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

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Text

In the Supreme Court of the

October Term 1973

Nos. 73-1377 and 73-1378 ©

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

THE CITY OF NEW YORK ON BEHALF OF ITSELF

AND ALL OTHER SIMILARLY SITUATED

MUNICIPALITIES WITHIN

THE STATE OF NEW YORK, ET AL.,

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioner

Vv.

CAMPAIGN CLEAN WATER, INC.,

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia and the Fourth Circuits

BRIEF OF THE CENTER FOR GOVERNMENTAL

RESPONSIBILITY AS AMICUS CURIAE iN SUrPORT OF

THE CITY OF NEW YORK

Fletcher N. Baldwin, Jr.

Jor L. Mills

Attorneys, Center for

Governmental Responsibility

Holland Law Center

Gainesville, Florida 32611

TABLE OF CONTENTS

we ey | See Per eE es here Cr yee eee eee

STATEMENT OF INTEREST OF AMICUS

CREPES in bio den ss th RdKKdR DOSER CHP SCRE CORE Rad cee

STA Fe eee GE nk po ceesens at stoneckias

BUMMARY OF ARGURBEINS 56 cckseeceve res ves os

1 THE PLAIN MEANING AND LEGIS-

LATIVE HISTORY OF THE ALLOTMENT

PROVISIONS OF THE WATER POLLUTION

CONTROLACT, TOGETHER WITH THE

OVERALL STRUCTURE OF THE ACT.

DEMONSTRATE THAT THE ADMINIS-

TRATOR HAS NO DISCRETION TO

tg) gi a BE) aa er errr

A. THE HISTORY AND PLAIN MEANING

OF THE AUTHORIZATION AND

ALLOTMENT PROVISIONS (SECTION

205 AND SECTION 207) SHOW THAT

ALLOTMENT IS MANDATORY. .......

1. THE PLAIN MEANING OF THE

ALLOTMENT PROVISION RE-

QUIRES ALLOTMENT OF THE

FULL SUMS LISTED IN SECTION

BOF Sdn ven ebrs Ce Reh hak Gesevetieeinss

THE LEGISLATIVE HISTORY OF

SECTIONS 205 AND 207 SUPPORTS

THE CONCLUSION THAT WHILE

THERE IS DISCRETION WITHIN

THE ACT TO CONTROL OBLIGA-

Nee ee ee

TIONS. THERE IS NO DISCRETION

AT THE ALLOTMENT PHASE. ....

STATEMENTS IN LEGISLATIVE

HISTORY REFERRING TO AU-

THORITY TO “IMPOUND” CON-

FER NO AUTHORITY TO REDUCE

ALLOTMENTS.

ie ee ee eo oe oe ie oe a a oe

EXPRESS GOALS AND OVERALL

FUNDING STRUCTURE Cr THE ACT

DEMONSTRATE THAT ALLOTMENT

OF AUTHORIZED SUMS IS MANDA-

UME Nae a Shins e'ss Wis WN a G.0,bis'o. >

GOALS OF THE ACT EXPRESS A

NATIONAL COMMITMENT OF

FUNDS TO RESTORE THE WATERS

OF THE UNITEDSTATES .....:..-.

PERMISSIVE OR MULTIPLE AL-

LOTMENTS WOULD FRUSTRATE

THE INTENT OF THE ACT TO EN-

COURAGE LONG RANGE PLAN-

THE INTERNAL LOGIC OF THE

ACT READ WITH THE REALLOT-

MENT PROVISION, SECTION 205

(b), INDICATES ALLOTMENT TO

oS 0) 25

SECTION 206 (f) (1). WHICH PRO-

VIDES FOR ADVANCE OBLIGA-

TION OF FUNDS AUTHORIZED

FOR FUTURE ALLOTMENTS, IS

MEANINGLESS UNLESS AL-

LOTMENT IS MANDATORY. ...... 27

iii Page

5S. THE OBLIGATION PROVISION

AS WRITTEN INDICATES THAT

THE OBLIGATIONAL PHASE

RATHER THAN THE ALLOTMENT

PHASE IS DISCRETIONARY .......

