Full opinion text
HAYWOOD S. GILLIAM, JR., United States District Judge On February 19, 2019, Sierra Club and Southern Border Communities Coalition ("SBCC") (collectively, "Citizen Group Plaintiffs" or "Citizen Groups") filed suit against Defendants Donald J. Trump, in his official capacity as President of the United States; Patrick M. Shanahan, in his official capacity as Acting Secretary of Defense; Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security ; and Steven T. Mnuchin, in his official capacity as Secretary of the Department of the Treasury (collectively, "Federal Defendants"). Dkt. No. 1. This action followed a related suit brought by a coalition of states (collectively, "Plaintiff States" or "States") against the same-and more-Federal Defendants. See Complaint, California v. Trump , No. 3:19-cv-00872-HSG, 2019 WL 669456 (N.D. Cal. Feb. 18, 2019), ECF No. 1. Plaintiffs here filed an amended complaint on March 18, 2019. Dkt. No. 26 ("FAC"). Now pending before the Court is Plaintiffs' motion for a preliminary injunction, briefing for which is complete. See Dkt. Nos. 29 ("Mot."), 64 ("Opp."), 91 ("Reply"). The Court held a hearing on this motion on May 17, 2019. See Dkt. No. 138. In short, Plaintiffs seek to prevent executive officers from using redirected federal funds for the construction of a barrier on the U.S.-Mexico border. It is important at the outset for the Court to make clear what this case is, and is not, about. The case is not about whether the challenged border barrier construction plan is wise or unwise. It is not about whether the plan is the right or wrong policy response to existing conditions at the southern border of the United States. These policy questions are the subject of extensive, and often intense, differences of opinion, and this Court cannot and does not express any view as to them. See Trump v. Hawaii , --- U.S. ----, 138 S.Ct. 2392, 2423, 201 L.Ed.2d 775 (2018) (indicating that the Supreme Court "express[ed] no view on the soundness of the policy" at issue there); In re Border Infrastructure Envtl. Litig. , 284 F.Supp.3d 1092, 1102 (S.D. Cal. 2018) (noting that the court "cannot and does not consider whether underlying decisions to construct the border barriers are politically wise or prudent"). Instead, this case presents strictly legal questions regarding whether the proposed plan for funding border barrier construction exceeds the Executive Branch's lawful authority under the Constitution and a number of statutes duly enacted by Congress. See In re Aiken Cty. , 725 F.3d 255, 257 (D.C. Cir. 2013) ("The underlying policy debate is not our concern.... Our more modest task is to ensure, in justiciable cases, that agencies comply with the law as it has been set by Congress."). Assessing whether Defendants' actions not only conform to the Framers' contemplated division of powers among co-equal branches of government but also comply with the mandates of Congress set forth in previously unconstrued statutes presents a Gordian knot of sorts. But the federal courts' duty is to decide cases and controversies, and "[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule." See Marbury v. Madison , 1 Cranch 137, 177, 2 L.Ed. 60 (1803). Rather than cut the proverbial knot, however, the Court aims to untie it-no small task given the number of overlapping legal issues. And at this stage, the Court then must further decide whether Plaintiffs have met the standard for obtaining the extraordinary remedy of a preliminary injunction pending resolution of the case on the merits. After carefully considering the parties' arguments, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion. I. FACTUAL BACKGROUND The President has long voiced support for a physical barrier between the United States and Mexico. See, e.g. , Request for Judicial Notice, California v. Trump , No. 4:19-cv-00872-HSG (N.D. Cal. Apr. 8, 2019), ECF No. 59-4 ("States RJN") Ex. 3 (June 16, 2016 Presidential Announcement Speech) ("I would build a great wall, and nobody builds walls better than me, believe me, and I'll build them very inexpensively, I will build a great, great wall on our southern border. And I will have Mexico pay for that wall."). Upon taking office in 2017, the President's administration repeatedly sought appropriations from Congress for border barrier construction. See, e.g. , Budget of the U.S. Government: A New Foundation for American Greatness: Fiscal Year 2018 , Office of Mgmt. & Budget 18 (2017), https://www.whitehouse.gov/wp-content/uploads/2017/11/budget.pdf (requesting "$ 2.6 billion in high-priority tactical infrastructure and border security technology, including funding to plan, design, and construct a physical wall along the southern border"). Congress provided some funding, including $ 1.571 billion for fiscal year 2018. See Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. F, tit. II, § 230(a) 132 Stat. 348 (2018). And Congress considered several bills that, if passed, would have authorized or otherwise appropriated billions of dollars more for border barrier construction. See States RJN Exs. 14-20. None passed. In December 2018-as Congress and the President were negotiating an appropriations bill to fund various federal departments for what remained of the fiscal year-the President announced that he would not sign any funding legislation that lacked substantial funds for border barrier construction. Farm Bill Signing , C-SPAN (Dec. 20, 2018), https://www.c-span.org/video/?456189-1/president-government-funding-bill-include-money-border-wall ("I've made my position very clear. Any measure that funds the government must include border security.... Walls work whether we like it or not. They work better than anything."). Congress did not pass a bill with the President's desired border barrier funding and, due to this impasse, the United States entered into the nation's longest partial government shutdown. The President and those in his administration stated on several occasions before, during, and after the shutdown that, although Congress should make the requisite funds available for border barrier construction, the President was willing to use a national emergency declaration and other reprogramming mechanisms as funding backstops. For example, during a December 11, 2018 meeting with congressional representatives, the President stated that "if we don't get what we want [for border barrier construction funding], one way or the other - whether it's through [Congress], through a military, through anything you want to call [sic] - I will shut down the government. Absolutely." States RJN Ex. 21. The White House initially requested only $ 1.6 billion for border barrier construction for the fiscal year 2019 budget, for sixty-five miles of border barrier construction "in south Texas." See Supplemental Request for Judicial Notice, California v. Trump , No. 4:19-cv-00872-HSG (N.D. Cal. Apr. 8, 2019), ECF No. 112-1, Ex. 51, at 58. However, the White House increased its request on January 6, 2019, when the Acting Director of the Office of Management and Budget transmitted a letter to