# Amicus Curiae Brief — Train v. Campaign Clean Water, Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1612%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 136

## Text

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INDEA OF AUTHORITIES 2... ccvsccceccscnanees iil

TABLE OF CONTENTS

STATEMENT OF THE QUESTION INVOLVED...
SRS RGSR SPE BUTE, PRINMCUS ceric vcesciesaveens
DUPRE NIOE GOW BOWES CAD fees cee censseanns
Se EM WUET x ae saws s 4s enw ee Whee he ne
Ea ey een ee ne ree eee
EXECUTIVE IMPOUNDMENT OF WATER
POLLUTION CONTROL FUNDS DESPITE A
MANDATORY CONGRESSIONAL APPROP-

RIATION IS WITHOUT STATUTORY OR
CONSTITUTIONAL AUTHORITY ...........

A.

D.

CONGRESS HAS MANDATED THAT $11
BILLION FOR THE FISCAL YEARS 1973
AND 1974 BE APPROPRIATED FOR THE
CONSTRUCTION OF WASTE WATER
TREATMENT FACILITIES TO ABATE
WATER COPE PUI oi ce TT ET Ever wees

. THERE IS A GROWING LIST OF LEGAL

PRECEDENTS DECLARING EXECUTIVE
IMPOUNDMENT OF A MANDATORY
CONGRESSIONAL APPROPRIATION TO
og oA ar rers Sere ere ee

*. EXECUTIVE IMPOUNDMENT OF WATER

POLLUTION FUNDS DESPITE A MAN-
DATORY CONGRESSIONAL APPROPRI-
ATION IS WITHOUT CONSTITUTIONAL
WORT UMMEPIPEES 6 dobre h b.Ohness oh0d dee eNCeED

THE EXECUTIVE SHOULD FAITHFULLY
EXECUTE THE LAWS OF OUR COUNTRY

16

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— Page
Il. THE INTEGRITY OF CONGRESS AND OF
OUR SYSTEM OF GOVERNMENT STANDS
IN JEOPARDY AS A RESULT OF EXECU-
TIVE IMPOUNDMENT OF FEDERAL WATER
PRs Ce PES i's GR GRGL Sos aa SAK DESA RON 17

A. THE EXECUTIVE SHOULD NOT BE AL-
LOWED THE PRIVILEGE OF iGNORING
A MANDATED APPROPRIATION OF
CONGRESS FOR THE PROTECTION OF
THE PUBLIC HEALTH AND WELFARE . 17

B. EXECUTIVE IMPOUNDMENT ERODES
THE FOUNDATION OF REPRESENTA-
BOVE, COIVEIRINDREINE ces veseeevensecunces 18

ee Te ee eye ea ee eer ere ee 20

enffae

INDEX OF AUTHORITIES

Page
CONSTITUTIONS
eS a a a a kw wwe 14
i OS rer OA a awe eaneb sess 18
RE EEE a 14, 15
RE A eg 16
I Rs ee a ay ais bare wen 16
COURT CASES
Campaign Clean Water v Ruckelshaus, (DC ED Va, No
Se I OR I ae et Ne a ge bea bNw Hee i3
RS he ee RE | Bee 14
oo me Ay Oe |, | 14
Martin-Trigona v Ruckelshaus, (No 72C 3044, DC ND Til,
Oo Ee ee Re Ae OES ET re Perey 12
Minnesota v EPA, DC 4th Div Minn, No 4-73 Civ 133,
TE a OU sis a SERS ied EE aT Ch hs SaAe essa ee 14
New York City v Train, (CA DC No 73-1708, January 23,
ite ote eCGua dank cuk MIA aia ee Te eK ee ales 13
Peters v Homey, SP US 33d (SS). ci sci cnceues I4
Texas v bri, (DC WD Tex, No A-73-CA-38, October 2,
PS enter Cote remmne Ti Pee a EO a te 13
Youngstown Sheet and Tube Co. v Sawver, 343 US 879
I rr oti raas Site eh iE Nc dea erat Ree rete a a 14
STATUTES
Federal Water Pollution Control Act Amendments of 1972
SR nos es acai y Va WON kc Oro ae nla b Mb wie ine 3