C. ALLOTMENT IS A BUDGETARY

MECHANISM WHICH IS BOTH GEN-

ERALLY MANDATORY AND SPE-

CIFICALLY MANDATORY IN THE

ete ee ee ee | a ee

D. EVEN IF DISCRETION IS FOUND, THE

ADMINISTRATOR’S ACTION IN WITH-

HOLDING FIFTY-FIVE PERCENT OF

AUTHORIZED FUNDS WAS AN ABUSE

OF DISCRETION IN LIGHT OF THE

EXPRESSED GOALSOFTHE ACT ......

REFUSAL TO ALLOT FIFTY-FIVE PER-

CENT OF THE AUTHORIZED FUNDS IS

OUTSIDE THE CONSTITUTIONAL AUTHOR-

ITY OF THE EXECUTIVE BRANCH......

AS TE. FATT RPULLY.-.. EAECUTE™

CLAUSE OF THE CONSTITUTION

DOES NOT ACCORD DISCRETION TO

REFUSE TO IMPLEMENT CONGRES-

eo. Oe | ak Se ea at

B. THE EXECUTIVE DOES NOT HAVE

INHERENT AUTHORITY TO REFUSE

TO CARRY OUT THE PURPOSES AND

PROVISIONS OF CONGRESSIONAL

PROGRAMS DULY ENACTED INTO

PEER LENSER EN FS PES HELIN AY ERNIE

Se TN ee Te ae pe

NS ad

lot

THE EXECUTIVE’S REFUSAL TO IM-

PLEMENT THE WATER POLLUTION

CONTROL ACT, EVEN AFTER PAS-

SAGE OVER AN EXECUTIVE VETO,

REPRESENTS AN UNCONSTITOU-

TIONAL EXPANSION OF THE VETO

at LS errr hres s Peer re rrr.

Ill. THE SOVEREIGN IMMUNITY DOCTRINE

IS NO BAR WHEN THE ADMINISTRATOR

FAILS TO PERFORM A STATUTORY DUTY

OR EXCEEDS HIS DISCRETION. «.....6.605;

THE ADMINISTRATOR’S ACTIONS

ARE IN VIOLATION OF HIS LEGAL

DUTIES UNDER THE ACT AND CON-

SEQUENTLY SUIT MAY BE BROUGHT

THROUGH AN ““OFFICER SUIT.”

A WELL ESTABLISHED EXCEPTION

TO SOVEREIGN IMMUNITY ...........

THE ADMINISTRATIVE PROCEDURE

ACT OPERATES AS A WAIVER OF

SOVEREIGN IMMUNITY AND

PERMITS REVIEW OF THE ADMINIS-

TRATOR » REFUSAL TO ALLOT ......

SOVEREIGN IMMUNITY IS SPECIFI-

CALLY WAIVED BY SECTION 505 OF

THE WATER POLLUTION CONTROL

DETERMINING THE ADMINISTRATOR'S

AUTHORITY TO ALLOT LESS THAN AU-

THORIZEDAMOUNTSISJUSTICIABLEAND

NOT BARRED FROM REVIEW BY THE PO-

LITICAL QUESTION DOCTRINE OR THE

ADMINISTRATIVE PROCEDURE ACT

1 rtd <5 C ane eben dai

A. REVIEW OF THE ADMINISTRATOR'S

FAILURE TO COMPLY WITH THE AL-

LOTMENT PROVISION OF THE

WATER POLLUTION CONTROL ACT

IS JUSTICIABLE AND NOT A“ POLITI-

CR Sree eS Re sak yoda een aD 63

B. THE ADMINISTRATIVE PROCEDURE

ACT DOES NOT BAR REVIEW AS A

MATTER COMMITTED TO AGENCY °-

a ee BPs Ss a oe ee ca hk AED 66

Ae PR NE, Ga ene ech Keb dered eae Sere RSS 68

PE ech cea casio oles Mae een sieea Cae 69

Shao neediest

NT LPN I TS PIE REIN. rd Rs CTL a ied

AROS, Se te a 5 Si

ddan stan

Diiecitctosrabhdesesivaistocas mow:

CITATIONS

q CASES Page

: American Ass'n of Colleges of Podiatric Medicine v.

