally NEA Source Book at 50.
Because “[t]he National Emergencies Act is not intended to
enlarge or add to Executive power,” it would make little
sense to interpret the constrained definition of “military
installation” supplied by Section 2808 to encompass a process

SIERRA CLUB V. TRUMP60
with no limitations whatsoever. NEA Source Book at 292.
This would undoubtedly have the effect of enlarging the
President’s emergency powers because it would allow a less
stringent Executive Branch administrative process to
circumvent the limits of the statutory authority. This would
allow the Executive Branch to undertake any construction
project it wants by merely assigning any piece of land to a
military installation, thus permitting more construction than
authorized by the statute and granting the President more
emergency authority.
2
The Federal Defendants’ second argument fails for
similar reasons. To hold that the border wall construction
projects constitute “other activity” under military jurisdiction
would transform the definition of “military installation” to
include not just “other activity,” but “any activity” under
military jurisdiction, contradicting the text of the statute. The
terms “base, camp, post, station, yard, [or] center” supply
meaning and provide boundaries to the term “other activity,”
and they are not mere surplusage. See Yates v. United States,
135 S. Ct. 1074, 1087 (2015) (“Had Congress intended
‘tangible object’ in § 1519 to be interpreted so generically as
to capture physical objects as dissimilar as documents and
fish, Congress would have had no reason to refer specifically
to ‘record’ or ‘document.’ The Government’s unbounded
reading of ‘tangible object’ would render those words
misleading surplusage.”). The Federal Defendants do not
explain how the border wall construction projects are similar
to bases, camps, posts, stations, yards, or centers, and we find
that they are not. The failure to illustrate a connection
between the border wall projects and the other statutory
examples is sufficient to reject this argument because we

SIERRA CLUB V. TRUMP61
avoid construing statutes to allow one general word to render
specific words meaningless. See CSX Transp., Inc. v. Ala.
Dep’t of Revenue, 562 U.S. 277, 295 (2011) (“We typically
use ejusdem generis to ensure that a general word will not
render specific words meaningless.”).
The Federal Defendants cite United States v. Apel,
571 U.S. 359, 368 (2014) to support their position, but this
case has limited applicability here, and does not support that
“other activities” under military jurisdiction means “any
activity” under military jurisdiction. There, the Supreme
Court analyzed a different statute, which imposed a criminal
fine on anyone who reentered a “military, naval, or Coast
Guard reservation, post, fort, arsenal, yard, station, or
installation” after being removed from such a location. See
18 U.S.C. § 1382. The Federal Defendants argue that Apel
supports their position because in interpreting the definition
of “military installation,” the Court explained that “‘military
duty’ and ‘military protection’ are synonymous with the
exercise of military jurisdiction,” and it cited 10 U.S.C.
§ 2801 as an example of a statute defining “military
installation” as a “base . . . or other activity under the
jurisdiction of the Secretary of a military department.” Apel,
571 U.S. at 368. But this point does not go to the key issue
here—Plaintiffs do not contest that the sites are under
military jurisdiction, but rather, whether they fall within the
parameters of “other activity” under military jurisdiction, as
limited by the other examples provided. In any event, Apel
did not analyze Section 2801 itself. The context of a criminal
trespass statute, is, of course, different than the context of
emergency construction authority, and because “[s]tatutory
language must always be read in its proper context,” it is not
clear why Apel’s definition should apply here. UMG
Recordings, Inc., 718 F.3d at 1026.

SIERRA CLUB V. TRUMP62
If anything, Apel provides support for our reasoning with
respect to the Federal Defendants’ first argument. Apel
undermines the notion that the use, possession, or control of
land—such as through the process of administrative
assignment—is central to the inquiry of what constitutes a
military installation. Apel, 571 U.S. at 368. Instead, Apel
emphasizes that in determining what constitutes a military
installation, an area’s connection to military functions plays
a significant role. Apel cites United States v. Phisterer,
94 U.S. 219, 222 (1877), explaining that “there we interpreted
‘military station’ to mean ‘a place where troops are
assembled, where military stores, animate or inanimate, are
kept or distributed, where military duty is performed or
military protection afforded,—where something, in short,
more or less closely connected with arms or war is kept or is
to be done,’” which it reasoned, if anything, “confirms our
conclusion that § 1382 does not require exclusive use,
possession, or control.” Id. (internal quotations and citations
omitted). Thus, Apel provides little assistance to the Federal
Defendants, and if anything, bolsters the Plaintiffs’
interpretation of the statute.
Second, as the district court explained, the Federal
Defendants’ interpretation of “other activities” would grant
them “essentially boundless authority to reallocate military
construction funds to build anything they want, anywhere
they want, provided they first obtain jurisdiction over the land
where the construction will occur.” These arguments are
closely related to those outlined in the previous section, and
as explained there, no restrictions constrain when land can be
brought under military jurisdiction. See Section V.B.1.
Although the Federal Defendants assert that “the government
does not contend that the entire ‘Southern border’ is a
military installation,” the Federal Defendants cite no limit to

SIERRA CLUB V. TRUMP63
their interpretation that would prevent them from making it
one. This means that, if we were to adopt their interpretation
of “other activity,” and, as the district court explained,
“provided [they] complete the right paperwork,” the Federal
Defendants would be free to divert billions of dollars from
projects funded by congressional appropriations to projects of
their own choosing. As demonstrated by this case, this would
allow the Federal Defendants to redirect funds at will without
regard for the normal appropriations process. Ordinarily, we
reject interpretations with “unnecessarily expansive result[s],
absent more explicit guidance or indication from Congress,”
and instead, adopt more “rational” or “natural” readings.
Ariz. State Bd. for Charter Sch. v. U.S. Dep’t of Educ.,
464 F.3d 1003, 1008–09 (9th Cir. 2006). For this reason,
where there is no guidance or indication from Congress that
such an expansive interpretation is favored, and particularly
where doing so would produce a result contrary to the express
will of Congress, it is untenable for us to adopt such an
interpretation.
Finally, to interpret “other activities” so broadly would
run afoul of the constitutional separation of powers, which
provide Congress with exclusive control over appropriations,
and of the NEA, which was passed to “[e]nsure that the
powers now in the hands of the Executive will be utilized
only in time of genuine emergency and then only under
safeguards providing for Congressional review.” NEA Source
Book at 50. Particularly in the context of this case, where
Congress declined to fund the very projects at issue and
attempted to terminate the declaration of a national
emergency (twice), we cannot interpret the statute to give the
Executive Branch unfettered discretion to divert funds to any

SIERRA CLUB V. TRUMP64
land it deems under military jurisdiction.
11
“Presidential
powers are not fixed but fluctuate, depending on their
disjunction or conjunction with those of Congress,” and
“[w]hen the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its
lowest ebb.” Youngstown, 343 U.S. at 635, 637 (Jackson, J.,
concurring). Here, though imperfectly, Congress has made
clear that it does not support extensive border wall
construction. The Federal Defendants’ actions to the contrary
are incompatible with this position, and therefore, the existing
statutory authority provided by Section 2808 must be
construed narrowly.
12
We cannot, and do not, accept the
Federal Defendants’ boundless interpretation of what
constitutes a “military installation.”
Therefore, we conclude that Section 2808 does not
authorize the eleven border wall construction projects.
VI
The district court held that Sierra Club was entitled to a
permanent injunction enjoining the Federal Defendants “from
using military construction funds appropriated for other
purposes to build a border wall in the” project areas
challenged in this appeal. We review a district court’s grant
11
We do not express a view with respect to whether this is a “real”
national emergency, but instead, we merely construe the statute narrowly
in light of Congress’s determinations on the matter.
12
See Kristen Eichensehr, The Youngstown Canon: Vetoed Bills and
the Separation of Powers, 70 DUKE L.J. __ (forthcoming 2021), available
at SSRN: https://ssrn.com/abstract=3680748.

SIERRA CLUB V. TRUMP65
of injunctive relief for abuse of discretion. eBay Inc. v.
MercExchange, LLC, 547 U.S. 388, 391 (2006).
A permanent injunction is appropriate when: (1) a
plaintiff will “suffer[] an irreparable injury” absent
injunction, (2) available remedies at law are “inadequate,”
13
(3) the “balance of hardships” between the parties supports an
equitable remedy, and (4) the public interest is “not
disserved.” Id. When the government is party to a case, the
balance of equities and public interest factors merge. See
Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th
Cir. 2014).
The district court properly considered each of these
elements. It held that Sierra Club suffered irreparable injury
because the Federal Defendants’ conduct “will impede [Sierra
Club’s members’] ability to enjoy, work, and [re]create in the
wilderness areas they have used for years along the U.S.-
Mexico border,” and that the organizations themselves had
suffered irreparable harm as a result of the Federal
Defendants’ conduct, because they “have spent resources
creating new education, outreach, and monitoring programs
related to the construction projects, rather than on other
activities related to their respective missions.” In part,
because the Federal Defendants “have not pointed to any
factual developments that were not before Congress and that
may have altered its judgment” to appropriate border wall
funding, the district court took the position that the public
interest was best served by “ensuring that the statutes enacted
by . . . representatives are not imperiled by executive fiat,”
“by respecting the Constitution’s assignment of the power of
13
The parties do not contest this element, and we do not address it
here.

