Brief for Respondent — Train v. Campaign Clean Water, Inc.

Supreme Court brief1975

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AllG 10

MICHAEL RODLK,

IN THE

Supreme Gonrt of the United States

OCTOBER TERM, 1973

No. 73-1378

RUSSELL E. TRAIN, Administrator,

United States Environmental Protection Agency,

Petitioner,

Vv.

CAMPAIGN CLEAN WATER, INC.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF FOR THE RESPONDENT,

CAMPAIGN CLEAN WATER, INC.

ALAN B. MORRISON

W. THOMAS JACKS

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

Attorneys for Respondent

Semteramnnen

ABS DUPLICATORS, INC.—1732 Eye Street, N.W.—Washington, 0.C.—298-5537

(1)

TABLE OF CONTENTS

QUESTIONS PRESEN/ZED .

STATEMENT .

Introduction

1. The Legislative History of

the Act . :

2. The Impoundment .

3. The Proceedings Below

SUMMARY OF ARGUMENT

ARGUMENT .

Introduction

I. Congress Did Not Intend To Give The

Administrator Unbridled Discretion To

Withhold Allotments

Il. This Action Is Not Barred By Sovereign

Immunity, Does Not Involve A Determination

“Commiited To Agency Discretion By Law,”

And Poses No “Political Question”

A. This Action is Not Barred by

Sovereign Immunity

1. This Case is Within the Exception

to Sovereign Immun::y for Suits

Against Officials Who Have Ex-

ceeded Their Statutory Authority .

Page

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A TOSS Li CR BAB MEAS IGN FI chances OEM. Fesce PasgEE

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PLE Re BEEP CY.

Sey ee ee, Pe er ee ee aa

Baxi GILLI Bl GELB EAE RANGES ERS wien aa

(ii)

Page

2. Congress Has Effectively Given

Its Consent to This Action, Thus

Waiving Sovereign Immunity... . 59

B. The Administrator’s Impoundment Action

Is Not “Agency Action Committed to

Agency Discretion by Law” And Does ,

Not Involve a “Political Question” . . . . 63

CURA a a ee ee 8 ee

TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner,

7 US. 196 CI9ET) 2 et OES

Albert v. Chafee,

465 F.2d 367 (9th Clr. 1972). . . 1. «4 se 2 ee @

Anderson v. Seeman,

252 P28 331 a Ge. I). tt i OS

Association of Data Processing Service

Organizations, Inc. v. Camp,

re te BO CA 66 hae eta le ee a ae

Baker v. Carr,

Tg a rr ec ay. ki

Barlow v. Collins,

om! er ee oe ae ee

Bell v. Hood,

ee Oe ee Gt we a4 or ee he aes oo ee

Berends v. Butz,

357 F. Supp. 143 (D. Minn. 1973) . . . . . . . . 43

(i)

Page

Blackmar v. Guerre,

Pee ee ee ee «i a ee wee a a A

Brown v. Ruckelshaus,

a t. Oe. ae Oe ee Ss es ee

Carter v. Seamans,

411 F.2d 767 (Sth Cir. 1969),

cert, denied, 397 U.S.941 (1970) ........ 445

Citizens to Preserve Overton Park v. Volpe,

401 US. 402 (1971) . . . . . . . 20, 24, 46, 63, 65-66

City of Fresno v. California,

Ste US GiF IGG wa we tl le

Coleman y. Miller,

oe a re eee

Colson v. Hickel,

428 F.2d 1046 (Sth Cir. 1970),

cert. denied sub nom. Colson v.

Morton, 401 U.S. 911 (1971) . . ........~ 642

Community Action Program Executive

Directors Ass'n of N.J., Inc. v. Ash,

263 F. Gao. 1255 VS. 979) wk tl hl es RH

Cyrus v. United States,

ae ae SLO tet Ce. Tee ce eee st ew ee,

Dotson yv. Butz,

No. 1210-73 (D.D.C., decided Aug. 3, 1973). . . . . 42

Dugan v. Rank,

372 U.S. 609 (1963) . . . . . . . 24, 43, 44, 51-52, 60

Duplex Printing Press Co. v. Deering,

ee ae, Ue AO, ek a 6 eae ele we ae

— SOOO PR STEAL A _ OS or

Edelman v. Jordan,

___ US. __ 4S. Ct. S257 GSP. we gp « RO

Estrada v. Ahrens,

296 F.2d 690 (Sth Cir. 1961). . . . . . «ss» 6b

Federal Housing Admin. v. Burr,

100 GB: FR CIPO 2.2 <6 0 eh e wee aes se

Ferry v Udall,

336 F.2d 706 (9th Cir. 1964),

cert. denied, 381 US. 904 (1965) ........ W@W

Goldberg v. Kelly,

BI US. 24 GOR ct Ct ec ta ss

Graham v. Richardson,

Oe Ge. See Cerne 3 oe oc as 0s oie lees oe

Greene v. McElroy,

eee ere eee eee

Hardin v. Kentucky Utilities Co.,

ok | eer a ee er er er

Hawaii v. Gordon,

5 Ge or Gees we wees es se ok eee

Housing Authority v. United States

Dep't of Housing and Urban Development,

340 F. Supp. 654 (ND. Cal. 1972). . . . . «. « ~ 43

Illinois v. City of Milwaukee,

Oo ST oy a er ie tere ee me ee

Kingsbrook Jewish Medical Center v. Richardson,

486 F.2d 663 (2d Cis. 1973) . . . . «ww we s) 6D

Kletschka v. Driver,

|ay £: ¥- ¢. , rn

eer ee ee ee =o

’

— |

(vy)

Knox Hill Tenant Council vy. Washington,

448 F.2d 1045 (DC. Cir. 1971) .

Land v. Dollar,

339 US. 731 (1947) .

Larson v. Domestic & Foreign

Commerce Corp.,

337 US. 682 (1949) - + « « « « 44, 45, 47-49, 52, 60

Littell v. Morton,

445 F.2d 1207 (4th Cir. 1971) 59, 62

Local 2677, A.F.G.E. v. Phillips,

358 F. Supp. 60 (D.D.C. 1973) 42

Louisiana v. Weinberger,

369 F. Supp. 856 (E.D. La. 1973) 42, 57

Malone v. Bowdoin,

369 US. 643 (1962) . $0, 52, 53

Manual Enterprises, Inc. v. Day,

370 US. 478 (1962) . 54

Martin-Trigona v. Ruckelshaus,

No. 72-C-3044 (N.D. Il, decided July 9, 1973) 42

Mason v. DeGeorge,

No. 73-436-N (D. Md., decided May 31 , 1973),

rev'd on other grounds, 483 F.2d 521 (4th Cir.

1973) Sag RO irae ee 42

Miller v. Ackerman,

488 F.2d 920 (8th Cir. ,973) . 48

Minnesota v. United States Environmental

Protection Agency,

No. 4-73 Civ. 133 (D. Minn.

decided June 25, 1973) . 42

— oS atti ed

a ee ee mE ne

Pee

(vi)

Page

Motah v. United States,

402 F.2d 1 (10th Cir. 1968) .. ........ ®

National Ass'n for Mental Health, Inc. v. Weinberger,

No. 1812-73 (D.D.C., decided Feb. 7,1974). . . . . 42

National Ass'n of Regional Medical

Programs v. Weinberger,

No. 1807-73 (D.DC., decided Feb. 7,1974). . . . . 42

National Council of Community Mental

Health Centers, Inc. v. Weinberger,

361 F. Supp. 897 (D.D.C. 1973). . ..... . 42,57

National Woodwork Manufacturers

Assn v. NLRB,

SN og. a

North Carolina v. Temple,

Lf! 0 Sa

Ozawa v. United States,

pO 8.

Panama Canal Co. v. Grace Line,

eo |

Pennsvivania v. Lynn,

367 F. Supp. 1363 (D.D.C. 1973),

rev'd on other grounds, No. 73-1835

(OC. Cir., decided July 19,1974) . . . . . 42,57,.6

Pennsylvania v. Weinberger,

367 F. Supp. 1378 (D.D.C.1973) ........

People ex rel. Bakalis v. Weinberger,

368 F. Supp. 721 (N.D. 1. 1973) . ere

Peoples v. United States Dep't of Agriculture,

427 F.2d 561 (D(. Cir. 1970) . . . ...... 48

(vii)

Page

Philadelphia Co. v. Stimson,

223 US. 605 (1911) . 47

Kosado v. Wyman,

397 US. 397 (1970) . 30

Rusk v. Cort,

369 US. 367 (1962) . 43, 60

Scanwell Laboratories v. Shaffer,

424 F.2d 859 (DC. Cir. 1970) 61

Schlafly v. Volpe,

495 F.2d 273 (7th Cir. 1974) 49, 58, 59, 62

Sierra Club v. Hickel,

467 F.2d 1048 (6th Cir. 1972),

cert. denied sub nom. Sierra Club

v. Morton, 411 US. 920 (1973) .

Sikora v. Brenner,

379 F.2d 134 (DC. Cir. 1967)

State Highway Comm'n v. Volpe,

479 F.2d 1099 (8th Cir. 1973)

State Highway Dep't v. Volpe,

No. 72940 (D.S.C., decided May 7, 1974)

State Water Control Bd. v. Train,

No. CA-74-0238-R (E.D. Va.) .

Texas v. bri,

No. A-73-CA-38 (W.D. Tex., decided Oct. 2. 1973)

Turner v. Kings Rd. Conservation Dist.,

360 F.2d 184 (9th Cir. 1966) .

Twin Cities Chippewa Tribal Council

v. Minnesota Chippewa Tribe,

370 F.2d 529 (8th Cir. 1967) .

42.49

42, 56-57

15-16, 57

i ln ee he

60, 62

| (viii)

ee Come ee a

United States v. Menasche

348 US. 528 (1955) .

United States v. Richardson,

US. , 42 US.L.W. 5076

(June 25, 1974) .

United States ex rel. Schonbrun

vy. Commanding Officer,

403 F.2d 371 (2¢ Cir. 1968),

cert. denied, 394 US. 929 (1969)

Vitarelli v. Seaton,

359 US. 535 (1959) .

Warner v. Cox,

487 F.2d 1301 (Sth Cir. 1974)

Washington v. Udall,

417 F.2d 1310 (9th Cir. 1969)

Wirtz v. Local 153, G.B.B.A.,

389 US. 463 (1968) .

Work v. United States ex rel. Rives,

267 US. 175 (1925) .

Constitution and Statutes:

United States Constitution, Art. IV,

Sec. 3, C1. 2 . ep?

Administrative Procedure Act.

5 USC. §551-706:

5 U.S.C. 6701-706 .

5 USC. 8702

5 USC. 8703

5 USC. 8706

. 49, 58, 62

. 20, 24, 59-63

59, 60

. @

59-60

(ix)

Page

Federal Impoundment and Information Act,

Pub. L. No. 92-599, $§401-02,

86 Stat. 1325, repealed by the

Impoundment Control Act of 1974,

Pub. L. 93-344, tit. X, 88 Stat. 297, 332 . 2%

Federal Water Pcitution Control Act

Amendiuents of 1972, 33 U.S.C.

§81251 ef seq. (Supp. Il apr

S8101 ef seq. ; hae 2

$10l(a) . . 5, 6, 35-36

§20l(a). . . a

ee SP tp: nb ho OO. re ta

§203 . oS «: » 6 wiets Bee ee

RE ati) a> So ve Ut ce 8, 10, 11, 14, 24, 25, 26,

28, 37, 38, 39, 44, 64

Pe ere a ae rs eS ke 7

Ol ws s «06s 6s + 6 oe eee eee

$212 . [Sees 7

§301(a) . ar ae Poe a ae ae 6, 31

res or eer Py 23, 31, 35, 36

§30l(c) . . SPT 32

— ; e*3 5

; 6, 32-33

026) So ae

a 6, 33, 62-63

24 USC. $1361 . 48, 63

42 U.S.C. $1453 . 43

Reorg. Plan No. 1, $1, 53 Stat. 1423 53

Other Authorities:

Va. Gen. Ass. Kt. Res. No. 501, 1974

Session (March 8, 1974) . 16

(x)

37 Fed. Reg. 26282 (Dec. 8, 1972) .

39 Fed. Reg. 1847-48 (Jan. 15, 1974) .

. 116 Cong. Rec. 23330-37 (1970) .

118 Cong. Rec. S 18026-120 stad ed.

: Oct. 13, 1972) eet ih

118 Cong. Rec. H 10224-34, $ 18506-33

(daily ed. Oct. 17, 1973)

118 Cong. Rec. H 10277-84, $ 18632-33,

S 18646-47 (daily ed. Oct. 18, 1973)

120 Cong. Rec. H 788 (daily ed.

Feb. 13, 1974) . es

S. 1013, 92d Cong., ist Sess. (1971)

H.R. 16810, 92d Cong., 2d Sess. (1972)

;

p Environmental Policy Division, Congressional

Research Service, Library of Congress, A

. Legislative History of the Federal Water

Pollution Control Act Amendments of

' 1972 (1973):

] Senate Debates

House Hearings .

House Bil. . . .

House Comm. Rep. .

House Debates. :

Sen. Deb. on Conf. Rep. .

House Deb. on Conf. Rep. .

Ruckelshaus Letter .

Veto Message . —

Senate Veto Override .

House Veto Override

Se ee

oT el Oe gee

ia 4S Vite Ma 19a, ave

- 5,8, 16

34, 36

eos 4

6, 8, 34, 37

10, 11, 28, 29

11, 29

- 12, 38

12-13, 30

. 8, 34

13-14, 31

(xi)

Hearings on Water Pollution ~1970,

Before the Subcomm. on Air & Water

Pollution of the Sen. Comm. on

Public Works, 91st Cong., 2d Sess.

ti | cs ane SD

Hearings on Water Pollution Control

Legislation, Before the Subcomm. on

Air & Water Pollution of the Sen.

Comm. on Public Works, 924 C ong.,

ist Sess. (1971). . . 2. ; tt a ae a ee

Hearings on Water Pollution Control

Legislation- 197] (Oversight of

Existing Programs), Before the

House Comm. on Public Works,

92d Cong., Ist Sess. (1971) . POS Ss en ee 3,4

Hearings on Water Pollution Control

Legislation- 197] (Proposed Amend-

ments to Existing Legislation),

Before the House Comm. on

Public Works, 924 Cong., Ist

nt aii, GE ee

Hearings on Water Pollution Control

Legislation (H.R. 11896, H.R. 11895),

Before the House Comm. on Public

Works, 92d Cong., Ist Sess.

stad ag 2 re

U.S.E.P.A., Report to the Congress:

Costs of Construction Of Publicly-

Owned Wastewater Treatment

Works 1973 “Needs” Survey Pre-

pared Pursuant to Sections 205 and

516, Public Law 92-900 Cs ONS ol A 16, 40-4]

(xii)

K. Davis, Administrative Law Treatise

(Supp. 1970) .

