As part of a coalition of 18 states, Colorado Attorney General Phil Weiser today announced a settlement of lawsuits over the unlawful construction of border wall projects that occurred during the Trump administration.
A coalition of states sued the Trump administration on two occasions — in 2019 and 2020 — alleging that it was illegally diverting taxpayer funds authorized for other purposes to construct a border wall in Texas, Arizona, New Mexico, and California. As part of today’s settlement, the Biden administration agrees to cease construction of border barriers with the challenged funds and take several important measures to remediate the environmental harm caused by the construction.
Significantly, the Biden administration has confirmed in the settlement agreement that it has restored funding for military construction projects in the plaintiff states, including $8 million for a Space Control facility at Peterson Space Force Base in Colorado Springs.
“The past administration’s violation of our Constitution’s basic commitment that Congress holds the power of the purse sought to undermine our nation’s commitment to a separation of powers between the branches of our federal government,” Weiser stated. “This action also harmed Colorado, diverting funding for the Peterson Space Force Base here and harming our local economy. I am grateful that the rule of law is protected by this settlement and Colorado is no longer subject to an illegal diversion of funds from our state.”
The coalition of attorneys general won two federal district court judgments declaring the prior administration’s diversion of funds for border wall construction unlawful and enjoining further construction of the barriers. The Ninth Circuit affirmed both judgments. On a 5-4 vote, in 2019 the U.S. Supreme Court allowed the construction to proceed while the litigation was pending without ruling on the legality of the transfers or construction. Upon taking office, President Biden issued a proclamation that ceased all construction of the border wall proposed by the prior administration. In response, the Supreme Court sent the cases back to the U.S. District Court for the Northern District of California.
Among the settlement terms are the following:
The parties confirm that $427,296,000 in funding for military construction projects in the plaintiff states of California, Colorado, Hawaii, Maryland, New Mexico, New York, Oregon, Virginia, and Wisconsin has been restored. Exact amounts per state can be found on page 7 of the settlement agreement.
The Department of Homeland Security will provide $25 million toward the acquisition of conservation property to offset some of the border wall’s environmental impacts.
The Department of Homeland Security will install small and large wildlife passages in the border barrier system for several endangered species. If exigent circumstances arise or border security operations demand it, the Department of Homeland Security may install gates to enable those passages to be closed.
The Department of Homeland Security will provide $1.1 million to fund programs that monitor several federally endangered species, including the Peninsular Bighorn Sheep, Sonoran Desert Pronghorn, Mexican Gray Wolf, ocelot, and jaguar.
In announcing today’s settlement, Weiser joins the attorneys general of California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, and Vermont.
A copy of the settlement agreement can be downloaded here.