4 Ash, Civil No. 1139-73 (D.D.C., Oct 26, 1973). .... 44

> Arp vy. United States, 244 F.2d 571 (10th Cir.), cert.

4 BPS fee Dy Oe DE) eg ee a . 58

; Baker v. Carr, 369 U. S. 186(1962) ............. 63 - 65

: Blackmar v. Guerre, 342 U.S. 512 (1952).......... . 55

Boyden v. Comm’r of Patents, 441 F.2d 1041(D.C. Cir.),

CFT. Weed, Mee We PUR AIOUED Leick ns ccc h end eas 7

Brown v. Ruckelshaus, 364 F. Supp. 258 (C.D. Cal.

PREP ect cee oa Aie Der a aaleceel 14, 49, 51, 53, 58, 64

Campaign Clean Water. Inc. v. Ruckelshaus, 361 F. Supp.

689 (E.D. Va.). remanded with directions sub nom.

Campaign Clean Water. Inc. v. Train, 489 F.2d 492

BON | 26) Beker nen ne 14, 32, 49, 51, 64, 65

Church of the Holy Trinity v. United States, 143 U.S.457

COE ec tara ee AW kok ars Case aa ae te Nekoi 94 7

Clakamas County v. McKay. 219 F.2d 479 (D.C. C1

1954). vacated as moot, 349 U.S. 909 (19SS) 2.2.0... 55

Citizens to Preserve Overton Park, Inc. v. Volpe. 401

GE AE Sa) tk | er ay ieee ee rr ee ey 33, 66, 67

City-wide Coalition v. Philadelphia Housing Auth., 356

ee ag RS a t) eee eee 60

Community Action Programs Executive Directors Ass'n

of New Jersey. Inc. v. Ash. 365 F. Supp. 1355

fan? oP eA ee Cs inte a ec aay elon gaia eae oe 44

Constructores Civiles de Centroumerica, S.A. v.

Hannah, 459 F.2d 1183 (D.C. Cir. 1972) ........... 56

Dugan v. Rank, 372 U.S. 609 (1963) ..............--. 50

Estrada v. Ahrens. 296 F.2d 690 (Sth Cir. 1961)....... 56

Florida v. Train, No. 73-156 (N.D. Fla.. Feb. 25, 1974),

appeal argued, Civil No. 73-3965, Sth Cir.. Apr. 29.

DP es ee ae Sea eke a eek Bol eral ae Wines OX $1

_ , ———E

Cases - Continued Page

The Floyd Acceptances, 74 U.S. (7 Wall.) 666 (1868). . 50

Fong Yue Ting v. United States, 149 U.S. 698 (1893). A3

Guadamuz v. Ash, 368 F. Supp. 1233 (D.D.C. 1973).

8, 41, 44, 47, 49, 64

GARAA CAR. fan eee ee a ee ee ee i ee ee | ee

Hamilton v. Rathbone, 175 U.S. 414 (1899) .......... s

Highland Park v. Train, 374 F. Supp, 758 (N.D. Ill.

ce ER RA SORES TAs ire are ei errata tL 60

Housing Authority of San Francisco v. HUD.

we © ee, Sa 0 FBT ooo os vs Seen aes 49, 52

sm Ree CRE, TIF Uo, FETRO) sce hecc netics ede cas 46

Iselin v. United States, 270 U.S. 245 (1925)........... 9

Kendall v. United States ex rel. Stokes. 37 U.S. (12 Pet.)

UN CAS ocd! tees pases Cxnceene cree eee s 41

Kietsckka v. Driver. 411 F.2d 436 (2d Cir. 1969) ...... 56

Land v. Doar, 530 US. TSU CSR) oi ccc ces tees 49, 52

Larson v. Domestic & Foreign Commerce Corp.. 337

iP RAE reas sah eee Reo ests ee ia toa 50, 52

Lee Fook Chuey v. Immigration & Naturalization

Serv., 439 F.2d 244 (Sth Cir. (1970) .............-.. 19

Legal Tender Cases. 79 U.S. (12 Wall.) 457 (1871) .... = 48

Liverpool Borough Bank v. Turner. 45 Eng. Repr. 715

(700), ay dd, FO Cae, Hee: FOS oe a ie ve cess 19, 20

Local 2677, AFGE v. Phillips. 358 F. Supp. 60(D. D.C.