MISCELLANEOUS
Periodicals
The Detroit News, November 30, 1972, p I-c .... 17
Other
Bs Ws es Pee PE BOS oi cvs kosakscver Is
Mr. Justice Oliver Wendell Holmes, Collected Legal
PE EP Tbs caw ace ce xeeew eames gee ée neebe i

LAW REVIEWS

Mr. Justice Felix Frankfurter, 47 Col L Rev $27, 543
SE A Uli Pi ee kaacacs kr kakels ee et ee ceranen
atin

to conserve our present supply. Second, even with such
strenuous efforts, developments in processes for re-cycling
and for desalinization are necessary if we are to survive as a
civilization.

Michigan, furthermore, has a deep concern with this crisis
over pollution of our water resources. Michigan abounds with
water resources. For instance, the State of Michigan has 3,177
miles of shoreline, more than any other state in the nation,
except Alaska. Additionally, Michigan covers 38.575 square
miles of the Great Lakes. Within the state, there are 11.037
inland lakes. The length of the courses of major rivers in
Michigan is 5.499 miles: in addition, there are an estimated
30,000 miles of tributaries.!9! Therefore, Michigan acutely
feels the pain of the loss of federal water pollution control
funds.

With the concern of its vast and valuable resource at stake,
the People of the State of Michigan, amicus curiae herein,
vigorously challenge the authority of the executive to reduce
the allotment of funds authorized by Congress for water
polluton control.

Indeed. the People of the State of Michigan hear and
respond now to the ominous threat which Moses once made
to the Pharoah.

{9]
See. Encyclopedia Americana, Vol XIX. p 18 (1960) and Michigan Manual,
1971-72. p |

EAR LENSE LITO TE RIATISE PR OTE MNS

RRS ML NA TAMIR HS,

mewn tne wren. Se are eee cs ee et

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ARGUMENT

EXECUTIVE IMPOUNDMENT OF WATER POLLUTION

CONTROL FUNDS DESPITE A MANDATORY CONGRES- }
SIONAL APPROPRIATION IS WITHOUT STATUTORY OR
CONSTITUTIONAL AUTHORITY.

A. CONGRESS HAS MANDATED THAT $11 BIL-
LION FOR THE FISCAL YEARS 1973 AND 1974
BE APPROPRIATED FOR THE CONSTRUC-
TION OF WASTE WATER’ TREATMENT
FACILITIES TO ABATE WATER POLLUTION.

“The whole effort [of pollution abatement] is
lagging now for a number of reasons, one of
which is that the Federal government hasn't put
money on the line.”

— Stewart Udall, 1969 quoted in Water
Wasteland, by David Zwick and Marcy Bens-
tock, (Bantam Books, 1972), p 305.

Enthusiasm for water pollution abatement is often tempered
by the notion that large expenditures of public funds are
necessary to restore ecological sanity. Thus, the history of
water pollution abatement is one where financial commitments
have failed to match up with rhetorical pledges.

For instance, even though President Lyndon B. Johnson j
boldly announced in 1966 that “the promise is clean rivers,
tall forests, and clean air — a sane environment for man,’‘!!®

—

[10]
US Congress, House of Representatives, Congressional Record, Feb. 23, 1966, p

sssliiinds

and even though President Richard M. Nixon declared in 1970
that “the 1970’s absolutely must be the years when America
pays its debt to the past by reclaiming the purity of its air, its
waters and our living environment,’‘!! the hard facts tell a
different story with respect to water pollution control.