L. Jaffe, Judicial Control of Administrative

Action (1965)

Cox, /nternal Affairs of Labor Unions

Under the Labor Reform Act of

1959, 58 Mich. L. Rev. 819 (1960) .

Cramton, Nonstatutory Review of Federal

Administrative Action: The Need for

Statutory Reform of Sovereign Immunity,

Subject Matter Jurisdiction, and Parties

Defendant, 68 Mich. L. Rev. 387 (1970) .

49, 53

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-1378

RUSSELL E. TRAIN, Administrator,

United States Environmental Protection Agency,

Petitioner,

CAMPAIGN CLEAN WATER, INC.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF FOR THE RESPONDENT,

CAMPAIGN CLEAN WATER, INC.

QUESTIONS PRESENTED

1. Did the lower courts correctly hoid that, in passing

the Federal Water Pollution Control Act Amendents of

1972, Congress did not intend to give the Administrator

unbridled discretion to withhold allotments for sewage treat-

ment plant construction grants?

e are oy P

2. Did the lower courts correctly hold that the Admin-

istrator’s refusal to allot 55 percent of the sewage treatment

piant funds for fiscal years 1973 and 1974 is reviewable

by the courts as an abuse of discretion?

STATEMENT

INTRODUCTION

In October 1972, after more than two years of delibera-

tion, Congress passed over the President’s veto the Federal

Water Pollution Control Act Amendments of 1972 (‘‘the

Act”), 33 U.S.C. 881251 et seg. (Supp. Il, 1972), an historic

enactment which had as its objective the restoration of the

nation’s waters to their natural state. The heart of this

ambitious legislation was the commitment of vast amounts

of federal funds to state and local governments to assist

in the construction of sewage treatment plants. The Presi-

dent opposed the bill, chiefly because of its spending levels,

and he vetoed it despite a conference committee compro-

mise intended to give him limited discretion to withhold

funding for budgetary reasons. When the vetoed bill was

returned to Congress, the principal spokesmen for the bill

in both houses, while acknowledging the magnitude of fed-

eral spending, reiterated the vital importance of cleansing

this country’s lakes and streams, and the veto was over-

ridden by decisive margins.

A few weeks later, the President ordered the Administrator

of the Environmental Protection Agency (“the Administra-

tor”) to allot among the states only $5 billion of the $11

billion authorized by Congress for the first two fiscal years

of the construction grant program's operation, thus seeking

to accomplish by the controversial practice of “impound-

ment” that which he had failed to achieve in exercising his

constitutional veto power. In this suit Campaign Clean

Water, Inc. (“Campaign Clean Water”) contends — and

both the District Court and Court of Appeals held — that

Congress intended to limit the Administrator’s discretion

to withhold such allotments and that, as the District

Court found, the Administrator’s allotment of only 45

percent of such funds was an abuse of his discretionary

authority under the Act.

1. The Legislative Hist ry of the Act

From the time the forerunner of the present Act was

enacted in 1956, a principal feature of the federal pro-

gram has been to provide grants to assist state and local

governments in the construction of sewage treatment

plants. However, the amount of federal funds made avail-

able for that purpose was relatively small, amounting to

only $2.1 billion from 1957 through 1970.' It became

increasingly clear that more vigorous federal action would

be required if the battle against water pollution was to be

won, and accordingly, in 1970 and 1971 the public works

committees of both houses of Congress held extensive

hearings on a legislative revamping of federal water pollu-

tion control programs. 2

I Hearings on Water Pollution Control Legislation ~ 197] (Over-

sight of Existing Programs), Before the House Comm. on Public

Works, 92d Cong., Ist Sess. 19 (1971), (hereinafter cited as “House

Phase 1 Hearings’’).

2 See Hearings on Water Pollution — 1970, Before the Subcomm.

on Air and Water Pollution of the Sen. Comm. on Public Works,

9ist Cong., 2d Sess. (1970); Hearings on Water Pollution Control

Legislation, Before the Subcomm. on Air and Water Pollution of

the Sen. Comm. on Public Works, 92d Cong., 1st Sess. (1971)

(continued)

These hearings revealed that vast amounts of money

were needed for the construction of waste treatment plants.

For example, a survey of over 1,000 municipalities con-

ducted by the National League of Cities and the U.S.

Conference of Mayors showed that between $33 and $37

billion would be required to finance sewage treatment

construction for the ensuing six years. See 116 Cong.

Rec. 23330-37 (1970) (reprinting the survey report). These

hearings also demonstrated that federal funds were needed

to finance the construction of projects other than treat-

ment plants, such as sewage collection systems, which had

previously been ineligible for federal funding;? that many

cities needed substantial funds to deal with overflow prob-

lems caused by combined storm and sanitary sewage sys-

tems;* that enforceable deadlines for meeting various water

2 (continued) (hereinafter cited as “/97/ Senate Hearings”),

House Phase I Hearings, supra note |, Hearings on Water Pollution

Control Legislation ~ 1971 (Proposed Amendments to Existing Legis-

lation), Before the House Comm. on Public Works, 92d Cong., Ist

Sess. (1971) (hereinafter cited as “House Phase II Hearings”), Hear-

ings on Water Pollution Control Legislation - 1971 (H.R. 11896, H.R.

11895), Before the House Comm. on Public Works, 92d Cong., Ist

Sess. (1972) (hereinafter cited as “House Phase II] Hearings”). In

71 days of hearings, the two public works committees heard a total

of 465 witnesses, received 605 additional statements, and published

hearing records totaling 10,522 pages.

3 See, e.g., House Phase I] Hearings, supra note 2, at 200-01; H.

Rep. No. 92-911, 92d Cong., 2d Sess. 88, 98 (1972), reprinted in

Environmental Policy Division, Congressional Research Service, Library

of Congress, A Legislative History of the Water Pollution Control Act

Amendments of 1972, 775, 785 (1973) (hereinafter cited as “L.H.”).

4 See, e.g., House Phase | Hearings, supra note 1, at 11, 58-61;

House Phase I] Hearings, supra note 2, at 27, 34-36. Projects to

remedy such problems were then ineligible for federal financial

assistance.

quality goals were required; > and that tougher enforce-

ment provisions were called for, see Senate Hearings, supra

note 2, at 727, 731.

By overwhelming margins,® the House and Senate passed

similar bills, and the differences were ironed out in pro-

tracted conference committee deliberations. The bill that

finally emerged was the most far-reaching piece of water

pollution legislation in this country’s history. Its overall

Objective was “to restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters,” ”

or, more simply, to return America’s waters to their na-

tural state. A timetable for achieving this objective was

imposed by two “national goals” — an interim goal of

achieving by 1983, wherever attainable, a level of water

quality which would provide for the protection and propa-

gation of aquatic life and other wildlife and for human

recreation in and on the water (the “swimmability” stand-

ard), and a final goal of completely eliminating discharges

5 See Senate Hearings, supra note 2, at 102 (staff document

stating that only 24 states had complied with 1965 statutory pro-

vision requiring submission to the federal government of water

quality standards because of the omission of enforceable timetables

in the earlier statute).

6s. 2770 passed the Senate on November 2, 1971, by a vote

of 86-0. H.R. 11896 passed the House on March 29, 1972, by a

vote of 380 to 14.

7 Sor *101(a). The House committee report gave an elaborate

definition of the term, “the restoration and maintenance of the

chemical, physical, and biological integrity of the Nation’s waters.”

L.H. 763-64. Section 304(a)(2) requires the Administrator to de-

velop and publish information concerning water quality criteria

which will define the term further. See L.H. at 1301 (remarks of

Senator Eagleton).

Sdn RR a taal BEC a ree me ae Wes matt ta mab

TE. Se NPE, oe

__————— ——"

ee ee

of pollutants into navigable waters by 1985. §$8101(a)(1),

(2).

Stil! other deadlines in the bill were made specifically appli-

cable to publicly owned waste treatment plants, and failure to

meet them was declared to be “unlawful.” 830i(a). Tne bili

directed that all such plants in existence in mid-1977, or under

construction and apnroved by the Administrator prior to mid-

1974, comply with effluent limitations based upon at least a

secondary level of treatment,® and that by mid-1983 all plants

approved after mid-1974 employ “the best practicable technol-

ogy.”’ §8301(b)(2)(B); 201(g2)(A). The Administrator was

given a non-discretionary duty to enforce the deadlines, 8309,

and private citizens were authorized to enforce them through

civil suits, 8505.

To ensure that municipalities would be able to comply

with these deadlines, the conference committee bill author-

ized the expenditure of $20.75 billion for waste treatment

plant construction grants. Eighteen bilJicn dollars was ear-

marked for federal grants to pay 75 percent of the cost of

waste treatment plant projects initiated by states and local

governments, with $5 billion being authorized for fiscal year

1973, $6 billion for fiscal year 1974, and $7 billion for

fiscal year 1975. §$207. The remaining $2.75 billion was

8 See §301(b)(1)(B). In primary treatment, solid matter is settled

out of sewage in sedimentation tanks, reducing the detrimental im-

pact on the receiving stream by 25-30 percent. In secondary treat-

ment, micro-organisms in an aeration tank accelerate the decomposi-

tion process, reducing the detrimental impact by as much as 90

percent. At about the time the bill was pending before Congress,

38 percent of the nation’s sewage was discharged with no treatment,

and an additional 30 percent received only primary treatment. See

L.H. 495 (remarks of Rep. Vanik).

intended to reimburse municipalities that had voluntarily

initiated construction projects without federal assistance

in prior years. 8206. Not only did the bill respond to

the needs identified during ithe hearings by making more

funds available, but it also provided that they could be

used to finance sewage collection systems and projects

to separate existing combined storm and sanitary sewage

systems. 8212(a), (b).

In an attempt to remedy the uncertainty that had

piagued states and cities under previous law, the bill pro-

vided for a “contract authority” method of funding where-

by they would know well in advance exactly how much

federal money would be available for a given fiscal year.

Under tris mechanism the funding process consisted of

five separate and successive stages: authorization, allot-

mezxt, obligation, appropriation, and payment. The dis-

tinction between these stages is important, particularly

since it was blurred at times during the :ioor debates. First,

under section 207 specific sums were authorized to be appro-

priated for three fiscal years. Second, under section 205 these

sums were to be allotted by the Administrator among

the states in accordance with a statutory formula based

on each state’s waste treatment needs. Third, applicants

were to submit to the Administrator plans for specific

construction projects, and the Administrator was to

approve or disapprove each proposal, with his approval

constituting a binding obligation of the federal govern-

ment to pay its share of construction costs. Fourth,

appropriations were to be made by Congress to cover

payments of the federal share of construction costs from

time to time as they became due. Finally, the Adminis-

trator was to make periodic payments to each grantee.

PRieedetcea os tee witemere stank Rai hay

In short, the bill reported by the conference committee

was carefully tailored to meet the many needs that had

been identified during the months of hearings before the

two public works committees. The culmination of two

years of deliberation was a bill that offered greatly in-

creased construction grant funding, permitted long-range

planning by states and cities, expanded significantly the

kinds of projects eligible for federal funding, established

enforceable deadlines for meeting certain water quality

standards, and backed up those deadlines with new, more

stringent enforcement provisions.

The inclusion of such provisions in the bill had not

been won easily. Many of them had been fought by

the President and his spokesmen at every step of the

proceedings before the House and Senate committees.

First, the President was strongly opposed to the $18

billion of expenditures called for by S. 2770 and sub-

mitted his own bill in 1971 providing for only $6 billion

of construction grant funds for a period of three fiscal

years.% The Administration also:

— opposed providing for “contract

authority” funding, '® see House Phase III

Hearings, supra note 2, at 292, 297;

9 See S. 1013, 92d Cong., Ist Sess. (1971). To justify this drastically

lower ievel of funding, EPA produced ts own study of construction

needs to counter that of the National League of Cities and U.S. Confer-

ence of Mayors. EPA’s study showed construction needs of $12.56

billion over a period of three fiscal years, but it did not include estimates

of the costs of constructing sewage collection systems or of separating

combined storm and sanitary systems, both of which were then ineligible

for federal funding but which were made eligible under the Act. See L.H.

121-22, 365-66, 1452.

10 Amendments to delete the contract authority provisions were offered

and rejected in both the Senate and House. See L.H. 348-49, 608-09, 616-

42, 1367 et sec

~ opposed increasing the federal share of

construction projects from 55 to 75 per-

cent, see House Phase II Hearings, supra

note 2, at 6; House Phase III Hearings,

supra note 2, at 296-97;

— opposed establishing deadlines for

attaining the national goals of achieving

“swimmable” waters by 1983 and of

eliminating all discharges of pollutants

by 1985, see House Phase III Hearings,

supra note 2, at 294;

— opposed making projects for construct-

ing sewage collection systems eligible for

federal grants, see id. at 298;

— opposed imposing a deadline for

achievement of secondary treatment by

municipal waste treatment plants, see id.

at 299; and

— opposed making the Administrator’s

enforcement duties mandatory rather than

discretionary, see id. at 338.

Because the President objected to so many of the bill’s

provisions, the conferees recognized that a veto was likely.

In a last ditch effort to achieve a political compromise

that would avoid a veto, the conferees agreed in their

final meeting to two changes designed to grant the execu-

tive branch a limited measure of discretion in controlling

the commitment of fedcral funds for waste treatment

plant construction. These amendments were as follows,

with deletions being bracketed and additions italicized:

Su aed PS MRE

pi tidensd ghettos 12%

Prk wares Mee

ALLOTMENT

Section 205. (a) [All] Sums authorized to

be appropriated pursuant to section 207 * * *

shall be allotted by the Administrator not

later than the January Ist immediately pre-

ceding the beginning of the fiscal year for

which authorized * * *

* * *

AUTHORIZATION

Sec. 207. There is hereby 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.

Because the conference committee report does not ex-

plain the meaning of these changes, one must look to the

floor debates for a clue as to the conferees’ intent. In

commenting on the amendments during the Senate debate,

Senator Muskie, the bill’s sponsor, stated:

“(AJll sums authorized to be obligated need

not be committed, though they must be allo-

cated. These * * * provisions were suggested

to give the administration some flexibility con-

cerning the obligation of construction grant funds.

