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

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Text

: IN THE

Supreme Court of the United States" > *

MICHAEL RODAK, !

October Term 1973 :

Nos. 73-1377, 73-1378 mina Ree

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENT. ‘AL PROTECTION AGENCY,

Petitioner,

vs.

THE CITY OF NEW YORK ON REHALF OF ITSELF AND

ALL OTHER SIMILARLY SITUATED MUNICIPALITIES

WITHIN THE STATE OF NEW YORK;

CITY OF DETROIT, Party Plaintiff, Respondents. X

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

; Petitioner,

vs.

CAMPAIGN CLEAN WATER, INC., Reaponedent.

Brief of the California Attorney General as Amicus

Curiae in Support of Respondents’ Position That

Petitioner Megally Reduced Allotments to States

as Required to Be Made by the Federal Water

Pollution Control Act Amendments of 1972

EVELLE J. YOUNGER,

Attorney General of the State of California,

ROBERT H. O’BRIEN,

Senior Assistant Attorney General,

NICHOLAS C. YOST,

Deputy Attorney General,

600 State Building,

217 West First Street,

Los Calif. 90012,

(213) 620-3085,

Of Counsel:

JAN E. CHATTEN.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622,

ee ~~

Page

IR oc NUE Rie I aE CT 1

Statement Of the Case ..........ccccccccccrscscssecsssoreceoeseees 4

A RR REA SRE IS Eos 5

a & Se anes Oo

SED OE UNIONS : cncccnsiidscdesnsntuscacetnccaqcemaaracrtatec’ 8

BE <. inccictniostnianccniapinitatintelgteeniatamiiat iced 10

This Case Presents a Justiciable Controversy

Which Is Not Barred by the Doctrine of Sov-

GRIN RID sis cscscscsccctctabtccsatenicclacctisbisizceais 10

The Legislative History of Sections 205(a) and

207 of the Act Indicates Congressional Intent

That All Funds Be Allotted, Though Flexibility

Was Given the Administrator Concerning What

Is Actually Speni in Any One Year .............. 12

A. Action of Congress: A Sense of Commit-

IIIT =: saiceascscautethiccssaaembicanissnidighsccecommuiencecaleds 13

B. The President's Veto: A Different Policy.. 20

C. Final Judgment of —— To Override

0 a ees cepaiaiiaabbacashan, ane

D. The Distinction minnie ee in Al-

lotment and in Obligation —.................... 24

The President Has Only Such Powers to Refuse

to Spend Funds Authorized by Congress as

May Be Found or Implied by Legislation .....

eg ee Oy ee ee ea ee oe

ee ee Se See eee. ae en ee

_— ee

‘i.

IV Page

The Position of Respondents in This Case Is Sup-

ported by the Recent Decision in Missouri v.

MED) csbcnissdtchupnamsanistagueininabatacsesins’? sknsiieses 39

Even Assuming Sections 205(a) and 207 Gave

the Administrator Discretion to Limit Allot-

ments, He Abused That Discretion by Allotting

Only $5 Billion of the $11 Billion Authorized

for Appropriation for 1972 and 1973 _........... 41

The Doctrine of Separation of Powers Prohibits

the Type of Executive Assumption of Con-

gressional Function Accomplished by Refusal

to Comply With the Allotment Procedures of

GE IE ea ctecitdna ye cesdsdtaacactecsetinteteesincnte. 43

ee ee ee ee ee

TABLE OF AUTHORITIES CITED

Cases Page

Anthony R. Martin-Trigona v. William D. Ruck-

elshaus, .... F. Supp. .... (N.D. Ill. 1973), Civil

Action No. 72-C03944, 5 ERC 1665, summary

judgment entered in favor of plaintiff finding act

of allotment ministerial _... See PE Aas id 4,

Baker v. Carr, 369 U.S. 186 (1962) ..................

Campaign Clean Water, Inc. v. Ruckelshaus, 489

F.2d 492 (4th Cir. 1973), 361 F. Supp. 689

(E.D. Va. 1973), 5 ERC 1441 .............. 4, 41,

City of Burbank v. Lockheed Air Terminal, 411

as Ge) te. ss} oon Fe Ti RASS ID la

City of New York v. Ruckelshaus, .... F.2d ....

(D.C. Cir.), 358 F. Supp. 669 (D. D.C.

I I crescent 4 26,

Dugan v. Rank, 372 U.S. 609 (1963) ..............

First Nat. Bank v. Walker Bank, 385 U.S. 252

Oa TEL OE Gs RS a

George E. Brown, Jr. v. Ruckelshaus, and City of

Los Angeles v. Ruckelshaus, 364 F. Supp. 258

(C.D. Cal. 1973). 5 ERC 1803 (1973) .4, 5,

Kilbourn v. Thonipson, 103 U.S. 168 (1880) ....

Local 2677, American Fed. of Gov. Emp. v. Phil-

lips, 358 F. Supp. 60 (D. D.C. 1973) ...... MPaaed

McCray v. United States, 195 U.S. 27 (1903) ....

National Ins. Co. v. Tidewater Co., 337 U.S. 582

eee SCRE renee eee er ee

O'Donoghue v. United States, 289 U.S. 516 (1933).

iv.

Page

Rescue Army v. a Court, 331 U.S. 549

OID » addncdadantcstach tb aiiuasapectpitanaaensnube paasiactdendias 45

State Highway Commission of Missouri v. Volpe,

479 F.2d 1099 (Sth Cir. 1973) ...2....20....020...

State of Maine, et al. v. Robert W. Fri, et al.,

D. Maine, Civil Action No. 14-51, the District

Court entered a preliminary injunction requiring

allotment of funds; the Court of Appeals for the

First Circuit affirmed, .... F.2d ..... 5 ERC 1991

CONEY © aiecuasicansconnprenasudiesbumncene midairicincneeioeeees 5

State of Minnesota v. United States Environmental

Protection Agency, et al., D. Minn., No. 4-73

Civ. 133, 5 ERC 1586 (1973), plaintiff's mo-

tion for summary judgment granted; appeal pend-

NE -“acksheciccdusdicabinsabnoppiabalisieidiedssiacosestncccaidpouasiiicasieetiecentinsibn 5, 42

Congressional Record

116 Congressional Record S 159 (daily ed. Jan.

IE crectatn scabs ibitesaseclelichinacicnesiephtiscnssicbiseeitentiersiont 35

116 Congressional Record S 160 (daily ed. Jan.

Ee Re ee eee VaR 36

118 Congressional Record H 9122 (daily ed. Oct.

ay SUI isicect tennsiccppttoenicclidantieigs inde uctiesbobbadonibeisbessied 18

118 Congressional Record H 9130 (daily ed. Oct

i MENTED | cucdashaigencthndprassoldotadnbacessolanoibciceeansadimsasesis 20

118 Congressional Record H 10267-68 (daily ed.

ee 5 ERR einai ema een koe ores 24

es rae Ame Record H 10268 (daily ed. Oct.

DEINE ade <inct sacl anes deecipnentsanadnescaransasadeouaunersies 26

118 pela ES geen ones 20

Page

118 Congressional Record § 16870 (daily ed. Oct.

By RFD si siheeanicecnta grsncnsipetlandadinasnngeaniaadantnaneets 17

118 Congressional Record § 16871 (daily ed. Oct.

Of. pees cr. eM cerns URE RE te ERP ets ae

118 Congressional Record § 16892-93 ..... dectidaee 19

118 Congressional Record § 18546 (daily ed. Oct.

0 Reed. Ratbedecetctgitsinentmeentatmeimatis 21

118 Congressional Record $ 18548 (daily ed. Oct.

07g: SPEED, cnretocvensubatetuisivpensspicunensiiaaadensbeitenehontin 22

Miscellaneous

Hearings on Executive Impoundment of Appro-

priated Funds Before the Subcommittee on Sep-

aration of Powers of the Committee on the Judi-

ciary, 92nd Cong., Ist Sess. (1971), p. 80 ... 40

Hearings on House Report 5193 and Related Bills

Before the Subcomm. on Rules, 93rd Cong., Ist

Sess., pts. 1, 2 at 88, et seq., L.C. 73-602108

CBee nes cedcenicserustecsnideosioeietenenis SE ROT: 32, 34

Hearings on Waiter Pollution Control Legislation,

U.S. Senate Committee on Public Works, 92nd

Cong, tot Sem. pt. 1, af Sei (1971) ............. 15

Pee TR I savskensceessipircensn te cepokintennne 32

ae 2, | eR Rn acer no Rare Presa 16

2 United States Code Congressional and Admin-

istrative News, Pub. L. 92-500, pp. 3701, 3702

6 ff) apne CER ire ae, terse Sees wie oR KK E SRS 16

Weekly Compilation of Presidential Documents,

Vol. 8, No. 43, pp. 1531-32 (Oct. 23, 1972)

sapentectubaldaiebelpanmribnceduaapibbeactoteetuduccrentitatenate Oy eae ae

Oe ee

Vi.