the U.S. Senate Committee on Appropriations, "request[ing] $ 5.7 billion for construction of a steel barrier for the Southwest border," and explaining that the request "would fund construction of a total of approximately 234 miles of new physical barrier." See Dkt. No. 36 ("Citizen Groups RJN") Ex. A, at 1. The increased request specified that "[a]ppropriations bills for fiscal year (FY) 2019 that have already been considered by the current and previous Congresses are inadequate to fully address these critical issues," including the need for border barrier construction funds. Id. Days later, the President explained: "If we declare a national emergency, we have a tremendous amount of funds - tremendous - if we want to do that, if we want to go that route. Again, there is no reason why we can't come to a deal.... [Congress] could stop this problem in 15 minutes if they wanted to." States RJN Ex. 13. After the government shutdown ended, the President and others in his administration reaffirmed their intent to fund a border barrier, with or without Congress's blessing. On February 9, 2019, the President explained that even if Congress provided less than the requested funding for a border barrier, the barrier "[would] get built one way or the other!" Citizen Groups RJN Ex. C. The next day, the Acting White House Chief of Staff explained that the Administration intended to accept whatever funding Congress would offer and then use other measures to reach the President's desired funding level for border barrier construction: The President is going to build a wall. You saw what the Vice-President said there, and that's our attitude at this point, which is: We'll take as much money as you can give us, and then we'll go off and find the money someplace else, legally, in order to secure that southern barrier. But this is going to get built, with or without Congress. See Fox News, Mick Mulvaney on chances of border deal, Democrats ramping up investigation of Trump admin , YouTube (Feb. 10, 2019), https://www.youtube.com/watch?v=l_Z0xx_zS0M. He went on to detail that the Administration was prepared to both reprogram money and declare a national emergency to unlock funds: There are other funds of money that are available to [the President] through what we call reprogramming. There is money that he can get at and is legally allowed to spend, and I think it -- needs to be said again and again that all of this is going to be legal. There are statutes on the books as to how any President can do this.... There are certain funds of money that he can get to without declaring a national emergency and other funds that he can only get to after declaring a national emergency. Id. All told, the "whole pot" of such funds was "well north of $ 5.7 billion." Id. And with respect to a national emergency declaration in particular, the Acting White House Chief of Staff explained: "The President doesn't want to do it.... He would prefer legislation because that's the right way to go, and it's the proper way to spend money in this country." Id. On February 14, 2019, Congress passed the Consolidated Appropriations Act of 2019 ("CAA"), Pub. L. No. 116-6, 133 Stat. 13 (2019). The CAA consolidated separate appropriations acts related to different federal agencies into one bill, including for present purposes the DHS Appropriations Act for Fiscal Year 2019. See id. , div. A. The CAA made available $ 1.375 billion-less than one quarter of the $ 5.7 billion sought by the President-"for the construction of primary pedestrian fencing, including levee pedestrian fencing, in the Rio Grande Valley Sector." Id. § 230(a)(1), 133 Stat. at 28. Congress limited the use of these funds both as to the type of pedestrian fencing-only "operationally effective designs deployed as of the date of the Consolidated Appropriations Act, 2017 ... such as currently deployed steel bollard designs"-and geographically-no funds were available for construction within (1) the Santa Ana Wildlife Refuge, (2) the Bentsen-Rio Grande Valley State Park, (3) La Lomita Historical park, (4) the National Butterfly Center, or (5) within or east of the Vista del Mar Ranch tract of the Lower Rio Grande Valley National Wildlife Refuge. Id. §§ 230(b), 231, 133 Stat. at 28. The CAA further imposed notice and comment requirements prior to the use of any funds for the construction of barriers within certain city limits. Id. § 232, 133 Stat. at 28-29. Section 739 of the CAA provided: 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 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. Id. § 739, 133 Stat. at 197. On February 15, 2019, the President not only signed the CAA into law but also issued a proclamation "declar[ing] that a national emergency exists at the southern border of the United States." Proclamation No. 9844, 84 Fed. Reg. 4,949 (Feb. 15, 2019). In announcing the national emergency declaration, the President declared that although he "went through Congress" for the $ 1.375 billion in funding, he was "not happy with it." States RJN Ex. 50. The President added: "I could do the wall over a longer period of time. I didn't need to do this. But I'd rather do it much faster.... And I think that I just want to get it done faster, that's all." Id. The proclamation itself provided: The current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency. The southern border is a major entry point for criminals, gang members, and illicit narcotics. The problem of large-scale unlawful migration through the southern border is long-standing, and despite the executive branch's exercise of existing statutory authorities, the situation has worsened in certain respects in recent years. In particular, recent years have seen sharp increases in the number of family units entering and seeking entry to the United States and an inability to provide detention space for many of these aliens while their removal proceedings are pending. If not detained, such aliens are often released into the country and are often difficult to remove from the United States because they fail to appear for hearings, do not comply with orders of removal, or are otherwise difficult to locate. In response to the directive in my April 4, 2018, memorandum and subsequent requests for support by the Secretary of Homeland Security, the Department of Defense has provided support and resources to the Department of Homeland Security at the southern border. Because of the gravity of the current emergency situation, it is necessary for the Armed Forces to provide additional support to address the crisis. Proclamation No. 9844, 84 Fed. Reg. 4,949. The proclamation then invoked and made available to relevant Department of Defense ("DoD") personnel two statutory authorities. First, the proclamation made available the authority to "order any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve ... to active duty for not more than 24 consecutive months," under 10 U.S.C. § 12302. Id. Second, the proclamation made available "the construction authority provided in [ 10 U.S.C. § 2808 ]." Id. As is necessary to invoke Section 2808, the proclamation "declar[ed] that this emergency requires use of the Armed Forces." Id. ; see also 10 U.S.C. § 2808(a) (limiting construction authority to presidential declarations "that require[ ] use of the armed forces"). As additional information regarding the national emergency declaration, the White House simultaneously issued a "fact sheet[ ]," which explained that "the Administration [had] so far identified up to $ 8.1 billion that will be available to build the border wall once a national emergency is declared." Citizen Groups RJN Ex. G. The White House specifically identified three funding sources, purportedly to be used sequentially: • "About $ 601 million from the Treasury Forfeiture Fund" ("TFF"); • "Up to $ 2.5 billion under the Department of Defense funds transferred for Support for Counterdrug Activities" ( 10 U.S.C. § 284 ) (" Section 284"); and • "Up to $ 3.6 billion reallocated from Department of Defense military construction projects under the President's declaration of a national emergency" ( 10 U.S.C. § 2808 ) (" Section 2808"). Id. In declaring a national emergency, the President invoked his authority under the National Emergencies Act ("NEA"), Pub. L. 94-412, 90 Stat. 1255 (1976) (codified as amended at 50 U.S.C. §§ 1601 - 1651 ). This appears to have been the first time in American history that a President declared a national emergency to secure funding previously withheld by Congress. As another historical first, Congress passed a joint resolution to terminate the President's declaration of a national emergency. See H.R.J. Res. 46, 116th Cong. (2019). The President vetoed Congress's joint resolution on March 15, 2019. See Veto Message to the House of Representatives for H.J. Res. 46 , The White House (Mar. 15, 2019), https://www.whitehouse.gov/briefings-statements/veto-message-house-representatives-h-j-res-46/. The House voted 248-181 to override the President's veto, which fell short of the required two-thirds majority. 165 Cong. Rec. 2,799, 2,814-15 (2019). Following the President's national emergency declaration, executive officers reaffirmed what the President and his administration had been saying for months: the Administration was content to first request border barrier construction funding from Congress, and then augment whatever they received with funds from alternative sources. Then-Secretary of Homeland Security Nielsen described this mindset on March 6, 2019, while testifying before the House Homeland Security Committee: "[The President] hoped Congress would act, that it didn't have to come to issuing an emergency declaration, if Congress had met his request to fund the resources that [U.S. Customs and Border Protection ("CBP") ] has requested." 3/6/2019 Nielsen Testimony , C-SPAN (Mar. 6, 2019), https://www.c-span.org/video/?c4787939/362019-nielsen-testimony. Since the national emergency declaration, Defendants have taken significant steps toward using the funds at issue in this motion for border barrier construction. On February 15, 2019, the Treasury approved a request from the Department of Homeland Security ("DHS") to make available up to $ 601 million from the Treasury Forfeiture Fund, which Defendants "intend[ ] to obligate ... before the end of Fiscal Year 2019." See Case No. 4:19-cv-00872-HSG, ECF No. 89-8 ("Flossman Second Decl.") ¶¶ 9, 11. On February 25, 2019, DHS submitted a request to DoD for assistance blocking drug-smuggling corridors under Section 284. See Dkt. No. 64-8 ("Rapuano Decl.") ¶ 3; States RJN Ex. 33. And on March 25, 2019, in response to DHS's request, the Acting Secretary of Defense-Defendant Shanahan-approved the diversion of funds from DoD's counter-narcotics support budget for three "drug-smuggling corridors" identified by DHS: one located in New Mexico-El Paso Project 1-and two located in Arizona-Yuma Sector Projects 1-2. Rapuano Decl. ¶¶ 4, 7-9. Construction related to these projects may begin as soon as May 25, 2019. See id. ¶ 10 (providing that construction "will begin no earlier than May 25, 2019"). To fund the Section 284 diversion, Defendant Shanahan simultaneously invoked Section 8005 of the most-recent DoD appropriations act to "reprogram" $ 1 billion from Army personnel funds to the counter-narcotics support budget. See id. ¶ 5; States RJN Ex. 34; see also Department of Defense Appropriations Act, 2019, Pub. L. No. 115-245, § 8005, 132 Stat. 2981, 2999 (2018). Defendant Shanahan also formally notified Congress of the authorization, explaining that reprogrammed funds under Section 8005 were "required" so that DoD could provide DHS the support it requested under Section 284. States RJN Ex. 32, at 1; see also id. Ex. 33, at 2 (DHS's February 25, 2019 request for support under Section 284 ). The next day, Defendant Shanahan appeared before the House Armed Services Committee to testify in support of the President's budget request for fiscal year 2020. See Case No. 4:19-cv-00872-HSG, ECF No. 89-12. The Committee Chairman asked Defendant Shanahan why DoD did not first seek approval from relevant congressional committees before reprogramming funds under Section 8005, as would have been consistent with a "gentlemen's agreement[ ]" between Congress and the Executive. Id. at 13 ("But one of the sort of gentlemen's agreements about [giving reprogramming authority for up to $ 4 billion last year] was if you reprogram money, you will not do it without first getting the approval of all for [sic] relevant committees .... For the first time since we've [given such reprogramming authority] .... you are not asking for our permission."). The Chairman noted that "the result of" ignoring the gentlemen's agreement likely would be Congress declining to provide such broad reprogramming authority in the future. Id. Defendant Shanahan conceded that "discretionary reprogramming" was "traditionally done in coordination" with Congress, but explained that the Administration discussed unilateral reprogramming "prior to the declaration of a national emergency," recognized "the significant downsides of the [sic] losing what amounts to a privilege," and nonetheless decided to move forward with unilaterally reprogramming funds despite that risk. Id. at 14. The same day as the hearing, both the House Committee on Armed Services and the House Committee on Appropriations formally disapproved of the Section 8005 reprogramming. See States RJN Ex. 35 ("The committee denies this request. The committee does not approve the proposed use of [DoD] funds to construct additional physical barriers and roads or install lighting in the vicinity of the United States border."); id. Ex. 36 ("The Committee has received and reviewed the requested reprogramming action .... The Committee denies the request."). On April 24, 2019, Defendant McAleenan, the Acting Secretary of Homeland Security, published in the Federal Register notices of determination concerning the "construction of barriers and roads in the vicinity of the international land border in Luna County, New Mexico and Doña Ana County, New Mexico," and "in Yuma County, Arizona"-in other words, areas encompassed by the El Paso Sector and