{[L.H. 166].

This statement indicates that the conferees intended the

Administrator to exercise his “‘flexibility” at the obliga-

tion stage, under section 203, rather than at the allotment

a —

stage, under section 205; it does not explain, however,

why in that case the conferees did not amend section

203 rather than section 205. Senator Muskie then added

the following statement, which suggests that the conferees

intended the Administrator to be able to exercise his

“flexibility” only in the most exceptional circumstances:

{[T] here may be instances in which the

obligation of funds to a particular project

in a particular State may be contrary to

other public policies such as the National

Environmental! Policy Act. In these cases

the conferees would, of course, expect the

Administration to refuse to enter into con-

tracts for construction. [/d.].

A considerably different view of the conferees’ intent

was offered in the House debates by Representative

Harsha, the ranking Republican on the House Public

Works Committee. Where Senator Muskie had suggested

that the Administrator could exercise his discretion to

withhold funds only in rare circumstances when other

federal laws were violated, Representative Harsha implied

that money could be impounded on the basis “competing

national priorities,” a vague reference that could encom-

pass consideration of inflationary pressures. /d. at 244.

Representative Harsha also stated, again in contrast to

Senator Muskie’s narrower view, that “the language means

we can obligate or expend * * * anything up to that sum,

but not to exceed that amount,” id. at 247, a statement

that the Administrator has relied on in this litigation to

argue that his impoundment discretion is virtually without

limits. See Br. 18. On October 4, 1972, the Senate

passed the bill by a vote of 74-0, and the House approved

it by a margin of 366 to 11.

On October 1!, 1972, William D. Ruckelshaus, who

was then Administrator of the Environmental Protection

Agency, wrote to the Office of Management and Budget

strongly recommending tisat the President sign the bill.

Id. at 143 et seq. The letter pointed out that the short-

term inflationary impaci of the bill would be negligible

since no significant payments would be made until after

mid-decade. The Administrator also observed that he had

been given some flexibility in committing construction

grant funds and could consider inflationary effects in com-

mitting funds under the Act. Administrator Ruckelshaus

concluded his letter by stating:

More so than any other, water is our most

important natural resource. It sustains our

industry, our farms, our commerce, ovr en-

joyment, our lives. It is also most unfor-

giving 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. [/d. at 157-58].

Despite the recommendation of the Administrator and

the overwhelming sentiment of both houses of Congress,

the President vetoed S. 2770 on October 17. His veto

message to Congress stated that his action was necessary

because “‘the highest national priority [is] the need to

protect the working men and women of America against

tax increases and renewed inflation.”

sis in original). The President added:

Ia. ai i38 (empha-

Even if this bill is rammed into law

over the better judgment of the Executive

— even if the Congress defaults its obliga-

tion to the taxpayers — I shall not de-

fault mine. Certain provisions of S. 277C

confer a measure of spending discretion

and flexibility upon the President, and if

forced to administer this legislation I

mean to use those provisions to put the

brakes on budget-wrecking expenditures

as much as possible. [/d. at 139].

The Congress lost no time in overriding the veto. On

the day the veto was announced, 81 percent of the Sena-

tors present voted to override the President’s veto. The

next day, the bill was again submitted to the House. There

Representative Harsha re-emphasized the importance of

committing the larger sums of money called for by the

bill in order to achieve the objective of completely cleans-

ing the nation’s waters by 1985. He stated:

I don’t think there is one Member of

this body who has not asked his constit-

uents whether or not they were willing

to pay the high price to achieve our na-

tional environmental goals. I don’t think

that there is one Member of this body who

could report that after such polling, his

constituents objected * * * *

* * *

* * * * [T]he President maintained

that a vote to override the veto * * *

was a vote to increase the likelihood of

higher taxes. So be it, the public is

ee ea 2 oe rn oa aces |

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. [/d at

99}.

The House voted by an overwhelming 91 percent margin

to join the Senate in overriding the President’s veto. After

two years of deliberation, the most important water pollu-

tion bill ever to be passed by Congress had become law.

2. The Impoundment

Just five weeks later, on November 22, 1972, in an

attempt to defeat the veto-override by refusing to permit

the allotment of the funds that Congress had authorized,

the President wrote Administrator Ruckelshaus as follows:

I direct that you not allot among the States

the maximum amounts provided by section

207 of the Federal Water Pollution Control

Act Amendments 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. [App. 15-16].

Six days later, Mr. Ruckelshaus announced that, at the

President’s direction, he was allotting only $5 billion of

the tctal $11 billion authorized for these two fiscal years

or, more correctly, that he was withholding 55 percent

of the total funding.

Under the allotment formula prescribed by section

205(a) of the Act, the Commonwealth of Virginia is en-

titled to receive 2.9143 percent of the total allotments

for fiscal years 1973 and 1974. 37 Fed. Reg. 26282 (De-

cember 8, 1972). If the full sums authorized under

section 207 had been allotted, Virginia would have re-

ceived $145.7 million for obligation in fiscal year 1973

and almost $175 million in fiscal year 1974, for a total

of more than $320 million. Under the drastically reduced

allotment, Virginia received contract authority amounting

to only about $58 million in fiscal year 1973 and about

$87 million in fiscal year 1974, for a total of only $145.7

million, the exact amount it would have received in fiscal

year 1973 alone under the congressional scheme. In other

words, Virginia was denied the use of approximately $175

million of 1973 and 1974 funds because of the Admin-

istrator’s action. "!

The severe impact of the impoundment on the Common-

wealth is dramatized by a civil action filed against the

Administrator of EPA by the Virginia State Water Con-

trol Board on July 19, 1974. State Water Control Board

v. Train, No. CA-74-0238-R (E.D. Va.). The Board

alleged that because of the impoundment it has had to

delay the planning and construction of plants needed to

meet the Act’s 1977 deadline for achieving secondary

treatment. The Board further alleged that, due to the

approximately 2 1/2 to 3 1/2 year lead time required

to plan and build a sewage treatment plant, the Common-

wealth’s municipalities could not now meet that deadline,

11 Not involved in this case is the impoundment of $3 billion

of the total $7 billion of fiscal year 1975 funds which was announced

by the Administrator on January 10, 1974. Virginia was allotted

about $98 million for 1975, but it “lost” an additional $74 million

as a consequence of that impoundment, bringing its three-year total

of withheld allotments to almost $250 million.

even if the funds were released immediately. The com-

plaint seeks both declaratory and injunctive relief to

excuse Virginia from meeting the 1977 deadline and to

release the impounded funding. '?

A recent report to the Congress by the Administrator

further underscores Virginia’s plight. In EPA's 1973

“needs” survey prepared pursuant to sections 205 and 516

of the Act, it is estimated that a total national expenditure

of approximately $60.7 billion is needed to install all of

the municipal waste treatment facilities called for by the

Act.'3 Virginia was shown to have $1.345 billion of

total construction needs qualified for federal funding, with

$653 million of that total being necessary just to meet

the 1977 deadiine for secondary or more stringent

12 The Virginia legislature recently adopted a resolution citing

the “critical financial difficulties” faced by Virginia communities

which “have been required to undertake construction of new

facilities to meet the new standards promulgated by * * * federal

authorities * * * but have been virtually denied the necessary

grant-in-aid funds to assist with such construction,” and urging the

Congress to enact legislation (1) permitting states to proceed on

their own to finance sewage treatment plant construction and be

reimbursed later as federal funds become available (something not

provided for by the Act), and (2) granting a “grace period” for

compliance with the 1977 secondary treatment deadline. Va. Gen.

Ass. Jt. Res. No. 50, 1974 Session (March 8, 1974).

13 U.S.E.P.A., Report to the Congress: Costs of Construction

of Publicly-Owned Wastewater Treatment Works — 1973 "Needs"

Survey Prepared Pursuant to Sections 205 and 516, Public Law

92-500 (1973). The document notes that some factors tended to

make the results conservative (such as the exclusion of some types

of facilities eligible for funding), while other factors tended to

produce overstated estimates of needs.

treatment. The federal share (75 percent) of that $653

million is approximately $489 million, only slightly below

the approximately $493 million Virginia would have

received for the three-year period under a full allotment.

When the roughly $244 miliion Virginia has actually been

allotted for fiscal years 1973, 1974, and 1975 is compared

with the $489 million of federal money Virginia needs to

meet the rigid 1977 deadline, then the Commonwealth’s

plight may be appreciated.

3. The Proceedings Below

Because its interests and those of its organizers and con-

tributors were directiy affected by the Administrator’s

unlawful action, Campaign Clean Water filed this action on

January 15, 1973. In its complaint and in a subsequent

affidavit the organization alleged that its founders anu

financial supporters include sport and commercial fisher-

men, canoeists, shoreside resort owners, and others whose

livelihoods or recreational activities are dependent on water

quality. Many of those persons were directly affected by

the Administrators’s withhelding of construction grant

allotments. For example, Chesapeake Bay watermen, who

harvest oysters, clams, and crabs from shellfish beds in

the Hampton Roads region of Viiginia, have frequently

been unable to work the area in recent years since raw

and inadequately treated sewage from two waste treatment

plants operated by the Hampton Roads Sanitation District

have contaminated many of those beds. In a letter filed

in the District Court, Sanitation District officials informed

Campaign Ciean Water that the Administrator’s withholding

el Cae Re ik AEB ATR SS iS ae a Fs

oh re a A te tere

Pe ee ee

of allotments will probably “have a very decisive impact

on the capability of HRSD” to upgrade these outdated

treatment facilities. '4

On March 19, 1973, Campaign Clean Water moved for

summary judgment, and the Administrator moved to dis-

miss the complaint on the basis of the doctrines of

sovereizn immunity, ripeness, and political question, and

on the ground that plaintiff had failed to state a claim

upon which relief could be granted. On June 5, 1973,

the District Court entered a memorandum and order con-

cluding that “the challenged impoundment policy, by

which 55% of the allocated funds will be withheld, is a

violation of the spirit, intent, and letter of the act and

a flagrant abuse of xecutive discretion.”” Combined

Appendix to the Petitions for Writ of Certiorari 99A

(hereinafter cited as “Pet. App.”). In a thorough dis-

cussion of the issues, the Court first disposed of the

Administrator’s preliminary defenses, and then, turning

to the merits of the case, focused on sections 205 and

207 of the Act and the legislative history underlying

them. After noting that the “legislative history is in

the main unclear, politically charged, and * * * to some

degree based upon suspect constitutional interpretation

of the powers of the President,” the Court concluded

that more weight should be attached to what the con-

ferees did rather than to what they said in floor debates.

Id. Thus, the Court concluded, since one of the con-

ferees’ amendments giving discretion to the Administrator

was to the section on allotments, Congress must have

14 See letter from William J. Love, Gen. Mgr. & Chief Eng’r,

Hampton Roads Sanitation District, to Mr. Paul Grulier, Campaign

Clean Water, April 26, 1973, filed with the Affidavit of Newton

H. Ancarrow.

intended some discretion at the allecment stage, a pro-

position which Campaign Clean Water had advanced in its

briefs. The Court noted, however, that by overriding the

President’s veto vy a substantial margin, the Congress re-

affirmed “‘the massive national commitment to environ-

mental protection and the willingness to incur vast

expenses in achieving that commitment.” /d. at 99A.

Concluding that the Administrator had abused his discre-

tion by withholding more than half of the funding

authorized, the Court entered a declaratory judgment

holding the challenged impoundment policy null and void.

It ordered the Administrator to report within ten days

actions to be taken to conform the administration of the

Act to the principles enunciated by the Court, id. at 80A,

an order which was stayed by the Court of Appeals.

In his opening brief in the Court of Appeals, in addition

to raising the arguments he had advanced unsuccessfully

in the District Court, the Administrator contended for the

first time that he was empowered to make further allot-

ments from fiscal year 1973 and 1974 funds without

regard to the deadlines for allotments contained in section

205.'5 By the time the Administrator filed his reply

brief in the Court of Appeals, this new argument had be-

come the linchpin of his position, with the November 1972

decision to allot only 45 percent of the authorized fund-

ing being characterized as an “initial allotment.”

On December 10, 1973, a panel of the Fourth Circuit

entered its opision affirming in large measure the decision

15 See the brief for the Administrator in the Court of Appeals

at 34-36 n.26. This argument appeared in a discussion of ripeness,

the apparent contention being that the suit was premature because

further allotments were a possibility.

of the District Court, but remanding the case to the lower

court for further evidentiary proceedings on the abuse of

discretion question. After disposing of the questions of

standing, political question, ripeness, and sovereign im-

munity on the basis of the District Court’s opinion, the

Court flatly rejected the Administrator’s “position that

* * * he has absolute discretion in making such allot-

ments, and that his exercise of discretion is immune from

judicial review.” Pet. App. 41A. Addressing the Admin-

istrator’s contention that his allotment action was

“committed to agency discretion” and therefore not

judicially reviewable under the Administrative Procedure

Act, it noted this Court’s statement in Citizens To

Preserve Overton Park v. Volpe that this “very narrow

exception” applies only in “those rare instances where

‘statutes are drawn in such broad terms that in a given

case there is no law to apply.”” /d. at 45A, quoting

401 U.S. 402, 410 (1971). Observing that it is some-

times difficult to determine ““when the agency action is

committed to agency discretion within the Adminisirative

Procedure Act, and when it merely involves discretion

which is nevertheless reviewable,’ Pet. App. 45A, cuoting

Ferry v. Udall, 336 F.2d 706, 711 (9th Cir. 1964), cert.

denied, 381 U.S. 904 (1965), the Court concluded:

Unquestionably, whether an agency in

exercising its asserted discretionary power

under a legislative authorization, is acting

in a manner consistent with the legislative

purpose and with proper regard for the

constitutional principle of separation of

powers between the executive and legisla-

tive is an issue that section 10 [of the

APA] did not intend to make non-

reviewable; it patently is not an issue

“committed to agency discretion”.

{/d.}.

After deciding that the Administrator’s action was

reviewable, the Court of Appeals went on to enunciate

a standard f«r deciding whether the Administrator had

abused his discretion:

When the executive exercises its responsi-

bility under appropriation legislation in

such a manner as to frustrate the Con-

gressional purpose, either by absolute

refusal to spend or by a withholding of

so substantial an amount of the appropria-

tion as to make impossible the attainment

of the legislative goals, the executive tres-

passes beyond the range of its legal dis-

cretion * * * * [/d. at 46A (footnote

omitted)].

The Court emphasized that in determining whether the

amounts withheld are excessive “[t]he Court need not

seek to derive some lower figure but need simply test

the contested impoundment against the legislative intent

as expressed in the act to determine whether the impound-

ment was an abuse of discretion.” /d at 47A, n. 21.