SIERRA CLUB V. TRUMP66
the purse to Congress,” and “by deferring to Congress’s
understanding of the public interest as reflected in its repeated
denial of more funding for border barrier construction.” The
district court’s analysis is reasonable and does not indicate
that it abused its discretion.
The Federal Defendants’ arguments to the contrary are
unavailing. They contend that the district court abused its
discretion because, in staying the permanent injunction with
respect to the Section 8005 case, the Supreme Court
“necessarily determined that the harm to the federal
government from an injunction prohibiting border-barrier
construction outweighs those interests.” The Federal
Defendants do not expand upon this point, and the Supreme
Court’s stay order does not address the appropriateness of
injunctive relief. If anything, the order alludes only to the
merits of Sierra Club’s cause of action arguments; it contains
nowhere a suggestion that the district court abused its
discretion in balancing the equities and weighing the public
interest. See Trump v. Sierra Club, 140 S. Ct. 1 (2019)
(mem.) (stating only that “[a]mong the reasons is that the
Government has made a sufficient showing at this stage that
the plaintiffs have no cause of action to obtain review of the
Acting Secretary’s compliance with Section 8005.”). We
cannot read into the order more than its text supports.
The Federal Defendants, as they did in the prior appeal,
also argue that Winter v. NRDC, Inc., 555 U.S. 7, 32 (2008),
requires that the balance of the equities favors the
government when the public interest in national defense is
weighed against a plaintiff’s ecological, scientific, and
recreational interests. Their argument is not compelling here
for the same reasons it was not there. See Sierra Club v.
Trump, 963 F.3d 874, 895–97 (9th Cir. 2020), petition for

SIERRA CLUB V. TRUMP67
cert. filed, (U.S. Aug. 7, 2020) (No. 20-138). Even if the
government has a “compelling interest[] in safety and in the
integrity of [its] borders,” Nat’l Treasury Emps. Union v. Von
Raab, 489 U.S. 656, 672 (1989), “it cannot suffer harm from
an injunction that merely ends an unlawful practice.”
Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013)
(citing Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983)
(“[T]he INS cannot reasonably assert that it is harmed in any
legally cognizable sense by being enjoined from
constitutional violations.”)). The fact an important interest is
at stake does not permit the government to use unlawful
means to further that end. This is evidenced by the Winter
injunction which enjoined conduct otherwise permitted by
law. Winter, 555 U.S. at 18–19.
Winter is further distinguishable because the public
interest there balanced “mission-critical,” id. at 14,
technology used for the Pacific Fleet’s “top war-fighting
priority,” id. at 12, against possible “harm to an unknown
number of marine mammals,” id. at 26. By contrast, the
Federal Defendants here have cited no such critical interest at
stake, and the permanent environmental and economic harms
to the Plaintiffs are far more serious and far less speculative
than those alleged in Winter.
Finally, the Federal Defendants challenge the district
court’s reasoning that “by enacting the Consolidated
Appropriations Act, Congress had already balanced the
equities in plaintiffs’ favor” because “the CAA did not
prohibit DoD from relying on separate and preexisting
statutory authorities to spend its own previously appropriated
funds on border barriers.” This argument is unavailing
because the budgetary standoff, government shutdown, and
the resulting 2019 CAA clearly indicate that Congress

SIERRA CLUB V. TRUMP68
determined that the interests of the entire country did not
favor funding more expansive border wall construction.
While this determination might be broader than the balance
of equities between the parties here, it certainly incorporates
them, and the district court did not abuse its discretion by
giving weight to Congress’s judgment in its own analysis.
We therefore affirm the permanent injunction granted to
Sierra Club. Given that we have resolved the merits of this
appeal, the district court’s stay pending appeal is terminated,
and we dismiss Sierra Club’s emergency motion to lift the
stay pending appeal as moot.
VII
The district court denied the States’ request for a separate
permanent injunction enjoining the Federal Defendants’ use
of Section 2808 for border wall construction as duplicative
and moot. This Court reviews a district court’s denial of
injunctive relief for an abuse of discretion. eBay Inc.,
547 U.S. at 391. “An abuse of discretion is a plain error,
discretion exercised to an end not justified by the evidence,
a judgment that is clearly against the logic and effect of the
facts as are found.” Rabkin v. Or. Health Sci. Univ., 350 F.3d
967, 977 (9th Cir. 2003) (citations and quotations omitted).
The district court did not abuse its discretion. It held that
“[b]ecause . . . the Court finds that Sierra Club Plaintiffs have
established that a permanent injunction is warranted as to all
eleven proposed projects, the Court denies State Plaintiffs’
duplicative request for a permanent injunction as moot.”
Injunctive relief is an equitable remedy, and “an award of an
injunction is something that a plaintiff is generally not
entitled to as a matter of right.” 42 Am. Jur. 2d Injunctions

SIERRA CLUB V. TRUMP69
§ 14 (2020). “Even if facts justifying an injunction . . . have
been proven, a court must still exercise its discretion to
decide whether to grant an injunction.” Id. Here the district
court did not abuse this discretion because it granted Sierra
Club a permanent injunction enjoining the construction of the
same border wall projects challenged by the States. Although
it subsequently stayed that injunction, it did so because of a
Supreme Court stay imposed in a prior appeal which was
based on, conceivably, a similar legal issue. Therefore,
though we might weigh the considerations present in this case
differently, we hold that the district court did not abuse its
discretion in denying the States injunctive relief.
VIII
Although we recognize that in times of national
emergency we generally owe great deference to the decisions
of the Executive, the particular circumstances of this case
require us to take seriously the limitations of the text of
Section 2808 and to hold the Executive to them. The “power
to legislate for emergencies belongs in the hands of
Congress.” Youngstown, 343 U.S. at 654 (Jackson, J.,
concurring). We cannot “keep power in the hands of
Congress if it is not wise and timely in meeting its problems,”
id., but where, as here, Congress has clung to this power with
both hands—by withholding funding for border wall
construction at great effort and cost and by attempting to
terminate the existence of a national emergency on the
southern border on two separate occasions, with a majority
vote by both houses—we can neither pry it from Congress’s
grasp. For all “its defects, delays and inconveniences,” it
remains critical in all areas, but particularly with respect to
the emergency powers, that “the Executive be under the law,
and that the law be made by parliamentary deliberations.” Id.

SIERRA CLUB V. TRUMP70
at 655. We reject Justice Jackson’s contention that “[s]uch
institutions may be destined to pass away,” id., particularly
given the actions of Congress as relate to this case. We agree,
however, that it must always be “the duty of the Court to be
last, not first, to give them up.” Id.
We affirm the judgment of the district court. We hold
that the States and Sierra Club both have Article III standing
and a cause of action to challenge the Federal Defendants’
border wall construction projects, that Section 2808 did not
authorize the challenged construction, and that the district
court did not abuse its discretion in either granting a
permanent injunction to Sierra Club or in denying a separate
permanent injunction to the States.
14
AFFIRMED.
COLLINS, Circuit Judge, dissenting:
We once again consider challenges to the Department of
Defense’s construction of border barriers and related
infrastructure along our southern border. See Sierra Club v.
Trump, 963 F.3d 874 (9th Cir. 2020); California v. Trump,
963 F.3d 926 (9th Cir. 2020). In this second round of appeals
from the same underlying lawsuits, the Government appeals
the district court’s grant of declaratory and permanent
injunctive relief barring the use of “military construction
funds appropriated for other purposes to build a border wall”
14
Because we conclude that the projects are unlawful because they
are not authorized by Section 2808, we do not reach Plaintiffs’ arguments
with respect to Section 739 of the 2019 CAA.

SIERRA CLUB V. TRUMP71
in 11 specified project areas. Two distinct groups of litigants
constitute the Plaintiffs in these appeals (collectively,
“Plaintiffs”): (1) the Sierra Club and the Southern Border
Communities Coalition (“SBCC”) (collectively, the
“Organizations”) and (2) nine states led by California and
New Mexico (collectively, the “States”).
1
In the partial
judgments under review, the district court granted summary
judgment and declaratory relief to the Plaintiffs, concluding
that the emergency military construction authority granted by
10 U.S.C. § 2808 did not authorize the challenged use of
funds. However, the district court granted permanent
injunctive relief only to the Organizations and denied the
States’ request for such relief.
The majority concludes that both the Organizations and
the States have Article III standing; that the States have a
cause of action to challenge the construction projects under
the Administrative Procedure Act (“APA”) and that the
Organizations have a cause of action under the
Appropriations Clause of the Constitution; that the
construction projects are unlawful; and that the district court
properly determined that the Organizations are entitled to
declaratory and injunctive relief while the States are entitled
to only declaratory relief. I agree that at least the Sierra Club,
California, and New Mexico have established Article III
standing, and I conclude that they have a cause of action to
challenge the construction projects under the APA. But in
my view the construction projects are lawful. Accordingly,
I would reverse the district court’s partial judgments and
1
The nine States are California, New Mexico, Colorado, Hawaii,
Maryland, New York, Oregon, Virginia, and Wisconsin. California and
New Mexico had likewise taken the lead in the prior appeals.