In fact, the executive branch has a long history of spending
no more than it absolutely has to for water treatment facilities.
The following chart outlining the large backlog of unapproved
grant applications for four states and one territory as of June
30, 1970, suggests the real problem:

Applications pending Fiscal Estimate of backlog
June 30, 1970 at 1970 (applications pend-
state agencies and allo- ing minus fiscal
FWOQA regional offices cation 1970 allocation)

(all figures in millions of dollars)

New York $592.3 $69.9 $522.4
Michigan 114.9 33.0 81.9
District of

Columbia 49.9 3.8 46.1
Indiana $9.5 20.0 99.5
Maryland $2.1 13.6 38.5

[It is important to remember that these figures do not measure
the total extent of need, since it has been found that many
cities do not bother to apply for grants when funding levels are
low. }. {21

(11) %

Quoted in Congressional Record. Volume (t6, page 16.096, Sept. 21, 1970 (daily
edition).
{12]

Zwick and Benstock. Water Wasteland, (Bantam Books, ly 72) p 318. Viewing the

entire problem from a different perspective, the executive only spent $262 million of
the $800 million appropriated in 1970 for water pollution control and $478 million of
the $1 billion appropriation in 1971. See, Green, Fallows and Zwick. Who Runs

Congress? (Bantam Grossman Book, 1972) pp 114-118

Po es wmes v rv names OO Phone
onium

In short, the: history is evident — pledges are conveniently
ignored when the practical work of disbursing money for Water
pollution treatment is actually undertaken.

Faced with this history, Congress passed a water pollution
measure on October 4, 1972 entitled the Federal Water Pollution
Control Act Amendments of 1972, IS USCA 1251 et seq. which
authorized appropriations in the amount of $11 billion for the
fiscal years 1973 and 1974 to be used for water waste treatment
construction grants. Although the bill was vetoed by the
President, the veto was prompily overturned by Congress.

Turning to the Federal Water Pollution Control Act
H Amendments of 1972, two specific sections stand out in their
importance to this litigation. Section 207, reads as follows:

‘There is authorized to be appropriated to carry out
this title, other than section 208 and 209, for the fiscal
year ending June 30, 1973, not to exceed

$5,000.000,000, for the fiscal vear ending June 30,
1974, not to exceed $6,000,000,000 0...”

Additionally, Section 205 provides:

*(a) Sums authorized to be appropriated pursuant to
Section 207 for each fiscal year beginning after June
30, 1973, shall be allotted by the Administrator not
later than the January Ist immediately preceding the
beginning of the fiscal year for which authorized,
except that the allotment for the fiscal 1973 shall be
made not later than 30 days after the date of
enactment of the Federal Water Pollution Control Act
Amendments of 1972. Such sums shall be allotted
among the States by the Administrator in accordance
with regulations promulgated by him, in the ratio that
the estimated cost of constructing all needed publicly

owned treatment works in each State bears to the
estimated cost of construction of all needed publicly
owned treatment works in all of the States .. 2.”
{emphasis ours.]

We firmly .upport the view that the language of the Water
Pollution Control Act) Amendments of 1972) imposes a
mandatory duty on the executive branch of government to allot
exactly the sums stated in the Act. There is no discretion in the
allotment: stage: the use of the word “shall” is) mandatory
language.

The plain language of the Federal Water Pollution Control
Act) should, indeed, govern this litigation. Two extremely
eminent members of the Supreme Court have commented upon
the controlling nature of the language of a statute as follows:

“We do not inquire what the legislature meant: we
only ask what the statute means.”

[Mr. Justice Oliver Wendell Holmes. Collected Legal
Papers, 207.]

and
“Spurious use of legislative history must not swallow
the legislation so as to give point to the quip that only
when the legislative history is doubtful do you go to
the statute.”

{Mr. Justice Felix Frankfurter, quoted in 47 Col L
Rev $27, 543 (1947).]

We submit the language of the Federal Water Pollution Control
Act) Amendments of 1972) is) without) equivecation, the
Administrator of the Environmental Protection Agency must
allot the SU) bition suthorized for water treatment facilities.

—Ih-

B. THERE IS A GROWING LIST OF LEGAL
PRECEDENTS DECLARING EXECUTIVE IM-
POUNDMENT OF A MANDATORY CONGRES-
SIONAL APPROPRIATION TO BE UNLAWFUL.

