Washington ? Kansas state officials have agreed to give the Homeland Security Department land for a national lab to research deadly germs, but the Justice Department noted last week that the agency still needs permission and money from Congress to build the facility.

The Homeland Security Department has said it hopes to award a contract in September for the massive lab where foot-and-mouth and other diseases will be studied. The Kansas Board of Regents approved an agreement last month to give up to 48.4 acres to the department. The agreement says the land would be given under a deed that requires it be returned if not used for the lab.

However, Justice Department attorney Arlene Groner said at a Thursday court hearing that Congress has not authorized the lab or provided money for it.

The court hearing came in a lawsuit filed by the Texas Bio and Agro-Defense Consortium against the Homeland Security Department. The suit alleges the Kansas site was improperly chosen.

Federal Court Claims Judge Mary Ellen Coster Williams questioned whether the lawsuit was filed too soon because the lab might never materialize. She indicated she might dismiss the suit without a decision because “there’s a whole lot of contingencies that could wipe out Kansas” as the site for the lab.

Groner assured the judge that the Homeland Security Department’s choice of Manhattan, Kan., for the lab is final and argued the decision could not be reviewed by any court.

In documents filed in the lawsuit, the Homeland Security Department says it needs congressional approval to accept the land gift from Kansas.

Michael Guiffre, an attorney for the Texas group, noted Kansas law requires the land be given on the contingency the National Bio and Agro-Defense Lab be built there. That contingency is in the land gift agreement.

But, Guiffre said, the Homeland Security Department previously has required the land be given without any contingencies and therefore choosing Kansas to house the lab was improper.

In late June, the House passed a bill funding the Homeland Security Department without any new money for the lab. The bill requires an independent study be done on the risk of doing foot-and-mouth research on the U.S. mainland and the study be reviewed by the Government Accountability Office to ensure it was properly done.

The Senate Appropriations Committee provided $36 million for the lab in its version of the bill. The full Senate has not voted on it.

Foot-and-mouth disease research, which affects cattle and swine, is done on Plum Island, N.Y. It has been kept off the mainland for years for fear of infecting domestic cattle, which would cause economic havoc. The disease was eradicated from the U.S. in 1929.

The new lab’s construction cost was initially said to be $450 million, but that amount has increased to more than $500 million.