SIERRA CLUB V. TRUMP72
remand for entry of partial summary judgment in favor of the
Defendants. I respectfully dissent.
I
Although these appeals arise from the same underlying
lawsuits as the prior appeals, the particular dispute at issue
here involves a different statutory framework and a distinct
procedural history. Before turning to the merits, I will briefly
review both that framework and that history.
A
Under the National Emergencies Act, 50 U.S.C. § 1601 et
seq., the President may formally declare a “national
emergency,” thereby triggering the potential exercise of
emergency powers set forth in various other statutes. See
50 U.S.C. § 1621(a). Among those emergency powers is the
authority to “undertake military construction projects,” but
that authority may be invoked only if the President
specifically declares a national emergency “that requires use
of the armed forces.” 10 U.S.C. § 2808(a). On February 15,
2019, the President did just that, “declar[ing] that a national
emergency exists at the southern border of the United States”
and “that this emergency requires use of the Armed Forces.”
See Proclamation No. 9844, 84 Fed. Reg. 4949, 4949 (Feb.
20, 2019). As the President’s Proclamation explained, the
Department of Defense (“DoD”) was already providing
“support and resources” to the Department of Homeland
Security (“DHS”) “at the southern border,” and “additional
support,” including military personnel and logistical support,
was necessary “to address the crisis.” Id.

SIERRA CLUB V. TRUMP73
In light of this declaration, the Secretary of Defense was
authorized to “undertake military construction projects . . .
not otherwise authorized by law that are necessary to support
such use of the armed forces.” 10 U.S.C. § 2808(a). On
September 3, 2019, the Secretary of Defense issued a
memorandum expressly invoking that authority in deciding
to undertake 11 specified “border barrier military
construction projects.” “Based on analysis and advice from
the Chairman of the Joint Chiefs of Staff and input from the
Commander, U.S. Army Corps of Engineers, the Department
of Homeland Security (DHS), and the Department of the
Interior,” the Secretary determined that these “11 military
construction projects along the international border with
Mexico, with an estimated total cost of $3.6 billion, are
necessary to support the use of the armed forces in connection
with the national emergency.” The Secretary stated that,
because “[t]hese projects will deter illegal entry, increase the
vanishing time of those illegally crossing the border, and
channel migrants to ports of entry,” the projects would
support the use of the armed forces by “reduc[ing] the
demand for DoD personnel and assets at the locations where
the barriers are constructed and allow[ing] the redeployment
of DoD personnel and assets to other high-traffic areas on the
border without barriers.” “In this respect,” the Secretary
explained, “the contemplated construction projects are force
multipliers.”
Section 2808 further provides that the Secretary may
undertake emergency military construction projects “without
regard to any other provision of law.” 10 U.S.C. § 2808(a).
Accordingly, the Secretary’s memorandum included the
additional directive that the Acting Secretary of the Army
was to “expeditiously” undertake the 11 projects “without
regard to any other provision of law that could impede such

SIERRA CLUB V. TRUMP74
expeditious construction in response to the national
emergency,” including “the National Environmental Policy
Act, the Endangered Species Act, . . . [and] the Clean Water
Act.”
The 11 projects authorized by the Secretary contemplated
a total of 175 miles of border-barrier construction. They
include two projects on the Barry M. Goldwater Range (a
military installation in Arizona), seven projects on federal
public-domain land, and two projects on non-public land that
would need to be acquired through either purchase or
condemnation. Because the latter nine projects, unlike the
first two, were to be on land that was not then within any
military installation, the Secretary’s memorandum ordered
the Department of the Army to “add such land to the
Department of the Army’s real property inventory, either as
a new installation or as part of an existing military
installation.” The Army subsequently designated the land for
the latter nine projects as under the jurisdiction of the U.S.
Army Garrison Fort Bliss, which is in Texas.
Section 2808(a) further provides that emergency military
construction “may be undertaken only within the total amount
of funds that have been appropriated for military
construction, including funds appropriated for family
housing, that have not been obligated.” 10 U.S.C. § 2808(a).
Moreover, when the emergency military construction
authority is invoked, the Secretary must notify the appropriate
congressional committees of “the decision and of the
estimated cost of the construction projects.” Id. § 2808(b).
In providing that notice, the Secretary stated that the
“estimated total cost” of the 11 projects was $3.6 billion. The
Secretary further stated that the necessary funds would be
obtained by deferring “military construction projects that are

SIERRA CLUB V. TRUMP75
not scheduled for award until fiscal year 2020 or later,” and
that the first $1.8 billion of funding would come from the
deferral of certain projects “outside of the United States.”
Only after that would funds be obtained by deferring other
construction projects within the United States. In an
additional memorandum to other DoD officials, the Secretary
identified the 128 specific projects that were slated to be
deferred. Forty-three of those projects were located in U.S.
States, 21 in U.S. territories, and 64 were overseas. Of the 43
deferred projects in U.S. States, 19 of them were located in
the nine States that are parties to this appeal.
2
B
After the President’s emergency declaration, but before
DoD formally invoked its emergency military construction
authority, the Organizations filed an action in the district
court against the Acting Defense Secretary, DoD, and a
variety of other federal officers and agencies. In their March
18, 2019 First Amended Complaint, they sought to challenge,
inter alia, any projects undertaken by the Secretary under
§ 2808. California and New Mexico, joined by several other
States, filed a similar action, and their March 13, 2019 First
Amended Complaint also sought to challenge any such
2
On April 29, 2020, Defendants “provide[d] notice [to the district
court] of recent changes to the funding sources for the eleven border
barrier military construction projects the Secretary of Defense decided to
undertake on September 3, 2019, pursuant to 10 U.S.C. § 2808.”
Specifically, on April 27, 2020, the Secretary of Defense authorized
adjustments to the funding of the projects. Twenty-two projects located
in U.S. States were removed from the deferred projects list, and substitute
funds were to be drawn from other sources. In light of these funding
changes, DoD is no longer deferring projects in Colorado, Hawaii, and
New York.

SIERRA CLUB V. TRUMP76
projects. The Plaintiffs’ respective complaints also separately
challenged certain other border-barrier projects undertaken
with funds derived from DoD’s transfers of funds pursuant to
§§ 8005 and 9002 of the Department of Defense
Appropriations Act, 2019 (“DoD Appropriations Act”), Pub.
L. No. 115-245, Div. A, 132 Stat. 2981, 2999, 3042 (2018).
The litigation of those distinct challenges proceeded
(resulting in the opinions we issued in the prior appeals), but
the parties agreed to stay the summary judgment briefing
schedule as to any claims involving § 2808 until the Secretary
of Defense made a final decision as to the use of § 2808 to
undertake military construction projects.
After the Secretary of Defense reached that final decision
on September 3, 2019, as explained above, the parties filed
cross-motions for summary judgment. On October 11, 2019,
the Organizations moved for partial summary judgment on
the ground that DoD’s invocation of § 2808 was unlawful,
and the Organizations requested declaratory relief and a
permanent injunction against the use of § 2808 to carry out
the 11 construction projects. The States filed a comparable
summary judgment motion that same day. Although that
motion sought injunctive and declaratory relief against any
deferral of funding for projects in the nine States, it only
sought direct relief against the border-wall construction itself
with respect to the subset of seven construction projects that
were to be undertaken in California and New Mexico.
Defendants filed cross-motions for summary judgment on the
legality of DoD’s construction efforts under § 2808 with
respect to the corresponding projects at issue in each case.
On December 11, 2019, the district court granted partial
summary judgment and declaratory relief to both the
Organizations and the States, concluding that DoD’s

SIERRA CLUB V. TRUMP77
construction efforts under § 2808 were unlawful. The court
granted permanent injunctive relief to the Organizations
against all 11 projects, and in light of this grant of injunctive
relief, it denied the States’ “duplicative request for a
permanent injunction as moot.” The district court denied
Defendants’ cross-motions for summary judgment in both
cases. The district court stated, however, that it construed
“the Supreme Court’s stay of this Court’s prior injunction
order”—which was the subject of the prior appeals—as
“reflect[ing] the conclusion of a majority of that Court that
the challenged construction should be permitted to proceed
pending resolution of the merits,” and the district court
therefore sua sponte stayed the permanent injunction pending
appeal pursuant to Federal Rule of Civil Procedure 62(c).
Invoking its authority under Federal Rule of Civil Procedure
54(b), the district court entered partial judgments in favor of
both the Organizations and the States.
II
The Government has not contested the Article III standing
of the Plaintiffs in its merits briefs on appeal, but as the
majority notes, “we have ‘an independent obligation to assure
that standing exists, regardless of whether it is challenged by
any of the parties.’” See Maj. Opin. at 19 (quoting Summers
v. Earth Island Inst., 555 U.S. 488, 499 (2009)). As “an
indispensable part of the plaintiff’s case, each element” of
Article III standing “must be supported in the same way as
any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required
at the successive stages of the litigation.” Lujan v. Defenders
of Wildlife (Lujan v. Defenders), 504 U.S. 555, 561 (1992).
Thus, although well-pleaded allegations are enough at the
motion-to-dismiss stage, they are insufficient to establish

