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

No. 73-1377 and No. 73-1378

IN THE rm

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

vs.

THE CITY OF NEW YORK ON BEHALF OF ITSELF AND

ALL OTHER SIMILARLY SITUATED MUNICIPALITIES

WITH THE STATE OF NEW YORK

CITY OF DETROIT, PARTY PLAINTIFF

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

vs.

CAMPAIGN CLEAN WATER, INC.

AMICUS CURIAE BRIEF OF THE STATES OF TEXAS,

WISCONSIN, MISSOURI, OKLAHOMA AND KANSAS

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant Attorney General of Texas

PHILIP HK MAXWELL

Assistant Attorney General of Texas

ROBERT W. WARREN LARRY DERRYBERRY

Attorney General of Wisconsin Attorney General of Oklahoma

Theodore L. Priebe Paul C. Duncan

Assistant Attorney General Assistant Attorney General

JOHN C. DANFORTH VERN MILLER

Attorney General of Missouri Attorney General of Kansas

Robert M. Lindholm Curt T. Schneider

Assistant Attorney General Assistant Attorney General

Attorneys for Amici

; x # pater

TABLE OF CONTENTS

Page

CITATIONS

ee NM BNO skh ss kaay shavdndkivdosvanniarxinestacesmabeneeays 2

Bes I SI PR Ries cise eds erase tensncncancs harass achanknis 3

IH. ARGUMENT AND AUTHORITIES............-cee 10

A. Summary of deiieaia SORE Tee Cae Renee et Ne Oey 10

B. The only discretion given the Administrator by the

Act in the construction grant funding process is at

the project approval stage, rather than the allotment

stage, and must be exercised in a manner consistent

with the requirements and purposes of the Act....11

1. The Act, its background and purposes............. 12

2. The meaning of the “Harsha Amendments”. .. 16

C. The Administrator's argument that he is authorized

to control the “rate” of spending by controlling the

timing of allotments is unsupported in the Act and is

inconsistent with continual funding mechanism of

TRIM xh us, cb vsosncesstncbsnfeccadenheleatiastacendsircseasceds 27

D. Neither the doctrine of sovereign immunity nor that

of political question is applicable to this

CURRIN: ssdacissh ini cistiattinnciee aon 28

5 SIN cei ciddnsiaenyeanchisnunicatnieeprixtenintabinbeineseinioens 33

CITATIONS

CASES: Pages

Baker v. Carr,

BGO U.S. 186 (1962) ........cesssccesseeeneneeeeeeeeensraneeeenrenes 31

Brown v. Board of Education of Topeka,

S44 US. 1 (1952) ....cceccscescsssenerereessenssnenensennasennenenngagens 4

Citizens of Overton Park v. Volpe,

AO1 U.S. 402 (1971) ......cceseseeesesesesenenenteesetenenannenenensnens 30

Dugan v. Rank,

| 372 U.S. GOD (1963) ........ececeessetecseeenseneestnneneeereneneetes 29

Estrada v. Ahrens,

296 F.2d 690 (Sth Cir. 1961) .........ce eee eeseesteseeeteees 30

First National Bank of Logan, Utah v. Walker Bank and

Trust Co.,

3B5 U.S. 252 (1966) .......eesesessesseeeesesesesesnsenennenesensntey 22

Larson v. Domestic & Foreign Corp.,

337 U.S. G82 (1949) ......cceccccessceserseeerseesensensenenennnensess 29

Marbury v. Madison,

5 USS. (Cranch) 137 (1803) .........eesseeeeeeereetersettees 32,33

National Labor Relations Bd. v. Fruit & Veg. Pack. &

Whse., Loc. 760,

377 U.S. 58 (1964) .....cescsessseedescseesenseeesnsennennsneesnsennes 23

Pan American World Airways, Inc. v. Civil Aeronautics Bd.,

380 F.2d 770 (2nd Cir. 1967); affd. per curiam sub.

nom., World Airways, Inc. v. Pan Americar Airways,

Inc.,

391 U.S. 461 (1968) 2.......ccececeeecreeneteeenennsenedaneeenns 22,23

a

wee

CASES: Pages

Scanwell Laboratories, Inc. v. Shaffer,

BOG Fe BE CRG. CA, TTD vis scncscenccsticiicarsesicsiesins 30

Schwegmann Bros. v. Calvert Distillers Corp.,

Se Es Ce LR hikcc cdi kten cists ennn an eereeeenorncwnssenns 22

Sioux Tribe of Indians v. United States,

Se ee ee SE aie ctcsiipsvawee mapa nncaeeantinen asanicint 21

State Hwy. Comm'n of Missouri v. Volpe,

347 F. Supp. 950 (W.D. Mo. 1972) .............cccceseesessees 25

State Hwy. Comm'n of Missouri v. Volpe,

ry, BoA Bk Ree |. | Sees eeeeree 24,25

Taylor v. McElroy,

Ie SID asucnphcouabanchanshop saschcssinsanhncukanneviganannnnen 4

Texas v. Fri, A-73-CA-38

(W.D. Tex., decided Oct. 2, 1973). ............ccccccsecsesennees 7

Texas v. Train, 73-1895

(Sump. Ct., filed. Sume 10, 1972). ........cscccccrccneenenind

Texas v. Train, 73-3965 & 73-4026

Ce ar Ss BE, FIC esc cssidstsvacrcnicncsvpeesensyens 3

Texas v. Train, A-74-CA-004

CWE TD. Fem... Cee eh, By ABTA) vnvvccecsinveiesstsiccccnenics 7

Turner v. City of Memphis,

SN a ie Re IND aii actznneeri rock nece rweacaninrnanteaeacemenss 4

United States v. Richard M. Nixon,

42 U.S.1..W. OSS7 thay B26, TOT4) |... .cscsessccns 33,33

United States v. United Mine Workers of America,

oo RGR. Gk” y RAVER SRERL SO PRRSO REM aahear manne Bran ence See

—ill—

STATUTES

5 USC. $701. et seg. (1964) Administrative Procedure Act}

§ 702 (Section 10) (1964) oo... cccccceeceeerreeerreeene 29

23 U.S.C. $101, ef seq. (1964) (Federal-Aid Highway Att),

§ LOAD) (1964) 00... ececnceeneeessseesressernessnassnrenenne 24

33 U.S.C. § 1158 (1970) (Federal Water Pollution Control

Act of 1956 las amended) .........0::ccccccceerrrrerrerens 12

33 U.S.C. 8% 1251, et seq. (Supp. 1974) (Federal Water

Pollution Control Act Amendments of ROTEY jacccostoe 2

§ 12511) (1974 Supp.) veeccccceceeercereercenseneeeecnene 14

§ 1284 (1974 Supp.) v.ccceccenrcereeercrecereensenrenes 17.26

$ 1285 (1974 Supp.See, 205 of the Act) 16,20

§ 1285/a) (1974 Supp.) (Sec. 205(a) of the Ad) Pa

§ 12R5i( DW 1) (1974 Supp.) ...--cccccccrcceeereerereeeee 28

$ 1287 (1974 Supp.) (Sec. 207 of the Act) 16,19,

20,21,22,23,24,26

$ 1311 bX 1B) (1974 Supp.) ...-----ceccceereerreeres 14

§ 131 1b 20 B) (1974 Supp.) 0. ceccccereeerecees 14

§ 1319 (1974 Supp.) ..--ceccccrecercnneenseneserecnnnenee 15

$ 1365 (1974 Supp.) ....--eccerrcerreereserssnenserererees 15

—jy-—

ed

OTHER AUTHORITIES CITED

118 Cong. Rec.:

S 16871 (Daily ed. Oct. 4, 1972) occ cee B,

S 16872 (Daily ed. Oct. 4, 1972) .