“With respect to the suggestion that the President
has a constitutional power to decline to spend
appropriated funds, we must conclude that the
existence of such a broad power is supported by
neither reason nor precedent.”

— Memorandum from then Assistant Attorney
General William H. Rehnquist to Edward L.
Morgan. Deputy Counsel to the President.
December 1, 1969 at 8. Quoted in 22 Stan L. Rev
1240, 1250 (1970).

The announcement by the President that federal water
pollution control funds would be impounded triggered a series
of law suits by citizens, municipalities and states. The
culmination of this extensive litigation is the consideration of
the issue by this Court. Although various lower federal court
decisions have split on the issue of executive impoundment.
we submit that the better view as enunciated in lower federal
court decisions sets out a compelling legal argument against
executive impoundment of water pollution control funds.

The principal argument in opposition to executive im-
poundment rests on a careful reading of the statute and the
legislative history which in turn spells out the notion that the
allotment of $11 billion in water pollution control funds is a
mandatory duty imposed on the Administrator of the federal
Environmental Protection Agency. For instance, in
Martin-Trigona v Ruckelshaus, (So 72C 344, DC ND Il,
July 9, 1973) [S ERC 1665, 1669]. the Court announced this
view in clear terms: **. . . the Act provides for mandatory
allotment of all funds.” The US Court of Appeals for the

lke

District of Columbia reached the same conclusion when it
said in New York City v Train, (CA DC No 73-1705, January
23. 1974) [6 ERC 1177, LIBR]:

“Our reading of the relevant statutory language and
careful analysis of the pertinent legislative history
compels us to hold that Section 20S(a) of the Act
requires the Administrator to allot the full sums
authorized to be appropriated in Section 207...”

We submit. therefore. that the better view requires allotment by
the executive of the full sums for water pollution control — $5
billion for fiscal year 1973 and $6 billion for fiscal year 1974.

The rationale for the mandatory view of the allotment of water
pollution control is further explained in Texas v Fri, (DC WD
Tex. No A-73-CA-38, October 2, 1973) [S ERC 2021, 2023}.
when the Court found that:

“Evaluation of the Act as a whole and its legislative
history evinces an unmistakable congressional intent
to marshall the requisite federal funds to achieve the
water quality goals set forth in the Act.”

This spirit and intent of the Federal Water Pollution Control Act
has further resulted in several courts declaring the executive
impoundment to be an abuse of discretion. For instance, in
Campaign Clear Water v Ruckelshaus, (DC ED Va, No
1%-73-R, June §, 1973) (8 ERC 1441, 1447]. the Court declared
that it:

"is well-satisfied that the challenged impoundment
policy. by which $877 of the allocated funds will be
withheld, is a violation of the spirit. intent and letter of
the Act. and a flagrant abuse of executive discretion.”

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In Minnesota v EPA, (DC 4th Div Minn, No 4-73 Civ 133, June
7S, 1973) ([S ERC 1587, 1592}. the Court similarly responded to
the government's argument that impoundment was based on
matters of the national economy as follows:

“Nothing in the Act gives the Administrator the
authority to consider matters outside the corners of
the Act itself. In failing to allot all of the money
authorized in this matter, the Administrator is acting
in express violation of the Act itself as well as in
violation of the purposes of the Act as set forth by
Congress.”

Finally, we offer a line of decisions of this Court which negate
the proposition of executive impoundment: Kent v Dulles, 357
US 116 (1958): Cole v Young. 351 US $36 (1956): Peters ¥
Hobby, 349 US 331 (1985S); and Youngstown Sheet and Tube Co
v Sawyer, 343 US $79 (1952).

We submit. therefore, that as a matter of legal precedent. both
recent and past. executive impoundment of a mandatory
Congressional Appropriation should be rejected.

C. EXECUTIVE IMPOUNDMENT OF WATER
POLLUTION FUNDS DESPITE A MANDAT-
ORY CONGRESSIONAL APPROPRIATION IS
WITHOUT CONSTITUTIONAL AUTHORITY.