Statutes Page

California Constitution, Art. V, Sec. 13 —............ 7

California Government Code, Sec. 12600(b) ........ 8

California Water Code, Sec. 13000 ..............00...... 8

Federal Water Pollution Control Act. Sec. 101(a)

ff ) pear BOON SOS ya USS EEE A tp 7

Federal Water Pollution Control Act, Sec. 202 .... 14

Federal Water Pollution Control Act, Sec. 203 ...... 14

Federal Water Pollution Control Act, Sec. 205(a)

prec eenie 8, 12, 14, 24, 26, 28, 29, 39, 41, 43, 47

Federal Water Pollution Control Act, Sec. 205(b)

eee daatsaaeebeinetssbabgsAbsdainiipinnisesicnnecesencancorvee 14

Federal Water Pollution Control Act, Sec. 207 . 8

ccbbteienenttaotthes 12, 16, 24, 26, 28, 29, 41, 43, 47

Federal Water Pollution Control Act, Sec. 207(b)

Se a aM TIAE sacle dainhied cb tessa dahenticcdecincceaseitinstinniinn 16

Federal Water Pollution Control Act, Sec. 301(b)

I iiclesidiiietlabninasietcdincintcicscnersicnibemnsscerandonscs 6

Federal Water Pollution Control Act, Sec. 301(b)

a so ccinivnnenteatioacannedes 7

United States Constitution, Art. I, Sec. 1 _.......... 44

United States Constitution, Art. I, Sec. 7 47

United States Constitution, Art. I, Sec. 9 _....000..... 44

Textbooks

Impoundment of Funds, 86 Harvard Law Review,

I I isseictomncsciepsnosorhensmnoracenesns 32, 38

Presidential Impounding of Funds: The Judicial

Response, 40 University of Chicago Law Review

‘oe BS Se Seb anaes 11, 38, 46

IN THE

Supreme Court of the United States

October Term 1973

Nos. 73-1377, 73-1378

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

vs.

THE CITY OF NEW YORK ON BEHALF OF ITSELF AND

ALL OTHER SIMILARLY SITUATED MUNICIPALITIES

WITHIN THE STATE OF NEW YORK;

CITY OF DETROIT, Party Plaintiff, \

Respondents.

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

vs.

CAMPAIGN CLEAN WATER, INC.,

Respondent.

Brief of the California Attorney General as Amicus

Curiae in Support of Respondents’ Position That

Petitioner Illegally Reduced Allotments to States

as Required to Be Made by the Federal Water

Pollution Control Act Amendments of 1972

Introduction

“There presently exists a ‘wait and see’ mood

on the part of State and local governments. .. .

This stagnant condition will be compounded by

the uncertainty that will be bred by a Presidential

disagreement with Congress over the content and

direction of the Federal program. More important-

Pe Ma oss ‘

i.e

ly, it will counter the President’s demand that we

‘not slacken our pace, but accelerate it.”

“We will be confronted by the inequity of try-

ing to pursue, through enforcement means a con-

trol program against industrial dischargers, while

failing to fund municipal plants on the same

stream, and not controlling those industrial wastes

discharged through municipal plants. As the Pres-

ident stated, ‘A river cannot be polluted on its

left bank and clear on its right. In a given water-

way, abating some of the pollution is often little

better than doing nothing at all, and money spent

on such partial efforts is often largely wasted.’

[ Footnote omitted. |

“Finally, we can anticipate many groups ques-

tioning the degree of Federal commitment and

interest, and the Federal Government’s ability to

provide stable and effective leadership. The

momentum of awareness and action will not be

sustained and the attainment of the President’s

goal of ‘true quality of life in America’ will be

hindered. . . . Program delay and indecision have

become common. As the President said, ‘as we

strive to expand our national effort, we must also

keep in mind the greater cost of not pressing

ahead.” | Footnotes omitted. |

“EPA is not unmindful of the limited resources

that the Federal Government can apply to its

important programs. It is a constraint that fades

many hopes... .

“But countervailing this concern are the con-

sequences of failure to meet our national need in

this area. More so than any other, water is our

most important national resource. It sustains our

industry, our farms, our commerce, our enjoyment,

our lives. It is also most unforgiving if it is abused.

The effects linger and, if continued, multiply.

“It seems reasonable to me to spend less than

1% of the Federal budget and two tenths of 1%

of the Gross National Product over the next

several years to assure for future generations the

very survival of the Gross National Product.” Let-

ter from William Ruckelshaus to The Office of

Management and Budget, October 11, 1972, rec-

ommending Presidential Approval of the Federal

Water Pollution Control Act Amendments of

1972, “A Legislative History of the Water Pollu-

tion Control Act Amendments of 1972,” Public

Works Committee, 93rd Cong., Ist Sess., Serial

No. 93-1 (1973). (Emphasis added. )

Despite the strong and eloquent recommendation of

the President’s own appointee as Administrator of the

Environmental Protection Agency, the President vetoed

the Federal Water Pollution Control Act Amendments

of 1972 (hereinafter FWPCA). Congress, however,

expressing a strong sense of commitment to cleaning

the nation’s waters, overrode the President’s veto.

The decision to spend $18 billion for waste treat-

ment plants was not an easy one for Congress. It was

a carefully weighed decision, with much thought given

to the potential inflationary effect on the economy.

The cost of cleaning our waters is great. It was deter-

mined, however, that in terms of destroying all hope of

saving the quality of our waters, a weak commitment

on the part of the federal government would have even

a greater cost.

EEE OSIM TIN TAS

Ultimately, our national pricrities must be established

by the People, speaking through their legislative repre-

sentatives. Congress has spoken. It is now up to the

courts to effectuate that decision so that the task of

cleaning our nation’s waters may begin.

Statement of the Case

The facts out of which this case arises are aptly

summarized by District Court Judge Merhege in Cam-

paign Clean Water v. Ruckelshaus. (TT. Appendix pp.

80A, 81A.)

It is significant to note that since the reduction of

allotments, five out of six District Court judges who

have ruled upon the issue of the amount of allotments

made under the FWPCA have ruled in favor of plain-

tiffs:

City of New York v. Ruckelshaus, .... F.2d .

(D.C. Cir.), 358 F. Supp. 669 (D. DC.

1973), 5 ERC 1305;

Anthony R. Martin-Trigona v. Wiiliam D.

Ruckelshaus, .... F. Supp. .... (N.D. Il.

1973), Civil Action No. 72-C03944, 5 ERC

1665, summary judgment entered in favor of

plaintiff finding act of allotment ministerial;

Campaign Clean Water, Inc. v. Ruckelshaus,

489 F.2d 492 (4th Cir. 1973), 361 F. Supp.

689 (E.D. Va. 1973), 5 ERC 1441, plain-

tiffs motion for summary judgment granted

finding discretion in making allotments but

holding discretion abused; Court of Appeals

remanded with directions to take evidence on

abuse of discretion;

George E. Brown, Jr. v. Ruckelshaus, and City

of Los Angeles v. Ruckelshaus, 364 F. Supp.

a om

258 (C.D. Cal. 1973), 5 ERC 1803 (1973),

motion to dismiss on standing issue granted

(Judge Hauk also addressed the merits and

sustained the “impoundment” );

State of Minnesota v. United States Environ-

mental Protection Agency, et al., D. Minn.,

No. 4-73 Civ. 133, 5 ERC 1586 (1973),

plaintiff's motion for summary judgment

granted; appeal pending;

State of Maine, et al. v. Robert W. Fri, et al.,

D. Maine, Civil Action No. 14-51, the Dis-

trict Court entered a preliminary injunction

requiring allotment of funds; the Court of

Appeals for the First Circuit affirmed (.... F.

2d ...., 5 ERC 1991 [1973]).

The Issue

At the beginning it should be made clear that we do

not view the case before us as one involving an im-

poundment of funds. It is actually a far more serious

case.! When funds are impounded they are retained

and may accumulate for later use. By not making the

initial allotments to the states the federal commitment

has been cut back and without additional legislation

those funds will never be made available to the states.

A complicated funding procedure was set forth in

the FWPCA. The six-step procedure is aptly set forth

1The Court of Appeals for the District of Columbia Circuit,

while ruling as California urged as a friend of the court that the

allotment of funds was a purely ministerial act, refused to pur-

sue what it considered the “semantic argument” we presented

as to the distinction created by the unique funding mechanism.

New York v. Train, Combined Appendix pp. 7A, 8A. The dis-

tinction between flexibility at the obligation stage and a refusal

to make full allotments is not, however, a semantic distinction

but has a substantive effect.

REEL RIN A IIIT

Hauge

—6—

by the Court of Appeals for the District of Columbia

in Mew York v. Train. (Appendix p. 6A.) The first

step is really a bookkeeping procedure. The Adminis-

trator, according to. standards of a state’s need as set

forth in the Act, each year allots amongst the states

the amount of money which will eventually be made

available to them. Though no money changes hands

at this stage, the states then can rely on eventually

obtaining a fixed share of the federal funds for the

program.

The issue, then, before this Court is whether the

allotment to the states of the funds authorized to be

appropriated is a ministerial act. This has been treated

as the central issue in every case involving the re-

duction of allotment except Campaign Clean Water,

inc. v. Train. The failure of plaintiffs im the Cam-

paign Clean Water case to fully address this issue ren-

ders the opinions in that case of little value. The cru-

cial error made by plaintiffs in Campaign Clean Water

was in incorrectly conceding that Congress intended to

give the executive certain discretion in making allot-

ments. It is that concession with which we do not con-

cur and which skews the result in the Fourth Cir-

cuit’s decision.

Statement of Interest

Imposed upon the states by the FWPCA are certain

specific duties in regard to waste treatment. Section

301(b)(1)(B) requires publicly owned treatment

plants within certain time periods to meet effluent limi-

tations based on secondary treatment. By July 1, 1983,

cides

all publicly owned treatment plants are required by

section 301()(2)(B) to provide for thie “best prac-

ticable” waste treatment technology. A tremendous

amount of money will have to be expended by Cali-

fornia to comply with these congressional mandates.

One of the four national policies stated in the Act

is the “naiional policy that federal financial assistance

be provided to construct publicly owned waste treat-

ment works.” § 101(a)(4). It was the intent of Con-

gress in enacting Title II of the FWPCA to assist states

in development of the waste treatment management

plants necessary to achieve the water quality goals of

the Act. That was why $18 billion was authorized by

Congress to be appropriated as grants for construction

of waste treatment plants.