§ 18534 (Daily ed. Oct. 17, 1972) ......cccccceereoees

S 18546 (Daily ed. Oct. 17, 1972) ........2cs0eee00e

S 18547 (Daily ed. Oct. 17, 1972) o.....:: cee :

S 18549 ‘Daily ed. Oct. 17, 1972) ....... ecenaus

H 2506 ‘Daily ed. March 27, 1972). .............+..

H 9119 (Daily ed. Oct. 4, 1972) ..........000. ebeeed

H 9122 (Daily ed. Oct. 4, 1972) circercccseeceeeeees

H 10268 (Daily ed, Oct. 18, 1972) woe

iv

or

20

26

21

BOOKS Pages

C. WRIGHT, FEDERAL COURTS § 106, pp. 477-78 (1970) ...4

TEXAS POLLUTION REPORTS, July 2, 1974 at p. 2 ............. s

LEGISLATIVE AND ADMINISTRATIVE

MATERIALS

Environmental Protection Agency, Report to the Congress:

Costs of Construction of Publicly-Owned Waste Water

Treatment Works: 1973 “Needs” Survey (revised Nov.

RTI) sascccncscdesesccsstcscesesussesnsedoiovetecbaancoseusenbetcsnncncconccooccoss 8

Joint Hearings on Impoundment of Appropriated Funds by

the President Before the Ad Hoc Subcomm. on

Separation of Powers of the Senate Comm. on the

Judiciary, 93d Cong., 1st Sees. (1973) 0.0.0.0 21,23

Hearings Before the Committee on Public Works, House of

Representatives, 92d Cong., Ist Sess.. on H.R. 11896,

Bs EN nntaseensinnesstcabscabetssinbssecrachecsncddeinbbsédséoexincces 13

Hearings Before the Subcommittee on Air and Water

Pollution of the Senate Committee on Public Works, 93d

Cong., 1st Sess., on the Environmental Protection

Agency's 1973 Needs Survey at pp. 27, 32-33 ....... 9,16

S. Rept. No. 92-414, 92nd Cong. Ist Sess. 5 (1971), 2 US.

Code Cong. Admin. News at 3672 (1972) ..........-..... 13

oe

No. 73-1377 and No. 73-1378

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY. PETITIONER

vs.

T's. CITY OF NEW YORK ON BEHALF OF ITSELF AND

ALL OTHER SIMILARLY SITUATED MUNICIPALITIES

WITH THE STATE OF NEW YORK

CITY OF DETROIT, PARTY PLAINTIFF

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY. PETITIONER

Vs.

CAMPAIGN CLEAN WATER, INC

AMICUS CURIAE BRIEF OF THE STATES OF TEXAS.

WISCONSIN, MISSOURI, OKLAHOMA AND KANSAS

ma” Ste oe

one EB cx oo

Beerencarmone reerects.t aw

INTRODUCTION

In October, 1972, after more than two years of

deliberation, Congress overwhelmingly passed a

far-reaching water pollution control bill which had as

its objective the restoration of the nation’s waters to

their natural state.’ The heart of this ambitious

undertaking was the commitment of vast amounts of

federal funds to state and local governments to assist in

the contruction of sewage treatment plants. The

administration had opposed the bill because of the

funding mechanism employed in the bill to ensure the

availability of these sums. Consistent with that

position, the President vetoed the bill, citing its

inflationary nature. When the vetoed bill was returned

to the Congress, the principal spokesmen for the bill in

both houses, while acknowledging the magnitude of the

federal spending called tor, reiterated the vital

importance of cleansing this country’s lakes and

streams; the veto was overriden by decisive margins.

A month later, the President ordered the

Administrator of the Environmental Protection

Agency’ to allot to the States only $5 billion of the $11

'The bill, S. 2770, 92d Cong.. 2d Sess., was enacted as the Water

Pollution Control Act Amendments of 1972, P.L. 92-500, 86 Stat.

816, 33 U.S.C. $8 1251 et seq (Supp. 1974) (hereinz fter referred to

as the “Act”).

‘Hereinafter referred to as “the Administrator”. At the time the

actions complained of herein took place and at the t'me this action

was commenced, the Administrator was William D. Ruckelshaus.

ca present Administrator is Russell E. Train, tie Petitioner

erein.

me, Sep

billion authorized by Congress for the first two fiscal

years of the program’s operation, thus seeking to

accomplish by the controversial practice of

“impoundment” what he had failed to achieve in

exercising his constitutional veto power.

INTEREST OF AMICI

The first interest of the amici is purely a legal one.

The Court's decision in the instant cases will be largely

determinative of similar litigation presently pending in

the Court of Appeals for the Fifth Circuit in which

Texas, Wisconsin, Missouri, Oklahoma, and Kansas.

amici herein, are parties.‘ Amici have petitioned for

writ of certiorari prior to a decision on the merits by the

court of appeals, feeling that judicial economy and the

interests of all parties would be served by joining the

Texas case with the City of New York and the Campaign

Clean Water cases for final resolution by the Court.’

While granting of certiorari in these circumstances

‘As used herein, the term “impoundment” means any action of the

Executive which prevents the allotment, obligation, or

expenditure of funds authorized or appropriated by Congress.

‘Texas v. Train, Nos. 73-3965 & 73-4026 (5th Cir., filed Jan. 9.

1974). Written briefs have been filed and oral argument was held

before the court of appeals on April 29, 1974, the date on which this

court | ager petitions for certiorari in the instant cases. On May

28, 1974, the court of appeals informed counsel that “__

disposition of |Texas v. Train | is being withheld pending decision of

the Supreme Court in the (City of New York and Campaign Clean

Water cases}... .” (Addendum I hereto).

‘Texas v. Train, No. 73-1895 (Sup. Ct., filed June 19, 1974).

—3—

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would both be appropriate and consistent with the past

practice of the Court,” prudence dictates that anamicus

brief be filed at this time so that the views of Texas and

her sister States in this litigation may be known to the

Court in the event certiorari is denied.

The second interest derives from the concern of amici

for the health, safety, and welfare of their citizens who

depend for their recreation, their livelihood, and their

very existence on the waters of the States. Without the

funds that have been impounded by the Administrator,

many needed municipal pollution control facilities will

not be built, and the waters into which raw or

inadequately treated municipal sewage now runs daily

will continue to deteriorate.

A good starting point to understanding the damage

the Administrator has inflicted by his impoundment

action is to note the dramatic difference between the

sums the amici States have actually received under the

reduced allotments ordered by the President and the

sums these States would have received had full

allotment been permitted. That difference is revealed

in the following tables.

"See e.g.. Turner v. City of Memphis, 369 U.S. 350 (1962); Taylor v.

McElroy, 360 U.S. 709 (1959); Brown v. Board of Education of

Topeka, 344 U.S. 1 (1952), C. WRIGHT, FEDERAL COURTS § 106, pp.

477-78 (1970).

a ae

Table 1: Full Allotments & Reduced Allotments for

Fiscal Years 1973 and 1974

States’

Percentage

Share

Texas

2.7694%

FULL ALLOTMENT

$6 Billion

1974

$5 Billion

___ 1973

REDUCED ALLOTMENT

$2 Billion $3 Billion

1973 1974

$138,470,000 $165,744,000 $55,388,000 $83,082,000

Wisconsin $ 87,075,000 $104,490,000 $34,830,000 $52,245,000

1.7415%

Missouri

1.6556%

$ 82,780,000 $ 99,336,000 $33,112,000 $49,665,000

Oklahoma $ 23,040,000 $27,648,000 $ 9,216,000 $13,824,000

4608%

Kansas

3742%

$ 18,710,000 $ 22,452,000$ 7,484,000 $11,226,000

Table 2: Summary of Total Allotments & Effect on

States for Fiscal Years 1973 and 1974.