Having affirmed the District Court on almost every

issue, the Court of Appeals found that it could not agree

with the lower court that the record supported a finding

of an abuse of discretion by the Administrator. Noting

that the District Court had relied on the overwhelming

size of the withholding, the Court observed that the

Administrator had testified before Congress that he doubted

eh A a ea Re 8 i Ss Mh a

owes ctctnedcahae incase ee NL ete ee hee eee ne Sate fee Tr eds Tew te eee BATT nee ee see ner LUN

whether the domestic construction industry could absorb

greater allotments of funds, id. at 48A-49A; that he had

asserted in his brief that not all of the funds allotted had

yet been obligated by the states, id. at SOA; and that

he claimed the power to make additional allotments from

time to time, id at SOA-51A. On the basis of these

factors, the Court of Appeals concluded that further

evidence should be taken to determine whether an abuse

of discretion had in fact occurred, and, accordingly, re-

manded the case to the District Court. After the case had

been remanded to the District Court, the Administrator filed

a petition for a writ of certiorari, which was supported by

respondent and was subsequently granted by this Court.

SUMMARY OF ARGUMENT

The key issue to be decided in this case is whether

Congress intended to give the Administrator unbridled

discretion under the Act to withhold allotments, or

whether, as Campaign Clean Water contends and both

of the courts below held, that discretion is limited so

that the purpose and goals of the Act will be achieved.

Once that fundamental question is resolved, each of the

three principal defenses raised by the Administrator —

sovereign immunity, nonreviewability under the Adminis-

trative Procedure Act (“APA”), and political question —

are readily decided. This is true because each of these

issues turns, in large part, on whether the Act imposes

any expressed or implied limitations on the Administra-

tor’s allotment discretion.

Unlike the City of New York, Campaign Clean Water

does not contend that the Administrator is totally with-

out discretion to withhold alotments under section 205.

Our position, which was accepted by the Fourth Circuit,

is that some such discretion was intended, but that Con-

gress did not thereby give the Administrator the discretion

to eviscerate other key provisions of the statute. Congress’

overriding objective in enacting this tandmark legislation was

to cleanse the nation’s waters of pollutants and to do so in

accordance with a timetable prescribed in the statute. The

detailed goals and requirements of the Act lead unavoidably

to the conclusion that Congress did not override a Presiden-

tial veto in order to permit the Administrator to defeat

administratively that which the Executive had been unable

to defeat legislatively.

An examination of several of the Act's most important

pru..sions demonstrates that Congress could not have in-

tended that the Administrator have unlimited discretion.

For example, the Act provides that publicly owned sewage

treatment plants must achieve a secondary level of treat-

ment by mid-1977, and must feature the “‘best practicable

technology” by 1983. Municipalities which fail to meet

these deadlines are subject to stringent federal civil and

criminal penalties, as well as to suits by private citizens.

The Act also requires generally that the nation’s waters

be of “swimmable” quality by 1983, and establishes a

goal of no discharges of pollutants into waterways by 1985.

And a new “contract authority” method of funding is pro-

vided so that states and municipalities can, for the first

time, conduct effective long-range planning. If achieving

these deadlines and other goals and requirements of the

Act is jeopardized by the impoundment action of the

Administrator, then his allotment discretion has been

abused. Campaign Clean Water contends that the facts

show such an abuse of discretion and, at the least, that it

is entitled to pursue further evidentiary proceedings on

this point in the District Court.

-_- ne

el wed

Pore eee

Lae

“ Per

Once it is established that the Administrator’s allotment

discretion is limited, the defenses raised by him must fail.

First, the “sovereign immunity” doctrine does not apply

in suits such as this one involving “‘actions bv officers

beyond their statutory powers,” Dugan v. Rank, 372 U.S.

609, 621 (1963), and, further, is inapplicabic here because

under the circumstances of this case the APA cunstitutes

a waiver of sovereign immunity. Second, because the

Administrator’s allotment discretion was meant by Con-

gress to be limited, his impoundment decision is judicially

reviewable under the APA and is not one of those ex-

ceedingly rare determinations “committed to agency

discretion by law.” See Citizens to Preserve Overton

Park v. Volpe, 401 U.S. 402, 410 (1971). Finally, since

other portions of the Act provide guidance to the courts

in delineating the bounds of the Administrator’s allot-

ment discretion, there is no "lack of juusicially discoverable

and manageable standards” which would render the Ad-

ministrator’s decision unreviewable on “political question”

grounds. Baker v. Carr, 369 U.S. 186, 217 (1962).

ARGUMENT

INTRODUCTION

Campaign Clean Water’s position, which has remained

unchanged since the filing of our first brief in the District

Court, is that while Congress granted the Administrator

some discretion to withhold allotments, his discretion is

limited and has been abused. The fundamental difference

between this interpretation and that advanced by the

City of New York is that in analyzing the conference

committee amendments to sections 205 and 207, Cam-

paign Clean Water emphasizes what the conferees did,

while the City focuses on what the conferees said about

their action during the floor debates. '© Thus, the City

concentrates on the conferees’ use of such words as

“obligation” and “‘expenditure”’ during the floor debates

and concludes from that and other language that whatever

discretion was granted was intended to be exercised at the

16 The difference between these two approaches to interpreting the

statute was explained by the District Court in this case as follows:

Judge Gasch in City of New York concluded

* * * that * * * the discretionary elements incorpo-

rated 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 conclusion, the Court, the

plaintiff, and, to a limied extent, the defendant,

are in agreement that [the] legislative history is in

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 * * * * The Court

accordingly concludes that the Congress did intend

for the executive branch to exercise some discre-

tion with respect to allotments. [Pet. App. 95A-

96A (footnote omitted)].

Sia se

obligational stage of the funding process. Campaign Clean

Water, on the other hand, considers the floor debates to

be “in the main unclear [and] politically charged,” Pet.

App. 96A, and accordingly places considerable weight on

the fact that it was the section on allotments (8205)

rather than the section on obligations (§203) that was

amended by the conferees. 7.

The Administrator’s case must stand or fall on a pre-

mise which he carefully avoids stating in his brief — that

his discretion to withhold allotments is totally unfettered. !®

OL yp Mere To:

Pe ee ers

17 Although it may be difficult to predict what practical

effect the choice of one interpretation ovcz tue other might have,

it is probable that adopting the City »f New York’s position

could lead to further litigation. As tue Administrator points out

in his brief (p. 14), “[I]f this Court should hold that the entire

amount authorized must be allotted at the uutee:, the Administra-

tor, in consultation with the President, will then have to decide

: whether to exercise his authority to impose comparable obligation

: controls for the same purpose.” Thus, a victory on the ground

hs tate,

Poe Cree tees

urged by the City might well be a pyrrhic one, with further

litigation being necessary to pry loose funding at the obligational

stage. If, on the other hana, our “abuse of discretion” argument

prevails, the need for later litigation would probably be obviated,

3 since a holding that Congress intended the Administrator to

exercise his limited discretion at the allotment stage would

implicitly preclude him from taking a second bite from the apple

} at the obligational stage. The District Court, in fact, agreed,

: stating that “the Court concludes that the declaratory relief issued

i with respect to the allotment stage will place the defendant on

: notice that a similarly designed and motivated impoundment policy

3 with respect to appropriations [i.e., obligations] would contravene

the letter and spirit of the Act.” Pet. App. at 100A.

18 The Administrator was not nearly so cautious in the Court

of Appeals where he bluntly argued “that Congress placed no

limitation upon the President’s or the Administrator’s discretion to

allot and spend funds * * *” Brief for the Administrator in the

Court of Appeals at 24 (emphasis added).

It is not surprising that the Administrator has taken such

pains to conceal the underpinnings of his argument, for

an examination of the statute and its legislative history

makes clear that Congress could rot have intended the

Administrator’s discretion to be unbridled and that such

a construction would utterly vitiate many important pro-

visions of this landmark legislation.

I. CONGRESS DID NOT INTEND TO GIVE THE

ADMINISTRATOR UNBRIDLED DISCRETION TO

WITHHOLD ALLOTMENTS

In determining whether Congress intended to give the

Administrator unlimited discretion to withhold allotments,

two factors make a sensible reading of the statute difficult.

First, a monkeywrench of no small proportions was thrown

into the delicately tuned machinery of this complex legisla-

tion when the conferees added an eleventh hour amendment

aimed at reaching a political compromise with the White

House on the issue of spending control. In seeking to

accommodate this last minute surgery with the remainder

of the ninety-page statute, the courts must be careful to

ensure that the rest of the statute is not undermined.

The other aspect of this legislation which complicates

the problem of discerning congressional intent as to the

extent of the Administrator’s impoundment discretion is

that the floor debates were colored by the intensely

political dispute that was then raging between the Presi-

dent and the Congress concerning what came to be known

as “‘the Battle of the Budget.”” As the conference committee

deliberations on the water pollution bill drew to a close in

late September 1972, no issue was more hotly debated in

Congress than the President’s power to control the level

of federal spending. '? Because S. 2770, the water

pollution bill, was viewed as a threat to the President’s

policy on control of federal spending, the ranking Repub-

lican on the House Public Works Committee, Representa-

tive Harsha, reported to the final meeting of the conferees

that the President would be less likely to veto the bill if

it were amended to grant the Executive the discretion to

spend less than the full $18 billion authorized, L.H. 165-

66, after which the amendments relied on by the Ad-

ministrator were adopted. The amendments themselves —

removing the word “all” from section 205 and inserting

the phrase ‘“‘not to exceed”’ in three places in section 207

~ hardly provide any penetrating insight into congressional

intent. Standing alone, they sugycst only that Congress

intended that some amount less than the full sums

authorized could be allotted. They do not by themselves

give the Administrator a green light to reduce by more

than half the level of funding.

19 Most of the debate centered around a bill endorsed by the

President and introduced by Representative Mills and others on

September 26, 1972 — two days before the conference committee

issued its report on the water pollution bill, S. 2770 — which

would have imposed a $250 billion ceiling on federal spending and

would have given the President extremely broad powers to impound

appropriated funds. See H.R. 16810, 92d Cong., 2d Sess. (1972);

118 Cong. Rec. S 18026-120 (daily ed. Oct. 13, 1972); H 10224-34,

S 18506-33 (daily ed. Oct. 17, 1972); H 10277-84, S 18632-33,

S 18646-47 (daily ed. Oct. 18, 1972). The spending ceiling/

impoundment provisions of the bill were ultimately defeated; in

fact, showing its displeasure with impoundment, Congress added a

provision to the bill requiring the President to report all impound-

ments to the Congress. Federal Impoundment and Information

Act, Pub. L. No. 92-599, 8401-402, 86 Stat. i325, repealed by

the Impoundment Control Act of 1974, Pub. L. 93-344, tit. X,

88 Stat. 297, 332 (imposing even more stringent controls on

impoundment).

Unfortunately, no statement of the conferees’ intent

with respect to these amendments was included in the

committee report, which would generally be considered

the most reliable indicator of congressional purpose. See

Duplex Printing Press Co. v. Deering, 254 U.S. 443, 447

(1920). Instead, the explanation of their action was left

to floor statements, where each of the opposing factions

could spread on the record its interpretation of the effect

of the changes. The manner in which this legislative

history was created demonstrates that it was the product

of a strained political compromise. The President’s advo-

cates must have known that they could not “sell” the

Congress explicit statutory language giving the President

total spending discretion, while the sponsors of the bill

must have known that they had no chance of avoiding a

veto if the statute expressly denied the Executive any

such discretion. The result was two rather cryptic changes

in the wording of sections 205 and 207, which left both

sides room to argue their varying interpretations of the

amendments on the floor. Thus, in the floor debates,

Senator Muskie was free to offer a very narrow and some-

what curious construction of the conference committee’s

intent, suggesting that the Administrator could only with-

hold funding for individual projects which failed to comply

with the requirements of the National Environmental

Policy Act, L.H. 166, quoted at p. 11, supra, while the

House Republican spokesman, Representative Harsha,

implied sweepingly that the Administrator could allot

“anything” up to the amounts authorized, L.H. 247,

quoted at p. 11, supra.

It is small wonder that a legislative history charged with

such political byplay provides unreliable guidance to a

court attempting to discover the intent of Congress. As

one former Solicitor General has noted in an analogous

context, “‘[t]he legislation contains more than its share of

problems for judicial interpretation because * * * many

sections contain calculated ambiguities or pc jitical com-

promises essential to secure a majority. Consequently, in

resolving them the courts would be well advised to seek

out the underlying rationale without puiting great

emphasis upon close construction of the words.” Cox,

Internal Affairs of Labor Unions Under the Labor Reform

Act of 1959, 58 Mich. L. Rev. 819, 852 (1960), quoted

in, Wirtz v. Local 153, G.B.B.A., 389 U.S. 463, 468 n.6

(1968); see also Rosado v. Wyman, 397 U.S. 397, 412

(1970); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 11

(1968); National Woodwork Manufacturers Ass'n yY.

N.L.R.B., 386 U.S. 612, 639 (1967). Given a statute

containing potentially disruptive provisions that were

tacked on almost as an afterthought, as well as floor

debates that must be taken with an appropriate grain of

salt, the clear duty of this Court is to “look to the

reason of the enactment, and inquire into its antecedent

history, and give it effect in accordance with its design

and purpose * * *” Ozawa v. United States, 260 U.S.

178, 194 (1922).

One piece of such “antecedent history” that is of

cardinal importance in this case is the veto override. In

explaining his veto, the President, who had fought against

S. 2770 from the outset, threw down the gauntlet to the

Congress on the issue of construction grant spending. L.H.

137-39. He denounced the bill as “budget-wrecking” and

insisted that the much more modest bill he had championed

— wholly without success — provided a preferable alterna-

tive. /d. at 138. Despite the President’s displeasure, both

houses of Congress voted overwhelmingly to override.

They did so with the full knowledge that the sums

authorized were immense and that increased taxation might

be necessary. See the statement of Representative Harsha,

quoted at pp. 13-14, supra. When those legislators voted to

override, they cannot have contemplated that the President

would be permitted to achieve by impoundment what he

had failed so decisively to achieve in the congressional

arena. Yet that wii! be the effect if the Administrator’s

position is upheld by this Court, since several of the most

crucial provisions of this important legislation, all opposed

by the President during the bill’s pendency, would be

severely frustrated by a holding that there are no limits

on the Administrator’s impoundment discretion.