By the Adniinistrator’s refusal to allot the full

amount of funds autnuitecd + ve appropriated, Cali-

fornia stands to lose a total of $948,300,000 in con-

struction grants for 1973, 1974 and 1975, California’s

share of the federal allotment being 9.8176%. 37 Fed.

Reg. 6282 (Dec. 8, 1972); 38 Fed. Reg. 5331 (Feb.

28, 1973); 39 Fed. Reg. 5257 (Feb. 11, 1974). With-

gut those funds the citizens of California, in order

to meet the standards established by the Act, will have

to bear a substantial economic burden which Congress

intended the federal government to share.

The Attorney ‘’eneral is the chief law officer of

the State of California. (Cal. Const. art. V, $ 13.) He

has been Celegated by the California Legislature the

WIBER

CLE ELRAP ER, WME LENSER RANE FOL AE LY OL OM Rowers Ses

ELLE AOABINY ERP es

POOR PLIES

responsibility of providing the people of the State of

California with an adequate remedy to protect the nat-

ural resources of the State of California from pollu-

tion, impairment or destruction. (Cal. Gov. Code

§ 12600(b).)

To protect the waters of the State of California and

insure compliance with the FWPCA and our own State

Water Quality Act (Cal. Wat. Code § 13000 ef seq.),

it is in the best interest of the public for the California

Attorney General to support the position of the City

of New York in order to secure allotment of the full

amount of funds authorized by Congress in the

FWPCA.

Summary of Position

It is the position of the State of California that:

1. These cases present a justiciable contro-

versy which is not barred by the doctrine of sov-

ereign immunity;

2. The President only has such powers to re-

fuse to allot or spend funds as is express or im-

plied in the authorizing legislation:

3. Section 205(a) of the FWPCA states that

sums authorized to be appropriated shall be al-

lotted. The history of sections 205(a) and 207 of

the FWPCA demonstrates the congressional intent

that all funds authorized for appropriation for

waste treatment plants be allotted to the states.

Allotment of funds, according to a formula based

on need for waste treatment plants, is a minis-

terial act;

nition

4. Under the funding procedure established

py the FWPCA it is at the subsequent obligation

stage that the Administrator has some discretion

as to when funds will be spent. Once funds have

been allotted, however, they will eventually be

spent as they are carried over from year to year;

5. If it is concluded that the Administrator

does in fact have some discretion as to the amount

allotted, he has abused that discretion in allotting

only some 55% of the funds authorized for ap-

propriation in 1972 and 1973;

6. To allow the reduction of the allotment to

stand would frustrate the will of Congress and

violate the constitutional doctrine of separation of

powers.

rs ee, Prey i eal as

ARGUMENT

This Case Presents a Justiciable Controversy Which Is

Not Barred by the Doctrine of Sovereign Insmunity

In all of the litigation arising out of the reduction

of allotments under the Federal Water Pollution Con-

trol Act, the Administrator has contended that the facts

fail to present a justiciable case or controversy and

involves a non-justiciable political question. Further-

more the Administrator contended, as he now con-

tends, that this case is barred by the doctrine of sov-

ereign immunity. Several of the judges in the cases be

low have treated the contentions of the Administrator

on this point at length and concluded that this case

presents a justiciable controversy which is not barred

by the doctrine of sovereign immunity. Even Judge

Hauk, the only District Court judge who ruled in favor

of the Administrator, held that although this may be

a political case it is not a political question and there-

fore is justiciable. Brown v. Ruckelshaus, 364 F.

Supp. 258, 262-63 (C.D. Cal. 1973), 5 ERC 1803,

1805. This certainly is no more of a political case than

the first major impoundment case, Kendall v. United

States, 37 U.S. 524 (1838). As stated in Baker v.

Carr, 369 U.S. 186, 211 (1962):

“Deciding whether a matter has in any measure

been committed by the Constitution to another

branch of government, or whether the action of

that branch exceeds whatever authority has been

committed, is itself a delicate exercise in consti-

iutional interpretation, and is a responsibility of

this Court as ultimate interpreter of the Constitu-

Cece

‘cenit

Just such a matter is presented in this case. For a good

summary of the role played by the judiciary in the ques-

tion of impoundment of funds see Presidential Impound-

ing of Funds: The Judicial Response, 40 U. Chi. L.

Rev. 328 (1973).

Petitioner contends that this suit is barred by the

doctrine of sovereign immunity because the requested

relief will iead to the expenditure of government funds.

Petitioner relies upon Dugan v. Rank, 372 U.S. 609

(1963). What petitioner fails to realize is this case is

within the exception to the general rule stated in Dugan

v. Rank. In that case the Court indicated that a suit

could be brought against a United States officer when

the action challenged allegedly exceeded the officer’s

statutory authority, or if within the scope of authority

was premised upon a power which is unconstitutional.

Dugan v. Rank, supra, at 621.

Furthermore as stated in Martin-Trigona v. Ruckels-

haus, .... F. Supp. .... (N.D. Ill. 1973), 5 ERC 1665,

1666:

“It should be noted at the outset that the relief

sought by the plaintiff does not require the ex-

penditure of unappropriated public funds nor does

it require the obligation of appropriated funds.

The plaintiff is not seeking a determination of

whether or not the Administrator is required to

spend a given amount of money for his sewage

treatment. Rather plaintiff is seeking a judicial

declaration that would require the Administrator

to perform what plaintiff alleges to be a purely

ministerial duty under the Act. (Viz. that of allot-

ting—and thus making available for obligation—

EFA DR ee a eke a ar

QQpssresceewe oPae $s "ald Nad Alpe, 2S 2

==] 2

the sums authorized to be appropriated by Sec.

207 of the Act.)” (Emphasis in original. )

Also supporting the decision that this claim is not

barred by the doctrine of sovereign immunity is a very

important impoundment case: State Highway Commis-

sion of Missouri v. Volpe, 479 F.2d 1099 (8th Cir.

1973).

It is clear that this case presents a justiciable con-

troversy which is not barred by the doctrine of sovereign

immunity. We, therefore, proceed to examine the merits

of the proposition that the Administrator does not have

the discretion to reduce aliotments of funds authorized

to be appropriated for construction of waste treatment

plants.

The Legislative History of Sections 205(a) and 207

of the Act Indicates Congressional Intent That

All Funds Be Allotted, Though Flexibility Was

Given the Administrator Concerning What Is Ac-

tually Spent in Any One Year

Section 207 of the FWPCA established the maximum

funds authorized to be appropriated for 1973, 1974,

and 1975.

“There is authorized to be appropriated to carry

out this title . . . for the fiscal year ending June

30, 1973, not to exceed $5,000,000,000, for the

fiscal year ending June 30, 1974, not to exceed

$6,000,000,000, and for the fiscal year ending

June 30, 1975, not to exceed $7,000,000,000.”

(Emphasis added. )

Section 205(a) of the Act mandates that funds au-

thorized to be appropriated under section 207 be

(

allotted among the states by the Administrator prior to

January 1, immediately preceding the fiscal year in

which it is to be appropriated.

“Sums authorized to be appropriated pursuant

to section 207 for each fiscal year beginning after

June 30, 1972, shall be allotted by the Administra-

tor not later than the January Ist immediately

preceding the beginning of the fiscal year... .”

(Emphasis added. )

By letter dated November 22, 1972, President Nixon

informed Administrator Ruckelshaus:

“1 direct that you not allot among the States the

maximum amounts provided by section 207 of the

Federal Water Pollution Control Act Amend-

ments of 1972. No more than $2 billion of the

amount authorized for the fiscal year 1973, and

no more than $3 billion of the amount authorized

for the fiscal year 1974 should be allotted... .”

(Emphasis adued.) (See App. Br., Ct. of Ap-

peals, New York v. Fri, Appendix pp. 15A-16A.)

The issue before this Court is whether the Administra-

tor exceeded his authority in not allotting the funds

authorized to be appropriated.

A. Action of Congress: A Sense of Commitment

Analysis of the legislative history of Title II of the

FWPCA leads to the conclusion that Congress man-

dated the Administrator to allot among the states $5

billion for 1973 fiscal year, $6 billion for 1974 fiscal

year, and $7 billion for 1975 fiscal year. The Ad-

ministrator has some discretion at a later stage as to

what is actually obligated, which in turn determines

what would be appropriated, but not as to what part

of the authorized funds may actually be allotted.

OE ee oe es BR SE kak etek de i 6 ee ee

STENNIS Ty ane

SOE PG ONT Rea Ee

EUSP? Fee AINE MESES

rte tt re mr ®

leis:

The report finally accepted by the Conference Com-

mittee and passed by Congress over the Presidential veto

as previously discussed provides for a complicated fund-

ing procedure. Congress committed itself to providing

75% of the cost of constructing certain needed waste

treatment management works. (§ 202.) The sums au-

thorized to be appropriated are allotted amongst the

states on the basis of need. (§ 205(a).) When the al-

lotments are made the Administrator cannot possibly

know how much or when the funds will later be ap-

propriated. When the Administrator approves construc-

tion plans, a contractual obligation is created (§ 203),

though the monies are expected to actually be spent

over a seven-year period. Appropriations are then an-

nually raade by the Appropriations Committee based

on the contractual obligations incurred by the Ad-

ministrator. It is these appropriations which are not to

exceed certain dollar amounts. The Administrator may

decline to incur obligations on all the monies allotted

to the states. Those funds which are not obligated with-

in a year after the fiscal year in which they were al-

lotted “shall be immediately reallotted by the Adminis-

trator”. (§ 205(b)(1).) There is, therefore an impor-

tant distinction between the procedures for fiscal flexi-

bility provided for by Congress and the allotment reduc-

tion procedures directed by the President. Under the

President's directive no funds will be carried over as

allotted but not obligated. The President has cut off

funds prior to the allotment stage. and thus substituted

his judgment for that of Congress on what should be

spent to clean our nation’s waters over the next seven

years.

