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Enviros' lawsuit over Trump's border wall funding moves headed toward settlement

A lawsuit alleging that the Trump administration unlawfully siphoned $3.6 billion in construction funds from the Defense Department to fund border wall projects along the U.S.-Mexico border is heading toward a settlement following an order from the U.S. Supreme Court.

The settlement conference is scheduled for Nov. 11 in a federal court in California, and will require the parties, which includes two environmental groups and eight states, to resolve the long-running legal action involving billions in federal funds.

The Sierra Club and the Southern Border Communities Coalition filed the federal suit in 2019, arguing that President Donald Trump violated the law when he declared a national emergency along the U.S.-Mexico border as part of a maneuver to get around Congress. Lawmakers had refused to fully fund his border wall, appropriating only $1.375 billion for the border wall during a difficult battle over the federal budget.

After failing to get the funding he sought, in February 2019, Trump declared an emergency to manage what he called a "long-standing" problem of "large-scale unlawful migration through the southern border" in response to an influx of families seeking asylum along the border. As the Sierra Club put it, "in fact there was, and is no national emergency to justify the president’s action, only his disagreement with Congress’s duly enacted decisions on the extent and pace of spending on the border wall."

In the lawsuit, filed by the American Civil Liberties Union, the group argued that the president's declaration was "made solely out of disagreement with Congress’s decision about the proper funding level, location, and timetable for constructing a border wall."

A parallel lawsuit was launched by eight U.S. states, including California, Colorado, Hawaii, Maryland, New Mexico, Oregon, Virginia, and Wisconsin.

Even as the case moved through the courts, federal officials forged ahead on border construction projects, spending as much as $100 million per mile in one section to complete what U.S. Customs and Border Protection calls a "border wall system." That included not only 30-foot high panels of "bollard" walls topped with steel "anti-climbing plates," but also lights and sensors, and a network of roads to make it easier for Border Patrol vehicles to quickly pursue people who get past the new barriers. 

While Arizona was affected directly both by construction at four sites—all near Yuma and the Cabeza Prieta National Wildlife Refuge—and by the siphoning of military construction funds, the state's Republican officials refused to join the lawsuit.

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From January 2017 to September 2020, CBP said that it planned to planned to build 738 miles of walls—including 663 miles of "primary"  and 64 miles of "secondary" barriers—along the U.S.-Mexico border at a total cost of nearly $15 billion.

This relied on a range of funding from different parts of the federal government.

The Trump administration pulled $6.3 billion in funding from earmarked for counter-narcotics operations, and attempted to pull another $2.5 billion slated for military construction projects, but were stymied by the 9th Circuit that summer. The administration also attempted to grab another $3.6 billion in military construction funding under Section 2808 of federal law, which allows the president to use the National Emergency Act to authorize military construction projects that aid the U.S. military. The move affected 128 military construction projects across the U.S., including 17 projects in the states that filed suit, worth an estimated $500 million alone.

However, a federal judge ruled against the administration, and last October, the 9th Circuit Court agreed, ruling that federal officials failed to show the projects were "necessary to support the use of the armed forces," and 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 second, the Trump administration has "not established, or even alleged, that the projects are, in fact, necessary to support the use of the armed forces." 

Following Trump's loss in the November 2020 election, the case became moribund after the Biden administration announced the halt of border wall construction this year.

On October 4, the U.S. Supreme Court ordered the lower court to vacate its judgements, and Magistrate Judge Donna M. Ryu ordered both sides to seek a settlement within the next few weeks.

“Construction on Trump’s border wall has caused deep and lasting damages to communities and ecosystems along the border for too long,” said Gloria Smith, managing attorney at the Sierra Club. “We look forward to working with this administration in an effort to start reversing some of the damage wall construction caused to sacred Indigenous lands, wildlife habitats, ecosystems, and border communities.”

Correction: An earlier version of this story had an incorrect reference to Organ Pipe Cactus National Monument.


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Paul Ingram/TucsonSentinel.com

An officer with the National Park Service walks along the border wall during a protest at the Organ Pipe Cactus National Monument in November 2019.

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