SIERRA CLUB V. TRUMP78
standing at the summary-judgment stage. Id. “In response to
a summary judgment motion, . . . the plaintiff can no longer
rest on such mere allegations, but must set forth by affidavit
or other evidence specific facts, which for purposes of the
summary judgment motion will be taken to be true.” Id.
(simplified). In reviewing standing sua sponte in the context
of cross-motions for summary judgment, it is appropriate to
apply the more lenient standard that takes the plaintiffs’
evidence as true and then asks whether a reasonable trier of
fact could find Article III standing. Lujan v. Defenders,
504 U.S. at 563 (applying this standard in evaluating whether
Government’s cross-motion for summary judgment should
have been granted); see also California v. Trump, 963 F.3d
at 954 (Collins, J., dissenting).
In their briefs below concerning the parties’ cross-
motions, the Plaintiffs asserted a variety of theories as to why
they have standing. The Sierra Club and SBCC each asserted
that Defendants’ allegedly unlawful conduct would cause
harm to their members’ recreational, aesthetic, and
environmental interests. California and New Mexico asserted
that Defendants’ allegedly unlawful construction activities
within their borders would cause both harm to the States’
sovereign interests in enforcing their environmental laws as
well as actual environmental harm to animals and plants
within the States. And all the States, except California,
asserted that Defendants’ deferral of funding for military
construction projects located in those States would cause
financial harm to the States in the form of a loss of economic
activity and tax revenues. Accepting the Plaintiffs’ evidence
as true, and drawing all reasonable inferences in their favor,
a reasonable trier of fact could conclude that at least the
Sierra Club has standing in the Organizations’ suit and that at

SIERRA CLUB V. TRUMP79
least California and New Mexico have standing in the States’
suit.
3
A
The Sierra Club has presented sufficient evidence to
demonstrate that it has associational standing under Hunt v.
Washington State Apple Advert. Comm’n, 432 U.S. 333
(1977). Under the Hunt test, an association has standing if
“(a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are
germane to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Id.
at 343. The Sierra Club has presented sufficient evidence as
to each of these three requirements.
To establish that its members would suffer irreparable
harm absent a permanent injunction, the Sierra Club
presented declarations from members who regularly visit
each of the 11 respective project areas. These members
described how the construction and the resulting border
barriers would interfere with their enjoyment of the
surrounding landscape and would impede their ability to
camp, to hike, to hunt, to monitor wildlife, and to participate
in other related activities near the project sites. These injuries
to the members’ recreational, aesthetic, and environmental
3
None of the Plaintiffs addressed Article III standing when they
moved for partial summary judgment, nor did the district court address
Article III standing in its ruling. However, Plaintiffs’ evidentiary showing
of injury in support of a permanent injunction provides a sufficient basis
for evaluating their Article III standing. See California v. Trump,
963 F.3d at 954 n.4 (Collins, J., dissenting).

SIERRA CLUB V. TRUMP80
interests are sufficient to constitute an injury in fact for
Article III purposes. See Lujan v. Defenders, 504 U.S.
at 562–63 (“Of course, the desire to use or observe an animal
species, even for purely esthetic purposes, is undeniably a
cognizable interest for purpose of standing.”). Moreover,
these injuries are fairly traceable to the construction, and an
injunction blocking military construction funds appropriated
for other purposes from being used to build border barriers in
the 11 project areas would redress those injuries by
effectively stopping the construction. See id. at 560–61. This
evidence is therefore sufficient to establish that these
members would have Article III standing to sue in their own
right.
The other Hunt requirements are also satisfied. These
members’ interests are clearly germane to the Sierra Club’s
mission to protect the natural environment and local wildlife
and plant life. And in seeking declaratory and injunctive
relief, the lawsuit does not require the participation of
individual members. See Hunt, 432 U.S. at 343.
Because the Sierra Club satisfies the applicable standing
requirements as to all of the challenged projects in its partial
summary judgment motion, we may proceed to the merits of
the Organizations’ motion without having to address the
standing of SBCC. See Secretary of the Interior v.
California, 464 U.S. 312, 319 n.3 (1984) (“Since the State of
California clearly does have standing, we need not address
the standing of the other [plaintiffs], whose position here is
identical to the State’s.”). And given my view that those
legal challenges fail, I perceive no obstacle to entering
judgment against both the Sierra Club and SBCC without
determining whether SBCC has standing. See Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 98–100 (1998).

SIERRA CLUB V. TRUMP81
B
In my view, California and New Mexico have presented
sufficient evidence to demonstrate that they have standing
based on their inability to enforce their environmental laws.
4
The Secretary of Defense has directed DoD to undertake
the 11 border-barrier projects “without regard to any other
provision of law that could impede such expeditious
construction in response to the national emergency,” and
“[s]uch laws include, but are not limited to, the National
Environmental Policy Act, the Endangered Species Act, . . .
[and] the Clean Water Act.” Because the Clean Water Act
would otherwise require compliance with certain state water
pollution requirements, see, e.g., 33 U.S.C. §§ 1323(a),
1341(a), setting aside the Clean Water Act prevents
California from enforcing state water quality standards.
Similarly, because the Clean Air Act would otherwise require
compliance with certain state air pollution requirements, see,
e.g., 42 U.S.C. §§ 7418(a), 7506(c)(1), setting aside the Clean
Air Act likewise prevents California and New Mexico from
enforcing certain state air quality standards. Because § 2808
itself gives the Secretary the simultaneous authority to
undertake emergency military construction projects and to do
so “without regard to any other provision of law,” this
asserted injury to California and New Mexico’s sovereign
interests is fairly traceable to DoD’s invocation of § 2808,
and an injunction aimed at the use of military construction
funds appropriated for other purposes to build border barriers
4
I express no view as to whether the majority is correct in concluding
that California and New Mexico have standing based on the theory that
the construction will cause actual environmental harm to species within
those States. See Maj. Opin. at 20–25.

SIERRA CLUB V. TRUMP82
under § 2808 in the 11 project areas would redress this injury.
Cf. California v. Trump, 963 F.3d at 960 (Collins, J.,
dissenting) (where preemption of state environmental laws
was due to a different statute than the one authorizing the
transfer of appropriated funds, an injunction aimed at the
transfers would not undo the preemption of state law and
would not redress the associated injury to the States’
sovereign interests).
Because California and New Mexico satisfy the
applicable standing requirements as to all seven of the
challenged projects in their partial summary judgment
motion, we are free to proceed to the merits of the States’
motion without having to address the standing of the other
States. See Secretary of the Interior v. California, 464 U.S.
at 319 n.3. And given my view that those legal challenges
fail, I perceive no obstacle to entering judgment against
California, New Mexico, and the remaining States without
determining whether the remaining States have standing. See
Steel Co., 523 U.S. at 98–100.
5
III
Our next task is to determine whether the Plaintiffs have
asserted a viable cause of action that properly brings the
lawfulness of the construction projects before us. See Air
Courier Conf. v. American Postal Workers Union AFL-CIO,
5
I therefore also have no occasion to address whether the majority is
correct in concluding that the remaining States may assert Article III
standing based on the theory that, due to the deferral of particular military
construction projects within their borders, those States have assertedly
suffered a loss of economic activity and tax revenues. See Maj. Opin.
at 29–33.

SIERRA CLUB V. TRUMP83
498 U.S. 517, 530–31 (1991). The majority holds that the
States have a valid cause of action under the APA to
challenge DoD’s construction efforts and that the
Organizations have a constitutional cause of action under the
Appropriations Clause. See Maj. Opin. at 41, 45. Because I
conclude that the Organizations and States have a cause of
action under the APA to challenge the various projects they
challenge here, there is no need in this case to address
whether any of them would also have a cause of action under
the Constitution or under an equitable “ultra vires” theory.
6

So long as they have at least one viable cause of action, the
merits of whether DoD’s construction projects are lawful are
properly before us. See Air Courier Conf., 498 U.S. at
530–31. And because the success of these other asserted
causes of action ultimately turns on whether DoD’s
construction efforts are lawful, and because I also conclude
that those efforts are lawful, any consideration of whether
these other causes of action actually exist would make no
difference here.
In authorizing suit by any person “adversely affected or
aggrieved by agency action within the meaning of a relevant
statute,” 5 U.S.C. § 702, the APA incorporates the familiar
zone-of-interests test, which reflects a background principle
of law that always “applies unless it is expressly negated,”
Bennett v. Spear, 520 U.S. 154, 163 (1997); see also Lexmark
Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
6
Although the Organizations invoke the APA only as a fallback to
their preferred non-statutory claims, I think it is appropriate to first
consider whether they have a statutory cause of action under the APA. Cf.
Chamber of Commerce v. Reich, 74 F.3d 1322, 1326–27 (D.C. Cir. 1996)
(suggesting that, if a plaintiff relies on both the APA and non-statutory-
review claims, the APA claim should be considered first); see also
California v. Trump, 963 F.3d at 956 (Collins, J., dissenting).

SIERRA CLUB V. TRUMP84
129 (2014).
7
That test requires a plaintiff to “establish that
the injury he complains of (his aggrievement, or the adverse
effect upon him) falls within the ‘zone of interests’ sought to
be protected by the statutory provision whose violation forms
the legal basis for his complaint.” Lujan v. NWF, 497 U.S.
at 883 (quoting Clarke v. Securities Indus. Ass’n, 479 U.S.
388, 396–97 (1987)). This test “is not meant to be especially
demanding.” Clarke, 479 U.S. at 399. Because the APA was
intended to confer “generous review” of agency action, the
zone-of-interests test is more flexibly applied under that
statute than elsewhere, and it requires only a showing that the
plaintiff is “arguably within the zone of interests to be
protected or regulated by the statute or constitutional
guarantee in question.” Association of Data Processing Serv.
Orgs., Inc. v. Camp, 397 U.S. 150, 153, 156 (1970) (emphasis
added); see also Bennett, 520 U.S. at 163 (“what comes
within the zone of interests of a statute for purposes of
obtaining judicial review of administrative action under the
generous review provisions of the APA may not do so for
other purposes”) (simplified). Because an APA plaintiff need
only show that its interests are “arguably” within the relevant
zone of interests, “the benefit of any doubt goes to the
plaintiff.” Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak, 567 U.S. 209, 225 (2012). In my view,
the Plaintiffs have made a sufficient showing to satisfy this
generous zone-of-interests test.
7
The Supreme Court has not squarely addressed whether the zone-of-
interests test applies to a plaintiff who claims to have “suffer[ed] legal
wrong because of agency action,” which is the other class of persons
authorized to sue under the APA, 5 U.S.C. § 702. See Lujan v. National
Wildlife Fed. (Lujan v. NWF), 497 U.S. 871, 882–83 (1990). The States
and the Organizations have not invoked any such theory here, so I have no
occasion to address it.