Yuma Sector Projects. See Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 84 Fed. Reg. 17,185, 17,186 (Apr. 24, 2019) ; Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 84 Fed. Reg. 17,187 (Apr. 24, 2019). The Acting Secretary invoked his authority under Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") "to waive all legal requirements that [he], in [his] sole discretion, determine[d] necessary to ensure the expeditious construction of barriers and roads authorized by section 102 of IIRIRA." See, e.g. , 84 Fed. Reg. at 17,186. The waiver asserts that "areas in the vicinity of the United States border, located in [these regions], are areas of high illegal entry," for which "[t]here is presently an acute and immediate need to construct physical barriers and roads." See id. The designated "Project Areas" encompass all portions of New Mexico and Arizona for which Defendants presently intend to construct physical barriers. Finding this action "necessary," the Acting Secretary invoked Section 102(c) to waive "in their entirety" numerous federal laws-including the National Environmental Policy Act ("NEPA"), Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§ 4321 - 4370b )-"with respect to the construction of physical barriers and roads ... in the project area[s]." See id. On May 8, 2019, Defendant Shanahan, appearing before the Senate Defense Appropriations Subcommittee, testified: "We now have on contract sufficient funds to build about 256 miles of barrier," explaining that this funding derived in part from "treasury forfeiture funds, as well as reprogramming." Acting Defense Secretary Shanahan Testifies on 2020 Budget Request , C-SPAN (May 8, 2019), https://www.c-span.org/video/?460437-1/acting-defense-secretary-shanahan-testifies-2020-budget-request. Defendant Shanahan estimated that "sixty-three new miles will come online" from these contracts in the next six months, or "half a mile a day." Id. The same day, DoD reported selecting twelve companies to compete for up to $ 5 billion worth of border barrier construction contracts. Contracts for May 8, 2019, U.S. Dep't of Def. (May 8, 2019), https://dod.defense.gov/News/Contracts/Contract-View/Article/1842189/. The next day, Defendant Shanahan authorized an additional $ 1.5 billion in funding for border barrier construction, in further response to DHS's February 25, 2019 request for support under Section 284, for four projects: one located in California-El Centro Project 1-and three located in Arizona-Tucson Sector Projects 1-3. See Rapuano Second Decl. ¶ 6; see also Rapuano Decl. Ex. A, at 3, 6-7 (describing project locations). To fund these projects, Defendant Shanahan again invoked Section 8005, "as well as DoD's special transfer authority under section 9002 of the Department of Defense Appropriations Act, 2019, and section 1512 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019." Rapuano Second Decl. ¶ 7. Defendants anticipate that construction will begin with these funds as early as July 2019. Id. ¶¶ 10-11 (noting Defendants' expectation of awarding contracts by May 16, 2019, forty-five days after which construction may begin). And on May 15, 2019, Defendant McAleenan issued NEPA waivers for the El Centro Sector and Tucson Sector Projects. See Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 84 Fed. Reg. 21,798 (May 15, 2019) (waiving NEPA requirements for Tucson Sector Projects); Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 84 Fed. Reg. 21,800 (May 15, 2019) (waiving NEPA requirements for El Centro Sector Project). At the hearing on this motion, the parties agreed that the Court need not yet address the lawfulness of Defendants' newly announced reprogramming and subsequent diversion of funds for border barrier construction in the El Centro Sector and Tucson Sector Projects, pending further development of the record as to those projects. II. STATUTORY FRAMEWORK A. The National Emergencies Act In 1976, Congress enacted the National Emergencies Act "to insure that the exercise of national emergency authority is responsible, appropriate, and timely." Comm. on Gov't Operations & the Special Comm. on Nat'l Emergencies & Delegated Emergency Powers, 94th Cong., 2d Sess., The National Emergencies Act (Public Law 94-412) Source Book: Legislative History, Texts, and Other Documents, at 1 (1976) ("NEA Source Book"). The NEA rescinded several existing national emergencies, repealed many statutes, and created procedural guidelines for congressional oversight over future presidents' declarations of national emergencies. The NEA first permits that after "specifically declar[ing] a national emergency," the president may exercise emergency powers authorized by Congress in other federal statutes. 50 U.S.C. § 1621. To exercise any statutory emergency power, the president must first specify the power or authority under which the president or other officers will act, "either in the declaration of a national emergency, or by one or more contemporaneous or subsequent Executive orders published in the Federal Register and transmitted to the Congress." Id. § 1631. Section 1622 then establishes a procedure for Congress to terminate any declared national emergency through a joint resolution. As initially drafted, Congress meant for the joint resolution to terminate the declared national emergency by itself-the NEA did not require a presidential signature on the joint resolution, nor was it subject to a presidential veto. In part because Congress had power under the NEA to terminate national emergencies with a simple majority in both houses, Congress neither defined the term "national emergency," nor "ma[de] any attempt to define when a declaration of national emergency is proper." NEA Source Book at 9, 278-92. In rejecting a proposed amendment to the NEA that would have "spelled out" for the executive what may constitute a national emergency, the House of Representatives observed the "impossibility" of future presidents vetoing any joint resolution. Id. at 279-80. House members there observed: Mr. Conyers.... Mr. Chairman, my final participation in this debate revolves around the reason of this question: What happens if the President of the United States vetoes the congressional termination of the emergency power? Is that contemplatable within the purview of this legislation? ... Mr. Flowers. Mr. Chairman, on the advice of counsel we have researched that thoroughly. A concurrent resolution would not require Presidential signature of acceptance. It would be an impossibility that it would be vetoed. Mr. Conyers. So there would be no way that the President could interfere with the Congress? Mr. Flowers. The gentleman is correct. Id. Congress's unilateral power under the NEA to terminate national emergency declarations ended in 1983, when the Supreme Court in INS v. Chadha ruled that the president must have power to approve or veto congressional acts, such as a terminating joint resolution under the NEA. See 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Two years later, Congress amended the NEA to reflect that the joint resolution must be "enacted