In passing the FWPCA Congress was responding to

an important problem discussed in the 1971 Subcom-

—

mittee Hearings on Water Pollution where there was

much concern about the inadequacies of existing legis-

lation:

“At a bare minimum the credibility of the

existing federal commitment must be reestablished

by backing words of authorization with monies of

appropriation. Whenever the nation seeks to en-

courage cities to plan and construct improvements

which require many years to complete, the Con-

gress must build reliability into its federal grant

incentives. Major facilities cannot be stopped in

midstream. A change in federal grant policy to

establish a reliable commitment is vital but is not

the only change that can and shouid be made in

the federal legislative and regulatory approach to

water pollution abatement.” Hearings on Water

Pollution Czentrol Legislation, U.S. Senate Com-

mittee on Public Works, 92nd Cong., Ist Sess.,

pt. 1, at 521 (1971).

The general consensus during the first session of the

92nd Congress seemed to be that if the federal govern-

ment was going to mandate state action to clean the

nation’s water, the federal government would have to

bear part of the financial burden of accomplishing that

task. States and local governments had strongly pro-

tested against the congressional imposition upon them

of rigorous air quality standards under the Clean Air

Act and Amendments of 1970 because the federal

government did not at the same time provide funding to

help the states and local governments meet those stand-

ards.

“If Congress places upon State and communi-

ties the burden of carrying out this program, it

should bind itself to pay the Federal share of the

328 CRLF IR NELSON OEY ER ENE TE RN a |

ontiibies

project costs. The authority for obligation will

not bar the Committee on Appropriations from

reviewing the manner in which the program is be-

ing carried forward.” 2 U.S. Code Congressional

and Administrative News, Pub. L. 92-500, p.

3702 (1972).

Discussing section 207 of the FWPCA (erroneously

referred to below as subsection (b)), the Subcommittee

on Air and Water Pollution ultimately concluded:

“The language of subsection (b) [sic] of Sec-

tion 207 provides that funds authorized for fiscal

years 1973, 1974, and 1975, shall be available

for obligation by contract upon their allocation to

the States. The importance of assured Federal

financial support to the achievement of the objec-

tives of this title and to our national purpose of

cleaning up polluied waterways cannot be over-

stated. The task is a massive one in terms of the

work to be done and the funds to be expended.”

2 U.S. Code Congressional and Administrative

News, Pub. L. 92-500, p. 3701 (1972).

The subcommittee consistently voted against reduc-

ing the amount of the authorizations. The degree of

the commitment to full funding felt by Congress is

expressed in both Senate Reports and House Reports.

In determining the intent of Congress in enacting a

bill, it is particularly important to consider the views

of the sponsors of the legislation. First Nat. Bank v.

Walker Bank, 385 U.S. 252, 271 (1966); City of

Burbank v. Lockheed Air Terminal, 411 U.S. 624,

637 (1973). Senator Muskie’ in his report stated:

“Chairman, Senate Subcommittee on Air and Water reporting

S 2770, floor manager for that bill and member of the Confer-

ence Committee.

“The conferees spent hours and days studying

the problem of financing the cleanup effort re-

quired by this new legislation. The members

agreed i: the end that a total of $18 billion had

to be committed by the Federal Government in

75 percent grants to municipalities during fiscal

years 1972-75. That is a great deal of money; but

that is how much it will cost to begin to achieve

the requirements set forth in the legislation. . . .”

118 Cong. Rec. S 16870 (daily ed. Oct. 4, 1972).

(Emphasis added. )

“Mr. President, to achieve the deadlines we are

talking about in this bill we are going to need the

strongest kind of evidence of the Federal Govern-

ment’s commitment to pick up its share of the

load. We cannot back down, with any credibility,

from the kind of investment in waste treatment

facilities that is called for by this bill. And the

conferees are convinced that the level of invest-

ment that is authorized is the minimum dose of

medicine that will solve the problems we face.”

118 Cong. Rec. S 16871 (daily ed. Oct. 4, 1972).

Though the financial commitment was great, it is im-

portant to remember that actual cash outlay in the

three years for which appropriatious were authorized

would be relatively slight because of the lag time be-

tween approval of a project and actual expenditure for

construction.

PILE T PL A TE) Oe

LRP

AOA Srey

According to Congressman Harsha:

“!T |he first major impact of obligations from the

$5 billion authorizations for the fiscal year ending

June 30, 1973, is in fiscal year 1975. During that

year the appropriations required for payment for

obligations authorized by this legislation would

Cee

"oo

only be $2,450,000,000. The appropriations will

be spread out over the period of construction of

these waste treatment projects and would not be

felt in any appreciable sum until fiscal year

1975, some 2 or 3 years hence.

“As a matter of fact, for fiscal year 1973 if all

the money were obligated and placed under con-

tract, there would only be $20 million needed to

meet the obligations and in fiscal year 1974 there

would only be the necessity of appropriating

$250 million. Obviously there is not a severe im-

pact on the economy for the next 3 years under

this legislation.” 118 Cong. Rec. H 9122 (daily

ed. Oct. 4, 1972).

Congress was concerned about the inflationary ef-

fect, but concluded that the dangers of such an effect

were outweighed by the interest in cleaning up our

waters.

The “sense of Congress” (a term used in the Federal-

Aid Highway Act) was expressed by Senator Bayh

when he stated:

“The conferees agreed to accept the House

passed authorizations for grants to the States for

the construction of waste treatment plants, in-

cluding sewage collection systems. This is con-

struction which is absolutely essential if we are

to make any meaningful progress toward the na-

tional goals established in the bill. The total au-

thorization for this purpose is $18 billion over the

3 fiscal years ending in 1975. There is no doubt

that this money is needed. for without substantial

authorizations he [sic] bill would be little more

than a series of empty promises. The amounts

sania

allocated for grants for construction of treatment

works will be distributed to the States on the

basis of need, with the Federal share of construc-

tion costs being 75 percent. * Supra at

S 16892-93.

The intent of the House to make an $18 billion

commitment was just as clear as it was in the Senate.

Congressman Harsha,” in his report to the House, re-

minded his colleagues:

“You may recali that the bill that passed this body

last March called for authorizing a little more

than $24.6 billion, the Senate bill authorized $20

billion, and the administration requested $6 bil-

lion. The conferees have agreed on essentially the

same figures as in the House bill, $24.6 billion

for the period through fiscal 1975. A total of

$18 billion of this sum is for construction grants,

and breaks down not to exceed $5 billion for fis-

cal 1973, $6 billion for fiscal 1974, and $7 bil-

lion for fiscal 1975.

“Naturally, the large difference in what the

administration asked, and what the conference

bill provides, raises the question of why the sub-

stantial discrepancy?

“There is only one answer to that and it is that

if we set out to do this job there is no way we can

accomplish it without paying the price. If we want

clean water, we have to pay for clean water. If we

want the States and cities to move aggressively

ahead in building waste treatment plants they

‘Ranking minority member of House Committee on Public

Works, which reported House version, floor manager for that

bill and member of Conference Committee.

must have Federal aid, and they must have con-

fidence that Washington will continue to live up

to its commitments.” 118 Cong. Rec. H 9130

(daily ed. Oct. 4, 1972).

B. The President's Veto: A Different Policy

After unanimous passage by the Senate. and with

only il dissents in the House, the FWPCA went to

the President. The legislation, with its appropriations

which had been subject to such close scrutiny by the

Congress, was rejected by the President as inflationary.

In his veto message to Congress on October 17, the

President said:

“Tt am compelled to withhold my approval from

S. 2770, the Federal Water Pollution Control Act

Amendments of 1972—a bill whose laudable in-

tent is outweighed by its unconscionable $24 bil-

lion price tag. My proposed legislation, as re-

flected in my budget, provided sufficient funds to

fulfill that same intent in a fiscally responsible

manner. Unfortunately the Congress ignored other

vital national concerns and broke the budget with

this legislation.” Weekly Compilation of Presi-

‘It is interesting to note that according to former Administra-

tor Ruckelshaus the difference between the amount which would

have been authorized for appropriation in the Administration's

bill submitted in 1971 (S 1013 by Senator Cooper) and that

of the bill eventually passed, was not that substantial, In a

letter by Ruckelshaus to President Nixon, urging the President

to sign the bill, Ruckelshaus stated:

“The total value of construction initiated in the near-

term under the enrolled bil! |S. 2770] is expected to cor-

respond closely to the total value of construction that would

have been initiated under the Administration bill. Under

the Administration’s proposal, communitics were free to

centinue to initiate reimbursable projects, were not constrict-

ed by the $6 billion authorization, and could have sub-

stantially increased this amount. Reimbursable projects are

dential Documents, Vol. 8, No. 43, pp. 1531-32

(Oct. 23, 1972).

By exercising his constitutional prerogative of veto, the

President fully expressed his disapproval of the con-

gressional statement of policy as to how much money

was needed to clean our waters.

C. Final Judgment of Congress: To Override the Veto

To the President’s message both the House and the

Senate, on October 17 and 18, responded by exercising

their constitutional prerogative and overwhelmingly

overriding his veto. In the discussion of the veto, Con-

gress again expressed its conviction that the $18 bil-

lion was needed for allotment among the states to do

the job. Senator Muskie said in response to Senator

Scott’s support of the President’s concern about the

budget

“ . . But may I say to the Senator, when we

pass a piece of legislation like this, with its re-

quirements imposed on industry, with its require-

ments imposed on the States, with its require-

ments imposed on the local governments, the ques-

tion that faces us then is, as we impose this com-

mitment on them, what commitment are we pre-

pared to accept on the part of the Federal Gov-

ernment?