SIERRA CLUB V. TRUMP85
In applying this test, we must first identify the “statutory
provision whose violation forms the legal basis for [the]
complaint” or the “gravamen of the complaint.” Lujan v.
NWF, 497 U.S. at 883, 886; see also Air Courier Conf.,
498 U.S. at 529. That question is easy here. The
Organizations’ complaint alleges that “[t]he President’s
Proclamation does not meet the conditions required for
invocation of 10 U.S.C. § 2808 because it does not identify an
emergency requiring use of the armed forces”; that “[t]he
President’s Proclamation additionally does not meet the
conditions required for invocation of 10 U.S.C. § 2808
because construction of a border wall is not a military
construction project supporting the armed forces”; and that
therefore, “Defendants are acting ultra vires in seeking to
divert funding or resources pursuant to . . . 10 U.S.C. § 2808
for failure to meet the criteria required under th[at] statute[].”
The States’ complaint alleges that “Defendants have acted
ultra vires in seeking to divert funding pursuant to 10 U.S.C.
section 2808 for failure to meet the criteria required under
that statute” and that “construction of the border wall: (a) is
not a ‘military construction project’; (b) does not ‘require[]
use of the armed forces’; and (c) is not ‘necessary to support
such use of the armed forces.’”
8
Section 2808 is plainly the
“gravamen of the complaint,” and it therefore defines the
applicable zone of interests. Lujan v. NWF, 497 U.S. at 886.
Although both the Organizations and the States also
invoke the Appropriations Clause and the constitutional
separation of powers in contending that Defendants’ actions
8
While their complaints mention the President’s proclamation,
neither the Organizations nor the States seek to overturn the proclamation
or assess its validity. They only challenge whether the declared national
emergency satisfies the qualifications in § 2808.

SIERRA CLUB V. TRUMP86
are unlawful, any such constitutional violations here can be
said to have occurred only if the construction efforts violated
the limitations set forth in § 2808: if Congress authorized
DoD to undertake the construction projects, and to fund those
projects using unobligated funds that were appropriated for
other purposes, then that money has been spent “in
Consequence of Appropriations made by Law,” U.S. CONST.
art. I, § 9, cl. 7, and the Executive has not otherwise
transgressed the separation of powers.
9
All of Plaintiffs’
theories for challenging the construction projects—whether
styled as constitutional claims or as statutory claims—thus
rise or fall based on whether DoD has transgressed the
limitations set forth in § 2808. As a result, § 2808 is
obviously the “statute whose violation is the gravamen of the
complaint.” Lujan v. NWF, 497 U.S. at 886. To maintain a
claim under the APA, therefore, the Plaintiffs must establish
that they are within the zone of interests of § 2808. On this
point, the majority and I are in apparent agreement. See Maj.
Opin. at 42.
10
9
Plaintiffs also contend that § 2808 itself violates the Appropriations
Clause and the constitutional separation of powers, but for reasons that I
explained in rejecting the analogous argument made in the prior appeals,
any such contention is wholly frivolous. See California v. Trump,
963 F.3d at 963 (Collins, J., dissenting).
10
Plaintiffs also assert that DoD’s ability to spend the funds at issue
under § 2808 is displaced by § 739 of Division D of the Consolidated
Appropriations Act, 2019, Pub. L. No. 116-6, 133 Stat. 13, 197 (2019).
I do not separately consider the zone-of-interests test with respect to § 739
because (1) I see no reason why a plaintiff within the zone of interests of
§ 2808 would not be an appropriate plaintiff to make that additional
argument against the lawfulness of DoD’s invocation of § 2808, and
(2) for reasons I shall explain, I agree that the Sierra Club, California, and
New Mexico satisfy the zone-of-interests test with respect to § 2808. In

SIERRA CLUB V. TRUMP87
Having identified the relevant statute, our next task is to
“discern the interests arguably to be protected by the statutory
provision at issue” and then to “inquire whether the plaintiff’s
interests affected by the agency action in question are among
them.” National Credit Union Admin. v. First Nat’l Bank &
Trust Co., 522 U.S. 479, 492 (1998) (simplified). Although
I concluded in the prior appeals that the Plaintiffs were not
within the zone of interests of the particular appropriations
statute at issue there, § 2808 differs from that statute in a
critical respect that warrants a different conclusion here.
In the prior appeals, the transfer of appropriated funds
occurred pursuant to “§ 8005” of the relevant annual
appropriations law. In concluding that the Plaintiffs did not
fall within the zone of interests of that provision, I noted that
§ 8005 did not “mention environmental interests”; that it did
not “require the Secretary to consider such interests”; that
environmental harms were “not among the harms that
§ 8005’s limitations seek to address or protect”; and that
§ 8005 did “not itself mention or contemplate the
displacement of state [environmental] laws.” See California
v. Trump, 963 F.3d at 959–60 (Collins, J., dissenting); see
also id. at 960 (noting that any injury to the States’ sovereign
interests in enforcing their environmental laws was the result
of a “separate determination” under “a completely separate
statute”). Here, the opposite is true. On its face, § 2808
authorizes the Secretary to undertake emergency military
construction “without regard to any other provision of law,”
and although environmental laws are not specifically
mentioned, they are one of the most familiar potential
obstacles to carrying out construction projects, and such laws
any event, I conclude that Plaintiffs’ contentions based on § 739 lack
merit. See infra at 106–107.

SIERRA CLUB V. TRUMP88
are thus within the contemplation of this language. Because
an invocation of § 2808 thus itself sets aside the
environmental laws that protect the interests asserted by the
Plaintiffs here, the limitations in § 2808 on the exercise of
that authority arguably protect the Organizations’
environmental interests and the States’ sovereign interests in
enforcing their environmental laws. Because the Plaintiffs’
asserted harms are thus “among the harms that [§ 2808’s]
limitations seek to address or protect,” and § 2808 “itself . . .
contemplate[s] the displacement of state [environmental]
laws,” Plaintiffs are within the zone of interests of § 2808.
California v. Trump, 963 F.3d at 959–60 (Collins, J.,
dissenting).
The Supreme Court’s decision in Patchak confirms the
correctness of this conclusion. In Patchak, the Secretary of
the Interior had been granted statutory authority to “acquire
property ‘for the purpose of providing land for Indians.’”
567 U.S. at 211 (quoting 25 U.S.C. § 465). The plaintiff
lived near land that the Secretary had acquired in trust for a
tribe seeking to open a casino, and the plaintiff claimed that
he would suffer “economic, environmental, and aesthetic
harms from the casino’s operation.” Id. at 211–12. In
addressing whether the plaintiff’s asserted harms fell within
the statute’s zone of interests, the Court emphasized that
“[t]he question is not whether § 465 seeks to benefit Patchak;
everyone can agree it does not.” Id. at 225 n.7. “The
question is instead . . . whether issues of land use (arguably)
fall within § 465’s scope—because if they do, a neighbor
complaining about such use may sue to enforce the statute’s
limits.” Id. (emphasis added). The Court answered that
question in the affirmative, because the land-acquisition
decisions contemplated by the statute were “closely enough
and often enough entwined with considerations of land use”

SIERRA CLUB V. TRUMP89
to make any difference between the two “immaterial.” Id.
at 227. A similar logic applies here. As is confirmed by the
Secretary’s memorandum simultaneously invoking § 2808
and waiving environmental laws under that statute,
environmental considerations are entwined with military
construction under § 2808 “from start to finish,” id., and are
plainly within the “scope” of that provision, id. at 225 n.7.
Because the Sierra Club’s environmental interests, and
California’s and New Mexico’s sovereign interests, are
affected by the waiver of environmental laws occasioned by
the invocation of § 2808, those Plaintiffs are arguably within
§ 2808’s zone of interests and “may sue” under the APA “to
enforce the statute’s limits.” Id.
11
IV
Although the Sierra Club, California, and New Mexico
have a cause of action under the APA, I conclude that their
claims fail on the merits because DoD properly invoked
§ 2808 in undertaking these 11 projects.
Section 2808(a) provides:
In the event of a declaration of war or the
declaration by the President of a national
emergency in accordance with the National
Emergencies Act (50 U.S.C. 1601 et seq.) that
11
Because this narrower ground provides an adequate basis for
concluding that California and New Mexico have a cause of action under
the APA, I express no view as to whether the majority is correct in its
broader theory that any State that “stood to benefit significantly from
federal military construction funding” falls within the zone of interests of
§ 2808. See Maj. Opin. at 43.