into law" to terminate an emergency, thereby rendering the NEA Chadha -compliant. See Pub. L. No. 99-93, § 801(1)(A), 99 Stat. 405, 448 (1985). By some estimates, there are 123 statutory powers available to a president who declares a national emergency. See A Guide to Emergency Powers and Their Use , Brennan Ctr. for Justice (2019), www.brennancenter.org/sites/default/files/legislation/Emergency%20Powers_Printv2.pdf. And in the more than forty years since Congress enacted the NEA, presidents have declared almost sixty national emergencies. See Declared National Emergencies Under the National Emergencies Act, 1978-2018 , Brennan Ctr. for Justice (2019), www.brennancenter.org/sites/default/files/analysis/NEA%20Declarations.pdf. Until now, Congress had never invoked its emergency termination powers. B. Section 284 Under Section 284, "[t]he Secretary of Defense may provide support for the counterdrug activities ... of any other department or agency of the Federal Government" if "such support is requested ... by the official who has responsibility for [such] counterdrug activities." 10 U.S.C. § 284(a), (a)(1)(A). Section 284 defines permissible "[t]ypes of support" under the statute, including support for "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States." Id. § 284(b)(7). The statute also mandates congressional notification before the Secretary of Defense provides certain-but not all-types of support. Id. § 284(h). For one, Section 284 requires the Secretary of Defense to submit to the appropriate congressional committee "a description of any small scale construction project for which support is provided." Id. § 284(h)(1)(B). Section 284 defines "small scale construction" as "construction at a cost not to exceed $ 750,000 for any project." Id. § 284(i)(3). Congress first provided DoD with authority to support such counterdrug activities in 1991, in what is commonly referred to as "Section 1004." See National Defense Authorization Act for Fiscal Year 1991, Pub. L. No. 101-510, § 1004, 104 Stat. 1485, 1629-30 (1990). The initial iteration of Section 1004 made available $ 50 million in funds for fiscal year 1991 alone, and contained no congressional notification requirement or per-project cap on the provision of support. Id. § 1004(g), 104 Stat. at 1630. Congress subsequently renewed Section 1004 on a regular basis. Congress ultimately codified Section 1004 at 10 U.S.C. § 284 in 2016. See National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1011(a)(1), 130 Stat. 2000, 2381 (2016), renumbered § 284 by id. § 1241(a)(2), 130 Stat. at 2497. In fiscal year 2019, Congress appropriated $ 881 million in funds to DoD "[f]or drug interdiction and counter-drug activities," $ 517 million of which was "for counter-narcotics support." See Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019, Pub. L. No. 115-245, div. A, tit. VI, 132 Stat. 2981, 2997 (2018). All funds DoD now purports to make available for support to DHS under Section 284 come from the counter-narcotics support line of appropriation, out of what is known as the "drug interdiction fund." Rapuano Decl. ¶ 5, Ex. D. But when Secretary Shanahan first authorized support to DHS under Section 284 on March 25, 2019, the counter-narcotics support line only contained $ 238,306,000 in unobligated funds. See Dkt. No. 131 at 4 (citing Rapuano Decl. ¶ 5, Ex. D, at 2). Therefore, although DoD seeks to make available $ 2.5 billion in support to DHS "under Section 284," Defendants have not used-and do not intend to use in the near future-any of the counter-narcotics support funds appropriated by Congress in fiscal year 2019 for border barrier construction. Id. (noting that all $ 2.5 billion in border barrier construction support to DHS under Section 284 is attributable to Section 8005 and 9002 reprogramming). In other words, every dollar of Section 284 support to DHS and its enforcement agency, CBP, is attributable to reprogramming mechanisms. DoD's provision of support under Section 284 does not require a national emergency declaration. C. Section 8005 "An amount available under law may be withdrawn from one appropriation account and credited to another or to a working fund only when authorized by law." 31 U.S.C. § 1532. Section 8005 of the fiscal year 2019 Department of Defense Appropriations Act authorizes the Secretary of Defense to transfer up to $ 4 billion "of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions (except military construction)." § 8005, 132 Stat. at 2999. The Secretary must first determine that "such action is necessary in the national interest." Id. Section 8005 further provides that such authority to transfer may only be used (1) for higher priority items than those for which originally appropriated, and (2) based on unforeseen military requirements, but (3) in no case where the item for which funds are requested has been denied by the Congress. Id. DoD's Section 8005 transfer authority has existed in largely the same form since at least fiscal year 1974. See Department of Defense Appropriation Act, 1974, Pub. L. No. 93-238, § 735, 87 Stat. 1026, 1044 (1974). That year, Congress added the "denied by Congress" provision "to tighten congressional control of the reprogramming process," and in response to incidents where "[DoD] [had] requested that funds which have been specifically deleted in the legislative process be restored through the reprogramming process." H.R. Rep. No. 93-662, at 16 (1973). The House Committee on Appropriations "believ[ed] that to concur in such actions would place committees in the position of undoing the work of the Congress," and that "henceforth no such requests will be entertained." Id. On February 25, 2019, DHS submitted a request to DoD for assistance blocking drug-smuggling corridors under Section 284. See Rapuano Decl. ¶ 3; States RJN Ex. 33. And on March 25, 2019, DoD invoked Section 8005 to transfer $ 1 billion from funds Congress previously appropriated for military personnel costs to the drug interdiction fund, which DoD then intends to use to provide DHS's requested "assistance" by constructing border barriers using its Section 284 authority. See Rapuano Decl. ¶ 5, Ex. D. Despite the recent dispute between the President and Congress over funding for border barrier construction, and although the President had directed DoD nearly a year prior to support DHS "in securing the southern border and taking other necessary actions," including the provision of "military personnel," Federal Defendants purported to invoke Section 8005 "based on unforeseen military requirements." Id. ; see also States RJN Ex. 27 (April 4, 2018 presidential memorandum). On May 9, 2019, Defendants invoked Section 8005 and a related reprogramming provision to authorize the transfer of an additional $ 1.5 billion in funding into the drug interdiction fund, which then is slated to be used under Section 284 for border barrier construction. See Rapuano Second Decl. ¶¶ 6-7, Ex. C. The reprogramming of funds under Section 8005 does not require a national emergency declaration. D. Section 2808 Under Section 2808, the Secretary of Defense "may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law." 10 U.S.C. § 2808(a). Section 2808 requires that the President first declare a national emergency under the NEA "that requires use of the armed forces." Id. And the Secretary of Defense must use the funds for "military construction projects ... that are necessary to support such use of the armed forces." Id. Congress defined the term "military construction" as it is used in Section 2808 to "include[ ] 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 (as described in section 210 of title 23)." 