Gilroy and Williamsport ICE-Facility Injunctions Rest on the Same Legal Theory: a NEPA Categorical Exclusion Invoked Then Found Arbitrary and Capricious

Correction, 2026-09-17: The Williamsport half of this entry originally rested on a Civil Rights Litigation Clearinghouse digest of Judge Hurson’s opinion, not the opinion’s own text. ECF 43 has now been retrieved directly (D. Md. docket 1:26-cv-00733-BAH, via RECAP/CourtListener docket 72313096). The digest was directionally accurate but imprecise on one material point: Williamsport was not a single one-page categorical exclusion like Gilroy’s GSA Form 4002. DHS’s Record of Environmental Consideration (REC) for Williamsport invoked three separate categorical exclusions stacked together — coded C1, D1, and E2* in the DHS NEPA Instruction Manual (real-estate acquisition, repair/maintenance, and limited new construction, respectively) — and the court found the stacked application of all three “arbitrary and capricious.” This is a stronger, not weaker, version of the finding below: Williamsport’s agency record shows more exclusion-stacking than Gilroy’s single-form approach, not the same one-page instrument. The “one narrow mechanism” framing in the paragraph below should be read as “categorical exclusion generally,” not “the identical GSA Form 4002” — see the Part 2 template-test finding at wexmac-titus-warehouse-census and retrieve-williamsport-ecf-43-and-test-whether-gsa-form-4002-categorical-exclusion-recurs-across-wexmac-titus-sites for the full site-by-site comparison.

The preliminary injunctions freezing ICE detention-facility construction at Gilroy, California (Judge Eumi K. Lee, N.D. Cal., 5:26-cv-05604-EKL, order filed 2026-09-11) and Williamsport, Maryland (Judge Brendan A. Hurson, D. Md., 1:26-cv-00733-BAH, memorandum opinion filed 2026-04-17 (ECF 43), following the order granting in part filed 2026-04-15 (ECF 42)) rest on the same narrow legal theory, not merely the same statute. In both cases the federal government invoked a NEPA categorical exclusion (Gilroy: one; Williamsport: three, stacked) to avoid preparing an environmental assessment or impact statement before construction, and the court held — under Administrative Procedure Act arbitrary-and-capricious review, 5 U.S.C. § 706(2)(A) — that the categorical-exclusion determination itself did not survive scrutiny.

The shared mechanism, read from the courts’ own reasoning

Gilroy (read directly from the order, Dkt. 66): GSA completed “GSA Form 4002 (Automatic Categorical Exclusion NEPA Memo to File)” to invoke an exclusion covering “acquisition of space within an existing structure … where no change in the general type of use and only minimal change from previous occupancy level is proposed.” Judge Lee found this “facially implausible” on three grounds — the project is substantial demolition/construction, not mere acquisition; converting a 30-year agricultural-research/hazardous-waste site to detention use is a change in general type of use; and a threefold occupancy increase (40 staff to an estimated 120 people/day) is not “minimal.” Independently, the court found “extraordinary circumstances” (unaddressed hazardous-contamination risk from demolition at a former Syngenta Seeds hazmat site) would defeat the exclusion even if its literal terms were met. Holding, quoted: “Plaintiffs will likely succeed on their NEPA claim because the Federal Defendants invoked an inapposite categorical exclusion and failed to consider whether extraordinary circumstances required a more robust environmental review.”

Williamsport (read directly from ECF 43, the memorandum opinion itself, D. Md. 1:26-cv-00733-BAH, filed 2026-04-17): DHS/GSA’s Record of Environmental Consideration (REC) for the Williamsport warehouse identified the proposal as falling into three separate categorical exclusions: C1, D1, and E2* — respectively, real-estate acquisition, repair-and-maintenance activities, and limited new construction, per the DHS NEPA Instruction Manual’s table of exclusions (App. A, at A-1 through A-27). Judge Hurson opened the opinion: “This case provides a crystal-clear example of a federal agency failing to comply with the basic requirements of the National Environmental Policy Act.” The court held there is “a strong likelihood Defendants’ application of the three invoked categorical exclusions to the proposed action was arbitrary and capricious,” reasoning that federal courts have “consistently held that agency application of a categorical exclusion is arbitrary and capricious where there is no indication in the record that the agency considered the application of the categorical exclusion prior to its decision” — precisely the posture here, where “what review was done appears to have proceeded at a rocket’s pace” and only after the agency had already concluded the exclusions applied. The court applied APA arbitrary-and-capricious review, 5 U.S.C. § 706(2)(A), the identical standard Judge Lee applied in Gilroy.