Total Reduced Total Full TOTAL

Allotment Allotment AMOUNT

State 1973 & 1974 1973 & 1974 WITHHELD

Texas $138,470,000 $304,214,000 $165,744,000

Wisconsin $ 87,075,000 $191,565,000 $104.490,000

Missouri $ 82,780,000 $182,116,000 $ 99,336,000

Oklahoma $ 23,040,000 $ 50,688,000 $ 27,648,000

Kansas $ 18,710,000 $ 41,162,000 $ 22,452,000

5

ST ea hte a, PEPER ENE HS: a iad )

agen YSRRRLALRSE OED: SPL YAOI ERD AE RETRO L,I LE ULM ER EIR ey APT Wy .

Grater eres

‘

As can be seen rather readily, the practical effect of the

Administrator’s action was to give to the States for

fiscal years 1973 and 1974 what they should have

received for 1973 alone. In short, the States were

effectively denied their fiscal 1974 allotment.

The amount in controversy, then, insofar as amici are

concerned, is approximately $420 million. In anyone's

terms, this is a truly significant sum of money. The

sheer size of the amount suggests strongly that its

impoundment has injured the amici States grievously.

But the true magnitude of the damage cannot be

assessed until what has been withheld is contrasted

with what the States really need to meet the clean

water goals of the Act.

The Administrator, predictably, would have the

Court believe that his impoundment of these great

sums has caused no injury at all. Appended to his brief

is a table summarizing the status of the grant program

as of May 31, 1974.’ It shows generally that the States

have yet to use up even the limited amounts they have

already been alloted. Texas, for example, is shown

as having obligated 99% of its 1973 allotment ($55

million), but only 5% of its 1974 allotment ($83 million), ©

and none of its 1975 allotment ($107 million). The

implication, indeed the express meaning, of this data,

according to the Administrator, is that the States have

not suffered any adverse effect — that is, no qualified

project has been turned back — because of the paucity of

"Brief for the Petitioner at 49.

_— om

the allotments, and that no such effect will be felt

unless the President, when the currently allotted sums

are exhausted, “decides not to authorize immediately

further allotments... .”*

This picture is highly misleading. First of all, it is

grossly at odds with the evidence — evidence

undisputed by the Administrator — presented in Texas

uv. Train which showed that Texas, as of June, 1973, had

164 present and pending grant applications totalling

$179,456,924, approximately $41 million more than

the combined total of the Texas allotments for fiscal

years 1973 and 1974." The evidence also showed that 34

grant applications had already been returned to Texas

as not being high enough on the State’s priority list to

be eligible for 1973 funds.'’ This evidence was likewise

undisputed by the Administrator. The situation is no

better today, even though the allotment for fiscal year

1975 has now been received.'' Texas’ current list of

‘Id. at 7.

“Affidavit of Hugh C. Yantis, Executive Director of the Texas

Water Quality Board filed in Texas v. Fri, A-73-CA-38 (W.D. Tex..

decided Oct. 2, 1973). This evidence was specifically noted by the

district court in ruling that the Administrator had violated the

Act. See copy of the district court's unpublished opinion —

to the petition for certiorari filed by amici. Note 5, supra. Similar

undisputed evidence was offered by Wisconsin and Missouri and

may be found in the printed appendix in the court of appeals at

pages 61-70 and pages 86-89, respectively.

'’Yantis affidavit. This evidence was likewise noted in the district

court's opinion.

‘'Practically before the ink was dry on the district court’s order

disallowing the impoundment of 1973 and 1974 funds, the

Administrator, on January 10, 1974, impounded $3 billion of the

$7 billion authorized by the Act for fiscal year 1975. Texas has filed

suit challenging this action. Texas v. Train, No. A 74CA 004(W.D.

Tex., filed Jan. 14, 1974).

Perot eet csr reente

grant applications amounts to $169 million,

approximately $27 million more .han the $142 million

still available for obligation.’ Many of these

applications are for just the preparation of preliminary

design studies. To actually construct these projects will

require at least $615 million. Thus the real deficit in

grant funds is approximately $450 million.**

These figures, while staggering, still do not show

fully the dimensions of the municipal waste treatment

problems facing the States, because they only represent

waste tr-atment needs that have been formally

translated into grant applications. What are the real

needs of the States? The latest EPA survey of what it

will cost the States to meet the goals and deadlines of

the Act reveals that the nationwide figure is not $18

billion, as estimated by EPA in 1971 and adopted by

Congress in the Act in 1972, but over three times that

amount — $60.1 billion.'t The striking difference

between the EPA estimated needs in each of the amici

These figures are based on data compiled by the Texas Water

Quality Board and communicated by letter to the Texas

Congressional delegation dated July 2, 1974. A news account of

that letter anda listing of the Texas projects that will not be funded

as a result of the inadequacy of the present allotments is attached

hereto as Addendum II. TEXAS POLLUTION REPORTS, July 2, 1974

at p. 2.

id.

'*Environmental Protection Agency, Report to the Congress: Costs

of Construction of Publicly-Owned Waste Water Treatment Works:

1973 Needs” Survey (revised, Nov.1973) at B-1. Among the reasons

listed by EPA for the over 300% increase between the 1971 and

1973 estimates were the Act’s 1977 “secondary treatment”

deadline, new requirements to meet more stringent water quality

standards, and increased construction costs. /d.

aoceos

States and the amounts the Administrator has allotted

is shown in the following table.

Table 3: Estimated Costs vs. Amounts Allotted

Cumbined Allotment

Estimated Cost'” FY 1973-1975 Deficit

(Millions of (Millions of (Millions of

State Dollars) Doliars) Dollars)

Texas 889 244 645

Wisconsin 787 139 648

Missouri 972 158 814

Oklahoma 624 70 554

Kansas 671 58 613

That the States desperately need what has been

withheld from them in water pollution funds is

therefore beyond the slightest question. The delays that

have precluded the immediate obligation of the

patently inadequate sums that have been allotted —

the principal cause of which has been EPA’s changing

grant requirements'® — should not be allowed to

obscure this fact. Moreover, the Administrator's

impoundment of funds has undeniably had a “chilling

effect” on those municipalities who might otherwise

have sought a grant from EPA. With present

‘“ad-at 12:

"See, Hearings Before the Subcommittee on Air and Water

Pollution of the Senate Committee on Public Works, 93d Cong., 1st

Sess.,on the Environmental Protection Agency's 1973 Needs Survey

at Pi 27, 32-33 (remarks of John Quarles, Deputy Administrator

of EPA).

apis

allotments obviously inadequate to fund even existing

grant applications, there is little incentive to suffer the

time and expense of completing and processing a grant

form. Allotment of the funds that have been impounded

would clearly allow more applications to be processed

by the States and forwarded to EPA for its

consideration. In a word, the Act’s program to help

cleanse this Nation’s waters of municipal waste could

proceed as Congress intended.

ARGUMENT AND AUTHORITIES

A. Summary of Argument.

It is the position of amici that the Administrator is

affordec no discretion by the Act te determine what

amounts to allot among the.States and that, indeed. he

is required to allot $5 billion and $6 billion for fiscal

years 1973 and 1974, respectively, which are the full

sums authorized by the Act. First, the conclusion that

Congress intended to permit an allotment of less than

the full sums authorized to be appropriated is totally at

odds with the clear legislative intent, manifested by the

‘Act as a whole and its legislative history, that the

objectives of the Act be achieved and that the full sums

authorized for municipal sewerage construction

represented the minimum amounts required to do so.

Secondly, the legislative history of the Conference

Committee amendments upon which _ the

Administrator relies to justify his action makes clear

pe

that any control over the rate of actual expenditure

funds was intended by Congress to be exercised at the

project approval stage, rather than at the allotment

stage, and even then only insofar as it remained

consistent with the clean water objectives of the Act.

Thus by reducing allotments for anti-inflationary

considerations, the Administrator acted at the wrong

time for the wrong reason. The Administrator's

recently contrived argument that he is empowered to

make subsequent allotments, thereby controlling the

“rate” of spending, is without support in the Act and is,

indeed, at odds with the Act’s mechanism for continual

funding, the process of “reallotment”.