10 U.S.C. § 2801(a). And Congress defined 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 or, in the case of an activity in a foreign country, under the operational control of the Secretary of a military department or the Secretary of Defense, without regard to the duration of operational control." Id. § 2801(c)(4). Presidents have twice invoked Section 2808's military construction authority. In 1990, President George H.W. Bush authorized emergency construction authority "to deal with the threat to the national security and foreign policy of the United States caused by the invasion of Kuwait by Iraq." Exec. Order No. 12,734, 55 Fed. Reg, 48,099 (Nov. 14, 1990). President George W. Bush later authorized emergency construction authority in the aftermath of the September 11, 2001 terrorist attacks. Exec. Order. No. 13,235, 66 Fed. Reg. 58,343 (Nov. 16, 2001). To date, DoD has only once used its Section 2808 military construction authority domestically, when it authorized $ 35 million in funds to secure weapons of mass destruction in five states. See Michael J. Vassalotti, Brendan W. McGarry, Military Construction Funding in the Event of a National Emergency , Cong. Research Serv. 2 & tbl. 1 (January 11, 2019). According to Defendants, the Acting Secretary of Defense "has not yet decided to undertake or authorize any barrier construction projects under section 2808." Rapuano Decl. ¶ 14. DoD undertook an internal review process, to identify "existing military construction projects of sufficient value to provide up to $ 3.6 billion of funding." Id. ¶ 15. The review process identified such funding for border barrier construction, but the Acting Secretary nevertheless "has taken no action on this information and has not yet decided to undertake or authorize any barrier construction projects under section 2808." See Dkt. No. 131-2 ("Rapuano Third Decl.") ¶ 6. Defendants have represented that they "will inform the Court" once a decision is made to use Section 2808 to fund border barrier construction. See Dkt. No. 131 at 3. E. Treasury Forfeiture Fund (Section 9705) Through 31 U.S.C. § 9705, Congress established in the Treasury of the United States a separate fund known as the "Department of the Treasury Forfeiture Fund." 31 U.S.C. § 9705(a). Funds are generally available to the Secretary of the Treasury "with respect to seizures and forfeitures made pursuant to [applicable] law," and for certain "law enforcement purposes." Id. State and local law enforcement agencies that participate in the seizure or forfeiture of property may receive "[e]quitable sharing payments." Id. § 9705(a)(1)(G). Section 9705(a)(1)(G) details three statutory avenues for the provision of such equitable sharing payments: "Equitable sharing payments made to other Federal agencies, State and local law enforcement agencies, and foreign countries pursuant to section 616(c) of the Tariff Act of 1930 ( 19 U.S.C. 1616a(c) ), section 981 of title 18, or subsection (h) of this section, and all costs related thereto." Equitable sharing payments are statutorily capped, however, by the value of seized property. 31 U.S.C. § 9705(b)(2). After the TFF has accounted for not only the current fiscal year's mandatory expenses-which include equitable sharing payments-but also set aside adequate funds for the following fiscal year's mandatory expenses, unobligated balances are available to the Secretary of the Treasury, to be used "in connection with the law enforcement activities of any Federal agency." 31 U.S.C. § 9705(g)(4)(B). This is commonly referred to as "Strategic Support." See Case No. 4:19-cv-00872-HSG, ECF No. 89-9 ("Farley Decl.") ¶ 11. In late December 2018 -during the government shutdown and just before the Administration sought $ 5.7 billion from Congress to fund border barrier construction-DHS requested $ 681 million in Strategic Support funding "for border security." Id. ¶ 24; see also States RJN Ex. 25 (January 6, 2019 request for $ 5.7 billion in funding for border barrier construction). The Treasury ultimately determined that it could make available to CBP, DHS's enforcement agency, up to $ 601 million from the TFF, in two tranches. Farley Decl. ¶¶ 24-25; Opp. at 9. The first tranche-$ 242 million-was made available for obligation on March 14, 2019. See Opp. at 9. Save for a small portion "for program support on the TFF funded projects," CBP intends to obligate the first tranche "on an Interagency Agreement (IAA) with the U.S. Army Corps of Engineers ... by June 2019." Dkt. No. 131-1 ("Flossman Third Decl.") ¶ 4. Defendants represent that "CBP intends to obligate all available TFF funds before the end of Fiscal Year 2019 or, if not, before the end of the 2019 calendar year." Flossman Second Decl. ¶ 11. The second tranche- $ 359 million-"is expected to be made available for obligation at a later date upon Treasury's receipt of additional anticipated forfeitures." See Opp. at 9. CBP intends to use funds from the TFF "exclusively for projects in the Rio Grande Valley Sector," in Texas. See Flossman Third Decl. ¶ 5. The Secretary of Treasury's use of funds in the TFF for Strategic Support does not require a national emergency declaration. F. National Environmental Policy Act NEPA establishes a "national policy which will encourage productive and enjoyable harmony between man and his environment[,] to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42 U.S.C. § 4321. To this end, NEPA compels federal agencies to assess the environmental impact of agency actions that "significantly affect[ ] the quality of the human environment." Id. § 4332(C). NEPA serves two fundamental objectives. First, it "ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." And, second, it requires "that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." WildEarth Guardians v. Provencio , No. 17-17373, 923 F.3d 655, 668-69, 2019 WL 1983455, at *7 (9th Cir. May 6, 2019) (quoting WildEarth Guardians v. Mont. Snowmobile Ass'n , 790 F.3d 920, 924 (9th Cir. 2015) ). NEPA does not establish substantive environmental standards; rather, it sets "action-forcing" procedures that compel agencies to take a "hard look" at environmental consequences. See Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 348-50, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). "NEPA's purpose is to ensure that 'the agency will not act on incomplete information, only to regret its decision after it is too late to correct.' " Friends of the Clearwater v. Dombeck , 222 F.3d 552, 557 (9th Cir. 2000) (quoting Marsh