SIERRA CLUB V. TRUMP90
requires use of the armed forces, the Secretary
of Defense, without regard to any other
provision of law, may undertake military
construction projects, and may authorize the
Secretaries of the military departments to
undertake military construction projects, not
otherwise authorized by law that are necessary
to support such use of the armed forces. Such
projects may be undertaken only within the
total amount of funds that have been
appropriated for military construction,
including funds appropriated for family
housing, that have not been obligated.
10 U.S.C. § 2808(a). “Military construction” is defined by
the statute as “any construction, development, conversion, or
extension of any kind carried out with respect to a military
installation,” as well as “any acquisition of land or
construction of a defense access road.” Id. § 2801(a)
(emphasis added). A “military installation,” in turn, is
defined as “a base, camp, post, station, yard, center, or other
activity under the jurisdiction of the Secretary of a military
department.” Id. § 2801(c)(4) (emphasis added).
Under the plain language of these provisions, three
requirements must be satisfied in order for DoD’s
construction activities to comply with § 2808. First, the
President must have declared that there exists a national
emergency that requires use of the armed forces. Second, the
11 border-barrier construction projects must qualify as
“military construction” projects within the meaning of the
statute. And third, the projects must be “necessary to support
[the] use of the armed forces.” Here, all three requirements
are satisfied.

SIERRA CLUB V. TRUMP91
A
Section 2808 authorizes the undertaking of military
construction projects “[i]n the event of a declaration of war or
the declaration by the President of a national emergency in
accordance with the National Emergencies Act [“NEA”]
(50 U.S.C. 1601 et seq.) that requires use of the armed
forces.” 10 U.S.C. § 2808(a). In my view, this requirement
for invoking § 2808 is satisfied here.
The President has issued Proclamation 9844 expressly
invoking § 201 of the NEA, which is the provision of the
NEA that authorizes the President to declare a national
emergency that would, in turn, authorize the invocation of
emergency powers set forth in other statutes. 50 U.S.C.
§ 1621(a). Specifically, Proclamation 9844 expressly
declares that “[t]he current situation at the southern border
. . . constitutes a national emergency,” and it briefly explains
the basis for the President’s determination. 84 Fed. Reg.
at 4949. And in accordance with § 301 of the NEA, which
requires the President to personally specify which emergency
powers have been invoked, the Proclamation further
determines “that this emergency requires use of the Armed
Forces and . . . that the construction authority provided in
section 2808 of title 10, United States Code, is invoked and
made available.” Id. There has thus been an express
“declaration by the President of a national emergency in
accordance with the [NEA] that requires use of the armed
forces,” 10 U.S.C. § 2808(a), and this element of § 2808 is
therefore satisfied here.
The States do not contest this element, but the
Organizations do, at least in part. The Organizations do not
dispute that the President has properly declared a national

SIERRA CLUB V. TRUMP92
emergency,
12
and they acknowledge that the President has
expressly declared that this emergency requires use of the
armed forces. They contend, however, that the national
emergency does not actually require use of the armed forces
and that § 2808 therefore may not be invoked. This argument
fails.
The relevant language of § 2808 states that, “[i]n the
event of . . . the declaration by the President of a national
emergency in accordance with the [NEA] that requires use of
the armed forces,” the Secretary of Defense may undertake
appropriate military construction. 10 U.S.C. § 2808(a). At
the outset, it is important to note that the quoted statutory
requirement is not satisfied unless (at a minimum) the
President declares, not just a “national emergency,” but
specifically a “national emergency . . . that requires use of the
armed forces.” No party disputes this point, but in any event,
it is the grammatically preferable reading of the statutory text.
Because the phrase “that requires use of the armed forces”
clearly modifies “national emergency”—which is the
immediate object of the “declaration”—the most natural
reading of the language is that the President must declare a
“national emergency . . . that requires use of the armed
forces.” It seems highly unlikely that, in using this phrasing,
Congress intended for the President merely to declare an
“emergency” and then to have some unspecified person
separately determine that the emergency is one “that requires
12
We therefore have no occasion in this case to address the issues
raised by certain amici curiae as to whether the President was correct in
concluding that the situation at the southern border properly qualifies as
a “national emergency.” We likewise are not presented with any issue
concerning the availability of any other emergency authority under any
other statute, nor do we have before us any possible constitutional
limitations on the use of any such other authorities.

SIERRA CLUB V. TRUMP93
use of the armed forces.” Indeed, given that the “Secretary of
Defense” is expressly the one to whom § 2808 grants the
emergency construction authority, one would have expected
that, if someone other than the President was intended to
make this determination, it would necessarily be the Secretary
of Defense—in which case one would have expected to see
such a specification included in the later language in § 2808
about the authority of the “Secretary of Defense.”
But once it is recognized that the President’s
“declaration” must itself include the determination that the
emergency “requires use of the armed forces,” the
Organizations’ statutory argument collapses. By its terms,
this statute is triggered, not by the existence of the specified
kind of “national emergency,” but by the “event of a
declaration” of such an emergency. 10 U.S.C. § 2808(a)
(emphasis added). If (as I have explained) the requirement
that the emergency must be one “that requires use of the
armed forces” pertains to the “declaration” itself, then that
phrase merely describes the content of the required
“declaration” and does not supply a freestanding requirement
to be examined separately from that declaration. As a result,
the statute does not require a separate inquiry into whether the
findings made by the President in the required declaration are
substantively valid; it merely requires a “declaration” meeting
the statutory requisites. Those are that the declaration be
made “by the President”; that it be made “in accordance with
the [NEA]”; and that it declare a “national emergency” and
declare that the emergency “requires use of the armed
forces.” 10 U.S.C. § 2808(a). All three requirements have
been met here, as explained earlier. This portion of the
statute requires nothing more, and so this initial element of
§ 2808 is satisfied.

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B
To qualify as “military construction” that is authorized
under the emergency authority granted in § 2808(a), the
construction generally must be carried out “with respect to a
military installation.” 10 U.S.C. § 2801(a).
13
Section
2801(c)(4) defines the term “military installation” to “mean[]
a base, camp, post, station, yard, center, or other activity
under the jurisdiction of the Secretary of a military
department.” Id. (emphasis added). Accordingly, so long as
the border-barrier construction occurs with respect to one of
these enumerated items, that construction qualifies as
“military construction.” Plaintiffs do not dispute that the two
projects that are taking place within the Barry M. Goldwater
Range are being carried out with respect to a “military
installation,” see Maj. Opin. at 57 n.10, and so the only
question here is whether the other nine projects also fit the
definition of “military construction.” Because those nine
construction projects involve an “activity under the
jurisdiction” of a military Secretary, they constitute “military
construction” within the plain meaning of the statute.
By its terms, the statute authorizes any construction
project “of any kind” that is “carried out with respect to” an
“activity under the jurisdiction of the Secretary of a military
department.” 10 U.S.C. § 2801(a), (c)(4) (emphasis added).
An “activity” is a “specified pursuit in which a person
partakes,” see Activity, AMERICAN HERITAGE DICTIONARY
(5th ed. 2018), or in which a group of persons participates,
see Activity, BLACK’S LAW DICTIONARY (11th ed. 2019)
13
One exception, which is relevant to certain of DoD’s actions here,
is that “military construction” also “includes . . . any acquisition of land”
by DoD, without any further statutory limitation. 10 U.S.C. § 2801(a).

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(“The collective acts of one person or of two or more people
engaged in a common enterprise.”); see also Activity,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY
(“WEBSTER’S THIRD”) (“an occupation, pursuit, or recreation
in which a person is active”). Although “activity under the
jurisdiction” of a military department thus broadly denotes
any specific task of those departments, and does not itself
denote a place, the term embraces places under military
jurisdiction, because activities under military jurisdiction
necessarily occur there. As the Supreme Court has explained,
a “place . . . where military duty is performed” is
“synonymous with the exercise of military jurisdiction,” and
that “is precisely how the term ‘military installation’ is used”
in § 2801(c)(4). United States v. Apel, 571 U.S. 359, 368
(2014). Accordingly, land that is under military jurisdiction
counts as a “military installation.” And, as the majority
notes, “Plaintiffs do not contest that the sites are under
military jurisdiction.” See Maj. Opin. at 61. Indeed, the point
is incontestable, because the land involving the nine relevant
construction projects has been lawfully assigned to the
jurisdiction of U.S. Army Garrison Fort Bliss, an Army base.
This element of § 2808 is therefore also satisfied.
The majority nonetheless rejects this reading as contrary
to ejusdem generis, “the statutory canon that where general
words follow specific words in a statutory enumeration, the
general words are construed to embrace only objects similar
in nature to those objects enumerated by the preceding
specific words,” Circuit City Stores, Inc. v. Adams, 532 U.S.
105, 114–15 (2001) (simplified). See Maj. Opin. at 60–61.
According to the majority, the nine project areas at issue here
are insufficiently similar to the enumerated items—i.e., a
“base, camp, post, station, yard, or center”—to be properly
included within the final generic phrase, “other activity under