The Administrator’s jurisdictional arguments are

likewise without merit. At issue is whether the

Administrator violated the Act by impounding over

half what Congress had so carefully concluded would be

required to assist the States and cities in meeting the

Act’s rigorous deadlines and goals. Determining what

the law is has historically been the function of the

Judiciary, and neither the doctrine of sovereign

immunity nor that of political question are available to

block the courts from performing that function in this

case.

B. The only discretion given the Administrator by the

Act in the construction grant funding process is at the

project approval stage, rather than the allotment

stage, and must be exercised in a manner consistent

with the requirements and purposes of the Act.

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1. The Act, its background and purposes.

Trying to avoid the inescapable conclusion that he

has blatantly ignored the will of Congress by the action

complained of here, the Administrator has omitted

from his brief any discussion of the overall Act as it

interrelates with the grant program, and has likewise

failed to mention the background against which the Act

was passed. No doubt the City of New York and

Campaign Clean Water will detail these matters for the

Court. Amici would simply note two salient point:

First, until the passage of the Act in 1972 the federal

program of waste treatment grants had been an

abysmal failure. One of the principal reasons was the

method of funding the program — the traditional!

authorization/appropriation process. Under the old

Federal! Water Pollution Control Act, as amended, only

those sums actually appropriated by Congress

pursuant to the authorization contained in the Act

could be allotted to the States and “|njeither a finding

by the Secretary that a project meets the requirements

of this subsection, nor any other provision of this

subsection shall be construed to constitute a

commitment of the United States to provide funds or

pay any grant for such project.” 33 U.S.C. § 1158 (1970).

As happens so often, Congress never appropriated as

much as it had authorized. As an inevitable result,

construction of treatment works proceeded at an

agonizingly slow pace. In 1971 the Senate Committee

on Public Works, in a report to the full Senate on its

version of the new Act (S. 2770), observed that:

=)

|t}he lack of adequate funding of grants to assist

States and localities in constructing sewage

treatment plants is causing critical problems.

Of the $3.4 billion authorized for this [pooges by

the 1966 legislation, ge | $2.2 billion was

appropriated. The backlog of projects eligible for

doniy payments has reached a total of nearly $2

illion."’

The Administration's proposal for federal assistance for

waste treatment construction, embodied in S. 1013

submitted by Senator John Sherman Cooper in 1971,

would have perpetuated the traditional funding process

with an authorization to appropriate $6 billion over a

three year period. Both the Senate (in S. 2770) and the

House (in H.R. 11896) rejected this approach in favor of

contract authority. Congress stood firm in its@ehoice of

this funding mechanism, despite the opposition of then

Administrator Ruckelshaus that the contract authority

approach “sidesteps all the safeguards provided by the

budgetary-appropriations process.”'*

It is at best illogical, and at worst absurd, to suggest

that Congress chose allotment and contract authority

"S. Rept. No. 92-414, 92nd Cong., Ist Sess. 5 (1971), 2 US. Code

Cong. Admin. News at 3672 (1972) Library of Congress, A

Legislative History of the Federal Water Pollution Control Act

Amendments of 1972 at 1415, 1423 (hereinafter referred to as

Legislative H istory}.

"Hearings Before the Committee on Public Works, House of

Representatives, 92d Cong., 1st Sess..on H.R. 11896,H.R. 11895 at

297; Legislative History at 1195. (Ruckelshaus letter of December

dd 1, to Rep. John A. Blatnik, Chairman, Committee on Public

forks).

pa es

~~.

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over the Administration's objections to remove the

uncertainty from the construction grant program, and

then simultaneously reinjected the same uncertainty

back into the system by giving the Administrator the

discretion to choose the amount to be made available by

allotment.

Second, the 1972 Act made the grant program an

integral part in achieving the Act's overall purpose —

“to restore and maintain the chemical, physical, and

biological integrity of the Nation's waters.” 33 U.S.C. §

1251(a 1974 Supp.). Of the $24.6 billion authorized to

implement the Act, $20.75 billion ($18 billion for fiscal

years 1973-1975, and $2.75 billion for reimbursement

of projects already underway in 1972 with State funds)

was designated for the grant program.

Congress concluded that these substantial sums for

waste treatment plant construction were needed to

assist States and local governments in achieving two

specific requirements of the bill. First, the Act requires

generally that “secondary” or “more stringent” sewage

treatment be achieved in all publicly owned treatment

works existing on July 1, 1977. 33 U.S.C. §

1311(b\ 1B) 1974 Supp.). Secondly, the Act requires

that by July 1, 1983, all publicly owned treatment

works provide for the application of the “best

practicable” waste treatment technology over the life of

the plant. 33 U.S.C. § 1311(b2B\1974 Supp.).

ey

Having set the deadlines and goals and provided the

financial assistance to meet them, Congress created a

rigorous mechanism of enforcement. Violation of the

Act renders a municipality liable for civil penalties up

to $10,000 a day. Willful or negligent violations are

punishable by criminal fines from $2,500 to $25,000 per

day, by imprisonment for not more than one year, or

both.'* 33 U.S.C. § 1319 (1974 Supp.). The Act may also

be enforced by private citizens. 33 U.S.C. § 1365 (1974

Supp.). Successful private litigants may obtain, in

addition to injunctive relief, their costs of litigation,

including attorney and expert witness fees. Id.

By enactment of this interrelated statutory scheme of

deadlines, assistance, and enforcement, Congress

sought to require the Administrator to conduct a waste

treatment plant construction grant program to ensure

generally the restoration of the nation’s navigable

waters to their natural state, the attainment of

secondary or more stringent treatment by mid-1977,

and the employment of “best practicable” treatment

technology by mid-1983.

The Administrator's impoundment of funds has made

attainment of these goals impossible, and has left the

States and cities vulnerable to civil and criminal

“If a municipality is a party to a civil action under the Act, the

State in which the municipality is located must be joined as a pariy

and, to the extent that State law prevents the municipality from

raising funds to pay a civil penalty, the State shall be liable for the

payment of any judgment.

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liability. This cannot have been the intent of

Congress.*”

2. The Meaning of the “Harsha Amendmeits”.

Ignoring the rest of the Act and its legislative history,

the Administrator cites two small alterations made in

S. 2770 by the Conference Committee as supporting his

right to allot as much or as little as he pleases.*‘ The two

amendments in question were to Sections 205 and 207

of the Act, as shown below (bracketed material deleted,

italicized material added).

ALLOTMENT

Sec. 205 (a) [All] sums authorized to be

appropriated pursuant to section 207 for each fiscal

year beginning after June 30, 1972, shall be

allotted by the Administrator not later than the

January Ist immediately preceding the beginning

of the fiscal year for which authorized, except that

the allotment for fiscal year 1973 shall be made not

later than 30 days after the date of enactment of the

Federal Water Pollution Control Act Amendments

eat

AUTHORIZATION

Sec. 207. There is authorized to be appropriated

to carry out this title .. . for the fiscal year ending

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

“In the hearings on EPA's 1973 needs survey, Senator Muskie

expressed concern over this problem, noting that “Congress

considered funding as inextricably related to the deadlines and

Ranery objectives.” See Needs Survey Hearings, supra, note 16

at 52.

"Brief for the Petitioner at 16-19.

a)

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.

The explanatory statements made by Congressman

Harsha, the conferee at whose suggestion the

amendments were made, and those of Senator Muskie,

the manager of the Senate conferees and the bill's

principal sponsor, make clear, however, that these

amendments were simply to clarify the Administrator's

flexibility to control the actual expenditure of funds,

and were not meant to permit a reduction in the

amounts made available at the allotment stage for

potential obligation and expenditure. Here it is

important to remember that commitment or obligation

of funds can occur under the Act only when and if the

Administrator approves a specific waste treatment

project. 33 U.S.C. § 1284 (1974 Supp.).