Among the most obvious of these provisions are those

contained in Title II] of the Act, which establishes dead-

lines dictating the time by which certain levels of sewage

treatment must be achieved, makes these deadlines and

levels legally enforceable in a variety of ways, and pre-

scribes sanctions for their violation. Section 301(a) pro-

vides in pertinent part that “[e]xcept as in compliance

with this section * * * the discharge of any pollutant by any

person [“person” including a state or a municipality under

section 502(5)] shall be unlawful.” Subsection (b) of that

section provides that in order to carry out the Act’s objective

of restoring the nation’s waters to their natural state, publicly

owned treatment works in existence on July 1, 1977, or under

construction and approved by the Administrator prior to June

30, 1974, must be able to meet effluent limitations based upon

secondary treatment, or in some cases upon even more stringent

standards. §8301(b)(1)(B), (C). And by July 1, 1983, all

publicly owned treatment works approved after mid-1974

must employ “the best practicable technology.” §8301(b)(2)

(B), 201(g)(2)(A).

Re et Sh

The importance that Congress attached to the 1977

deadline for achieving secondary treatment is evidenced

by the fact that the conference committee rejected section

301(b)(3) of the House bill, LH. 964-65, that would have

given the Administrator discretion to extend this deadline

for up to two years.”® Further evidence of Congress’s

determination tnat this deadline be met is provided by

the enforcement section of the statute. Under sections

309(a1) and (3) whenever the Administrator finds that

any person is in violation of an effluent limitation under

section 301 — which would include effluent limitations

based on the secondary treatment requirement — he shall

either issue an enforcement order requiring compliance,

initiate a civil.action for injunctive relief, or notify both

the alleged violator and tlc appropriate state agency of

the violation.?' If he chooses the latter of these three

courses, the Administrator must still proceed to issue an

enforcement order or to bring a civil action if the state

“has not commenced appropriate enforcement sction”

within 30 days. If a municipality violates either section

301, an effluent limitation in a permit, or an enforcement

order of the Administrator, it is subject to a civil penalty

not to exceed $10,000 per day of violation, and, if the

violation is willful or negligent, it may be punished by a

20 That same section also authorized the Administrator to ex-

tend for a two-year period the deadline for compliance with

certain standards by industrial polluters. While rejecting the pro-

vision with respect to municipal waste treatment works, the con-

ferees accepted in substance the provision authorizing the

postponement of certain deadlines for industrial sources of

pollution. See §301(c).

2! The Administ ation bill made enforcement by the Administra-

tor discretionary. See Senate Hearings, supra note 2, at 317-18.

criminal fine of from $2,500 to $25,000 per day. 7?

M309(c1), (d).

Not only are municipalities subject to enforcement

action by the Administrator, but they are subject to

civil actions by citizens under section 505 to enjoin the

violation of either an effluent standard or of an order

issued by the Administrator or a state with respect to

such a standard. Successful litigants may obtain, in

addition to injunctive relief, their costs of litigation,

including attorney and expert witness fees. §505(d).

There can be no doubt that one of Congress’s chief

purposes in authorizing the appropriation of $18 billion

for sewage treatment plant construction was to enable

municipalities to comply with the rigid 1977 and 1983

deadlines and thereby to avoid being taken to court by

either the Administrator or private litigants. This con-

gressional intent is evidenced in the remarks of Senator

Muskie, the bill’s sponsor, when he noted during the veto

override debate that under the new law “advanced waste

treatment, a level of treatment not generally required

under existing law, will be required for every community

in the Nation. That * * * is a tall order. To set a level

of funding which would enable communities to meet it,

we examined the information we had received from both

22 it is abundantly clear that Congress contemplated that

municipalities would be sued under the civil penalties provision

since section 309(e) provides that “[w]henever a municipality is

a party to a civil action brought by the United States under this

section, the State in which such municipality is located shall be

joined as a party. Such State shall be liable for payment of any

judgment * * * entered against the municipality in such action to

the extent that the laws of that State prevent the municipality

from raising revenues needed to comply with such judgment.”

tte. he

the administration and from the municipalities themselves.”

L.H. at 121. Senator Muskie continued: “[{T)he conferees

decided that $18 billion was the required level of funding

for Federal grants. None of us were pleased that the price

tag is that high, but none of us are prepared — as the

President is — to back off from the challenge by claiming

we cannot afford to pay that price.”

The Administrator, too, foresaw tit municipalities could

not be expected to meet the deadline for secondary treat-

ment unless ample federal grant money was forthcoming.

In a letter written to the Chairman of the House Public

Works Committee in December 197', he urged that “the

secondary treatment requirement should only apply to

projects for which new Federal grants cre provided.”

L.H. 1197. Congress rejected that recommendation, thus

evidencing its intent that all municipalities meet the 1977

deadline, a result that is concededly impossivle without

sufficient federal financial assistance.

23 LH. 122. Ina similar vein, Republican Senator Cooper stated:

The great commitment [we have made to the

American people in this bill] is found in tho

provisions which require compliance with the

bill. The municipal facilities are required to

come into compliance with this bill. If they

do not, sanctions may be taken against the

municipality.

I must say that since we have ordered these

strict restrictions * * * that is the chief co +

mitment, and we must live up to it, whether

by contract authority or by appropriations.

{L.H. 1373].

in summary, the last-minute amendment of the confer-

ence committee cannot be construed as giving the Admin-

istrator unlimited discretion without effectively nullifying

much of Title :{l It is unthinkable that Congress would,

on the one hand, require cities to conduct crash construc-

tion programs, and subject them to both governmental

and private enforcement actions, as well as civil and crimi-

nal penalties, for failing to do su, while at the same time

giving the Administrator unfettered license to pull the rug

from under municipalities by impounding most cf the funds

provided to pay the federal share. Usual rules of statutory

construction dictate that when confronted with such po-

tentially inconsisteut statutory provisions, courts seek to

reconcile any conflicts so as to give effect to all parts of

the legislation. United States v. Menasche, 348 U.S. 528,

538-39 (1955). Accordingly, the only reasonable interpre-

tation of the Act is that while Congress intended to give

the Administrator some discretion to impound, it did not

intend that discretion to be so unlimited as to render im-

possible compliance by municipalities with the 1977 and

1983 deadlines imposed by section 301.

The provisions of section 301 are not the only ones in

the Act that would be rendered meaningless if the Admin-

istrator’s position were to be accepted by this Court. Sec-

tion 101 provides that in order to achieve the Act’s objec-

tive of “restoring and maintaining the chemical, physical,

and biological integrity of the Nation’s waters”’:

(1) it is the national goal that the discharge

of pollutants into the navigable waters be

eliminated by 1985;

(2) it is the national goal that wherever

attainable, an interin: goal of water quality

eisai Mea, WED ak enna

ee ee

Re ee rc Ca ee Gk es CORES SS

Battie tatenistie cna

which provides for the protection and prop-

agation of fish, shellfish, and wildlife and

provides for recreation in and on the water

be achieved by July 1, 1983 * * *

While the first of these goals, the “‘no discharge’’ goal,

was described in the legislative history as being a general,

non-enforceable “policy objective,” see L.H. 1262, 1299-

1301, the July 1, 1983, “swimmability” standard is quite

concrete and was clearly intended by the Congress to be

achieved. As then Council on Environmental Quality

(“CEG”) Chairman Russcil Train stated in testimony be-

fore the House Public Works Committee in December

1971, “‘[t}his concept of ‘swimmability’ is a fairly

accepted scientific standard relating to bacterial count

* * * It is measurable scientifically and can be instru-

mented, and it is an accepted definition that can be

applied * * * *” L.H. 1148-49. Moreover, this dead-

line coincides exactly with the rigid mandatory deadlines

established b+ section 301(b)(2), which requires that by

July 1, 1983, municipal treatment works use “the best

practicable technology” and that industrial dischargers em-

ploy “the best available technology.”’ Recognizing the

stringency of the “swimmability” requirement, see L.H.

1135-36, Administration spokesmen asked the House Pub-

lic Works Committee to amend the provision by substituting

for the word “attainable” the phrase ‘feasible and appro-

priate.” Congress rebuffed the Administration’s attempt

to weaken the 1983 “‘swimmability” goal, thus affirming

that it meant the deadline to be binding and to be met

“wherever attainable.”

Like the 1977 secondary treatment requirement and

the 1983 “best practicable technology’ requirement, the

national goal of achieving “swimmable”’ water quality was

ee ERR

envisioned by Cc.gress as being linked closely to the Title

II provisions providing funding for the waste treatment

plant construction grant program. The first section of

Title I] states that “[i]t is the purpose of this title to

require and to assist the development and implenientation

of waste treatment management plans and practices which

will achieve the goals of this Act.’ 8201(a) (emphasis

added). In addition, section 207, which authorizes the

appropriation of $18 billion for construction grants, ex-

pressly provides that the purpose of that section is “to

carry Out this title.” (Emphasis added). This important

national goal cannot be “carried out,” however, if the Act

is interpreted as giving the Administrator unlimited discre-

tion to impound.

A third major portion of the Act that has been sub-

verted by the Administrator’s massive impoundment is the

contract authority provisions of Title II (8203, 205), one

of the most important features of the entire statute. A

major problem under the prior construction grant program

was the inability of recipients to forecast with certainty

when and in what amounts future federal funding would

become available. Despite the Administration’s oppusition,

see note 10, supra, the Congress approved a contract au-

thority funding mechanism so that states and municipalities

would know well in advance how much federal funding

vould be available in future fiscal years, making long-range

planning possible. The importance of this provision was

explained by Representative Harsha, who said “‘it is essen-

tial that the States, the interstate agencies and the cities

have both the ability for and a basis for long-range plan-

ning, construction scheduling and financing waste treatment

plants, including the sale of bonds that they have to some-

times negotiate.” L.H. 632-33. However, where Congress

exhibited an overriding concern for certainty and predict-

ability, the Administrator has introduced chaos by with-

holding large amounts of funds from allotment. No

longer can a state seeking to plan for its construction

needs a few years hence know with any certainty how

much federal funding will be available for obligation.

Ignoring all of these other goals and requirements, the

Administrator carefully avoids discussing in his brief what

effect his impoundment action would have on the other

provisions of the Act. That is not surprising since the

Administrator’s portrayal of his powers under sections

205 and 207 is totally at variance with both the plain

language of the Act and the overall statutory scheme.

Instead, the Administrator argues that the November 1972

allotment of only 45 percent of the funding for fiscal

years 1973 and 1974 was merely an “‘initial allotment,”

that he is empowered to make further allotments, and

that grantees have not really been harmed. Br. 12-14,

25-28. 75 He also assures us that he “expects ultimately

25 In an attempt to give substance to his claim that no harm

has been done, the Administrator makes much of the fact that no

state has yet obligated all of the funds allotted for fiscal years

1973-75. The principal shortcoming of this argument is that since

the Administrator controls the rate of obligation, see 88203, 204,

he can easily make it appear that few alloticd funds are being

committed by simply subjecting applicants to more “red tape.”

In his October 1972 letter to the Office of Management and

Budget arguing against a veto, then-Administrator Ruckelshaus

suggested the use of such administrative manipulation to slow the

rate of obligations. L.H. 153, 155-56. Furthermore, recent hear-

ings before a subcommittee of the House Public Works Committee

disclosed that the main reason the states have not obligated far

more money is because of bureaucratic foot-dragging by EPA. See

120 Cong. Rec. H 788 et seq. (daily ed. Feb. 13, 1974) (statement

(continued)

to release the full $18 billion,” Br. 29, although we ave

not told when.

This construction is of doubtful validity on several

grounds. First, to hold that the Administrator may make

allotments from time to time, as he deems fit, would be

to undercut completely the laboriously constructed statu-

tory scheme for advance funding, since states could not

know what allotments would be available for obligation

in future years. Second, this interpretation flies in the

face of the plain language of the Act. Section 205(a)

makes no mention of any “initial” aliotment, bui obvi-

ously contemplates a single allotment for each fiscal year,

to be made before the preceding January Ist. Moreover,

section 205(b)(1), which provides that sums allotted to a

state must be obligated by the end of the fiscal year fol-

lowing that for which allotted or they will be lost to

other states through reallotment, makes no sense at all if

the Administrator’s position is sustained. 26 Third, there

2s (continued) by the chairman of the subcommittee citing “an

almost ‘unbelievable rroliferation of administrative red tape” resulting

in the approval by EPA of only $33 million worth of construction

during the last five months of 1973).

26 The Administrator argues that, section 205(b) notwithstanding,

impounded funds do not lapse at the end of the following fiscal year,

Br. 13 n. 2, 25, and that even if they do, “the only difference would be

that Congress would have another occasion to examine the issues related

to amounts and rate of spending under the program.” Br. 25 n.9. This

blithely ignores that the reason Congress adopted “contract authority”

(continued)

- |

ie a Sat Si aah

ee ee ee ee

tee Sara te die ae wa

i tah ike ttt ate ni

is absolutely no evidence that the Administrator actually

plans to make further allotments, and his own regulations

concerning allotment do not even provide for such an

event. See 39 Fed. Reg. 1847-48 (Jan. 15, 1974).

In summary, it is clear that Congress could not have in-

tended the Adminisirator’s impoundment discretion to be

unlimited or to be exercised in the manner he suggests.

Each of the three portions of the Act examined above —

the 1977 and 1983 deadlines of section 301, the 1983

national goal of “swimmable’”’ waters, and the “contract

authority” provisions of Title Il — were considered by

Congress to be of central importance and were enacted

over the Administration’s strenuous opposition and even

over the President’s veto. It is unthinkable that the ex-

ecutive branch should now be able to subvert by a policy

of massive impoundments the very provisions it fought so

persistently and so unsuccessfully in the legislative process.

The Fourth Circuit, in short, was clearly correct in holding

that when the executive withholds “‘so substantial an

amount * * * as to make impossible the attainment of

the legislative goals,” then it has “‘trespasse[d] beyond

the range of its legal discretion,” presenting “ar issue of

constitutional dimensions which is obviously open to

judicial review.” Pet. App. 46A-47A.