“This point was well debated in the Senate

when we took up this bill. I made it clear, the

precluded under the enrolled bill and the $18 billion con-

tract grant authority represents a ceiling, while the Ad-

ministration’s $6 billion proposal represented a floor, With

the projected close correspondence in total near-term value

of construction starts, the potential inflationary impact upon

the entire consiruction sector would be minimized.” 118

Cong. Rec. S 18546 (daily ed. Oct. 17, 1972).

: +

amie

committee made it clear, that what we are asking

of the Congress was a commitment that these

people in other levels of government and the

private sector could rely upon. Of course there is

4 commitment. The President 3 years ago, in his

state of the Union message, said he had preempted

the environmental issue and that he was making a

commitment.

“ The conferees spent hours and days study-

ing the problem of financing the cleanup effort

required by this new legislation, and specifically

studying how much money would be necessary to

achieve the objective and goals of the act, as set

forth in section 101(a).” 118 Cong. Rec. S 18548

(daily ed. Oct. 17, 1972).

Congressman Harsha likewise responded to the Pres-

ident’s veto:

“To those who say that we cannot afford to

start now on the restoration of our waters, on

the scale that Congress believes is essential, 1 say

that we dare not postpone this undertaking. Every

day of inaction most certainly will add to the

ultirsate cost: another year of inaction may well

destroy all hope of saving our environment.

“Mr. Speaker, there is another point which I

must raise, We have known all along that it

would take a massive amount of money and time

to reclaim and to protect our precious water re-

sources. But, we dare not measure the cost of

this water bill merely in terms of dollars alone.

We cannot measure the wealth of our great nat-

ural resources in dollars alene—and if we wait

too long, all the dollars on earth won't buy back

what we've lost. Under these circumstances, | am

firmly convinced that the price of killing this wa-

ter bill—-of sustaining this Presidential veto—is

far, far too costly.

“Furthermore, the President maintained that a

vote to override the veto of the Water Pollution

Control Act Amendments of 1972 was a vote to

increase the likelihood of higher taxes. So be it,

the public is prepared to pay for it. To say we

can't afford this sum of money is to say we can't

afford to support life on earth.

“This is not ‘extreme and needless overspend-

ing’—to use Mr. Nixon's language. The moneys

authorized are based on estimates made by his

own administration. Furthermore, the bill sets up

a new system of user charges, by which industrial

users would return their share of operating and

maintenance costs of waste treatment plants—an

estimated $4.5 billion—to the Federal Treasury.

“Our economy can, and must, absorb the costs

of pollution control. A March 1972 report of the

President’s Council on Environmental Quality on

‘The Economic Impact of Pollution Control’ notes

that no real attempt has yet been made to quantify

the benefits of a cleaner environment and that

studies tend consequently to overstate the net Costs

to socicty.

“Mr. Speaker. this is perhaps the most impor-

tant environmental legislation the Congress has yet

enacted. The question is not, "Can we afford to

spend $18 billion over the next 3 years for

ot ee, MPT eee eae

—

errmsg re

waste treatmeni plants?’ but ‘Can we afford not

to?’ .. .” 118 Cong. Rec. H 10267-68 (daily ed.

Oct. 18, 1972).

The statements of Congressmen quoted above are

but some of the plentiful language expressing Congress’

intention that the full $18 billion be spent for water

pollution control.

D. The Distinction Between Discretion in Allotment and

in Obligation

Even more importallién a suit on reduction of aillot-

ments than the general intent that the funds be spent

is the evidence that both Congress and the President

understood that sections 205(a) and 207 built in flexi-

bility in the contractual obligation stage which effects

when the moncy is spent, but not in the allotment

stage, which determines whether the funds ultimately

are spent. That the President was aware of some flexi-

bility in spending is expressed in his veto message of

October 17:

“Even if this bill is rammed into law over the

better judgment of the Executive—even if the

Congress defaults its obligation to the taxpayers—

I shall not default mine. Certain provisions of S.

2770 confer a measure of spending discretion and

flexibility upon the President, and if forced to

administer this legislation I mean to use those pro- *

visions to put the brakes on budget-wrecking ex-

penditures as much as possible.” Weekly Compila-

tion of Presidential Documents, Vol. 8 No. 43,

p. 1532 (Oct. 23, 1972).

In his report to the Senate on the conference bill.

Senator Muskie explained the purpose behind the lan-

guage of sections 205(a) and 207:

“In our last conference, the able and distinguished

ranking minority member of the House Committee

on Public Works offered two amendments which

he indicated would reduce opposition to the bill

from the White House and the Office of Manage-

ment and Budget. These two amendments were

accepted by your conferees and by other House

conferees in order to remove the question of a

veto on the basis of the money authorized by the

legislation.

“Under the amendments proposed by Congress-

man WILLIAM HARSHA and others, the au-

thorizations for obligational authority are ‘not to

exceed’ $18 billion over the next 3 years. Also,

‘all’ sums authorized to be obligated need not be

committed, though they must be allocated.”

These two provisions were suggested to give the

administration some flexibility concerning the ob-

ligation of construction grant funds.

“The conferees do not expect these provisions

to be used as an excuse in not making the com-

mitments necessary to achieve the goals set forth

in the act. At the same time, there may be in-

stances in which the obligation of funds to a

particular project in a particular State may be

contrary to other public policies such as the Na-

tional Environmental Policy Act. In these cases the

conferees would, of course, expect the administra-

tion to refuse to enter into contracts for construc-

tion.” (Emphasis added.) 118 Cong. Rec.

§ 16871 (daily ed. Oct. 4, 1972).

“Allocated rather than allotted was the term which had been

used in the Senate version of the bill.

;

}

APS oC a re *

———

pw SO A ARRIBA

= oan

Congressman Harsha made the same point to the

House when they voted to override the President's

veto:

“Furthermore, Mr. Speaker, we have empha-

sized over and over again that if Federal spending

must be curtailed, and if such spending cuts must

affect water pollution control authorizations, the

administration can impound the money.

“I want to point out that the elimination of the

word ‘all’ before the word ‘sums’ in section 205

(a) and insertion of the phrase ‘not to exceed’ in

section 207 was intended to emphasize the Presi-

dent’s flexibility to control the rate of spending.

“

“eee

“Second, I would like to point out that the

Administrator of the Environmental Protection

Agency must approve plans, specifications, and

estimates. This is the pacing item in the expendi-

tures of funds. It is clearly the understanding of

the managers that under these circumstances the

Executive can control the rate expenditures.” (Em-

phasis added.) 118 Cong. Rec. H 10268 (daily

ed. Oct. 18, 1972).

The legislative history of sections 205(a) and

207 cleariy indicates an intent to allow discretion in

the rate of spending: making allotments of funds to the

states, however, is solely a ministerial act.

The importance of the distinction between flexibility

in the obligation stage and in the allotment stage was

properly noted by Judge Gasch in City of New York

v. Ruckelshaus;

om aes OL ALOE LEA LEO I

—

“Another feature of the Act which is of some

importance in the resolution of issues before the

Court is the reallotment provision in § 205(b)(1)

of the Act. Once allotted to a State, sums are

available for obligation for approved projects

there ‘for a period of one year after the close of

the fiscal year for which such sums are author-

ized.’ If for any reason the sums allotted are not

fully obiigated within that period, they are to be

reallotted ‘generally on the basis of the ratio used

in making the last allotment of sums under this

section.’ Such reallotment sums remain available

for obligation and are added to the State’s allot-

ment for the next fiscal year. Any sums author-

ized but not allotted at the appropriate time are

lost to the State under the provisions of this Act.

Thus, by refusing to allot the full sums author-

ized, the Administrator controls the absolute

amount (as opposed to the rate) of spending with-

out regard to the standards set forth in, e.g.,

§ 204, for determining whether sums should be

obligated.” New York City v. Ruckelshaus, Ap-

pendix p. 62A.

° POP EE, RN, SR ES Oa

Congress gave the administration flexibility in spending

but did not intend to allow the Act to be gutted by

making less than the allotments provided for by the

Act. To accept the argument of petitioner, the Ad-

ministrator would allow the President to substitute his

judgment for that of Congress.

District Court Judge Merhege in Campaign Clean

Water came to the conclusion that the Administrator

had discretion to reduce allotment of funds but had

—

abused that discretion. In coming to the conclusion

on the discretionary aspect of the funding pro-

cedure, Judge Merhige relied on much the same lan-

guage of legislative history by Congressman Harsha

and Senator Muskie concerning deletion of the word

“all” before the werd “sums” in section 205(a) and

insertion of the phrase “not to exceed” in section 207,

which we contend were designed to give flexibility in

the obligation but not the allotment stage.

Judge Merhege stated:

“Judge Gasch in City of New York concluded

from this language and other by-play that, in ac-

cordance with Senator Muskie’s views, the discre-

tionary elements incorporated into the Act and

referred to by the various legislators were meant

to apply to executive control over the ‘rate of

spending,’ but that the rate of spending was to be

monitored only at the obligation stage and not by

the withholding of allotments.

“This Court respectfully declines to adopt this

interpretation, primarily because it appears to de-

emphasize the syntactical history of Section 205

which shows the purposeful removal of the word

‘all’ from § 205. While the legislative debates lend

strength to Judge Gasch’s conciusion, the Court,

the plaintiff, and, to a limited extent, the defend-

ant, are in agreement that legislative history is in

“On appeal the Court of Appeals noted that plaintiff “concedes

that Congress intended to give the executive certain discretion in

making allotments under Section 205.” (Appendix p. 39A.)

