In a significant April 2026 decision, the U.S. Court of Appeals for the Eleventh Circuit vacated a district court injunction that had halted operation of an immigration detention facility constructed in the Florida Everglades (“the Facility”). The case, Friends of the Everglades v. Secretary of Homeland Security, No. 25-12873, turned on two threshold issues: (1) whether the plaintiffs challenged a final agency action under the Administrative Procedure Act (APA), and (2) whether the project constituted a major federal action under the National Environmental Policy Act (NEPA).  The Eleventh Circuit answered both questions in the negative, concluding that the plaintiffs were unlikely to succeed on the merits and that the preliminary injunction should not have been granted.

The court first held that the plaintiffs failed to identify a reviewable final agency action, which is a jurisdictional prerequisite under the APA.  The plaintiffs argued that federal officials’ involvement—particularly the alleged failure to prepare an Environmental Impact Statement (EIS)—constituted a final agency action.  The Eleventh Circuit disagreed, emphasizing that the APA permits review only of “discrete” and “circumscribed” agency actions, not broad programs or sequences of conduct. Moreover, the court found that a federal “request” or encouragement for a state to undertake a project does not qualify as final agency action because it does not determine legal rights or obligations.  Perhaps most critically with respect to the Facility, the court found no federal funding decision had been made, and until an agency actually approves or disburses funds, there is no final agency action tied to that funding.  The court also rejected attempts to aggregate various federal activities (e.g., detention standards, potential agreements under 8 U.S.C. § 287(g)) into a single actionable decision. Without a concrete, binding agency statement or action, there was nothing “final” for purposes of APA review.

The Eleventh Circuit next addressed whether the detention facility qualified as a “major federal action” triggering NEPA review.  This analysis was heavily shaped by recent statutory amendments to NEPA resulting from the Fiscal Responsibility Act of 2023, which excluded projects with minimal federal involvement or funding from being considered as major federal actions.

For non-federal projects (like a state-built facility), the court held that NEPA applies only if there is both more than minimal federal funding, and more than minimal federal control or responsibility. Under this approach, the court determined that the construction and operation of the Facility was exempt; first, because the Facility was constructed, funded, and operated by the State of Florida, not the federal government.  Second, the court held that the federal involvement—such as post-construction compliance checks or potential future funding—did not amount to control over the project’s outcome.  The court also emphasized that federal standards or cooperation do not “federalize” a state project.

This decision illustrates the practical, narrowing effect of the 2023 NEPA amendments.  Where previously, courts took a more expansive view of what might “federalize” a state project (i.e., federal approvals and oversight), this decision seems to impose a more formalistic and stringent standard for necessitating environmental review under NEPA.  

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