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the jurisdiction” of a military department. Id. at 66. For
several reasons, this argument fails.
As an initial matter, the majority overlooks the fact that
ejusdem generis “does not control . . . when the whole context
dictates a different conclusion.” Norfolk & W. Ry. Co. v.
American Train Dispatchers Ass’n, 499 U.S. 117, 129 (1991).
Here, the generic term used—“other activity”—is notably
dissimilar from each of the terms which precedes it, thereby
precluding any effort to invoke ejusdem generis to narrow it.
If the statute had referred to any “base, camp, post, station,
yard, center, or other place under the jurisdiction” of the
military, the majority’s argument might have had some
superficial force—although it still would be wrong for the
additional reasons I will describe momentarily. But the
generic term “activity” refers to actions, not places, and is
simply not within the same class as the enumerated items.
This shift unmistakably denotes an intention to go beyond the
ordinary, established military facilities that are enumerated
and to allow construction in support of whatever activities the
military needs to conduct to address the national emergency.
Ironically, consideration of this canon thus points towards an
even broader reading of the generic term than the
Government urges here. And Plaintiffs would plainly lose
under that broader view, because it is simply indisputable that
the construction projects here are all “carried out with respect
to” an “activity under the jurisdiction” of a military
department. 10 U.S.C. § 2801(a), (c)(4) (emphasis added).
In any event, the majority’s application of ejusdem
generis fails for the additional reason that it overlooks the
fact that the statute itself tells us what the unifying
characteristic of the enumerated items is—namely, they are
all places “under the jurisdiction of the Secretary of a

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military department.” 10 U.S.C. § 2801(c)(4) (emphasis
added). Where, as here, the generic term explicitly defines
the common feature, it would “not give the words a faithful
interpretation if we confined them more narrowly than the
class of which they are a part.” Cleveland v. United States,
329 U.S. 14, 18 (1946) (rejecting invocation of ejusdem
generis to narrow the scope of the generic term “any other
immoral purpose” in the Mann Act, so that it would only
apply to sex trafficking and not to polygamy). The statute
thus requires nothing more than that the place be “under the
jurisdiction” of a military department, and all agree that that
requirement is satisfied here.
The majority contends that this reading of the text cannot
be correct because the resulting flexibility in emergency
construction authority would be, in the majority’s view,
unreasonably broad and “would run afoul of the constitutional
separation of powers.” See Maj. Opin. at 63. Both
contentions are wrong.
As to the first, the majority overlooks the fact that the
exact same grant of construction authority at issue here
applies, not just in the event of a “declaration . . . of a national
emergency,” but also “[i]n the event of a declaration of war.”
10 U.S.C. § 2808(a) (emphasis added). It is hardly surprising
that Congress has granted extremely broad emergency
authority to “redirect [construction] funds at will without
regard for the normal appropriations process” in the event of
a formal declaration of war. See Maj. Opin. at 63. Given that
the statute grants, in a single clause, the very same wartime
authority in the event of a declaration of a national
emergency, we lack any textual basis whatsoever for
imposing artificial limits on the breadth of that authority. The
majority obviously thinks that it was unwise for the Executive

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to have such an “unnecessarily expansive” construction
authority in the event of a national emergency, see id.
(citation omitted), but that is unmistakably what Congress
said in § 2808(a). The majority vaguely hints that it does not
think that the current situation constitutes a real “national
emergency” that would warrant such broad authority. See id.
at 70 (noting that the NEA should “be utilized only in time of
genuine emergency” (citation omitted)). But no party here
contends that the President’s declaration of a national
emergency was not “in accordance with the [NEA],” as
required by § 2808(a), and so that issue is not before us. See
supra note 12.
The majority is also wrong in contending that Congress’s
grant of such flexibility raises separation-of-powers concerns.
The majority argues that allowing this much flexibility over
how to spend funds appropriated for military construction
would infringe on Congress’s “exclusive control over
appropriations.” See Maj. Opin. at 63. The suggestion is, as
I have previously explained, “‘wholly insubstantial and
frivolous,’” see California v. Trump, 963 F.3d at 963
(Collins, J., dissenting) (quoting Bell v. Hood, 327 U.S. 678,
682–83 (1946)), given that the Constitution indisputably
allows Congress to make a “‘lump-sum appropriation’” that
leaves the exact “‘allocation of funds’” to the discretion of
the Executive, id. (quoting Lincoln v. Vigil, 508 U.S. 182, 192
(1993)) (emphasis added). The emergency construction
authority granted by § 2808 is not meaningfully
distinguishable, for constitutional purposes, from a lump-sum
appropriation for military construction. The majority states
that there is nonetheless an appropriations-power concern
here because Congress has made clear its opposition to these
specific projects, “though imperfectly,” by “declin[ing] to
fund the very projects at issue” in DHS’s appropriations

SIERRA CLUB V. TRUMP99
statute and by “attempt[ing] to terminate the declaration of a
national emergency (twice).” See Maj. Opin. at 63–64. But
Congress has not enacted any relevant limitation, and under
INS v. Chadha, 462 U.S. 919 (1983), we have no business
undertaking to give legal effect to our own perceptions of the
“big-picture ‘denial’ [of funding] that we think is implicit in
the ‘real-world events in the months and years leading up to
the 2019 appropriations bills.’” California v. Trump,
963 F.3d at 972 (Collins, J., dissenting) (citation omitted).
Because the 11 border-barrier construction projects here
are all taking place with respect to land that is under the
jurisdiction of the Secretary of a military department, they are
taking place with respect to a military installation. This
requirement of § 2808 is thus also satisfied.
C
The final requirement of § 2808 is that the military
construction projects undertaken by the Secretary of Defense
must be “necessary to support such use of the armed forces.”
10 U.S.C. § 2808(a). In determining that this requirement
was satisfied with respect to the 11 border-barrier
construction projects at issue here, the Secretary of Defense
explained his reasoning as follows:
These projects will deter illegal entry,
increase the vanishing time of those illegally
crossing the border, and channel migrants to
ports of entry. They will reduce the demand
for DoD personnel and assets at the locations
where the barriers are constructed and allow
the redeployment of DoD personnel and assets
to other high-traffic areas on the border

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without barriers. In short, these barriers will
allow DoD to provide support to DHS more
efficiently and effectively. In this respect, the
contemplated construction projects are force
multipliers.
This determination is more than sufficient to satisfy this final
requirement of § 2808.
The Government contends that the Secretary’s
determination is “committed to agency discretion by law,”
5 U.S.C. § 701(a)(2), and is therefore unreviewable under the
APA. In my view, it is not necessary to decide that issue,
because even assuming arguendo that this APA exception is
inapplicable, the Secretary’s determination is well within the
bounds of § 2808. By requiring that the construction be
“necessary” to the contemplated use of the armed forces,
§ 2808 does not limit the Secretary to only those projects that
are, as the majority contends, “absolutely needed” or
“required.” See Maj. Opin. at 49 (citation omitted). As the
Supreme Court has explained, the term “necessary” does not
always denote “essential,” because “in ordinary speech, the
term is often used more loosely to refer to something that is
merely important or strongly desired.” Ayestas v. Davis,
138 S. Ct. 1080, 1093 (2018) (emphasis added); see also id.
(“necessary” may “import that which is only convenient,
useful, appropriate, suitable, proper, or conducive to the end
sought” (citation omitted)). By confirming that this broader
meaning of “necessary” is consistent with how the word is
used in “ordinary speech,” see id., Ayestas puts the lie to the
majority’s untenable contention that this broader meaning is
not consistent with “any ordinary understanding of the word,”
see Maj. Opin. at 49 (emphasis added), and is instead a
peculiarity of the caselaw concerning the Constitution’s

SIERRA CLUB V. TRUMP101
Necessary and Proper Clause, id. at 52–54.
14
Indeed, the
majority acknowledges that “necessary” has the same general
meaning as “required,” and I have already explained why that
latter term likewise “includes ‘something that is wanted or
needed’ or ‘something called for or demanded.’” California
v. Trump, 963 F.3d at 974 (Collins, J., dissenting) (quoting
Requirement, WEBSTER’S THIRD). We should be loathe to
reject this familiar and more flexible use of the term,
especially given that we are construing the scope of the
emergency authority that is available to be exercised during
the course of a “war” or “national emergency.” Cf. Winter v.
Natural Res. Def. Council, 555 U.S. 7, 24 (2008) (“great
deference” is generally given to the military’s judgment of
the importance of a military interest).
With this understanding of “necessary” in mind, I think it
is clear that the Secretary properly determined that the
construction projects here are “necessary to support such use
of the armed forces.” 10 U.S.C. § 2808(a). By referring to
“such use of the armed forces,” the statute refers back to the
“use of the armed forces” that the President has determined
is “require[d]” by the “national emergency” that he has
declared. Id. (emphasis added). In Proclamation 9844, the
President noted that DoD had been “provid[ing] support and
resources to the Department of Homeland Security at the
southern border,” and he determined that it is “necessary for
the Armed Forces to provide additional support to address the
14
The majority attempts to distinguish Ayestas on the ground that the
relevant statutory phrase there was “reasonably necessary” and not just
“necessary.” See Maj. Opin. at 51 n.9. This effort fails, because, in the
course of construing the statutory language at issue in Ayestas, the
Supreme Court first addressed the use of the word “necessary”—by
itself—in “ordinary speech,” and it is that explication that refutes the
majority’s flawed analysis. See 138 S. Ct. at 1093.