Pee ini Eas Coen ere an eee 41, 44, 49, 54, 56, 64

Louisiana v. Weinberger. 369 F. Supp. 856 (E.D. La.

BPTI cbt ta vee ree cave ee tie a hee 40, 44, 49, 51, 64

Marbury v. Madison, § U.S. (1 Cranch) 137 (1803).... 63

Martin-Trigona v. Ruckelshaus. No. 72-3044 (N.D. Il.. :

PR Se Tee hn i cir ars bane oe eee Le 14 ;

Massachusetts v. Weinberger. Civil No. 1308-73 :

(D.D.C.. July 26, 1973). reprinted in 119 CONG. REC. 4

$15044 (daily ed. July 30, 1973) ............. 40, 44, 64

Miller v. Amusement Enterprises, Inc.. 394 F.2d 342 (Sth P

ee i ee ee i9 §£

Minnesota v. USEPA, No. 4-73 Civ. 133 (D. Minn..

;

June 25, 1973). appeal argued, Civil No. 73-1446,

Se Meals Ss ORs PEPE eet rab Gbeve reees soe ke eh 31

Cases - Continued Page

Montgomery Environmental Coalition v. Fr,

366 F. Supp. 261 (1D. D.C. V9TB ww eee 0, 61

National Council of Community Mental Health Cemers.

Inc. v. Weinberger. 461 F. Supp. 897(D. D.C. 197%)

Bt a tpn Pp EE ba yp _.o. ofl, 44, 47, 49, 53, 63, 64

NLRB v. Fruit & Veg. Packers. Local 760, 377 U.S. s#\

GO 50d04scednctcassoucsecaseasdesasusadus 15

National League for Nursing v. Ash. Civil No. 1316-73

CE Tcc AT TR POTD dnvebesopcbunsacscoasen “a

National Treasury Employees Union v. Nixon. ” F. 2d

$87 (1974)....... ra Cee Tabane ... 41, 52, 64,6

New York v. Ruckelshaus. 358 F.Supp. 669 (D. DLC

1973). aff'd sub nom. New York ¥. Train, 494 F 2d

1033 (D.C. Cir. 1974)... o.oo eee eee eean 31. Si. SB, 64

New York v. Train, 494 F.2d 10334 D.C. Cir, 1974).

Ssneeeehvatsdaaipeadeaenae 12, 14, 22, 24 - 27, 30, 31, 49, Si

Oklehoma v. Weinberger. M0 F. Supp. 724(W.D. Oble

OTOP cisdeDecdaphondicqeesveceasss “a

Pealo v Farmers Home Administration. 361 F Supr

1320 (1973)... ; 65

Richards v. United States. wo US. 111962) 19

Riverside v. Ruckelshaus, 4 ERC 1728 (C.D. Cal 1972) @ - 61

Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir, 1971) 50, GB, 54

San Francisco Redevelopment Agency +. Nixon, 529

F. Supp. 672 (N.D. Cal. 1971) 0m

Scanwell Labs.. Inc. v. Shaffer, 42.4 F 24891 D.C. Cw

1970) . cane we

Seafarers lat Union of N. America +

Weinberger. 63 F.Supp. 1083(D.D.C. 197) “1.

Shapiro v. United States, 3348 U.S. (194m) P)

Stunfield v. Swenson, 11 F 2d 754 (th Cw. 1967) 7

Sturges v. Crowninshield, 17 US. (4 Wheat.) 122 (180%) *

State Highway Comm'n v. Volpe, 479 F.2d 1099 (meh

Cir, 1973)... : 16, 18, 19, 28, 30, 34, 39, 49, 54, 66

Texas +. Fri. No. A-7)-CA-I80W_D. Tea... Oot. 2, 1979),

— argued, No, 74-3968, Sth Cw. Apel 29. 1974

14, 24, 31,

Udell +. Wikcomese, MP DE MD Ce MD co

devied, FU S were

Veited States + Curtioe rate Paget Cane Oe

U.S. Was (vie “

a ee ee

«1952»

Umned States + Monette. 848 © & F38 ( fet rf

Umed Sates + Madeot CA Ce 20S ACh ogg ge

Aa eo a

U.S. 77 «tet .

