Texas and Missouri attorneys general filed a federal lawsuit in southern Texas against President Joe Biden and U.S. Homeland Security Dept. Secretary Alejandro Mayorkas, seeking to reinstate cancelled federal border wall construction contracts and asking the court to require the administration to spend the billions of dollars previously appropriated by Congress. 

The Republican state officials claim in the Oct. 21 suit that President Biden does not have constitutional or statutory authority to refuse to spend the funds as directed.

Biden in January directed Homeland Security to pause the obligation of funds for border wall construction and has since cancelled all construction contracts.  The terminations included two contracts awarded last year for barrier sections in south Texas reported to be valued at about $1 billion, with work not begun.

The agency said October 8 that congressionally appropriated funds from 2018 through 2021 will be used for environmental studies at border wall sites. “Until and unless Congress cancels those funds, the law requires DHS to use the funds consistent with their appropriated purpose, and beginning environmental planning activities is part of the Department’s plan to do so,” DHS said in a news release.

Texas AG Ken Paxton and Missouri AG Eric S. Schmitt say that Congress appropriated $1.375 billion in both 2020 and 2021 for border wall construction “and provided that this money shall only be available” for barrier systems. The suit noted the June Homeland Security announcement to use border-wall funds for "environmental remediation, flood-control, and cleanup projects, but not a penny for any actual construction of barrier systems along the southwest border.”

Funds in Dispute

At issue is whether funds spent on federal environmental requirements are considered money spent on the border wall.

In a recent report, the US Government Accountability Office said that Homeland Security must comply with environmental, procurement and other statutory prerequisites for border wall projects, Those had been waived by department officials in the Trump Administration to push projects ahead.

Landowners, environmental groups and agencies have pointed to damage, severe in some cases, that was caused by wall construction.

“DHS explains that construction work is suspended so that it can take steps necessary to comply with statutory requirements under environmental laws and for stakeholder consultation,” the GAO report said.

For existing projects funded with previously appropriated funds, DHS will perform standard environmental planning studies including those required under the National Environmental Policy Act that were waived by the previous administration.

“This process will include remediating or mitigating environmental damage caused by construction, to the extent possible,” GAO said.

An Army Corps of Engineers spokeswoman said the agency did not award new contracts to repair breaches in the border flood levee system, with work done "under the existing construction contracts originally awarded for border barrier infrastructure."  The Corps awarded three contracts for 13.4 miles of levee repair construction in the Rio Grande Valley near McAllen, Texas for levee walls excavated before the contract pause, she said, with contractor SLSCO Ltd. handling about six miles of levee under two contracts; Southwest Valley Construction handling approximately 7 miles under one contract and the Gibraltar-Caddell joint venture irepairing about 0.4 miles.

"In most cases, a new floodwall is being constructed to meet flood control safety standards, including the installation of a guardrail structure and associated gates on top of the floodwall to prevent persons from falling off or vehicles driving off and sustaining life-threatening injury," said the spokeswoman. "Construction work does not involve expanding the border barrier."

Before obligating 2021 funds on contracts for new projects, DHS must first comply with applicable laws, GAO said.

Once those processes are complete, or nearly complete, DHS can finalize designs and begin the contracting process including “full and open competition.” GAO said. “DHS has no legal basis to proceed with contract awards without meeting these legal prerequisites,” the oversight agency said.

DHS will rescope existing construction projects according to NEPA study results, consultation with stakeholders and other environmental investigations, GAO said.

New Spending Parameters

Delays in spending the funds are legitimate, with monies set to be available for “multiple years” before they expire, GAO said.

“We see nothing to indicate that either [the Office of Management and Budget] or [Homeland Security] is attempting to override congressional intent that these funds be used for constructing barriers at the southern border,” GAO said.

GAO suggested, however, that Congress should consider requiring the department to submit a timeline detailing the planned uses and timeframes for obligating funds.

The Texas and Missouri AGs' lawsuit claimed that unless Congress cancels the funding, Homeland Security must use it for its appropriated purpose, claiming that the department has no intention to build any additional border wall.

The Biden administration asked Congress to cancel remaining border wall funding and instead appropriate funds for smart border security technology and modernization of land ports of entry, which it said have proven to be more effective in improving safety and security at the border.

The states claim that the Biden administration’s termination of wall construction contracts and its refusal to spend appropriated funds for barriers allow more “illegal aliens” to enter and remain in Missouri and Texas, “resulting in increased costs" to issue them driver’s licenses, provide public education and healthcare, and process and incarcerate them in the states' criminal-justice systems, all unrecoverable costs.

Texas: Building Its Own Walls

Texas is forced to spend its own money for border barriers because of the federal wall program's cancellation, the lawsuit says.   

The Texas Legislature passed and Gov. Greg Abbott signed in September a bill that allocates $1.8 billion for border security, including $750 million for construction of a border wall. Another $286 million was transferred to that activity from other state programs, and media report that a private fund had collected about $54 million in donations as of September.

Abbott's office had said that barriers were needed for about 733 miles of the state's 1,200-mile border with Mexico.

The state awarded an $11-million wall construction program management contract to a joint venture of Michael Baker International and Huitt-Zollars on Sept. 16 that includes managing budgets, identifying state land for wall construction and finding “willing private landowners to facilitate construction,” according to the request for proposals. Both firms noted previous federal border wall and entrance port experience.

Other firms not selected that responded were Versar Inc. and DE Corp., according to the Texas Facilities Commission website.

The agency expects on Oct. 28 to award multiple design-build contracts among 11 companies that responded to a solicitation in mid October. The companies will compete for task orders.

Several respondents had executed previous federal wall construction contracts, including Fisher Sand & Gravel; Caddell Construction; Barnard Construction unit BFBC; SLSCO; Posillico Civil Inc.; and Southwest Valley Constructors, a unit of Kiewit Corp.

Other respondents include Anderson Columbia Co. Inc.; Brizo Construction LLC;  Orion Industrial Construction LLC; Pulice Construction Inc. and US Trinity Energy Services LLC