Plaintiff apparenti; made much the same concession in the trial

court. (Appendix p. 96A.) It is that concession which is

erroneous and which led that court astray. No such concession

was made in Train v. New York, supra, enabling the court in

that case properly to decide the issuc.

—_—

the main unclear, politically charged, and in the

Court’s view, to some degree based upon suspect

constitutional interpretation of the powers of the

President. In this context the syntactical history

must be given great weight. See generally Gilbert

v. General Electric, 347 F. Supp. 1058 (E.D. Va.

1972). The Court accordingly concludes that the

Congress did intend for the executive branch to

exercise some discretion with respect to allotments.

Plaintiff, in fact, does not seriously dispute this

conclusion, but contends that ‘the Congress could

not have intended to give the Administrator the :

discretion to gut the Act.’ This latter contention

merits close scrutiny.” Appendix at 95A-96A '

(footnote omitted ).

? .

As previously noted, part of the problem in relying

upon Campaign Clean Water is the acquiescences of

plaintiff in the core concept that reduction of allot-

ments was discretionary. Nonetheless, deletion of the

word “all” from section 205(a) does raise some ques-

tion as to the meaning of section 205(a) when read

with section 207. The Court of Appeals for the District

of Columbia Circuit in City of New York v. Train

more properly dealt with the meaning of those amend-

~ ments.

“We now turn to the analysis of §§ 205(a)

and 207, particularly with regard to the effect of

the Harsha Amendments. As we indicated earlier,

it is important to keep in mind the distinct stages

involved in the contract-grant mechanism. Appel-

lant-Administrator argues, primarily from the Har-

sha Amendments, that the Act permits discretion

at the allotment phase. Appellee-City counters that

while the Administrator might control the timing

— om

of future spending through delay of obligation, he

must fully allot. We agree with Appellee because,

after careful consideration of the relevant history,

we find it clear that the Congressional intent, both

before and after the Harsha Amendments, was to

make allotment mandatory.

“Section 205(a), by its terms, supports the Ap-

pellee. It is mandatory in tone: ‘Sums authorized

to be appropriated pursuant to section 207 for

each fiscal year . . . shall be allotted by the Ad-

ministrator. . . .’ (Emphasis added. )

“The Appellant argues that the Harsha Amend-

ments, by adding ‘not to exceed’ in § 207, manifest

an intent to make the allotment (under § 205)

discretionary. However, the imposition of a ceiling

on authorized appropriations is not inconsistent

with the Appellees’ position concerning mandatory

allotment. Logically, it could be interpeted to

mean that the amount obligated (later appropri-

ated and expended) in any fiscal year may be less

than the maximum amount authorized. We con-

cede that the elimination of the word ‘all’ from

§ 205(a) is a source of confusion. At least one

court’ has chosen to rely entirely upon this syn-

tactical change. although there is no precise expla-

nation of its meaning. We consider it more useful

to examine the statements of sponsors purporting to

explain the intended effect of the Harsha Amend-

ments: we find that allotment remained manda-

tory.” City of New York v. Train, Combined Ap-

pendix pp. 19A-20A (emphasis by the court).

“18Campaign Clean Water v. Ruckelshaus, Civil No.

18-73-R (E.D. Va. filed June 5, 1973) slip op. at 14.

{Court's footnote. }

Par, ae

Ill

The President Has Only Such Powers to Refuse to

Spend Funds Authorized by Congress as May Be

Found or Implied by Legislation

In the many congressional hearings on impoundment

of funds by the President, Congressmen have referred

to the refusal to allot funds under the FWPCA as an

impoundment issue. As previously discussed (supra pp.

25-33), we see a very important distinction. Refusal to

allot funds authorized to be appropriated has the ef-

fect of cutting off a federal financial commitment which

Congress has made, while impoundment may simply

delay the spending.

Discussions of impoundment nonetheless may be help-

ful in resolving this issue. Whatever might be said of

the impropriety of impoundment should be amplified for

the facts before this Court. If the President lacks au-

thority to delay expenditure of funds appropriated by

Congress, how much more surely must he lack the

power to completely block use of funds.

Though Presidents have been impounding funds since

Jefferson, the practice has never been so extensively em-

ployed as by President Nixon. Historically, the power

to impound has been treated as a limited one. Tradi-

tionally, impoundments have fallen into one of three

categories:

“(1) {Flunds were impounded solely because

they were no longer necessary for or appropriate

to the achievement of the ends for which they

had been made available; (2) the impoundment

was arguably iustifiable as an exercise of the

President’s authority as Commander in Chief of

the Armed Forces, either because the funds with-

-_- wer

a ee

held had been made available for defense pro-

grams or because spending of the funds would

hinder a war effort; or (3) Congress had author-

ized the President to impound if necessary as a

means of reducing government spending.” Jm-

poundment of Funds, 86 Harv. L. Rev. 1505,

1508.

Although arguably impoundment at the obligation

stage may fall into the third category, a reduction of

allotment does not fall into any category and has no

historical support. An excellent summary of the past

use of the impoundment power may be found in the

Hearings on H.R. 5193 and Related Biils Before the

Subcomm. on Rules, 93rd Cong., Ist Sess., pts. 1, 2

at 88, et seg., L.C. 73-602108 (1973).

The exercise of the power of impoundment by Presi-

dent Nixon has gone far beyond the practice accepted in

the past. The result is a “constitutional crisis” which

ultimately must be resolved in the courts, Congress’ own

short-term response, after much debate, has been to

pass an anti-impoundment bill, HR 8480 (which re-

quires the President to report all impoundments). The

harm has already been done however to the FWPCA

and can only be rectified by judicial decision.

In the Hearings on Impoundment,’ Congressman

Evans of Colorado expressed a sentiment which was

shared by many of his colleagues:

“The current situation is intolerable. The Presi-

dent impounds with impunity and we in Congress

search for ways to force the President to carry

7Hearines on H.R. 5193 and Related Bills Refore the Sub-

comm. on Rules, 93°d Cong.. Ist Sess. (1973).

ailliinss

out his constitutional duties to execute the laws

of the United States. . . .

“An appropriation bill, if passed and signed by

the President, is a law. The Constitution states that

‘All legislative powers herein granted shall be

vested in a Congress of the United States, which

shall consist of a Senate and House of Representa-

tives.” (Art. I, sec. 1.) The Constitution further

states that, ‘No money shall be drawn froin the

Treasury, but in consequence of appropriations

made by law.’ (Art. I, sec. 9; emphasis added).

“Consequently, the starting point of any dis-

cussion is that the power to spend money—and

surely, by any stretch of logic, the authority not to

spend money—is vested originally in the Congress.

Any delegation of that authority must come from

the Congress itself... .

“Second, the powers of the President, while

vast, are not inherently broad in_ themselves.

Congress has delegated an enormous amount of

authority to the President over the years. But the

theory expressed so many times by the Nixon ad-

ministration, that somehow the President has

broad ‘inherent’ authority in many different areas,

surely is wrong. In Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579 (1952), the Supreme

Court emphatically ruled that President Truman

lacked the ‘inherent’ constitutional authority to

seize the steel industry... .

“In other words, the President. as well as the

Congress, must be guided by the fundamental

constitutional principle that the Federal Govern-

ment is a government of limited, enumerated

powers.

~~ a

“Now, of course, the Anti-Deficiency Act al-

lows the President to impound funds under very

specific circumstances, ‘to provide for contingen-

cies, or to effect savings whenever savings are

made possible by or through changes in require-

ments, greater efficiency of operations, or other

developments subsequent to the date on which

such appropriation was made available. (31

U.S.C. 665(c)(2).) However, these are carefully

circumscribed circumstances which do not spell

out a broad, inherent authority to impound. This

is the opinion of the Comptroller General of the

United States, the Honorable Elmer B. Staats, as

stated in recent testimony before Senator Ervin’s

subcommittee. In addition, of course, when Jus-

tice Rehnquist was Assistant Attorney General in

1969, he wrote a memorandum to a White House

official that the President lacked the inherent con-

stitutional authority to impound. Now, the Nixon

Administration states that Mr. Rehnquist was

wrong. The question is up to the Supreme Court

to decide, but surely it should not be the Con-

gress, on its considered reaction, which concedes

an iota of such authority.” Hearings on H.R.

5193 and Related Bills Before the Subcommit-

tee on Rules, House of Representatives, 93rd

Cong., Ist Sess. (1973).

Congressmen have recognized that the question of

impoundment is one properly to be decided by the

Supreme Court. This case presents Your Honors with

an opportunity to resolve an important issue.

We turn to the opinion by Justice Rehnquist

mentioned by Congressman Evans. That opinion on

the question of the President’s authority to impound

funds was written as an opinion memorandum in

1$69 by then Assistant Attorney General William

Rehnquist. 116 Cong. Rec. S 158 (daily ed. Jan. 20,

1970). The legislation with which the opinion dealt

appropriated funds for assistance to federally impacted

schools, but the rationale would appear to be equally

applicable to the FWPCA. The opinion emphasized

the fact that the impoundment would result in:

“. . . permanent loss to recipient school districts

of the funds in question and defeat of the Con-

gressional intent that the operations of these dis-

tricts be funded at a particular level for the fiscal

year.” 116 Cong. Rec. § 159 (daily ed. Jan. 20,

1970).

A similar loss of funds will result if the reduction of

allotments is not rejected under the FWPCA.