“No Money shall be drawn from the Treasury.
but in Consequence of Appropriations made by
cP

— US Const. Art I. Sec. 9.

a | a

Under the federal Constitution, exclusive authority over
federal spending is vested in Congress. See, US Const, Art 1.
Sec. 9. It is Congress that has a final say over what becomes
law and a veto, not impoundment, is the only way the
President can express his displeasure with an appropriation
measure. This argument is buttressed by Article I, Section 7
of the US Constitution which gives Congress the right to
override presidential vetoes of legislation.

The President has no power to veto legislation absolutely.
No item veto is granted to the President under the
Constitution. Indeed, if the executive branch of government is
permitted, at will, to refuse to spend funds after a statute has
been enacted into law. then the executive branch will exercise
an absolute authority which is not authorized by the
Constitution and which directly contravenes the right of
Congress to override a presidential veto under the Constitu-
tion.

The above analysis is quite significant in the instant
situation since the President initially vetoed the appropriation
for water pollution control. Congress, however, by two thirds
vote overturned the President's veto. Yet. the executive now
seeks to ignore and circumvent the Congressional mandate
that it is in the interests of public policy to spend $11 billion
for water pollution abatement by a program of executive
impoundment.

We submit. furthermore, that Congressional control over
the purse is not merely a negative power to establish a limit on
spending but rather is a full and positive authority to compel
the expenditures of funds. By freezing vast sums of
appropriated funds. the executive challenges without authority
the most basic and sacred right the Constitution has vested
with Congress — the power of the purse.

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D. THE EXECUTIVE SHOULD FAITHFULLY
EXECUTE THE LAWS OF OUR COUNTRY.

“(The President] shall take Care that the Laws be
faithfully executed...”

— US Constitution, Art Il. Section 3.

The executive branch has no choice but to abide
appropriations statutes. Before he may enter service of his
office. the President must take the following Oath: “I do
solemnly swear that I will faithfully execute the Office of
Presideat of the United States. and will to the best of my
ability, preserve, protect and defend the Constitution of the
United States.” US Const. Art Il. Sec. 1. Included among
the duties of the President is the duty to faithfully execute the
laws of the land. US Const, Art Il. Sec. 3.

Indeed. our history is predicated on the fact that we are a
nation of laws. This is not to say that the executive branch ts
without authority or discretion. The executive has discretion,
but that discretion must be exercised within the four corners
of the Federal Water Pollution Control Act Amendments of
1972 which provides for a mandatory allotment of $11 billion in
water pollution control funds.

Placing all of the arguments and authorities acknowledged
in this litigation in perspective. we submit that the faithful
execution of the laws of our country should receive the
highest of priorities.

off’ Fae
Il.

THE INTEGRITY OF CONGRESS AND OF OUR SYSTEM
OF GOVERNMENT STANDS IN JEOPARDY AS A RESULT
OF EXECUTIVE IMPOUNDMENT OF FEDERAL WATER
POLLUTION FUNDS.

A. THE EXECUTIVE SHOULD NOT BE AL-
LOWED THE PRIVILEGE OF IGNORING A
MANDATED APPROPRIATION OF CONGRESS
FOR THE PROTECTION OF THE PUBLIC
HEALTH AND WELFARE.

“There is a natural inclination in mankind to
Kingly Government.”

— Warning of Benjamin Franklin in 1787 to the
delegates to the Constitutional Convention. | M.
Farrand. Records of the Federal Convention of
1787, at 83 (1966).

At stake in this litigation is whether the government will
institute adequate financing for measures to restore the purity
of our nation’s waters. The executive branch has seriously
limited the federal government's commitment in this area by
impounding $S billion of an $11 billion appropriation by
Congress for water pollution treatment facilities. As Governor
William G. Milliken of the State of Michigan has commented
on this exec ve impoundment:

“This action represents a serious blow to our efforts
aimed at achieving clean-water goals in Michigan
and throughout the Great Lakes region in this
decade.” [The Detroit News, November 30. 1972. p
I-c.]