Why this is a stronger finding than “both cases cite NEPA”

Existing canon entries (2026-04-15–judge-halts-williamsport-ice-construction-nepa, 2026-04-15–hurson-maryland-nepa-precedent-bexar-tx-warehouse-pause) describe Williamsport’s outcome as ICE having “failed to conduct environmental assessments,” which reads as an EA/EIS-skipped theory rather than a categorical-exclusion theory. Both framings are compatible — the categorical exclusion was the device that let DHS skip the EA/EIS — but the categorical-exclusion mechanism is the more precise and more replicable finding, because it identifies a specific, checkable agency artifact (a short standardized exclusion memo) rather than a generic absence of paperwork. Neither case is a segmentation theory, and neither is a bare “no review occurred at all” theory with no exclusion claimed — both are targeted invalidations of the specific instrument (the categorical exclusion) the agency used to avoid an EA/EIS.

The replicable template

For any WEXMAC-TITUS-program site: (1) check whether GSA filed a short categorical-exclusion memo of the kind named in the Gilroy order; (2) test the exclusion’s own conditions (existing-space acquisition, no change in use, minimal occupancy change) against the facts — both confirmed cases show a change of use (non-detention to detention) and a large occupancy multiplier; (3) plead “extraordinary circumstances” (hazardous-materials history, public-health/safety risk) as an independent, sufficient second ground; (4) frame this as an APA arbitrary-and-capricious challenge to the agency’s paper record, not a demand that plaintiffs independently prove environmental harm from scratch — both courts leaned on the thinness of the agency’s own decisionmaking record.

What remains unconfirmed

Both halves of this comparison are now drawn from the courts’ own text (Gilroy: Dkt. 66; Williamsport: ECF 43) — the sourcing asymmetry flagged in the prior version of this entry is resolved. No shared counsel or amici were confirmed between the two specific cases (different state AG offices, as expected); this was checked but not exhaustively.

The template test is answered, not merely proposed — see wexmac-titus-categorical-exclusion-template-test for the full site-by-site finding. The GSA Form 4002-style categorical exclusion does not recur as an identical instrument across the WEXMAC-TITUS census; what recurs is the underlying category stack (real-estate acquisition / minor renovation / limited construction) and, in at least one case, a strikingly similar failure mode.

Correction, 2026-09-17 — sourcing precision on Romulus. A prior version of this line described Romulus’s REC as “FOIA’d.” That is imprecise: per Project Saltbox, “ICE Defends Detroit-Area Detention Plan After Same-Day Environmental Sign-Off” (Michael Wriston and Em Chapin, 2026-04-22, projectsaltbox.com/p/ice-defends-detroit-area-detention), the REC surfaced as an exhibit DHS itself attached to its court filing responding to Michigan’s preliminary-injunction motion (State of Michigan v. DHS, E.D. Mich. 2:26-cv-10968) — not a document obtained through a Freedom of Information Act request. The REC was signed 2026-03-24, the same afternoon Michigan filed suit, more than a month after the property purchase, with digital signatures showing it was “prepared and approved within roughly 30 minutes.” It invokes the same three categories as Williamsport (real-estate acquisition, minor renovation, limited construction). Michigan’s own complaint, filed that same morning, had pleaded (¶121, “upon information and belief”) that no categorical exclusion existed prior to the purchase agreement — accurate at the moment of filing, superseded hours later by DHS’s reactive filing.

Arizona (Surprise) — per the state’s own complaint, D. Ariz. 2:26-cv-02857-SMB, ¶140 — and Georgia (Social Circle) — per the city’s own complaint, M.D. Ga. 3:26-cv-00054-TES, ¶105 — show no categorical-exclusion document confirmed in the public record as of their filing dates, a distinct posture from Williamsport, Gilroy, and Romulus; whether either received a Romulus-style reactive filing afterward was not confirmed in this pass (see the dedicated research note’s remaining gaps). The New Jersey/Roxbury claim in a prior version of this line was not independently verified in this pass and should not be treated as confirmed absent a direct pull of that complaint. Pennsylvania (Tremont, Upper Bern) and Texas (Socorro) show no federal NEPA document reaching the public record before the sites were blocked or abandoned by other means (state permitting, municipal water cutoff). San Antonio/Bexar has no lawsuit yet and no categorical-exclusion document located.

Related

• wexmac-titus-warehouse-census — full 11-site census this template could be tested against
• test-whether-gilroy-and-williamsport-nepa-injunctions-share-one-legal-theory (cascade-research task) — full work log, sourcing, and research gaps