v. Or. Nat. Res. Council , 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ). And the Ninth Circuit commands that courts "strictly interpret" NEPA's procedural requirements "to the fullest extent possible," as consistent with NEPA's policies. Churchill Cty. v. Norton , 276 F.3d 1060, 1072 (9th Cir. 2001) (quoting Lathan v. Brinegar , 506 F.2d 677, 687 (9th Cir. 1974) (en banc)). "[G]rudging, pro forma compliance will not do." Id. (quoting Lathan , 506 F.2d at 693 ). Where an agency's project "might significantly affect environmental quality," NEPA compels preparation of what is known as an Environmental Impact Statement ("EIS"). Provencio , 923 F.3d at 668-69, 2019 WL 1983455, at *7 (emphasis added). To prevail on a claim that an agency violated its duty to prepare an EIS, a plaintiff need only raise "substantial questions whether a project may have a significant [environmental] effect." Id. (quoting Blue Mountains Biodiversity Project v. Blackwood , 161 F.3d 1208, 1212 (9th Cir. 1998) ). An action's "significance" depends on "both context and intensity." 40 C.F.R. § 1508.27 ; see also id. § 1508.27(b) (setting forth ten factors to "consider[ ] in evaluating intensity"). Even where a project does not require an EIS, agencies generally must prepare an Environmental Assessment ("EA") which, in part, serves to "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." See 40 C.F.R. § 1508.9(a)(1). "[A]gency action taken without observance of the procedure required by law will be set aside." Save the Yaak Comm. v. Block , 840 F.2d 714, 717 (9th Cir. 1988). III. LEGAL STANDARD A preliminary injunction is a matter of equitable discretion and is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "A plaintiff seeking preliminary injunctive relief must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest." Id. at 20, 129 S.Ct. 365. Alternatively, an injunction may issue where "the likelihood of success is such that serious questions going to the merits were raised and the balance of hardships tips sharply in [the plaintiff's] favor," provided that the plaintiff can also demonstrate the other two Winter factors. All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131-32 (9th Cir. 2011) (citation and internal quotation marks omitted). Under either standard, Plaintiffs bear the burden of making a clear showing that they are entitled to this extraordinary remedy. Earth Island Inst. v. Carlton , 626 F.3d 462, 469 (9th Cir. 2010). The most important Winter factor is likelihood of success on the merits. See Disney Enters., Inc. v. VidAngel, Inc. , 869 F.3d 848, 856 (9th Cir. 2017). IV. ANALYSIS In the pending motion, Plaintiffs seek to enjoin Defendants from using certain diverted federal funds and resources for border barrier construction. Specifically, Plaintiffs move to enjoin Defendants from (1) invoking Section 8005's reprogramming authority to channel funds into DoD's drug interdiction fund, (2) invoking Section 284 to divert monies from DoD's drug interdiction fund for border barrier construction on the southern border of Arizona and New Mexico, (3) invoking Section 2808 to divert monies from appropriated DoD military construction projects for border barrier construction, and (4) taking any further action related to border barrier construction until Defendants comply with NEPA. Defendants oppose each basis for injunctive relief. Defendants further contend that the Plaintiffs lack standing to bring their Sections 8005 and 2808 claims. The Court addresses these threshold issues first before turning to Plaintiffs' individual bases for injunctive relief. A. Article III Standing A plaintiff seeking relief in federal court bears the burden of establishing "the irreducible constitutional minimum" of standing. Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). First, the plaintiff must have "suffered an injury in fact." Id. This requires "an invasion of a legally protected interest" that is concrete, particularized, and actual or imminent, rather than conjectural or hypothetical. Lujan , 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks omitted). Second, the plaintiff's injury must be "fairly traceable to the challenged conduct of the defendant." Spokeo , 136 S.Ct. at 1547. Third, the injury must be "likely to be redressed by a favorable judicial decision." Id. (citing Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130 ). 1. Plaintiffs Have Standing for Their 8005 Claim. Defendants argue that Plaintiffs lack standing to challenge Defendants' invocation of Section 8005 to reprogram funds into the drug interdiction fund, so that Defendants can then divert that money wholesale to border barrier construction using Section 284. See Opp. at 14. Defendants do not dispute that Plaintiffs have standing to challenge the use of funds from the drug interdiction fund for border barrier construction under Section 284. Defendants nonetheless reason that harm from construction using drug interdiction funds under Section 284 does not establish standing to challenge Defendants' use of Section 8005 to supply those funds. Id. Defendants argue that standing requires that the plaintiff be the "object" of the challenged agency action, but that the Section 8005 augmentation of the drug interdiction fund and the use of that money for construction are two distinct agency actions. Id. (citing Lujan , 504 U.S. at 562, 112 S.Ct. 2130 ). According to Defendants, the "object" of the Section 8005 reprogramming was "simply mov[ing] funds among DoD's accounts." Id. (citing Lujan , 504 U.S. at 562, 112 S.Ct. 2130 ). Defendants' logic fails in all respects. As an initial matter, it is not credible to suggest that the "object" of the Section 8005 reprogramming is anything but border barrier construction, even if the reprogrammed funds make a pit stop in the drug interdiction fund. Since Defendants first announced that they would reprogram funds using Section 8005, they have uniformly described the object of that reprogramming as border barrier construction. See Rapuano Decl. ¶ 5 (providing that "the Acting Secretary of Defense decided to use DoD's general transfer authority under section 8005 ... to transfer funds between DoD appropriations to fund [border barrier construction in Arizona and New Mexico]"); id. Ex. D, at 1 (notifying Congress that the "reprogramming action" under Section 8005 is for "construction of additional physical barriers and roads in the vicinity of the United States border"). Nor does Lujan impose Defendants' proffered strict "object" test. The Lujan Court explained that "when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish." 504 U.S. at 562, 112 S.Ct. 2130 (internal quotation marks omitted). And the Supreme Court was concerned in particular with "causation and redressability," which are complicated inquiries when a plaintiff's standing "depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict." Id. (quoting ASARCO Inc. v. Kadish , 490 U.S. 605, 615, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (Kennedy, J.)). As concerns causation, the Ninth Circuit recently explained that Article III standing