In explaining the amendments to the House on

October 4, 1972 (before the President’s veto),

Congressman Harsha stressed that their sole purpose

was to ensure that the Administrator would have

flexibility with regard to the obligation and

expenditure of funds:

I want to point out that the elimination of the

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

and insertion of the phrase “not to exceed” in

section 207 was intended by the managers of the

bill to emphasize the President’s flexibility to

control the rate of spending. (Emphasis added. )**

“118 Cong. Rec. at H 9122 (Daily ed. October 4, 1972); Legislative

History at 243.

ee SS

A discussion among Congressmen Gerald R. Ford,

Harsha and Jones” sheds further light on the meaning

and intent of the amendments:

MR. GERALD R. FORD .... I think it is vitally

important that the intent and purpose of section

207 is spelled out in the legislative history here in

the discussion on this conference report.

As | understand the comments of the gentleman

from Ohio (Harsha), the inclusion of the words in

section 207 in three instances of “not to exceed”

indicates that is a limitation. More importantly

that it is not a mandatory requirement that in 1

a ending June 30, 1973, there would be $5

illion and the next year ending June 30, 1974, $6

billion and a third year ending June 30, 1975, $7

billion obligation or expenditure ?

Mr. HARSHA. I do not see how reasonable

minds could come to any other conclusien than that

the language means we can obligate or expend up to

that sum — anything up to that sum but not to

exceed that amount ....

Mr. GERALD R. FORD. Mr. Speaker, I would

like to ask the distinguished chairman of the

subcommittee and the chairman of the House

conferees whether he agrees with the gentleman

from Ohio. (Mr. HARSHA).

Mr. JONES of Alabama... .My answer is “yes”.

Not on'y do I agree with him, but the gentleman

from Onio offered this amendment which we have

now under discussion in the committee of

conference, so there is no doubt in anybody’s mind

of the intent of the language. It is reflected in the

language just explained by the gentleman from

Ohio. (Mr. HARSHA).

“Congressman Jones was Chairman of the Conference Committee

and a floor manager of the bill.

a |

Mr. GERALD R. FORD. Mr. Speaker, this

clarifies and certainly ought to wipe away any

doubts anyone has. The language is not a

mandatory requirement for full obligation and

expenditure up to the authorization figures in each

of the 3 fiscal years. (Emphasis added. )**

Senator Muskie’s*’ explanation of the Harsha

amendments on October 4, 1972, similarly stated that

the amendments were intended only to grant

obligational and expenditure flexibility and that the

sums specified in Section 207 must be allotted, even

though they need not be fully obligated:

Under the amendments’ proposed’ by

Congressman WILLIAM HARSHA and others, the

authorization for obligational authority are “not to

exceed” $18 billion over the next 3 years. Also, “a//”

sums authorized to be obligated need not be

committed, though they must be allocated. These

two provisions were suggested to give the

Administration some flexibility concerning the

obligation of construction grant funds. (Emphasis

added. )*"

It was with this understanding of the meaning and

intent of the amendments that the Congress

overwhelmingly passed the bill. The President

evidenced a like understanding of the effect of Sections

“4118 Cong. Rec. at H. 9123; Legislative History at 247.

“Senator Muskie is Chairman of the Senate Subcommittee on Air

and Water Pollution (which reported the Senate version, S 2770),

and he was the sponsor of the legislation, a floor manager and a

member of the Conference Committee.

“118 Cong. Rec. at S 16871; Legislative History at 166.

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$ Stix

205 and 207 when he vetoed the bill. He stated in his

veto message that:

Certain provisions of. . .|the bill] 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.

But the law would still exact an unfair and

unnecessary price from the public. For I am

convinced ... that the pressure for full funding

under this bill would be so intense that funds

approaching the maximum authorized amount

could ultimately be claimed and paid out, no matter

what technical controls the bill appears to grant

the Executive. (Emphasis added).*’

The President thus expressed a clear understanding

that Sections 205 and 207, as amended by the conferees,

only gave the Administrator “spending discretion and

flexibility”. The President realized that the sums

specified in Section 207 had to be allotted and thus

available for obligation. He was prompted to veto the

bill by his fear that pressures to obligate available

funds would overcome the Administrator’s spending

flexibility.

After the President’s veto the conference amendment

of Sections 205 and 207 were again discussed in both

houses. On October 17, 1972 Senator Muskie reiterated

that the sole intent and purpose of the amendments was

"118 Cong. Rec. at S 18534 — S 18535 (Daily ed. October 17,

1972); Legislative History at 139.

eT ae

to give the Administrator some flexibility concerning

the obligation of the sums specified in Section 207 but

that he must, in any event, allot those sums.**

Congressman Harsha repeated his explanation of the

amendments to the House on October 18, 1972.

I want to point out the elimination of the word

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

insertion of the phrase “not to exceed” in section

207 was intended to emphasize the President's

flexibility to control the rate of spending.

Second, I would like to point out that the

Administrator of the Environmental Protection

Agency must approve plans, specifications, and

estimates. This is the pacing item in the expenditure

of funds. It is clearly the understandiig of the

managers that under these circumstances, the

Executive can control the rate of expenditures.

(Emphasis added. )*"

**118 Cong. Rec. at S 18546, S 18549; Legislative History at 116,

122. OnJanuary 31, 1973 Senator Muskie stated before the Senate

Subcommittee on Separation of Powers that the Act mandated

allotment of $5 billion and $6 billion in fiscal years 1973 and 1974

respectively. See generally, Joint Hearings on Impoundment of

Appropriated Funds by the President Before the Ad Hoc Subcomm.

on Separation of Powers of the Sencte Comm. on the Judiciary , 93d

Cong., 1st Sess., 407-408 (1973). Because of Senator Muskie’s

important role respecting the passage of the Act, his statement,

made so recently after enactment of the Act and directed to the

construction in question, is entitled to great weight in interpreting

the statute. See, United States v. United Mine Workers of America,

330 U.S. 258, 281-282 (1947); Sioux Tribe of Indians v. United

States, 316 U.S. 317, 329-330 (1942).

“°118 Cong. Rec. at H. 10268 (Daily ed. October 18, 1972),

Legislative History at 98.The use of the word “emphasize” by

Congressman Harsha is an acknowledgement that his

amendments were not intended to make a substantive change in

the Act.

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Congressman Harsha then explained the impact of the

Act’s funding provision in terms of expenditures in

future fiscal years. In so doing, he demonstrated clearly

that it was his understanding that Sections 205 and 207

required allotment of the full amount of the sum

specified in Section 207:

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

$5 billion authorizations for the fiscal year ending

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

As a matter of fact, for fiscal year 1973 ifall the

money were obligated and placed under contract,

there would only be $20 million needed to meet the

obligations. .. (Emphasis added.)*°

Congressman Harsha’s hypothetical presumed that

the entire $5 billion would be available by allotment for

obligation and was intended to emphasize to the House

that the President’s fear about “budget-wrecking” was

unwarranted in view of the lag between the

“obligation” of funds and the time when they would

actually be spent. Senator Muskie made the same point

to the Senate the day before, when he noted that the ful!

$18 billion authorized by the Act probably would not be

spent until the end of fiscal year 1979.*!

The statements of these legislators, as the creators of

the Act, are of controlling weight in interpreting the

meaning, intent and purpose of Section 205 and 207.

See, e.g., First National Bank of Logan, Utah v. Walker

Bank and Trust Co., 385 U.S. 252 (1966); Schmegmann

Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395

(1951); Pan American World Airways, Inc. v. Civil

‘Td.