It is not necessary for this Court to go further and

decide that the Administrator’s limited discretion has been

abused, although Campaign Clean Water believes that the

circumstances clearly support such a conclusion. EPA’s

own recent 1973 “‘needs” survey showed that Virginia

26 (continued) funding rather than employing the usual annual

appropriations process was that it wanted federal funding not to be

subject to periodic reassessment by Congress.

en SR AS Cs Pe A PA 2 Dal

would have to spend $1.345 billion for constructing sew-

age collection and treatment facilities eligible for funding

under the Act in order to comply with the intent and

purpose of the Act in all respects related to waste treat-

ment. Even if Virginia were to do no more than bring

its waste treatment plants up to the secondary or more

stringent levels required to be achieved by mid-1977, the

Commonwealth would have to expend $653 million. The

federal share of that amount of construction would total

about $489 million, far more than the approximately $244

million that has been allotted to Virginia by the Adminis-

trator for fiscal years 1973, 1974, and 1975. If, how-

ever, the Administrator had allotted the full amounts

authorized under section 207, Virginia would have received

over $493 million, slightly more than EPA estimates the

Commonwealth will need to meet the 1977 requirement.

It is in the face of this utterly inadequate level of federal

financial assistance that the Commonwealth has finally been

forced to go to court to seek relief from the plight in

which it finds itself as a result of the Administrator’s un-

lawful action. In light of circumstances such as these, the

case for finding an abuse of discretion seems compelling.

Il. THIS ACTION IS NOT BARRED BY SOVEREIGN

IMMUNITY, DOES NOT INVOLVE A DETERMINA-

TION “COMMITTED TO AGENCY DISCRETION RY

LAW,” AND POSES NO “POLITICAL QUESTION”

A. This Action is Not Barred by

Sovereign Immunity

The Administrator’s chief defense to this action is an

argument, rejected with virtual unanimity by the lower

courts in this and a host of similar “impoundment

far CNC 4 Vena a aE A EN RONEN 7 EF

cases,” 2’ that the doctrine of sovereign immunity pre-

cludes the courts from reviewing his decision to withhold

more than half of the construction grant funding authorized

by Congress under the Act. The Administrator does not

raise the sovereign immunity defense with respect to the

City of New York since he concedes that, if the Act

gives him no impoundment discretion, the courts may

order him to do the statute’s bidding. Br. at 14, 37-38.

But he argues that once it is determined he has some dis-

cretion to withhold allotments, no matter how limited, then

he is free to work his will with the program, and his de-

cision is immune from judicial scrutiny.

27 See, e.g., State Highway Comm'n y. Volpe, 479 F.2d 1099, 1123

(8th Cir. 1973) (per curiam opinion denying Government’s petition for

rehearingen banc); State Highway Dep’t v. Volpe, No. 72-940 (D.S.C.,

decided May 7, 1974); National Ass'n for Mental Healti, lic. v. Wein-

berger, No. 1812-73 (D.D.C., decided Feb. 7, 1974); National Ass'n

of Regional Medical Programs v. Weinberger, No. 1807-73 (D.D.C_.,

decided Feb. 7, 1974); Pennsylvania v. Weinberger, 367 F. Supp. 1378,

1379 (D.D.C. 1973); People ex rel. Baialis v. Weinberger, 368 F. Supp.

721, 724 (N.D. Ill. 1973); Louisiana v. Weinberger, 369 F. Supp. 856,

861-62 (E.D. La. 1973); Texas v. Fri, No. A-73-CA-38 (W.D. Tex., de-

cided Oct. 2, 1973); Brown v. Ruckelshaus, 364 F. Supp. 258, 260-61

(C.D. Cal. 1973); Community Action Program Executive Directors Ass'n

of N.J. Inc. v. Ash, 365 F. Supp. 1355, 1361-62 (D.N.J. 1973); Dotson

v. Butz, No. 1210-73 (D.D.C., decided Aug. 3, 1973); National Council

of Community Mental Health Centers, Inc. v. Weinberger, 361 F. Supp.

897, 900 (D.D.C. 1973); Pennsylvania v. Lynn, 362 F. Supp. 1363, 1368-

69 (D.D.C. 1973), rev'd on other grounds, F.2d (D.C. Cir.

No. 73-1835, decided July 19, 1974); Martin-Trigona v. Ruckelshaus,

No. 72-C-3044 (N.D. Ill., decided July 9, 1973); Minnesota v. United

States Environmental Protection Agency, No. 4-73 Civ. 133 (D. Minn.,

decided June 25, 1973); Mason v. DeGeorge, No. 73-436-N (D. Md..,

decided May 31, 1973), rev d on other grounds, 483 F.2d 521 (4th Cir.

1973); Local 2677, A.F.G.E. v. Phillips, 358 F. Supp. 60, 68-69 (D.D.C.

(continued)

It should come as no surprise that the sovereign im-

munity argument has fared so poorly in lower court im-

poundment cases since the policies underlying that fading

doctrine would not be advanced by its application in

such situations and would run counter to this Court’s re-

peated admonition that “only upon a showing of ‘clear

and convincing evidence’ of a contrary legislative intent

should the courts restrict access to judicial review.” Ab-

bott Laboratories v. Gardner, 387 U.S. 136, 141 (1967).

See also Barlow v. Collins, 397 U.S. 159, 166-67 (1970);

Association of Data Processing Service Organizations, Inc.

v. Camp, 397 U.S. 150, 156-57 (1970); Rusk v. Cort, 369

U.S. 367, 379-80 (1962). The “general rule” of sovereign

immunity has been stated as follows: ‘“[A] suit is

against the sovereign if ‘the judgment sought would ex-

pend itself on the public treasury or domain, or interfere

with the public administration,’ * * * or if the effect of

the judgment would be ‘to restrain the Government from

acting, or to compel it to act.”” Dugan v. Rank, 372 U.S.

609, 620 (1963) (citations omitted). Courts in modern

times have indicated that the rationale for sovereign im-

munity is twofold: to assure that the disposition of Gov-

ernment property is controlled by the Congress rather than

the courts, see Art. IV, Sec. 3, Cl. 2 of the Constitution

(granting Congress the power to control the disposition of

Government property), and Knox Hill Tenant Couicil v.

27 (continued) 1973); Berends v. Butz, 357 F. Supp. 143, 149

(D. Minn. 1973). But cf. Housing Authority v. United States Dep't

of Howsing and Urban Development, 340 F. Supp. 654 (N.D. Cal.

1972) (holding that sovereign immunity applies where the Secretary

of HUD acted within his statutory powers in impounding grant

funds at the direction of the President under a statute, 42 U.S.C.

§1453, which provided the Secretary with discretionary authority

to make grants only “‘with the approval of the President’’).

Washington, 448 F.2d 1045, 1052 (D.C. Cir. 1971), and

that the Government is not “stopped in its tracks” by

undue judicial interference with the governmental process,

see Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682, 714-15 (1949).

It has long been recognized, of course, that these aims

must be balanced against the countervailing policy of allow-

ing persons who are affected by governmental decision-

making to obtain judicial review of the claimed unlawful

excesses of federal officials. Thus, this Court has fashioned

two exceptions to the general rule of sovereign immunity

so that plaintiffs may obtain relief against a governmental

official where they claim either that he has acted beyond

the limits of his statutory authority or in an unconsti-

tutional manner. See Dugan v. Rank, supra, 372 U.S. at

621-22. It is Campaign Clean Water’s position that this

cace is governed by the exception for actions of a gov-

ernment official in excess of his statutory authority —

here the authority to allot funds under section 205.

Therefore, the Administrator can prevail on the sovereign

immunity issue only if he can demonstrate that his im-

poundment discretion under the Act is unlimi:ed. If, as

we have shown already in Part I above, there are limits

to his discretion, then he is not protected by sovereign

immunity unless it is ultimately established that he acted

within those limits in impounding more than half of the

funding authorized by Congress. 28 In addition, we contend

28 In determining whether either of the two exceptions to the

sovereign immunity doctrine applies in an action against a govern-

mental official, it has been held that the court must decide the

merits — ie., whether the official acted within the scope of his

statutory authority — before it may dispose of the sovereign

(continued)

that, at least under the circumstances of this case, the

APA constitutes a waiver of sovereign immunity; to hold

otherwise would be to undermine seriously this vital stat-

ute,

1. This Case is Within the Exception to Sovereign Im-

munity for Suits Against Officials Who Have Ex-

ceeded Their Statutory Authority

The Administrator’s argument that this case does not

fall within either of the exceptions to sovereign immunity

rests on three grounds: first, that once it is acknowledged

that he has some limited impoundment discretion, even

his actions in excess of such limits are immune from re-

view, Br. 34-36; second, that since the complaint does not

allege unconstitutional conduct by the Administrator, the

exception for unconstitutional acts does not apply, Br. 36-

37; and third, that dictum contained in footnote 11 in

Larson v. Domestic & Foreign Commerce Corp., 337 U.S.

682, 691 n.11 (1949), creates an “exception to the ex-

ceptions” in suits concerning the disposition of Govern-

ment property, Br. 37-38. Campaign Clean Water does

not dispute the second of these contentions — we rely

only on the exception for acts in excess of statutory au-

thority; but we strongly disagree with the first and third

arguments.

In advancing his first claim, the Administrator explains

his position as follows:

28 (continued) immunity question. See Land v. Dollar, 330

U.S. 731, 735, 739 (1947); Carter v. Seamans, 411 F.2d 767, 770

(Sth Cir. 1969), cert. denied, 397 U.S. 941 (1970); Anderson v. See-

man, 252 F.2d 321, 322-23 (Sth Cir. 1958). But cf. Bell v. Hood,

327 U.S. 678 (1946).

{O]nce it is acknowledged that the Ad-

ministrator has discretion to allot less

than the full amounts authorized, his

discretionary act of determining the total

amount to be initially allotted cannot be

beyond his “statutory powers.” Even

assuming arguendo that it may involve

error in exercising those powers, it is

still within them and not beyond them.

It is necessarily an exercise of those

powers. [Br. 34].

This argument appears to boil down to an assertion that

once Congress has given the Administrator some discretion

to impound, no matter how limited, he is free to trample

the boundaries Congress has erected and implement the

Act only to the extent he pleases and that the doctrine

of sovereign immunity prevents a court from reviewing

his actions. In other words, while the Administrator con-

cedes that if Congress directs him to allot 100 percent

of the authorized funds, he must do so, he argues that if,

for example, Congress specifically granted him the discre-

tion to allot “between 90 and 100 percent” of the au-

thorized amounts, he could allot 45 percent with impunity.

29 This argument appears to run counter to this Court's formula-

tion of the procedure to be followed where, as here, judicial review

is available under the APA:

Scrutiny of the facts does not end * * * with

the determination that the Secretary has acted with-

in the scope of his statutory authority. Section

702A) [of the APA] requires a finding that the

actual choice made was not “* * * an abuse of dis-

cretion, or otherwise not in accordance with law.”

[Citizens to Preserve Overton Park v. Volpe, 401

US. 402, 416 (1971)].

(continued)

To support this rather novel argument, the Administrator

relies primarily on language from the opinion for the

plurality in Larson v. Domestic & Foreign Commerce Corp.,

supra. \n that case, a corporation which had contracted

with the War Assets Administration to purchase surplus

coal owned by the Government sued the head of the Ad-

ministration claiming that he had acted “illegally” by sell-

ing the coal covered by the contract to another. The

corporation sought specific relief rather than damages, asking

that the Administrator be enjoined from delivering its coal

to the other buyer. Significantly, the corporation did not

allege any limitation on the officer’s statutory authority to

sell coal that would render his action unlawful, nor did it

allege an unconstitutional taking of its property. 337 U.S.

at 691-92, 703. Rather, it merely alleged that it had ac-

quired title to the coal when the contract was executed

and that the sale of the coal to a third party was tortious

and, hence, “illegal.” It is in this context that the follow-

ing statement from Larson quoted by the Administrator

in his brief at page 35 must be examined:

There is no allegation of any statutory limi-

fation on his powers as a sales agent. In the

absence of such a limitation he, like any other

sales agent, had the power and the duty to con-

strue such contracts and to refuse delivery in

cases in which he believed that the contract

29 (continued) See also Philadelphia Co. v. Stimson, 223 US.

605 ('911), which was heavily relied on in Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682 (1949) (action against

Secretary uf War held not to be barred by sovereign immunity

where “[t]}he suit rests upon a charge of abuse of power,” even

though the statute granted the Secretary broad discretion).

terms had not been complied with. His

action in so doing in this case was, there-

fore, within his authority even if, for pur-

poses of decision here, we assume that

his construction was wrong and that title

to the coal had, in fact, passed to the

respondent under the contract. (337

U.S. at 703 (emphasis added)}.

Here, as we have shown in Part | above, there has been

a violation of a statutory limitation that was not even

alleged, let alone proven, in Larson.

Equally without merit is the Administrator's other ground

for contending that the exception for actions in excess of

statutory authority does not apply in this case. Simply

stated, the Administrator’s argument is that when the re-

lief sought in a suit against a federal official entails the

disposition of Government property, the two exceptions

to sovereign immunity do not apply.” He bases this

argument on the following dictum from footnote 11 in

Larson:

30 The Administrator limits the scope of his argument to suits

where the official’s power to dispose of the sovereign’s property is

discretionary, acknowledging that where the duty to dispose of prop-

erty is ministerial the courts have generally permitted the maintain-

ing of a mandamus action to compel its disposition. Br 37-38.

However, several courts have held that 28 U.S.C. $1361, the modern

successor to mandamus, “* * * was intended to permit District

Courts generally to issue appropriate corrective orders where federal

officials are not acting within the zone of their permissible discretion

but are abusing their discretion or otherwise acting contrary to law.

***”" Peoples v. United States Dep't of Agriculture, 427 F.2d

561, 565 (D.C. Cir. 1970). See Miller v. Ackerman, 488 F.2d 920,

921-22 (Sth Cir. 1973), United States ex rel. Schonbrun v. Com-

manding Officer, 403 F.2d 371, 374 (24 Cir. 1968), cert. denied,

(continued)

Of course, a suit may fail, as one against

the sovereign, even if it is claimed that the

officer being sued has acted unconstitution-

ally or beyond his statutory powers, if the

relief requested can not be granted by merely

ordering the cessation of the conduct com-

plained of but will require affirmative action

by the sovereign or the disposition of un-

questionably sovereign property. North

Carolina v. Temple, 134 U.S. 22 (1890).

{337 U.S. at 691, n11).

Although it has engendered floods of commentary, gen-

erally critical, from the lower courts 3! and from legal

scholars ” neither footnote 11 nor its thesis has since

been referred to in any decision of this Court. Nor does

an analysis of this Court's more recent sovereign immunity

decisions yield any clear answer to the question whether

39 (continued) 394 U.S. 929 (1969). See also Work v. United

States ex rel. Rives, 267 U.S. 172, 177 (1925) (stating, in a manda-

mus case: “The duty may be discretionary within limits. [The

officer] cannot transgress those limits, and if he does so, he may

be controlled by injunction or mandamus to keep within them”).

