# Amicus Curiae Brief — Train v. Campaign Clean Water, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1612%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 136 ## 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 we y i 3 A EEE OSIM TIN TAS re 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 ed Ai —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 a 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. ae rs ee, Prey i eal as a ARGUMENT I 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. II 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 | EM 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. a | 5 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 a 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). : + © ay # hi $b : ° ¥ 4 ® 4 = - 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: a “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. ¥ ; t ; } M4 4 * 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; no 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 ). 9 & é f 5 ? . # 2 . f. 4 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- z e is * 2 g 3 fi ig 4 a: -_- 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 a 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 4 © a limit imposed on total obligations or expendi- 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 BE £ 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 a. 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. IV 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 RET iad, Saad Se oe at el pie Se Were ne sarespianr SAREE. PRT TERETE RE DEPOT ETE. eR SEE RAR BE Ute SNE Rok mete PUY Speers POAT | ee eee PD wets, = a 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). Vv 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- ' ee cee | SET UR ATA a RR EL CaS Sa a SENT OF ROR TE EP ENE TS EE PAPE FEAR NTI SET SUE BO. Bh es Proseoeeconceeres amps wore — 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. Vi 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- EE HS ORT Eee some Feat ne Bry ar rm ae PIS SOLER TS LAIN AI IE PRR LEIA SE PEF) | a ae 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 PRL ES CTH eee era POR ere BEng SEER ER Ti HS — oe 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1612%3A07. Public record. Not legal advice.