—

Ummed Stutee © Sevcubaten, WP Sap Wee DM Ow

Wamers Con, 2 Fd ieee Ce ee

Wieteagton + Uda. 41° § Od eee Ce ee

Wowterge + Heme Beko & Gene te oF

1. S ae char iy

Vounptows Suet A Tate Ce + Seve MP 8 ©

S79 ( 19ED) 2 2)

.*% Coast at i

i. & Cornet at il

Reber sting Phen ardiee Ran Sache OP Or OD

MAF Lae OO We

USC. OMe eee 1 TD

is © SC eee

230 SC COM oe ww

MLSC Ont

ML BREC SiRe ey

MUSC Ohi

( omecdattest ace ated St atette. ( comtomaned Pom

MLS. 8haN aa ”

wise. on i »

wis” §SBte-1 (Supp Wray 16

WESC fmt igs 17

wisc vw isesceshs pas)

S90 SCA, 8787 ah, este Gasp. EP

st se : SiD21 (Sapp. 1974) save x)

federal Water Pollution Comal Act Amendments of

1972, Pub 1. Neo. ODS (Chet. 18, 1972 Set Bin,

SSL SO A SSID et ww, (Sapp. 197%)

S101 ta . wanes |]

St tas nia p

Pa ; iacnedeesnscaseeue

$s | P-]

se | 6. 9, 13, 23, 25. 26, 29

Sm thal ae ae Zi

oe aees 6. ‘10, 31, @2

$M? 4% 7

saws 57, Hh, @, 42

a> 1 Sa 90ian.ts

420 S.C S187 be 2 che

Pub 1 Neo OD iM daly 1. 1972). Oe See oy

Poh 1 No 92-899 ther 27. 1972), Oe See 1824 37.

Poh 1 No OR SR adaly 1, 197%), 87 Soe 18s

Poh 1. Neo GRITS (Dee. 1, 197%), 87 Sue, i

Poh 1 Neo OR Add a bady 12, 1974)

MISCELLANEOUS

ApVvisoRy CoMman ON INTEROGOVERNMENT AL

Rit ations, Tut Garp Between Fioreas

AUTHORIZATIONS

Aib

ASD APPROPRIATIONS

Fisc at Ve ams 1966 1970 (1970). ye pad

THe Beport OF THe USitbo States Govens

MENT. APPENDIX (197%). as

S. Bantry. Conouess Manis A Law ™ STOR?

Hi HIND THE EMPLOYMENT ACT OF 1946 (1990) Vw

40 C PR. 984. Stan i972) Dendedunsbscetcccuae

40C FR. SUNS S bP EIOTS, 0... oe a

Comment, Presidential Impoundment of J nds The

Judicial Response, MU. CHL. Rev VII).

9 CONG Rec WN-448 (1947)... *

116 CONG Ric 74001970)... . B

117 CONG Rec daily ed. Now. 2. 1971) 2.24

HIF CONG Rec idaily ed. Mar. 29. 1972) . 2

HR CONG Rec idaily ed. Oct. 4, 1972) 10, 11,

pave 16, 18, 20, 21, 34

18 CONG REC (daily ed. Oct. 10, 1972) *

HR CONG Kec idaily od. Oct. 17, 1972) .. 13, 20. 22, a8

118 CONG Rec tdaily ed. Oct. 18, 1972) »

119CONG Rec. tdaily od. July W, 197%) 0, 4, 4

119 CONG Rec idaily ed. Now. 27. 197%) t+ 0. 45

1M CONG. Rec tdaily ed. Mar 28, 1974) »