Some of the same arguments faised in support of

President Nixon’s actions were disposed of by William

Rehnquist:

“It has been suggested that the President's duty

to ‘take care that the laws be faithfully executed’

might justify his refusal to spend, in the inte-est

of preserving the fiscal integrity of the Government

or the stability of the economy. This argument

carries weight in a situation in which the Presi-

dent is faced with conflicting statutory demands,

as, for example, where to comply with a direction

_ to spend might result in exceeding the debt limit

tures. See, e.g., P.L. 91-47, title IV. But it ap-

pears to us that the conflict must be real and im-

minent for this argument to have validity; it would

LOONIE

—

not be enough that the President disagreed with

spending priorities established by Corgress. . . .”

116 Cong. Rec. S 160 (daily ed. Jan. 20, 1970).

In the case of reduction of allotments under FWPCA,

President Nixon has let it be well known that he dis-

agrees with Congress’ spending priorities, but there

are no conflicting statutory demands to justify his di-

rective to the Administrator to impound funds prior

to allotment.

An unpublished opinion letter of May 27, 1937,

by Attorney General Cummings to the President is cited

by the Rehnquist opinion. The Cummings opinion held

that the President could not legally require the heads

of departments and agencies to withhold expenditures

from congressional appropriations.

William Rehnquist also cites the United States Su-

preme Court case of Kendall v. United States, 37 U.S.

524 (1838). That case dealt with an Act of Congress

directing the Treasury to settle an account under a

contract for mail service. When the Postmaster Gen-

eral refused to credit part of the funds, a writ of man-

date was held proper to compet the expenditure. It is

considered prominent among the cases rejecting the

constitutionality of impoundment by the President with-

out authorization from Congress.

Congressman Evans, in addition to referring to the

Rehnquist opinion, mentioned the Anti-Deficiency Act

as providing for Presidential impoundment of funds

“under very specific circumstances.”

In concluding that the Anti-Deficiency Act would

not allow the Secretary of Transportation to withhold

the authority to obligate apportioned funds under the

Federal-Aid Highway Acc, the Eighth Circuit provided

a good summary of the role of the Ant -Deficiency Act.

“Although the applicability of the Anti-Defi-

ciency Act. 34 Stat. 49, as amended, 64 Stat. 765,

31 U.S.C. § 665(c), was not argued on this

appeal, the conclusion we reach is not at variance

with the provisions of that Act. Section 665(c)

(2) allows the Bureau of the Budget (now OMB),

when apportioning appropriation funds, to set up

reserves (i.c.. withhold the funds) in order ‘to

provide for contingencies, or io effect savings

whenever savings are made possible by or through

changes in requirements, greater efficiency of

operations, or other developments subsequent to

the date on which such appropriation was made

available.” However, the Act goes on to point

out that the reserves may only be established

when the funds ‘will not be required to carry out

the purposes of the appropriation concerned... .’

(Emphasis ours.) The legislative history is em-

phatic in noting that this power to withhold funds

cannot be used if it would jeopardize the policy

of the statute.

“‘It is perfectly justifiable and proper for

all possible economies to be effected and sav-

ings to be made, but there is no warrant or

justification for the thwarting of a major policy

of Congress by the impounding of funds. If

this principle of thwarting the will of Congress

by the impounding of funds should be ac-

cepted as correct, then Congress would be total-

ly incapable of carrying out its constitutional

mandate of providing for the defense of the

2 gE AS ATR IN EY

Nation. (Emphasis ours.) H.R.Rep. No.

1797, 8Ist Cong., 2d Sess. 311 (1950).

It is thus apparent that any withhoiding in order

to ‘effect savings’ or due to ‘subsequent events,”

etc., must be considered in context of not violating

the purposes and objectives of the particular ap-

propriation statute. Such purposes and objectives

are necessarily violated when one charged with

implementing the statute acts beyond his delegated

authority.” State Highway Commission of Mis-

souri v. Volpe, 479 F.2d 1099, 1118 (8th Cir.

1973).

The Eighth Circuit’s reading of the Anti-Deficiency

Act is perfectly consistent with that found in Impound-

ment of Funds, 86 Harv. L. Rev. 1505, at 1528:

“The Antideficiency Act of 1950 was passed

partly in order to limit executive impoundments

to those undertaken only to further the purposes

of the particular program involved. . . .” (Foot-

notes omitted. )

Further support for this reading of the Anti-Defi-

ciency Act is found in Presidential Impounding of

Funds: The Judicial Response, 40 U. Chi. L. Rev.

328, 337-38:

“The Anti-Deficiency Act cannot, therefore, be

taken as granting a general power to impound.

On the contrary, it limits the power to impound

to the achievernent of efficiency and economy in

carrying out the spending programs Congress has

authorized, without in any way impairing the

achievement of the programs’ goals. Indeed, the

Supreme Court’s decision in the Steel Seizure

— =

Case suggests that, since Congress has defined

the purposes for which impounding is permissible,

any impounding not authorized by the Act or by a

specific appropriations statute is illegal.” (Foot-

notes omitted. )

The requirements of the Anti-Deficiency Act should

not be used as an excuse for allowing the President

to circumvent the clear congressional policy found in

the FWPCA.

The Position of Respondents in This Case Is Supported

by the Recent Decision in Missouri v. Volpe

Since the reduction of allotments under the

FWPCA, a significant decision concerning the legality

of impoundment has been decided by the Eighth Cir-

cuit Court of Appeals. On April 2, 1973 in State High-

way Commission of Missouri v. Volpe, 479 F.2d 1099

(8th Cir. 1973), Judges Lay and Heaney concluded

that the Federal-Aid Highway Act does not expressly

or implicitly authorize the Secretary of Transportation

to withhold the authority to obligate apportioned funds

because of the status of the economy and the need to

control inflation.

The funding procedures under the FWPCA are

largely patterned after the Federal-Aid Highway Act,

except that greater flexibility in the obligation phase

was built into the FWPCA by use of the “not to exceed”

language in section 205(a). Although the action

challenged in Missouri v. Volpe was at the obligating

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stage rather than the allotment stage,” the opinion

has substantial value here as a rejection of the proposi-

tion that the President has inherent power to reduce

expenditure of funds authorized by Congress.

One argument presented by the government was that

the states had no vested rights in the funds until the

Secretary approved a specific project. To that the court

replied that, assuming, arguendo, there was no vested

right until approval, that does not mean the Secretary

has discretion to withheld approval for reasons not

contemplated in the Act.

Another argument made by the government which

the court found unavailing was the contention that ap-

propriation Acts are permissive in nature and do not

provide specific mandate that funds authorized to be

appropriated must be expended. The court responded:

“| . For although 2 general appropriation act

may be viewed as not providing a specific man-

date to expend al! of the funds appropriated, this

does not a fortiori endow the Secretary with the

authority to use unfettered discretion as to when

and how the monies may be used. The Act cir-

cumscribes that discretion and only an analysis of

of the statute itself can dictate the latitude of the

questioned discretion. Civil Aeronautics Board v.

Delta Air Lines. Inc., 367 U.S. 316, 322 .

SAs for the reduced allotments, former Federal Highway

Administrator, F. C. Turner, had observed: “There is absolutely

no discretion of any kind in our office with respect to how much

any State gets in any of these categories of funds [pursuant to

the formula]. The apportionment is specified in the law and we

distribute it right to the dollar.” Testimony reported in Hearings

on Executive Impoundment of Appropriated Funds Before the

Subcommittee on Separation of Powers of the Committee on

the Judiciary, 22nd Cong., Ist Sess. at 80 (1971).

nail te

(1961): Federal Trade Commission y. National

Lead Co., 352 U.S. 419, 428 . . . (1957); Stark v.

Wickard, 321 U.S. 288, 309 . . . (1944); Pen-

theny, Ltd. v. Government of the Virgin Islands,

360 F.2d 786, 790 (3 Cir. 1966).” State High-

way Commission of Missouri v. Volpe, supra,

479 F.2d at 1109 (emphasis by the court).

Even Assuming Sections 205(a) and 207 Gave the

Administrator Discretion to Limit Allotments, He

Abused That Discretion by Allotting Only $5

Billion of the $11 Billion Authorized for Appro-

priation for 1972 and 1973

It is our contention that there is no discretion dele-

gated as to the allotment stage though there is flexibili-

ty as to the rate of spending. The United States District

Court, Eastern District of Virginia concluded that the

Administrator has discretion to reduce allotments (as

conceded by plaintiffs in that case) under sections 205

(a) and 207 burt that the allotment of only $5 billion

constitutes a flagrant abuse of that discretion and

violates the Act. Campaign Clean Water v. Ruckels-

haus. (Joint Appendix F.) When the matter was ap-

pealed, the Fourth Circuit concurred with the District

Court that whatever discretion the executive might

have was limited and the exercise of that discretion

was reviewable, but conciuded the reduction of allot-

ment did not, on its face and without any other evi-

dentiary support, require a finding of executive nullifi-

cation of the purposes of the Act. In arriving at its

decision to remand with directions to consider evidence

on whether the reduction was violative of the spirit,

intent, and letter of the Act, the Fourth Circuit con-

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—

sidered a number of factors. One of the factors was

thesAdministrator’s contention before the Senate ad

hoc Subcommittee on Impoundment of Funds on Feb-

ruary 6, 1973, that the allotments were arrived at on

the basis of an administrative judgment that greater

authorizations could not be spent in a wise or expedi-

tious way. Not only does this decision conflict with the

congressional judgment as to how much money was

‘needed to accomplish the goals of the Act, but such a

statement completely overlooks the mechanism for car-

rying over allotted but unused funds. This latter con-

sideration is equally applicable to the argument ac-

cepted by the court that no qualified project in Virginia

had been denied contract authorization. It is impossible

to foresee what contracts might be supported in the

future by allotments which are carried over. We has-

ten to add that if the United States Supreme Court

evaluates the question whether there was an abuse

of discretion, the fate of more states than Virginia is in-

voived. As the Fourth Circuit itself noted, other states

have proven projects have qualified for grants but have

been denied construction approval because of the pau-

city of funds allotted, cf. State of Minnesota v. EPA,

supra.