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crisis” at the southern border. 84 Fed. Reg. at 4949. This
determination does not entail an entirely novel use of the
armed forces, because Congress has repeatedly recognized a
support role for DoD at the border. See, e.g., 10 U.S.C.
§§ 251–252, 271–284. Because the “use of the armed forces”
that has been declared necessary by the President is thus the
provision of support to DHS in securing the border, the only
question before us is whether the Secretary properly
determined that the 11 construction projects are “necessary to
support such use of the armed forces.” 10 U.S.C. § 2808(a)
(emphasis added). That standard is easily satisfied, because
the construction projects, by “allow[ing] the redeployment of
DoD personnel and assets to other high-traffic areas on the
border without barriers,” will permit “DoD to provide support
to DHS more efficiently and effectively.” By allowing DoD
to help cover a wider area with fewer personnel, the
“contemplated construction projects are force multipliers.”
The majority wrongly ignores the statutory language
focusing on whether the construction projects are necessary
to support “such use of the armed forces,” 10 U.S.C.
§ 2808(a)—viz., the use of the armed forces to “provide
support and resources to the Department of Homeland
Security at the southern border.” 84 Fed. Reg. at 4949. As a
result, the majority gets things exactly backwards when it
says that the construction does not support such use of the
armed forces here because it will “support and benefit DHS.”
See Maj. Opin. at 48–50. Given that, under the terms of the
statute, military support for DHS’s mission is the relevant
“use of the armed forces” that has been declared by the
President, the fact that the construction furthers that mission
weighs decidedly in favor of finding that it is “necessary to
support such use of the armed forces.” 10 U.S.C. § 2808(a).
The majority’s contrary conclusion rests on the implicit view

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that this court gets to substitute its own view of when the
armed forces are needed in a national emergency for the view
of the President as stated in the emergency declaration.
Nothing in § 2808(a) assigns us that task. See supra at 93.
As relevant here, § 2808 merely instructs us to consider
whether the Secretary properly determined that these projects
are “necessary” to support the President’s declared use of the
armed forces.
* * *
Because all of the requirements of § 2808(a) have been
met, the 11 military construction projects at issue here were
authorized by that section. Plaintiffs’ claims resting on a
contrary view fail on the merits.
V
Plaintiffs’ final argument on the merits is that, even if the
construction was otherwise authorized under § 2808, DoD’s
power to invoke that authority was effectively disabled by
§ 739 of the Financial Services and General Government
Appropriations Act, 2019, which is Division D of the
Consolidated Appropriations Act, 2019. This argument is
unavailing.
Section 739 provides, in its entirety, as follows:
None of the funds made available in this or
any other appropriations Act may be used to
increase, eliminate, or reduce funding for a
program, project, or activity as proposed in
the President’s budget request for a fiscal year
until such proposed change is subsequently

SIERRA CLUB V. TRUMP104
enacted in an appropriation Act, or unless
such change is made pursuant to the
reprogramming or transfer provisions of this
or any other appropriations Act.
Pub. L. No. 116-6, Div. D, § 739, 133 Stat. 13, 197 (2019).
Plaintiffs’ argument is that DoD’s invocation of emergency
military construction authority alters funding levels from
what was proposed in the budget or enacted in the 2019
appropriations statutes, and that § 2808 cannot be used to
justify that alteration because it is not a provision of an
“appropriations Act.” Id. Therefore, according to Plaintiffs,
§ 739 bars any use under § 2808 of any “funds made
available” in any appropriations act. This argument lacks
merit, because it fails to construe the language of § 739 in
light of the appropriations context against which its terms
must be understood. Home Depot U.S.A., Inc. v. Jackson,
139 S. Ct. 1743, 1748 (2019) (“It is a fundamental canon of
statutory construction that the words of a statute must be read
in their context and with a view to their place in the overall
statutory scheme.”) (simplified).
As I have previously explained, the terms of an
appropriations-law restriction “can only be understood
against the backdrop of th[e] [appropriations] process” and
must take account of any settled meanings attached to the
particular terms used as well as any established understanding
surrounding the budgetary practices being referenced.
California v. Trump, 963 F.3d at 968 (Collins, J., dissenting).
Here, the relevant language of § 739 refers to action to
“[1] increase, eliminate, or reduce funding [2] for a program,
project, or activity,” and both portions of this phrase align
with familiar concepts in the budgetary process.

SIERRA CLUB V. TRUMP105
Specifically, the phrase “program, project, or activity”
(“PPA”) is a phrase of art that refers to an “element within a
budget account.” See U.S. GOV’T ACCOUNTABILITY OFF.
(“GAO”), GAO-05-734SP, A Glossary of Terms Used in the
Federal Budget Process 80 (2005) (“Glossary”); see
generally 31 U.S.C. § 1112 (requiring GAO to “establish,
maintain, and publish standard terms and classifications for
fiscal, budget, and program information of the Government”).
“For annually appropriated accounts, the Office of
Management and Budget (OMB) and agencies identify PPAs
by reference to committee reports and budget justifications.”
Glossary, supra, at 80. Similarly, an action to “increase,
eliminate, or reduce” funding for a PPA corresponds to the
familiar budgetary concepts of a reprogramming or transfer
of funds. The GAO defines a “reprogramming” as “[s]hifting
funds within an appropriation or fund account to use them for
purposes other than those contemplated at the time of
appropriation; it is the shifting of funds from one object class
to another within an appropriation or from one program
activity to another.” Id. at 85 (emphasis added). A transfer,
by contrast, is defined as a “[s]hifting of all or part of the
budget authority in one appropriation or fund account to
another.” Id. at 95; see also California v. Trump, 963 F.3d at
969 (Collins J., dissenting). Viewed against this backdrop,
§ 739’s reference to action that would “increase, eliminate, or
reduce funding for a program, project, or activity” clearly
refers to the sort of change in funding that would require the
agency to undertake a formal reprogramming or transfer.
That reading of the phrase is further confirmed by the
remainder of § 739, which states that such action may not be
undertaken “unless such change is made pursuant to the
reprogramming or transfer provisions of this or any other
appropriations Act.” See 133 Stat. at 197 (emphasis added).

SIERRA CLUB V. TRUMP106
This understanding of § 739 confirms that it does not
apply to an invocation of emergency military construction
authority under § 2808. Under longstanding DoD budgetary
guidelines, an allocation of funds under the emergency
military construction authority in § 2808 is not considered to
be a “reprogramming” or “transfer” because such allocations
take place outside of “the normal planning, programming, and
budgeting process.” See Department of Defense Directive
4270.5, ¶ 4.1 (February 12, 2005); see also id. at ¶ 4.2
(“Reprogramming is not necessary for projects under
Sections 2804 and 2808[.]”). Congress is presumably well
aware of this settled understanding as to how an allocation of
funds under § 2808 is considered for budgetary purposes. See
Lorillard v. Pons, 434 U.S. 575, 581 (1978); see also
Bragdon v. Abbott, 524 U.S. 624, 631, 645 (1998); see
generally U.S. GOV’T ACCOUNTABILITY OFF., PRINCIPLES OF
FEDERAL APPROPRIATIONS LAW (4th ed. 2016 rev.), pt. B,
§ 7, 2016 WL 1275442, at *6–7 (whether a reprogramming
has occurred would be evaluated in light of the relevant
budgetary documents and understandings). Indeed, Directive
4270.5 is prominently cross-referenced in the discussion of
§ 2808 authority contained in DoD’s governing “Financial
Management Regulation,” see DoD Financial Management
Regulation 7000.14-R, Vol. 3, Chap. 17 at 17-17 (2019), and
Congress is obviously familiar with that important document,
which it has even expressly cited in the 2019 military
construction appropriations law, see Military Construction,
Veterans Affairs, and Related Agencies Appropriations Act,
2019, Pub. L. No. 115-244, Div. C, § 123, 132 Stat. 2897,
2953 (2018). Section 739’s reference to the sort of actions
that would trigger a reprogramming or transfer thus does not
include an allocation of funding under the emergency military
construction authority granted in § 2808.

SIERRA CLUB V. TRUMP107
Any doubt on this score is confirmed by the doctrine
disfavoring repeals by implication, which “‘applies with full
vigor when . . . the subsequent legislation is an
appropriations measure.’” Tennessee Valley Auth. v. Hill,
437 U.S. 153, 190 (1978) (quoting Committee for Nuclear
Responsibility, Inc. v. Seaborg, 463 F.2d 783, 785 (D.C. Cir.
1971)); see also Rostker v. Goldberg, 453 U.S. 57, 74–75
(1981) (noting the “sound principle[] that appropriations
legislation should not be considered as modifying substantive
legislation.”). Section 2808 allows the Secretary of Defense
to “undertake military construction projects” notwithstanding
“any other provision of law.” It would be remarkable to
conclude that this emergency authority—a critical power that
allows our nation and military to respond quickly in times of
war or national emergency—was impliedly (if not
accidentally) disabled in a later appropriations bill that makes
no reference to § 2808 or to emergency powers. This canon
further confirms what the budgetary context already makes
clear, which is that § 739 poses no bar to DoD’s use of
§ 2808.
VI
Based on the foregoing, I conclude that at least the Sierra
Club, California, and New Mexico have Article III standing.
They have a cause of action under the APA to challenge these
§ 2808 military construction projects, but their claims fail on
the merits as a matter of law because the projects comply
with the limitations in § 2808 and because § 739 is
inapplicable here. I therefore would reverse the district
court’s partial grant of summary judgment to the
Organizations and to the States and would remand with

SIERRA CLUB V. TRUMP108
instructions to grant Defendants’ motions for summary
judgment on this set of claims.
15
I respectfully dissent.
15
In light of my resolution of the merits, I would not terminate the
district court’s stay pending appeal, and I would deny the Organizations’
emergency motion to lift the stay.