"118 Cong. Rec. at S 19547 (Daily ed. Oct. 17, 1972); Legislative

History at 119.

ae

Aercaautics Bd., 380 F.2d 770, 779-782 (2nd Cir. 1967);

affd per curiam sub nom., World Airways, Inc. v. Pan

American Airways, Inc., 391 U.S. 461 (1968). These

members of the House and Senate Public Works

Committees were fully familiar with the funding

mechanism of the Act They knew the difference

between allotment, obligation, and expenditure and

cannot be assumed to have used these words loosely or

inadvertently. It is especially significant, moreover,

that on October 18, 1972, after the President’s veto and

veto message, Congressman Harsha expressed an

understanding that the Act mandated the allotment of

the full amount of the sums specified in Section 207. As

sponsor of the amendatory language upon which

Defendant has relied to reduce allotments,

Congressman Harsha’s understanding is particularly

persuasive. See, National Labor Relations Bd. v. Fruit

& Veg. Pack. & Whse., Loc. 760, 377 U.S. 58, 66-67

(1964).

There emerges only one interpretation of Sections

205 and 207. The Administrator must allot among the

States $5 billion in fiscal year 1973, $6 billion in fiscal

year 1974 and $7 billion in fiscal year 1975**. He may,

“Former EPA Administrator Ruckelshaus candidly recognized,

after he left EPA, that this was his interpretation of what Congress

had intended:

I think this was the intention of Senator Muskie and others when the law was

passed— get out of the business of having to draw up priorities with various

projects, and be able to say they can fund them all at once. | also recognize it is

very frustrating to the States, that they have to go through this priority

process again when they felt they were out of it, as a result of the amount of

funding

Joint Hearings on Pe fF pe of Appropriated Funds by the

President before the Ac

the Senate Comm. on the Judiciary, 93d Cong., Ist Sess., at 418

(1973).

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Hoc Subcomm, on Separation of Powers of

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however, in the exercise of his discretion to approve

construction project plans, specifications and estimates

under Section 203, control the rate of obligation of those

allotted sums and hence the rate of expenditures

resulting from such obligations. This ob'igational and

expenditure flexibility is the only discretion afforded

the Administrator with regard to the sums specified in

Section 207.

Even at the contract approval stage, however, the

Administrator may not refuse to obligate funds on the

grounds unrelated to the Act. The most instructive

authority on this point is the Eighth Circuit’s

well-reasoned opinion in State Hwy. Comm'n of

Missouri v. Volpe, 479 F.2d 1099 (8th Cir. 1973), not

only because it involved the Federal-Aid Highway

Act,** expressly acknowledged by Congress as the

model for Title Il of the Act,** but because the reason for

the impoundment was the need to contro! inflationary

pressures.

In that case the Secretary of Transportation had

apportioned (allotted) the total sum authorized to be

appropriated’ but had imposed “contract controls”

forbidding actual obligation of the full amount so

apportioned. The State Highway Commission of

Missouri brought suit seeking to compel the Secretary

"23 U.S.C. § 101, et seq. (1964).

‘118 Cong. Ree. H 2506 (Daily ed. March 27, 1972); /d. at S 16872

(Daily ed. Oct. 4, 1972); Legislative History at 367, 368.

See, 23 U.S.C. § 104¢b) (1964),

=’

to rescind the controls and to release the funds. The

trial court held for the plaintiff** and the Eighth Circuit

affirmed. In so doing, the court of appeals analyzed the

whole act to discern its intent and purposes and

concluded that:

To reason that there is implicit authority within

the Act to defer approval for reasons totally

collateral and remote to the Act itelf requires a

strained construction which we refuse to make. It is

impossible to find from these specific grants of

authority discretion in the Secretary to withhold

approval on projects Congress has specifically

directed because of a system of priorities the

Executive chooses to impose on all expenditures.

The Congressional intent is that the Secretary may

exercise his discretion to insure that the roads are

well constructed and safely built at the lowest

possible cost, all in furtherance of the Act, but

when the impoundment of funds impedes the

orderly progress of the federal highway program,

this hardly can be said to be favorabie to such a

program. In fact it is in derogation of it. It is

difficult to perceive that Congress intended such a

result. State Hwy. Comm'n of Missouri v. Volpe,

479 F.2d at 1114 (8th Cir. 1973).

Likewise in the instant case Congress cannot be

presumed Lo have intended to permit the Administrator

to disapprove a construction project because of

considerations related to inflation. As made plain

earlier, Congress knew of the Administration's

objections to the funding provisions of the Act and by

overriding the veto, Congress reiterated its

"State Hwy. Comm'n of Missourt v. Volpe, 347 F. Supp. 950 (W_D.

Mo. 1972).

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RESET LET ae ES PETS EN

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disagreement with the President's dire predictions of

the Act's impact on the economy.

Furthermore, it was the expressed intent of Congress

that the Administrator's discretion would be limited by

the purposes and objectives of the Act. Congressman

Jones. in the course of his explanation of the Conference

Report to the House, declared that “|t|he Congress has

given to the Administrator the most explicit guidance

that it could contrive as to what factors and parameters

he is to take into account in the administration of this

act." Moreover, Senator Muskie, in discussing the

Conference amendments to Sections 205 and 207,

which were intended te emphasize the Administrator's

obligational and expend.ture flexibility, also addressed

the question of the limits of the Administrator's

discretion, stating that “[t}he conferees do not expect

these provisions to be used as an excuse in not making

the commitments necessary to echicve the goals set

forth in the act.””

In short, the Administrator's discretion under

Section 203 is limited by the letter and intent of the Act.

He may not use the narrowly circumscribed authority

over project approval to defeat or postpone the clean

water goals of the Act.

118 Cong. Rec. H 9119 (Daily ed. Oct. 4, 1972). These factors are

«et out in Section 204 of the Act, 33 U.S.C. § 1284 (Supp 1974)

‘118 Cong. Ree at S 16871 (Daily ed October 4, 1972).

= ES

Amici urge the Court to consider this portion of their

argument most seriously. The Administrator has

effectively announced in his brief” that if he loses this

round and is required to allot, he will attempt to

circumvent the Court's judgment by placing the newly

allotted funds in “reserve” accounts and simply refuse

to obligate them. This would obviously violate the Act,

since these sums would clearly not be “available” for

obligation, notwithstanding the Administrator's

sophistical argument to the contrary.” The Court must

make it plain that the Administrator must allot all

sums authorized and that no alternate actions that

likewise defeat the purposes of the Act will be tolerated.

C. The Administrator's argument that he is authorized

to control the “rate” of spending by controlling the

timing of allotments is unsupported in the Act and ts

inconsistent with continual funding mechanism of

“reallotment”.

The Administrator, in a vain attempt to make control

over allotments equivalent to control over the “rate” of

spending, now says he expects ultimately to allot the

sums he has withheld.’ By periodically augmenting

the allotments, so the new argument goes, the

Administrator extends the time in which the

authorized sums are available and hence reduces the

‘Brief for Respondent at 27-25

“Id. at 24, n. 12.

Brief for Petitioner at 26, 29

te

“rate” of spending. This is pure sophistry. All that this

accomplishes is postponement of the program and the

goals it was oan to achieve. As the court of appeals

noted in City of New York:*

_.. the Act nowhere mentions any type of later

augmentation procedure, and rather states in

section 205(a) that “the allotment for fiscal year

1973 shall be made not later than... .” (Emphasis

the Court's).

‘ptatetan. 6 Bl

Moreover, if Congress had intended the

Administrator to have the kind of control over

allotment he seeks to establish in this case, there would

have been scant need for Congress to provide for the

mechanism of automatic reallotment. 33 U.S.C. §

1285(b 11974 Supp.). Plainly, Congress constructed

the statutory mechanisms of allotment and reallotment

to provide for continual funding over an extended

period of time to remove the uncertainty that had

plagued the grant process prior to the 1972 Act. As

indicated earlier, the notion of administrative

discretion to allot any given amount at any given time

is totally at odds with this carefully conceived statutory

scheme.

D. Neither the doctrine of sovereign immunity nor that

of political question is applicable to this controversy.