31 See, eg., Schiafly v. Volpe, 495 F.2d 273, 278-80 (7th Cir.

1974), State Highway Comm'’r vy. Volpe, 479 F.2d 1099, 1123 (8th

Cir. 1973) (per curiam opinion denying Government’s motion for

rehearing en banc); Knox Hill Tenant Council v. Washington, 448

F.2d 1045, 1052-53 (D.C. Cir. 1971); Washington v. Udall, 417 F.2d

1310, 1317 (9th Cir. 1969).

32 See, e.g., L. Jaffe, Judicial Control of Administrative Action 226-

27 (1965), K. Davis, Administrative Law Treatise 901 er seg. (Supp.

1970), Cramton, Nonstatutory Review of Federal Administrative

Action: The Need for Statutory Reform of Sovereign Immunity,

Subject Matter Jurisdiction, and Parties Defendant, 68 Mich. L. Rev.

387, 414-15 (1970).

ee SB ee ae

Wwe! Oat Dee Ve eR Cite ai A JRTL Re.

footnote 11 has continuing vitality, although this Court's

rulings in related areas suggest that it does not.

It has been more than a decade since this Court dis-

missed a suit against a federal official on the grounds that

his action was protected by sovervign immunity; it last

did so in four cases decided in 1962 and 1963. Seemingly,

the "exception to the exception" announced in footnote

11 of Larson should have been dispositive of all of these

cases, if it were then still considered "good law."’ How-

ever, it was mentioned in none of them.

In Malone v. Bowdoin, 369 U.S. 643 (1962), it was held

that plaintiffs were barred by sovereign immunity from main-

taining an action of ejectment against a forest service officer

of the United States Department of Agriculture seeking

the return of land occupied by the officer and claimed by

the plaintiffs. Since the action, if successful, would have

resulted in the disposition of Government property, pre-

sumably footnote 11 should have controlled, and the action

should have been dismissed without inquiry into whether

the two exceptions to sovereign immunity applied. Yet

ine Court did not mention the rule of footnote 11, but

instead held that dismissal was appropriate, noting plain-

tiffs’ failure to allege an unconstitutional taking or a

breach of statutory authority or to pursue their damage

remedy in the Court of Claims. 369 U.S. at 647-48 &

n.8.

In Dugan v. Rank, 372 U.S. 609 (1963), and City of

Fresno v. California, 372 U.S. 627 (1963), water rights

claimants were barred from suing officials of the United

States Reclamation Bureau to enjoin them from storing

or diverting the flow of the San Joaquin River without

first erecting a series of ten small dams to assure that

plaintiffs were supplied with a level of water equivalent to

the natural flow of the stream. The Court observed that

the effect of granting the requested relief would be either

to force the abandonment of a dam project for which

Congress had already made appropriations or to require

both affirmative action and the disposition of Government

funds by compelling the construction of ten small dams.

It again seems that footnote 11, if still vital, would have

controlled and would have warranted dismissal without

reference to the exceptions to sovereign immunity, but

only after undertaking a lengthy discussion of the excep-

tions did the Court conclude that sovereign immunity

applied. 33 Jd. at 621-23. As in Malone, the Court also

emphasized that plaintiffs were free to pursue an action

for damages. /d. at 626.

In each of these three cases, as in Larson, plaintiffs

sought specific relief, such as the transfer of a parcel of

land or the construction of dams. They chose to ignore

the damage remedy that Congress had provided for them

and sought instead to compel drastic governmental action.

It is thus easy to understand why the Court in Dugan, for

example, was reluctant to grant relief requiring the Govern-

ment either to abandon 2 project that Congress wanted

built or to embark on a major new construction program,

which Congress would also have to finance. In this case,

by contrast, the intent of Congress will be thwarted if the

requested relief is not granted, and, moreover, respondents

here have no Tucker Act remedy for damages. Thus, these

three cases, with their reliance on the usual exceptions to

33 One Court of Appeals has construed Dugan as casting doubt

on the continued validity of footnote 11. Turner v. Kings Rd. Con-

servation Dist., 360 F.2d 184, 189 (9th Cir. 1966).

ee eee ae ee

suas a gabin Uqgpceian abies do Metadata his DAR Dea cae Tee odes id

sovereign immunity rather than on Larson’s footnote 11,

indicate that the “exception to the exception” has nowhere

near the compelling force of law that the Administrator’s

brief suggests.

The last of this Court’s most recent sovereign immunity

cases, Hawaii v. Gordon, 373 U.S. 57 (1963), also fails to

rely on footnote 11, although it must be acknowledged

that its rationale in terms of prior sovereign immunity

decisions is difficult to ascertain. The State of Hawaii

filed an original action in the Supreme Court against the

Director of the Bureau of the Budget, to whom the Presi-

dent had delegated his responsibility under the Hawaii

Statehood Act to determine whether certain land in Hawaii

belonging to the United States was still needed by the

Government, and, if not, to convey it to the State. In

carrying out his delegated function, the Director interpreted

the statute not to apply to lands that had been obtained

by the United States through purchase, condemnation or

gift, a construction with which the State disagreed. In a

brief per curiam opinion, this Court dealt with the sovereign

immunity issue in three sentences:

We have concluded that this is a suit against

the United States and, absent its consent,

cannot be maintained by the State. The

general rule is that relief sought nominally

against an officer is in fact against the sov-

ereign if the decree would operate against

the latter [Citing Dugan, Malone, and Lar-

son|. Here the order requested would re-

quire the Director’s official affirmative

action, affect the public administration of

government agencies and cause as well the

disposition of property admittedly belonging

to the United States. [373 U.S. at 58].

The opinion in Hawaii, which has been severely criticized

by some commentators, 4 does not mention the two ex-

ceptions to sovereign immunity or explain their inapplica-

bility. It may be that, as has been said of other decisions

on sovereign immunity, “policy considerations, not * * *

apparent on the surface, [were] powerful agents of deci-

sion’ Malone v. Bowdoin, 369 U.S. 643, 650 (1962)

(Douglas, J., dissenting). Among such considerations may

have been that since the Director had unlimited statutory

discretion to determine whether the lands in question were

“needed” by the United States, a decision of this Court

rejecting his interpretation of the statute might well have

been futile; that the Director (who at that time was a

staff assistant to the President, see Reorg. Plan No. 1, 81,

53 Stat. 1423) was acting as the delegate for the President,

and the Court considered that it lacked authority to inter-

fere with Presidential discretion in that case; or that the

suit was one seeking original jurisdiction to which this

Court has traditionally shown an aversion, see /Ilinois v.

City of Milwaukee, 406 U.S. 91 (1972). In short, the

only thing that is clear about the Hawaii case is that it

is impossible to discern the basis for the applicability of

sovereign immunity in terms of the prior cases.

Thus, this Court’s most recent decisions on sovereign

immunity in suits against federal officials yield no definite

answer to the question whether footnote 11 lives or whether

it withered on the vine of the 1949 Larson decision. How-

ever, a reading of other post-Larson decisions reveals that

on several occasions this Court has upheld orders requiring

34 See e.g., K. Davis, Administrative Law Treatise 921-23 (Supp.

1970).

ne ee Gr et ey ee ee ee

—

;

“affirmative action’’ by governmental officials or “‘the dis-

position of unquestionably sovereign property” — the very

actions that footnote 11 suggests would run counter to

sovereign immunity.

In Vitarelli v. Seaton, 359 U.S. 535 (1959), this Court

ordered the reinstatement of an employee of the Depart-

ment of the Interior on the ground that he had been un-

constitutionally dismissed in violation of the Department’s

regulations, relief which surely required “affirmative ac-

tion” by the Secretary. Greene v. McElroy, 360 U.S. 474

(1959), held that the Department of Defense had uncon-

stitutionally revoked the security clearance of an employee

of a private corporation and granted relief effectively re-

quiring the reissuance of the clearance. in Manual Enter-

prises, Inc. v. Day, 370 U.S. 478 (1962), the determination

of a Post Office official that certain magazines were un-

mailable was overturned, thus requiring the Government

to carry the mail in question.

Similarly, in the Eleventh Amendment area, which is

closely related to the federal sovereign immunity cases,

this Court has never attached talismanic significance to

whether the relief requested will require "affirmative ac-

tion” or the “disposition of unquestionably sovereign

property.” Thus, this Court recently observed in one such

case:

The injunction issued in Ex parte Young

was not totally without effect on the

State’s revenues, since the state law which

the Attorney General was enjoined from

enforcing provided substantial monetary

penalties against railroads which did not

conform to its provisions. Later cases

from this Court have authorized equitable

relief which has probably had greater impact

on state treasuries than did that awarded in

Ex parte Young. \n Graham vy. Richardson,

403 U.S. 365 (1971), Arizona and Pennsyl-

vania welfare officials were prohibited from

denying welfare benefits to otherwise quali-

fied recipients who were aliens. In Gold-

berg v. Kelly, 397 U.S. 254 (1970), New

York City welfare officials were enjoined

from following New York State procedures

which authorized the termination of benefits

paid to welfare recipients without prior hear-

ing.

Edelman vy. Jordan, __ U.S. ___, 94S. Ct. 1347 (1974). 3

It is clear, therefore, that this Court has never shied away from

awarding injunctive relief against government officials, even

where the effect of doing so requires “affirmative action” on

the part of such officials or “the disposition of unquestionably

sovereign property.”

35 In Edelman y. Jordan, the Court distinguished between suits

having a prospective effect on the state treasury and those having a

retrospective effect, holding that the latter were barred by the

Eleventh Amendment while the former were not. The Court rea-

soned that, in a welfare case, the awaiding of retroactive payments

may defeat the remedial purpose of the program since the making

of such payments “‘will invariably mean there is less money available

for payments for the continuing obligations of the * * * system.”

94 S. Ct. at 1357 n.11. That clearly is not the case here, where

the authorized funding would not be paid retroactively, to pay past

debts, but would be obligated to meet present and future needs.

pea ee ait

ah Fut Ret ae Far tects

ee Te ee ee

Because the decisions of this Court offer little direct

guidance in determining whether footnote 11 is alive, dead,

or merely dormant, it is all the more important to look to

the policies underlying sovereign immunity for direction.

As we have said, those policies are to assure that Con-

gress rather than the courts controls the disposition of

government property and to prevent the Government from

being “stopped in its tracks’ by the judiciary. In light

of those policies, it makes absolutely no sense to apply

sovereign immunity to this case. First, this is manifestly

not a case of an agency being prevented by litigation from

carrying out its assigned tasks. In fact, judicial review is

necessary in this case to ensure that the intent of Con-

gress is implemented by agency officials. Moreover, it

is fictional to speak of this case in terms of an unau-

thorized raid on the Treasury since, if Campaign Clean

Water ‘: correct on the merits, the funding authority in

question was intended by Congress to be made available

for sewage treatment plant construction. *

Instructive in this regard is State Highway Comm'n v.

Volpe, 479 F.2d 1099 (8th Cir. 1973), where the release

of contract authority for highway construction funds was

sought. The Court concluded that, while under the Fed-

eral-Aid Highway Act the Secretary of Transportation had

36 The absence of any rationale for dismissing this case on sov-

ereign immunity grounds is demonstrated by the petitioner’s con-

cession that the doctrine is not applicable to the City of New York’s

suit. The policies of assuring that Congress controls Government

property and that the Administrator not be subject to vexacious

litigation are equally applicable or inapplicable there, and the peti-

tioner’s acknowledgement that sovereign immunity has no bearing

on the City of New York case strongly supports our position that

it is irrelevant for Campaign Clean Water as well.

some discretion in determining whether to obligate ali of

the allotted funds, “‘[t]he Act circumscribes that discretion.”

Id. at 1109. On petition for rehearing en banc, the Secre-

tary raised the sovereign immunity defense for the first

time. In a per curiam opinion denying the petition, the

Court held that the case fell within the exception for acts

in excess of statutory limitations. It distinguished footnote

11 on the ground that the relief being granted, which is

directly analogous to that sought here, was not “‘affirma-

tive’? in nature, such as the Government-financed construc-

tion of dams sought in Dugan. “It requires only that the

defendant officers cease unauthorized action * * * The

resultant release of funds is only to the extent that Con-

gress has already authorized them to be appropriated and

expended.”’ Id. at 1122 (emphasis added). Many other

of the lower courts have employed the same reasoning in

similar “impoundment cases,” finding immaterial the fact

that public funds must be expended, where that is what

Congress intended. See, e.g., State Highway Dep't v. Volpe,

No. 72-940 (D.S.C. May 7, 1974); Louisiana v. Weinberger,

369 F. Supp. 856, 862 (E.D. La. 1973); Community Action

Programs Executive Directors Ass’n of N.J., Inc. v. Ash,

365 F. Supp. 1355, 1361 (D.N.J. 1973); National Council

of Community Mental Health Centers, Inc. v. Weinberger,

361 F. Supp. 897, 900 (D.D.C. 1973); Pennsylvania v.

Lynn, 362 F. Supp. 1363, 1368-79 (D.D.C. 1973), rev'd

on other grounds, __—*F.2d_ _ (D.C. Cir. No. 73-1835,

decided July 19, 1974).

Still other lower courts, disturbed by the obvious in-

justice of a stringent application of footnote 11, have

emphasized that the note says only that a suit “may” —

not “must” — fail if affirmative relief or the disposition

of Government property is sought. The Seventh Circuit

eee Seewee ee Oe

stated in a recent case that “[t]o hold that the prospect of

requiring the expenditure of federal funds nonetheless

creates an ‘exception to the exception’ would invite a

thoroughly circular and untenable application of the doc-

trine. Accordingly, we construe footnote 11 as recogniz-

ing that the doctrine may bar a suit in exceptional cases

(i.e., where to do otherwise would impose ‘an intolerable

burden on governmental functions, outweighing any con-

sideration of private harm’).” Schlafly v. Volpe, 495

F.2d 273, 280 (7th Cir. 1974) (emphasis in original), citing

Washington v. Udall, :17 F.2d 1310, 1318 (9th Cir.

1969).

In summary, a review of pertinent cases of this Court

and of the lower courts discloses that the Administrator’s

argument must fail because it seeks to shroud the actions

of custodians of public property with a protective blanket

never contemplated by the policies underlying sovereign

immunity.