Finally, the Fourth Circuit emphasized that the Ad-

ministrator claims the power to increase allotments dur-

ing a fiscal year and has indicated he would give

consideration to doing so if the 1973 and 1974 allot-

ments were inadequate. Though in the abstract the Ad-

ministrator may have such a power, realistically it is the

President who has ordered reduction of allotments, so

the Administrator’s state of mind is of little consequence.

Furthermore, an increase in allotments was never made

=— wa

in 1973, so unless this Court rules in favor of requir-

ing full allotments, that money is forever lost.

Although we contend that the allotments are manda-

tory rather than discretionary, if this Court should hold

them discretionary, we believe that the Administra-

tor’s allotment of only 55% of the funds is per se an

aouse of discretion.

Both courts in the decisions before Your Honors

examined the legislative history of the provisions for

grants for waste treatment plants and found a strong

congressional financial commitment to construction of

waste treatment plants. That commitment would be

contravened and the purpose of the legislation frustrated

by a reduction of 45% of the allotment funds. The

President should not be allowed to do by extraconstitu-

tional means what he failed to accomplish when he

vetoed the FWPCA and was overruled by Congress.

If this Court should conclude that the allotments are not

mandatory under sections 205(a) and 207, the action

of the Administrator should still be held null and void

as an abuse of discretion.

The Doctrine of Separation of Powers Prohibits the

Type of Executive Assumption of Congressiona!

Function Accomplished by Refusal to Comply

With the Allotment Procedures of the FWPCA

Rarely during this country’s history has the concern

over assumption of congressional power by the Presi-

dent been as great as it is today. Many Congressmen

feel that the doctrine of separation of powers will not

remain viable unless the impoundment powers of the

President are checked. Twenty-nine Congressmen sub-

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mitted an “amicus curiae brief’ opposing the Secre-

tary of Transportation’s policy of reducing expenditures

in the case of Missouri v. Volpe.® That brief stated that

the Administrator's impoundment practices are “con-

temptuous of the role of Congress in our tripartite

system.” Congressional Quarterly Weekly Report, Vol.

31, No. 14, p. 788 (April 7, 1973).

All legislative powers were bestowed by our Consti-

tution (art. I, § 1) upon the Congress of the United

States. Article I, section 9 of the Constitution delegates

all authority for appropriations to the Congress. Execu-

tive power is vested in the President by article IJ, sec-

tion 1.

Although the Constitution does not expressly prohib-

it one branch from exercising the powers of another,

*Senator Samuel J. Ervin, Jr., Chairman, Government Opera-

tions Committee; Senator James O. Eastland, President Pro

Tempore, Chairman, Judiciary Committee; Senaior Michael J.

Mansfield, Majority Leader; Senatcr Robert C. Byrd, Assistant

Majority Leader; Senator Jennings Randolph, Chairman, Public

Works Committee; Senator John L. McClellan, Chairman, Ap-

propriations Committee; Senator Howard W. Cannon, Chairman,

Aeronautical & Space Sciences Committee; Senator Thomas F.

Eagleton, Chairman, District of Columbia Committee; Senator

J. W. Fulbright, Chairman, Foreign Relations Committee; Sena-

tor Vance Hartke, Chairman, Veterans’ Affairs Committee; Sena-

tor Henry M. Jackson, Chairman, Interior & Insular Affairs

Committee; Senator Gale W. McGee, Chairman, Post Office &

Civil Service Commitee; Senator Warren G. Magnuson, Chair-

man, Commerce Committee; Senator Lee Metcalf, Chairman,

Joint Committee on Congressional Organization; Senator John

Sparkman, Chairman, Banking, Housing & Urban Affairs Com-

mittee; Senator Stuart Symington; Senator Harrison A. Williams,

Jr., Chairman, Labor & Public Welfare Committee; Representa-

tive Morris K. Udall; Senator John A. Stennis, Chairman,

Armed Services Committee; Senator Herman E. Talmadge, Chair-

man, Agriculture & Forestry Committee; Senator Frank E. Moss,

Chairman, Aeronautical & Space Sciences Committee; Senator

Hubert H. Humphrey; Senator John V. Tunney; Representative

William V. Atexander, Jr.; Representative Robert F. Drinan;

Representative J. J. Pickle; Representative Benjamin Rosential.

—_— =

it has been said that the doctrine of separation of pow-

ers is fundamental to our form of government. National

Ins. Co. v. Tidewater Co., 337 U.S. 582 (1949). The

United States Supreme Court has repeatedly referred

to the doctrine as one of the chief merits of our system

of a written constitution. Rescue Army v. Municipal

Court, 331 U.S. 549 (1947); O'Donoghue v. United

States, 289 U.S. 516 (1933): Kilbourn v. Thompson,

103 U.S. 168 (1880). Although there is bound to be a

certain area of concurrent jurisdiction, the continued

integrity of our system may depend upon the mutual in-

dependence of the Legislature, the Executive and the

Judiciary. McCray v. United States, 195 U.S. 27

(1903).

It is true that the President has the duty to “take

care that the laws be faithfully executed.” However,

as the Fourth Circuit Court of Appeals stated in Cam-

paign Clean Water:

“The power to spend rests primarily with Con-

gress under the Constitution; the executive, on the

other hand, has the constitutional duty to exe-

cute the law in accordance with the legislative pur-

pose so expressed. When the executive exercises

its responsibility under appropriation legislation

in such a manner as to frustrate the Congression-

al purpose, either by absolute refusal to spend or

by a withholding of so substantial an amount of

the appropriation as to make impossible the attain-

meni of the legislative goals, the executive tres-

passes beyond the range of its legal discretion and

presents an issue of constitutional dimensions which

is obviously open to judicial review. . . .” Ap-

pendix pp. 45A, 46A, 47A (footnotes omitted).

1 BRN GEA a

—

Should this Court conclude that the FWPCA did not

specifically require all funds to be allotted, we would

urge Your Honors to recognize the validity of the posi-

tion summarized in Presidential Impounding of Funds:

The Judicial Response, supra, pp. 355-56, where it is

stated:

“There is no basis for a general impounding

power, by express terms or by implication, either

in the Constitution or in any general statute.

Authorization and appropriations statutes only

rarely allow the president entirely to terminate a

program by impounding. The president may end

a program only be |[sic| vetoing it in accordance

with the Constitution. He has no authority to use

impounding as an absolute, retroactive, or item

veto. Congress should be presumed to have passed

each appropriation statute with the intent that

the monies be spent; in the absence of explicit

statutory language to the contrary, the president

should be deemed bound by his oath of office to

carry out Congress’s purpose. In most cases, the

courts have power to grant persons who have been

injured by unlawful impounding a legal remedy.

This power should be exercised to insure that

persons receive benefits that Congress intended

them to have, to preserve the constitutional sepa-

ration of powers, and to forestall a serious consti-

tutional crisis.” (Footnote omitted. )

As early as 1838 the Supreme Court indicated that the

duty to execute the laws does not include the right to

denegrate the law. Kendall v. United States, 37 US.

524 (1838). Application of the reasoning of the Ken-

dall case recently resulted in a District Court’s enjoin-

—

ing the Office of Economic Opportunity from. ter-

minating the funding for a program. Relying on Ken-

dall the court rejected the argument that the President

has discretionary power to refuse to spend certain

funds. Local 2677, American Fed. of Gov. Emp. v.

Phillips, 358 F. Supp. 60 (D. D.C. 1973).

President Nixon did not agree with the policy de-

cision made by Congress when it authorized $18 bil-

lion for appropriation for waste treatment plants. He

accordingly exercised his constitutional prerogative to

veto the legisiation, and Congress in turr exercised

its constitutional right, granted in article I, section 7,

to override that veto. The legislative, not the execu-

tive, branch thus may have the final say as to what

becomes law. To now allow the President to accomplish

by reducing allotments what he could not by veto

should be tantamount to giving the President an item

veto and would violate the doctrine of separation of

powers.

Conclusion

The issue before this Court is clear. Having failed

to reverse the policy decision of Congress ‘by exercise

of his constitutional power of veto, will the President

now succeed by extra-constitutional measures to frus-

trate the intent of Congress and lessen the national

commitment to clean our waters?

We contend that the legislative history of the

FWPCA, and of sections 205(a) and 207 in particu-

lar, makes clear the congressional commitment to spend

the $18 billion deemed necessary as the federal share

for construction of waste treatment plants. Allotment

by the Administrator of funds authorized to be ap-

propriated is a ministerial act, though some flexibility

STIRS TE SOME AAO LAI DOR St AE RDBMS AOU B6 CU OYE IRIN AUR RAE TY PT REN IER TA EIB NG IGT SY AI ORSON re erate

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in spending is built into the Act. Mandamus is a proper

remedy to proteci the interesis of the states which

must build waste treatment plants to comply with the

requirements of the Act.

This Court should not abdicate its responsibility to

act to maintain the constitutional doctrine of separa-

tion of powers. This Court should affirm the judgment

of the Court of Appeals for the District of Columbia

and reverse the decision of the Fourth Circuit Court

of Appeals.

Respectfully submitted,

EvELLe J. YOUNGER,

Attorney General,

1,OBERT H. O'BRIEN,

Senior Assistant Attorney General,

NicHovas C. Yost,

Deputy Attorney General,

Attorneys for People of the State

of California as Amicus Curiae

in Support of Respondents.

Of Counsel:

JAN E. CHATTEN.

— ee eres ee ee

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