“Combined Appendix at S4A

8

| oe ee ee ee et a a henna

—a—& «Ff

Amici are of the firm view that the Administrator has

no discretion at the allotment stages. Nevertheless, we

do not believe that a contrary conclusion would require,

as the Administrator contends,"’ dismissal of the suit.

First, the action falls squarely within the exception to

the doctrine of sovereign immunity which allows suits

against federal officials who have allegedly acted

beyond their statutory powers or have exercised their

statutory powers in a constitutionally void manner.

Dugan v. Rank, 372 U.S. 609, 621-22 (1963); Larson v.

Domestic & Foreign Corp., 337 U.S. 682, 689 (1949).

The mere fact that discretion is vested in a federal

administrative officer does not mean that he has free

reign to abuse that discretion, and whether an abuse

has occurred, i.c., whether the officer has exceeded his

statutory authority, is clearly within the Dugan and

Larson exception.

Moreover. sovereign immunity has been waived by

the United States in cases of this sort by enactment of

the Administrative Procedure Act. 5 U.S.C. § 701, ef

seq. Section 10 of the APA, 5 U.S.C. § 702, provides

quite plainly and simply that “|a] person suffering legal

wrong because of agency action, or adversely affected or

aggrieved by agency action wthin the meaning of a

relevant statute. is entitled to judicial review thereof”

" Brief for Petitioner at 30, et seq.

__29—

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In Estrada v. Ahrens, 296 F.2d 690 (5th Cir. 1961),

the court explained the impact of the APA on sovereign

immunity thusly:

By providing judicial review in an action brought

by “any person adversely affected or aggrieve =

any agency action” Congress permitted suits whic

under established tests would certainly be barred

as suits against the government ... The Act

thereby makes a clear waiver of sovereign

immunity in actions to which it applies.” Estrada

vu. Ahrens, supra, 296 F.2d at 698.

Accord, Scunwell Laboratories, Inc. v. Shaffer, 424 F.2d

859, 873-74 (D.C. Cir. 1970)."

The Administrator tries to hide behind the provision

of the APA that excludes suits complaining of actions

committed to agency discretion by law. 5 U.S.C.

701(a). This Court has declared this to be a “very

narrow exception . . . applicable in those rare instances

where ‘statutes are drawn in such broad terms that ina

given case there is no law to apply.” Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 410

(1971). The statute here is not drawn in “broad terms,”

but rather in such highly detailed and specific terms as

to negative even the slightest degree of discretion at the

allotment stage. But assuming, arguendo, some

discretion exists, it is certainly not unbridled. The Act's

express commitment to specific deadlines and goals and

the unmistakable evidence in the legislative history of

“It seems axiomatic to us that one must imply, from a statement

by the Congress that judicial review of agency action will be

granted, an intention on the part of Congress to waive the right of

sovereign immunity: any other construction would make the

review provisions illusory.” Scanwell Laboratories, Inc. v. Shaffer,

supra, 424 F.2d at 874

—30—

Congressional resolve to achieving these deadlines and

goals provides ample guidelines for judicial

determination of whether that discretion has been

abused.

The Administrator also argues that to try to resolve

whether there has been an abuse of discretion in this

case would require the courts to decide a “political

question.”*” The standards for determining whether

this issue presents a nonjusticiable political question

were provided by the Supreme Court in Baker v. Carr,

369 U.S. 186 (1962):

Prominent on the surface of any case held to

involve a political question 1s found a textually

demonstrable constitutional commitment of the

issue to a coordinate political department; or a lack

of judicially discoverable and manageable

standards of resolving it; or the impossibility of

deciding without an initial policy determination of

a kind clearly for nonjudicial discretion; or the

impossibility of a court’s undertaking independent

resolution without expressing lack of the respect

due coordinate branches of government; or an

unusual need for unquestioning adherence to a

political decision already made; or the potentiality

of embarassment from multifarious

pronouncemerts by various departments on one

question. 369 U.S. at 217.

‘As in his Administrative Procedure Act argument,

the Administrator urges again that there are no

criteria by which to judge whether he has abused his

discretion. The Court, however, is not being asked to

take over the management of the Environmental

Protection Agency, or to assume the weighty role of the

Brief for Petitioner at 47

—31—

(pte rm ete tam STE ore

President of the United States; it is being asked to

construe 4 statute and to determine whether Congress

intended to grant the Administrator discretion to take

the action complained of here. Since Marbury v.

Madison, it has always been “emphatically the

province and duty of the judicial department to say

what the law is”. 5 U.S. (Cranch) 137, 177 (1803).

This Court recently reaffirmed the principle of

Marbury v. Madison in a case in which the doctrine of

political question was similarly urged as a bar to

judicial review of Executive action. United States v.

Richard M. Nixon, 42 U.S.L.W. 5237 (July 24, 1974).

The issue was whether the doctrine prevented the

Court from deciding whether the President had to

comply with a subpoena to produce certain tape

recordings and documents relating to his conversations

with aides and advisers. The argument was made, as it

is impliedly made here, that the Judiciary should defer

to the judgment of the Executive as to what the law

requires. The language used in rejecting the claim is

particularly applicable to the instant controversy.

Notwithstanding the deference each branch must

accord the others, the “judicial power of the United

States” vested in the federal courts by Art. III, § 1 of

the Constitution can no more be shared with the

Executive Branch than the Chief Executive, for

example, can share with the Judiciary the veto

power, or the Congress share with the Judiciary

the power to override a presidential veto. Any other

conclusion would be contrary to the basic concept of

separation of powers and the checks and balances

that flow from the scheme of a tripartite

—32—

sovernment. The Federalist, No. 47, p. 313 (C. F.

ittel ed. 1938). We therefore reaffirm that it is

“emphatically the province and the duty” of this

Court “to say what the law is” with respect to the

claim of privilege presented in this case. Marbury

vu. Madison, supra at 177. United States v. Richard

M. Nixon, supra, 42 U.S.L.W. at 5244.

Here, too, the Court cannot concede to the Executive the

intrinsically judicial determination o* whether the

impoundment of such vast sums of money was

authorized by Congress in the Act.

CONCLUSION

The court of appeals in City of New York was

eminently correct in ruling that the Administrator was

required to allot the full amounts authorized by the Act

for waste treatment construction grants. City of New

York should therefore be affirmed and Campaign Clean

Water should be reversed and judgment rendered for

full allotment in favor of Respondent Campaign Clean

Water.

Even if the Court be convinced that some discretion

at the allotment stage was vested in the Administrator

by the Act, amici would still pray that the court of

appeals judgment in Campaign Clean Water be

reversed, and the district court’s judgment be affirmed,

since the present state of the record — the record of the

marked disparity between what the Administrator has

allotted and what is really needed to meet the letter and

intent of the Act — shows clearly that that discretion

has been flagrantly abused.

—33—

er

LATELY A TR LTD

THE) DA ©

Se a ee oe

@re~ mar eye

Respectfully submitted,

JOHN L. HILL

Atturney General of Texas

LARRY F. YORK

First Assistant Attorney General

of Texas

Assistant Attorney General of Texas

P. O. Box 12548, Capitol Station

Austin, Texas 78711

AC 512 — 475-4143

ROBERT W. WARREN LARRY DERRYBERRY

Attorney Generai of Wisconsin Attorney General of Oklahoma

Theodore L. Priebe Paul C. Duncan

Assistant Attorney General Assistant Attorney General

JOHN C. DANFORTH VERN MILLER

Attorney Genera! of Missouri Attorney General of Kansas

Robert M. Lindholm Curt T. Schneider

Assistant Attorney General Assistant Attorney Genera!