only demands a showing that the plaintiff's injury is "fairly traceable to the challenged action of the defendant, 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, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ). "Causation may be found even if there are multiple links in the chain connecting the defendant's unlawful conduct to the plaintiff's injury, and there's no requirement that the defendant's conduct comprise the last link in the chain. As we've said before, what matters is not the length of the chain of causation, but rather the plausibility of the links that comprise the chain." Id. (internal quotation marks and citations omitted). No complicated causation inquiry is necessary here, as there are no independent absent actors. More important, if there were ever a case where standing exists even though the challenged government action is nominally directed to some different "object," this is it. Neither the parties nor the Court harbor any illusions that the point of reprogramming funds under Section 8005 is to use those funds for border barrier construction. And under Ninth Circuit law, there is no requirement that the challenged conduct be the last link in the causal chain. Rather, even if there is an intervening link between the Section 8005 reprogramming and the border barrier construction itself, any injury caused by the border barrier construction is nonetheless "fairly traceable" to the Section 8005 reprogramming under the circumstances. See id. The Court thus cannot accept the Government's "two distinct actions" rationale as a basis for shielding Defendants' actions from review. 2. Plaintiffs Have Standing for Their Section 2808 Claim. Defendants argue that Plaintiffs lack standing to challenge Defendants' diversion of funds under Section 2808 "because the Acting Secretary of Defense has not yet decided to undertake or authorize any barrier construction projects under [ Section] 2808." Opp. at 21. Defendants describe the status of the Section 2808 diversion as follows: The Acting Secretary of Defense has not yet decided to undertake or authorize any barrier construction projects under section 2808. To inform the Acting Secretary's decision, on March 20, 2019, the Secretary of Homeland Security provided a prioritized list of proposed border-barrier-construction projects that DHS assesses would improve the efficiency and effectiveness of the armed forces supporting OHS in securing the southern border. On April 11, 2019, as a follow-up to the Chairman's preliminary assessment of February 10, 2019, the Acting Secretary instructed the Chairman of the Joint Chiefs of Staff to provide, by May 10, 2019, a detailed assessment of whether and how specific military construction projects could support the use of the armed forces in addressing the national emergency at the southern border. Also on April 11, 2019, the Acting Secretary instructed the DoD Comptroller, in consultation with the Secretaries of the military departments, the Chairman of the Joint Chiefs of Staff, the Under Secretary of Defense for Acquisition and Sustainment, the Under Secretary of Defense for Policy, and the heads of any other relevant DoD components to identify, by May 10, 2019, existing military construction projects of sufficient value to provide up to $ 3.6 billion of funding for his consideration. Rapuano Decl. ¶¶ 14-15. According to Defendants, absent some express decision to authorize or undertake a particular project, Plaintiffs' injury is speculative: "It is entirely possible that no barrier projects will be constructed pursuant to [ Section] 2808, and that, if they are, they will be [sic] built in any location where Plaintiffs would have a claim to a cognizable injury." Opp. at 21. Defendants ask too much of Plaintiffs. A plaintiff need not present undisputable proof of a future harm. The injury-in-fact requirement instead permits standing when a risk of future injury is "at least imminent. " See Lujan , 504 U.S. at 564 n.2, 112 S.Ct. 2130. And while courts must ensure that the "actual or imminent" measure of harm is not "stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes," see id. , the Ninth Circuit has consistently held that a " 'credible threat' that a probabilistic harm will materialize" is enough, see Nat. Res. Def. Council v. EPA , 735 F.3d 873, 878 (9th Cir. 2013) (quoting Covington v. Jefferson Cty. , 358 F.3d 626, 641 (9th Cir. 2004) ). At this stage, Plaintiffs have carried their burden to demonstrate that there is a "credible threat" that Defendants will divert funds under Section 2808 for border barrier construction in a location where Plaintiffs would have a claim to a cognizable injury. As detailed in Defendants' supporting declaration, a decision on the use of Section 2808 to authorize border barrier construction is forthcoming, as the DoD has now received necessary information which it intends to use to make decisions. See Rapuano Third Decl. ¶ 6. Further, the Court cannot ignore that the President invoked Section 2808 to enable the diversion of funds for border barrier construction. See Citizen Groups RJN Ex. D. The White House in fact provided in February 2019 that funds under Section 2808 "will be available." Id. Ex. G. There is thus no speculation necessary for the Court to find that Defendants will continue with their current course of conduct and exercise their authority under Section 2808 in the manner directed by the President. See Cent. Delta Water Agency v. United States , 306 F.3d 938, 950 (9th Cir. 2002) ("Although [ Nelsen v. King County , 895 F.2d 1248, 1251-52 (9th Cir. 1990) ] certainly requires us to consider all the circumstances related to a threatened future harm, including whether the threatened harm may result from a chain of contingencies, the possibility that defendants may change their course of conduct is not the type of contingency to which we referred in Nelsen. "). Finally, as to Defendants' claim that they might use Section 2808 funds in a location where Plaintiffs would not have a claim to a cognizable injury, it is highly unlikely that this would be the case, as Plaintiffs have demonstrated that their members span the entire U.S.-Mexico border. See, e.g. , Dkt. No. 32 ¶ 3 ("SBCC's membership spans the borderlands from California to Texas."). B. Plaintiffs Have Shown They Are Entitled to a Preliminary Injunction. Applying the Winter factors, the Court finds Plaintiffs are entitled to a preliminary injunction as to Defendants'; use of Section 8005's reprogramming authority to channel funds into the drug interdiction fund so that those funds may be ultimately used for border barrier construction in El Paso Sector Project 1 and Yuma Sector Project 1. 1. Likelihood of Success on the Merits The crux of Plaintiffs' case is that Defendants' methods for funding border barrier construction are unlawful. And Plaintiffs package that core challenge in several ways. For present purposes, Plaintiffs contend that Defendants'; actions (1) violate Congress's most-recent appropriations legislation, (2) are unconstitutional, (3) exceed Defendants' statutory authority