The Governor's comments can certainly be applied to all

—

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concerned state and local officials who hope to take effective
steps towards abating pollution of our nation’s waters.

Certainly, the executive is entitled to its opinion that certain
expenditures will unacceptably inflate the economy. But,
Congress is constitutionally entitled and in many fields is able,
to make its own judgment on such matters, to decide national
priorities by its own wisdom and to legislate accordingly. And
so, in the case of waste water treatment plants, Congress has
directed the authorized amount of $11 billion to be fully
allocated among the states. In short, Congress has decided
what the national priorities should be and the executive must
accept this decision.

To allow the executive to ignore the judgment of Congress
would be to completely negate the Congressional veto power
and to completely ignore the desirability of abating water
pollution. We submit that Congress adopted legislation
towards building an environment other than depicted by T. S.
Eliot in ““The Waste Land” where “‘the dry stone [knows] no
sound of water.”

B. EXECUTIVE IMPOUNDMENT ERODES THE
FOUNDATION OF REPRESENTATIVE GOV-
ERNMENT.

The growing practice of impoundment, whereby
the executive branch fails to expend funds
according to the intent of Congress, looms as yet
another force eroding the foundation of represen-
tative government.”

— United States Senator Frank Church of Idaho,
2? Stan L Rev 1240. 1241 (1979).

Once it is widely recognized that a program affecting the
public health and welfare which is enacted into law by

10am

slim

Congress can be effectively obstructed and buried by the
executive branch, the American pcople will sense the futility
of working with their elected representatives. Yet, a crucial
element of our democratic form of government is the right
afforded to diverse political interests to appeal in a meaningful
way to members of Congress.

Our government is based on three separate, but co-equal
branches of government. The executive branch is not the only
important forum for policymaking. Each branch of govern-
ment, additionally, operates as a check and a balance on the
other branches. The executive branch does not operate as the
sole or the final check on matters of public concern.

The ability of Congress to act with authority on
appropriations reflects on the operation of our three branches
of government. The struggle is monumental but the solution
must be directed to maintaining public confidence and reliance
on our representative bodies and on our system of separation
of powers.

POM eet PEAY

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CONCLUSION

“The founding fathers, in establishing our na-
tional government, reflected clearly the lessons
they had absorbed concerning the history of
man’s struggle to be free from tyranny. They
knew that those entrusted with governmental
powers are susceptible to the disease of tyrants —
to what George Washington described in his
Farewell Address as the ‘love of power and
proneness to abuse it.” They realized that the
powers of public officers should be defined by
laws which they, as well as the people, are
obliged to obey, and that liberty demands control
by constant and uniformly enforced laws rather
than by the arbitrary and inconstant whims of
willful men.”

— United States Senator Sam J. Ervin Jr.. from
North Carolina, 35 Law and Contemporary Prob-
blems 108, 121 (1970).

The PEOPLE OF THE STATE OF MICHIGAN believe
that our country should strive towards restoring the purity of
our waters, that our government is a government of laws, that
executive impoundment represents a threat to representative
government and that executive impoundment is_ without
Statutory, case or constitutional authority.

In light of these concerns, the PEOPLE OF THE STATE
OF MICHIGAN URGE THIS COURT TO OVERTURN
THE EXECUTIVE IMPOUNDMENT OF WATER
POLLUTION CONTROL FUNDS.

ERE LONE IE Nt OG AEDT gs PE BIS RAPE

Dated: June 14, 1974

pe

Respectfully submitted,

FRANK J. KELLEY
Attorney General
State of Michigan

Robert A. Derengoski
Solicitor General

Stewart H. Freeman
Assistant Attorney General

Charles Alpert
Assistant Attorney General

Address:
Suite 630
525 West Ottawa
Lansing. Michigan 48913

Telephone:
(S17) 373-1130

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1612%3A06. Public record. Not legal advice.