2. Congress Has Effectively Given Its Consent to this

Action, Thus Waiving Sovereign Immunity

The Fourth Circuit observed in Littell v. Morton, 445

F.2d 1207, 1212 (1971), that "we have been unable to

find any case in which the Supreme Court has sought to

reconcile the notion of sovereign immunity with the

fundamental concept of the APA that a person adversely

affected by administrative action is presumptively entitled

to judicial review of its correctness." Voicing its agree-

ment, the Seventh Circuit in Schlafly v. Volpe, 495 F.2d

273, 281-82 (7th Cir. 1974), cited [t]he need for a

definite statement by the Supreme Court regarding the

impact of the APA on the [sovereign immunity} doctrine's

continued viability * * *'"' This Court's decisions concern-

ing sovereign immunity have never addressed the APA; its

APA decisions have never considered sovereign immunity.

It may be that, as this Court said in its brief dictum in

Blackmar v. Guerre, 342 U.S. 512, 516 (1952), the APA

is not ''to be deemed an implied waiver of all govern-

mental immunity" (emphasis added); nevertheless, we

submit that under the facts of this case a finding of

consent to suit is warranted.

On its face, the APA seems to permit the maintaining

of actions against federal agency officials who might

otherwise be shielded by sovereign immunity. Section

10(a) of the Act, 5 U.S.C. 8702 (1970), provides simply

that "[a] person * * * adversely affected or aggrieved by

agency action * * * is entitled to judicial review thereof."

Federal courts are specifically empowered to ''compel

agency action unlawfully withheld or unreasonably delayed"

and to "hold unlawful and set aside agency action * * *

found to be * * * an abuse of discretion, or otherwise

not in accordance with law." APA 810(e), 5 U.S.C.

er ae

= =)

————- ———

8706 (1970). In our view, the only rational way to square

this language with the “general rule” of sovereign immunity

that a suit must be dismissed "if the effect of the judg-

ment would be ‘to restrain the Government from acting,

or to compel it to act,"” Dugan v. Rank, 372 U.S. 609,

620 (1963), with the “affirmative action” language in

footnote 11 of Larson, and with the Administrator's

assertion that only ministerial actions of governmental

officials may be made subject to judicial review, is to hold

that Congress did not intend that sovereign immunity bar

actions in which the APA applies.

To counter this plain language, the Administrator offers

only the highly formalistic assertion that since sovereign

immunity is a jurisdictional issue, it can only be waived by

a statute which expressly expands the jurisdiction of the

federal courts. Br. 38-39. The APA does not qualify as

a jurisdictional statute, *” he reasons, because section 10(b)

of the Act, 5 U.S.C. 6703 (1970), governing the form of

proceeding for judicial review, states that judicial review is

obtainable under the APA ia “any applicable form of legal

action * * * in a court of competent jurisdiction”. And

he dismisses section 10(a)'s guarantee that any aggrieved

person “is entitled to judicial review” as relating only to

standing. Br. 39.

37 The courts of appeals divide on this question. Compare Albert

v. Chafee, 465 F.2d 367 (9th Cir. 1972), and Sikora v. Brenner,

379 F.2d 134 (DC. Cir. 1967), with Twin Cities Chippewa Tribal

Council v, Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967).

This Court appears never to he « ruled on the issue, although such

decisions as Abbott Lavoratories v. Gardner, 387 US. 136 (1967),

and Rusk v. Cort, 369 US. 367 (1962), strongly suggest that the

APA is jurisdictional.

The Administrator's argument is deficient in assuming

that Congress may only consent to suits against govern-

mental officials by enacting a jurisdictional statute. It has

frequently been held, for example, that Congress waives

sovereign immunity when it includes a "sue and be sued”

clause in an agency's statutory charter. See, e.g, Federal

Housing Admin. v. Burr, 309 U.S. 242 (1940); Pennsylvania

v. Lynn, ___ F.2d __ (D.C. Cir., No. 73-1385, decided

July 19, 1974) (slip opinion at 6, n.11) (finding a congres-

sional waiver of sovereign immunity in enacting a statute pro-

viding that Secretary of HUD could “sue and be sued in any

court of competent jurisdiction, State or Federal’’). It has

never been suggested that such provisions alone vest subject

matter jurisdiction in the federal courts to hear claims against

the agency, but there has never been any doubt that they con-

stitute a valid waiver of sovereign immunity.

The APA waiver view has been accepted by the Second, *

Fifth, 9 and District of Columbia Circuits. Rejecting

the waiver approach, but at the same time narrowing the

38 Kingsbrook Jewish Medical Center v. Richardson, 486 F.2d

663, 668 (2d Cir. 1973); Kletschka v. Driver, 411 F.2d 436, 445

(24 Cir. 1969).

39 Estrada v. Ahrens 296 F.2d 690 (5th Cir. 1961). Ina

more recent case in which plaintiff invoked the APA, the Fifth

Circuit held that the suit was barred by sovereign immunity, with-

out reference to Estrada. See Colson v. Hickel, 428 F.2d 1046

(Sth Cir. 1970), cert. denied sub nom. Colson v. Miton, 401

U.S. 911 (1971). In a 1974 case the Fifth Circuit declined to say

whether Colson signified a retreat from Estrada, but held that in any

event Estrada did not extend to a contract suit for damages. Warner

v. Cox, 487 F.2d 1301, 1305 (Sth Cir. 1974).

40 s-anwell Laboratories v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970).

—S——e .

reach of the sovereign immunity doctrine through other

means, have been the Fourth, Seventh, and Ninth Circuits. *'

Flatly rejecting the waiver theory have been the First, Sixth,

Eighth, and Tenth Circusts. 4?

Particularly apposite to this case is the recent decision of

the Seventh Circuit in Schlafly v. Volpe, 495 F.2d 273 (1974),

where the Court adopted a limited waiver theory with respect

to the Secretary of Transportation in a suit concerning the

withholding of highway construction funds. While ruling that

the APA alone might not constitute a waiver, the Court held

that where the statute creating the program also authorized

judicial review in accordance with the APA, a waiver could

be found. /d. at 282. In the present case, the statute estab-

lishing the construction grants program also contains a clear

statement of congressional intent that the Administrator of

EPA may be sued. Section 505(a) of the Act sets up a

special procedure whereby citizens may sue the Administrator

for his failure to perform a non-discreiionary duty, and section

41 See Schlafly v. Vulpe, 495 F.2d 273, 280(7th Cir. 1974), sover-

cign immunity may be applied only in “exceptional cases” where relief

would work an “intolerable burden™ on government). Littell v. Morton,

445 F.2d 1207, 1213 (4th Cir. 1971) (judicial review is available in

APA cases unless in a particular case the policies underlying the

immunity doctrine are “so transcending as to require dismissal”):

Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969) (sovereign im-

munity attaches only where granting of requested relief would impose

an “intolerable burden” on the government clearly outweighing any

private harm).

42 Sierra Club v. Hickel, 467 F.2d 1048 (6th Cir. 1972), cert.

denied sub nom. Sierra Club v. Morton, 411 US. 920 (1973); Motah

v. United States, 402 F.2d 1 (10th Cir. 1968), Twin Cities Chippewa

Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir.

1967); and Cyrus v. United States, 226 F.2d 416 (Ast Cir. 1950).

505(e) provides that "[{n]othing in this section shall restrict

any right which any person * * * may have under any

statute or common law to * * * seek any * * * relief against

the Administrator * * *'' Thus, Congress surely contem-

plated that the Administrator would be answerable under

the APA. When the language of section 505(e) is coupled

with the explicit language of the APA evidencing congres-

sional approval of suits by aggrieved persons against govern-

mental officials, it is proper to infer that Congress did not

intend that the Administrator be permitted to hide behind

the outworn doctrine of sovereign immunity.

B. The Administrator’s Impoundment Action

Is Not “Agency Action Committed to

Agency Discretion By Law” And Does Not

Involve a “Political Question”

The Administrator argues that this is one of those rare

cases in which the statute is "drawn in such broad terms

that in a given case there is no law to apply,” thus trigger-

ing the “very narrow exception” to reviewability under the

APA for cases involving agency action committ 1 to agency

discretion by law. 4? Br. 39-47. See generally Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971).

In addition, he invokes the "political question” doctrine,

insisting that deciding this case "would thrust the courts

43 The Administrator states in his Brief at pages 39 and 40, and note

'4, that the APA is the “only basis” for judicial review here, arguing

that Campaign Clean Water’s reliance on 28 U.S.C. §1361 is misplaced

because a writ of mandamus “may only issue to compel the perfor-

mance of a ministerial act.” This argument, based largely on cases

predating the enactment of section 1361, ignores the thrust of the

more recent cases discussed in note 30, supra.

88 ENA, 8%

BERGE Veet |

_———. os

eT er Se eh

Aa ceallln iene taal

into the area of political judgments by requiring managerial

decisions." Br. 47. The crux of the Administrator's

position with respect to both arguments is that "Congress

has not prescribed the standards the President is to apply

in deciding how much of the amounts authorized are to

be initially allocated."44 Thus, whether these contentions

stand or fall depends upon whether the Act imposes dis-

cernible limitations on the Administrator's impoundment

discretion. If it does, then there is "law to apply" in the

form of standards to guide the Administrator and the courts

in determining the outer limits of permissible impoundment,

and the defenses must fail.

Panama Canal Co. v. Grace Line, 356 U.S. 309 (1958),

the only case cited by the Administrator in support of his

“committed to agency discretion" argument, is distinguishable

on its facts from this case. Justice Douglas, writing for the

Court, concluded from the statute at issue and from the

long and close relationship between Congress and the Govern-

ment-owned Panama Canal Company, that Congress had

intended not to allow judicial review of the toll setting

authority which ultimately was in the hands of the President.

The statute before the Court in this case and the relation

44 Br. 47. It is interesting that the Administrator’s brief speaks

in terms of standards to guide “the President” in making the allot-

ments since the Act specifically states that ii is the Administrator

who is to make the allotment decision. See §205(a). It is perfectly

clear from the President’s letter to the Administrator of November

22, 1972, and the Administrator’s press release announcing the

allotment on November 28, 1972, that the allotment decision was

in fact made by the President and not by the Administratcr. See

App. 15-16; U.S.E.P.A., Environmental News (Nov. 28, 1972). It

is thus arguable that the Administrator’s action was not within his

authority by reason of his abdication to the President and his failure

to exercise his statutory discretion at all.

between Congress and the Administrator are of a very

different character. Accordingly, petitioner's reliance on

language from Panama Canal Co., without regard to the

special facts of that case, is unwarranted. See United

States v. Richardson, __—~-U.S. ss 442: U.S. L.W.. 5076,

5079 n.9 (June 25, 1974).

The central failing of the Administratcr's position on

the "committed to agency discretion" point is that it

utterly misconceives the nature of the task the courts are

being asked to undertake in reviewing the Administrator's

exercise Of his impoundment discretion. In a nutshell,

Campaign Clean Water's contention is that the Administra-

tor's allotment discretion is not unbounded but is limited

by the goals and requirements of the Act discussed in

Part I above. Both of the lower courts have agreed with

this position, although the Court of Appeals ruled that

further evidentiary proceedings were needed to determine

whether the Administrator has exceeded the limits of his

discretion. At such proceedings, the Administrator might

offer evidence concerning the amounts needed to meet

the Act's goals and requirements, such as the 1977 second-

ary treatment requirement, or might point to other factors

that he considered in determining that the program estab-

lished by Congress could be reduced by 55 percent without

thwarting the purposes of the Act. After hearing the

evidence, the District Court might reach any number of

conclusions, including: that the Administrator had not

exercised his discretion at all, but had acted solely at the

behest of the President, see note 45, supra; that the

Administrator had exercised his discretion but had either

considered factors irrelevant to the lawful exercise of his

discretion, see Citizens to Preserve Overton Park v. Volpe,

supra, 401 U.S. at 416, or had faiied to consider factors

b's cee! ¢

5 TED OUR Are Wie

required by the Act, such as the amount of funding needed

to meet statutory deadlines; that the Administrator con-

sidered the correct factors in reaching his decision, but

nevertheless committed a "clear error of judgment," id., by

allotting so small a sum as to render impossible meeting

the goals and requirements of the Act; or that the Adminis-

trator acted within his discretion.

Although, like much of the work of a federal judge, these

determinations are not without complexity, they can be made

without the Court's assuming the role of Administrator. As

the District Judge below stated, "[t]he Court will not and

cannot supervise the Administrator in the administration of

the Act." Pet. App. 99A. The Court of Appeals expressed

its agreement with the District Judge's perception of his role,

adding:

The court’s power is well stated in 82

Yale L.J. at p. 1751:

"The court need not seek to derive some

lower figure but need simply test the con-

tested impoundment against the legislative

intent as expressed in the act to determine

whether the impoundment was an abuse of

discretion. It wil! derive its own construc-

tion of the statute then test the administra-

tive action to see whether it could rationally

be a carrying out of the Act's mandate."

[Pet. App. 47A].

Congress gave the Administrator an inch; he has taken a

mile. In such a situation, the courts need not mark the exact

point along the continuum — two inches, six inches, or

more — past which the Administrator could not venture

without having stepped out of bounds. The courts need

only hold that, whatever the outer limits of the Adminis-

trator's authority, they clearly do not extend so far as to

empower him to eviscerate the Act by slashing over one-

half of the funding provided by Congress for the first two

fiscal years of the construction grant program's operation.

For similar reasons, the Administrator's contention that

this suit presents a "political question'’ must be rejected.

For this argument, the Administrator cites principally a

"lack of satisfactory criteria for judicial determination,"

quoting Coleman vy. Miller, 307 U.S. 433, 454-55 (1939).

See also Baker v. Carr, 369 U.S. 186, 217 (1962) (naming

"a lack of judicially discoverable and manageable standards"

as one earmark of a "political question" case). Again, this

ignores the goals and 1equirements of the Act, which fur-

nish standards against which to judge the exercise of the

Administrator’s discretion.

This Court has said that "the Administrative Procedure

Act's ‘generous review provisions’ must be given a

‘hospitable’ interpretation," Abbott Laboratories v. Gardner,

387 U.S. 136, 140-41 (1967), and are to be "construed

* * * not grudgingly but as serving a broadly remedial

purpose."’ Association of Data Processing Service Organiza-

tions v. Camp, 397 U.S. 150, 156 (1970). Where, as here,

there is "law to apply" in the form of discernible statutory

standards, the action being challenged should not be held

to be "committed to agency discretion by law" or to pose

a nonjusticiable "political question."

ithe Sed bees ite

CONCLUSION

For the foregoing reasons, the judgment of the Court of

Appeals should be affirmed.

Respectfully submitted,

ALAN B. MORRISON

W. THOMAS SACKS

Suite 700

2000 P Street, N.W.

Washington, D.C. 20036

Attorneys for Respondent

Campaign Clean Water, Inc.

August, 1974.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.