Attorneys for Amici

—34—

PROOF OF SERVICE

i, Philip K. Maxwell, one of the attorneys for the

States of Texas, Wisconsin, Missouri, Oklahoma and

Kansas, amici herein, and a member of the Bar of the

Supreme Court of the United States, hereby certify

that, on the 15th day of August, 1974, I served copies of

the foregoing brief to the Supreme Court of the United

States and on the several parties thereto, as follows:

1. On the United States, by mailing a copy in a duly

addressed envelope, with air mail postage prepaid, to

Robert H. Bork, Solicitor General, Carla Hills,

Assistant Attorney General, Daniel M. Friedman,

Deputy Solicitor General, Edmund W. Kitch, Assistant

to the Solicitor General, Robert E. Kopp, and Eloise

Davies, Attorneys, Department of Justice, Washington,

D.C., 20530.

2. Norman Redlich, Corporation Counsel, John R.

Thompson, First Assistant Corporation Counsel, Evan

A. Davis, Gary Mailman, and Alexander Gigante, Jr..

Assistant Corporation Counsels, Attorneys for the City

of New York, Municipal Building, New York, New

York, 10007, and James R. Atwood, Covington &

Burling, 888 — 16th Street, N.W.. Washington, D.C..

20006, Of Counsel, in duly addressed envelopes with air

mail postage prepaid.

ye oe,

NE RTT NRTA

cone

3. Alan B. Morrison and W. Thomas Jacks, Suite 700

— 2000 P Street, N.W., Washington, D.C., 200386,

Attorneys for Respondent, Campaign Clean Water, ina

duly addressed envelope with postage prepaid.

PHILIP K. MAXWELL ,

Assistant Attorney Genefal

—36—

ADDENDUM I

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

EDWARD W. WADSWORTH 600 CAMP STREET

CLERK NEW ORLEANS, LA. 70130

May 28, 1974

TO ALL COUNSEL OF RECORD:

No. 73-3965 - State of Texas, et al, v.

No. 73-4026 - Russell E. Train, Administrator of the

Environmental Protection Agency.

[Argued & Submitted 4-29-74 - N.O. West Courtroom |

Gentlemen:

| am directed by the Court to advise that the disposition

of the referenced cases is being withheld pending

decision of the Supreme Court in the cases Train v. City

of New York, (73-1377), Train v, Campaign Clean Water

(73-1378), certiorari granted April 29, 1974

Very truly yours,

EDWARD W. WADSWORTH, Clerk

—37—

Shae se mee 7

4 a Ee

Mo AT IIE

By /s/ Richard E, Windhorst, Jr.

Richard E. Windhorst, Jr.. Chief

Judicial Support Division

REW, Jr.:rev

Messrs. Robert E. Kopp &

Eloise E. Davies

Mr. Theodore L. Priebe

Mr. Paul C. Duncan

Mr. Philip Maxwell

Mr. Curt Schneider

6 eR EE OR LO

ADDENDUM J]

Page 2

WATER FUNDS FPA Ropional Adm Buse

says Texas has received the hien's share of

wastewater grunts awarded in Region VE Texas

Louisiana, Arkansas, Oklahoma and New Mexico

OF the Soo LOL 286 awarded in the region since

July, 1974 Texas pot $37.441.255. The funds come

from the Congresstonally appropriated $9 billion for

the states i fiscal years 1973, 1974 and 1975 With

two of the years over EPA has allocated $3 billion

nationwide, or $144.756.239 to States in Region

IV Busch aid. "The agency expects to award much

of the remaiming SO billion in the next 12 months”

Busch added, “tam extremely pleased with the

Progress being made on our cometemeteon prants

program. and am confident that a solid base has

heen established to carry forward a program in

achieving our goal of clean water We will he

working closely with State and local officials in the

mouths ahead ty keep the program moving. | am

also pleased to announce that the States in Region

Vi were the first in the nation to submit ther

prionty lists for FY °75 funds.”

FUND DEFICIT: ven with Texas petting the

hon’s share of the Federal maney avaiable, the

Water Quality Board says that Texas cies have 204

Projects that won't be funded because Federal funds

availible im BY "7S are $27.000.000 short of what os

necded The WOR, Propect list ncludes

$169 100,000 jn Projects, while avaidabhe bederal

funds amount to $142,100,000 Board # xe Dir

Yantis wrote Texas members of Congress about the

problem and included a detailed hist of whieh

Projects will be funded and which ones are caught on

the $27 million deficd He added that “to complete

construction just for this dist’ would require

$615,000,000 tn the future and $675 000,000 ul

teluted costs, such as infiltration studies, are

inchided. Yantis sad that means the real deficit in

grant funds ts “approximately $450 to $800

notion

Projects falling into: the $27,000,000-short.and

won't-he funded category hy Congressional distinct.

ac Det Joaquin, Seven Pomts. Holl ville

Campbell, Orvwha, Wullerd Douglisewille Manet

Murchison, Reno, Broaddus, Winfield Tenaha

Lennie MUD and Athens. Dist 2 Montgomery

County MUD 6, Liberty Danville PWSD tT Lavy

River liprovernent Dist of Montpormery County,

Devers, Coldsprngs, Sour Lake, Kirbyville North

Zulh MUD. Whispering Oaks Orange. bvadale ISD,

Kountze, Grapeland, Tucker ISD. Woodville

Jewell, Kennard and Hardin County WOID |. Dist 4

Richardson, bitte tim. Glenn Heights. Dallas (4

TEXAS POLLUTION REPORT

July 24.1974

pryects), Murphy. Woodlaed Hilly, Conmnih aad

Dallas County Community College, Dit 4 Howe,

Lindale, Highland Village Rowlett, Kemp. Rosse

City, Campbell, Bullard, bitte Ptr take Datles

MUA. Glenn Heights, Collinsville, Aubrey Tom

Kean Pilot Pomt, bate, Counth and Westminster

Dist § the proyects in Dallas County bisted in Dist

{plus Seagoville, Dist 6 The proyects in Dallas

County in Dist 4 plas Garrett, Streeteman and

thitbard Dists 7, 8) 18 and 2° Harris EWSD 6.

Tomball, Spenwr ik Place MUP College View MUD

Clearwoods Improvement Dis Hanns County WOID

1, Port of Houston, Lomas, Maras UD S, Fort Bend

WOM) Bist 9 Cialveston WCHD 19. Beach Cry,

Jefterson WOID 10) Bev! Oaks, San Leon MUD,

Port of Galveston and Jefferson FWSD 1, Dist 10

Mlugerville, Burton, Carmine, Florence, Hays

County Wimberly WSD. Dune Box, Ghdden FWSD.

Clay. Sunset Valley, Hempstead, Snook, Fayett

WCID and San Marcos,

Dist 11) - Gatesville, Bertram, Thorndale,

McGregor, Bell WCID 4) Fort Gates Goldthwarte

Round Rock, Matte, Loreng Miliom Walb |

Marble balls WOID tok Wit, Morgya. Looe lredell

and Lacy Lakeview, Dist £2 North Tarrant MWD

ml Saginaw, Pest 03 Teese! Windthorst

Childress und Canyon, Dist 14 WhartorWwerp pa

Victoris-Giuadaiupe Blanc RAO (pus Christi sid

Naeces WOID 1S) Dist 18 Port Manstield PUD

and Pihouch, Dist Io Odessa Van Hern

Goldsouth. Fr Hancock WCID Land Barstow Dist 17

Haskell, Sut Saba Anson Tye, Roan, Cross

Mams, De Lean. Newark Javion Comanche

Gainesville. Gores. Doran and Stephenville, Dist 19

Nhatlowater Ode Sea Cisted in Dist bay Abernaths

New Deal and Siiver Dist 20 San Antonie (2

Prorests) and Samenset, Dist 24 tow listed in

Dist 20) phis Sunrise Beach MUD 1 Boerne

Jun thon Hredencksbury Crockett WCID |

Merling City, Brackertuille, Wetter, New Brauntels

and Merteon. Dist 23 Those hated in Dist 20 plus

Car Springs. Laredo, Natta Jourdonton My

Wells Dilley ond Maverick County, Dist M4 those

listed in other Dallas County districts plus blower

Mound and Sanger

— jO—