1 CONG. REC daily ed, June 21, 1974) *

IM CONG Rec daily od. July 18, 1974) 65

b. Comwin, Tt Peesipe st OFfich ASD Powtes

(4th ed. 19%1) : “

SJ. Bidston, Dewates On Tet Anportion OF Taw

Fite mal CONSTITUTION (ed. 1941) 1

Fisher, Presidential Spending Discretion and Convers.

jonmal C antrols,

1972)

7 Lawa CONTIMP Prom 144

Miscellaneous - Continued Page

Fisher. Impoundment of Funds: Uses and Abuses,

23 BUFFALO L. REV. 141 (1973). .........000006- 4.46

L. FisHer. COURT Cases ON IMPOUNDMENT OF

FUNDS A PUBLIC POLICY ANAL YSIS. (Congress-

ional Research Service. Library of Congress. multilith.

ns iar creed ees dees eave kere eae bie io 51

Hearings on Executive Impoundment of Appropriated

Funds Before the Subcomm. on Separation of Powers

of the Senate Comm. on the Judiciary, 924 Cong... Ist

TE aap hoe ov dar secoubasiieesrictni W, 39, 46

Hearings on “Sovercien Immunity” Before the Sub-

comm. on Administrative Practice and Procedure of

the Senate Comm. on the Judiciary, 9ist Cong.. 2d

SL GED bobs vane dacodabncseud pahwelsa0ees eres 49

H. KR. Doc. NO. 98, 69th Cong. Ist Sess. (1927) ..... 42

H. KR. REP No. 1797, Bist Cong.. 2d Sess. (1951) ....- 17

H. KR. Rev. No. 1465, 92d Cong.. 2d Sess. (1972) .. . 12, 29

H. KR. ReP No. 1606, 92d Cong... 2d Sess. (1972)... .. 35

H. KR. Rep. No. 1614, 92d Cong.. 2d Sess. (1972)..... 38

H. KR. Rev No. 1101, 93d Cong.. 2d Sess. (1974) . 65

Joint Hearings on §. 373 Before the Ad Hoe Subcomm.

on Impoundment of Funds of the Senate Comm. on

Government Operations and the Subcomm., on Separa-

tion of Powers of the Senate Comm. on the Judiciary,

93d Cong.. Ist Sess. (1973) .............. 17, 44, 46, 48

Letter from President Nixon to William D. Ruckelshaus.

EPA Administrator, November 22. 1972. reproduced

in Hearines on Federal Budget for 1974 Before the

House Comm. on Appropriations, Wd Cong... Ist

MET EE vbr thos tadecdenderdavecsseates 44

Letter from Franklin Delano Roosevelt reproduced in

part in Hearings on H.R. 3598 Before a Subcomm. of

the Senate Comm. on Appropriations, T&h Cong... Ist

is San csea chin dlevedeseenene oweneceneses 45

Levinson & Mills. Impoundment: A Search for Legal

Principles, 26 U. FLA. L. Rev. 191 (1974)5, 40, 43, 44, 46

ee ee Oa

Miscellaneous - Continued Page

Levinson & Mills, Budget Reform and impoundment

Control, 27 VAND. L. REV. 615 (1974) .............

Library of Congress. A Legislative History of the Water

Pollution Control Act Amendments of 1972 (1973) ...

Findings of McIntosh Foundation Executive Impound-

ment Project. 119 CONG. REC. $21120 (daily ed. Nov.

Meee Lidga sos ck bo ob baeb sed be cb bee sesedchon 40, 45

Memo from William Rehnquist reproduced inJoint Hear-

ines on 8S. 373 Before the Ad Hoc Subcomm. on

Impoundment of Funds of the Senate Comm. on

Government Operations and the Subcomm. on Separa-

tion of Powers of the Senate Comm. on the Judiciary,

93d Cong.. Ist Sess. 390, 394 (1973) ............... 41

Miller. Impoundment: The New Constitutional Crises,

THE PROGRESSIVE. March, 1973.................. 44

N.Y. Times, April 20, 1973. at I1.col.5.................. 45

Note. /mpoundment of Funds, 86 HARV. L. REV. 1505

"Rs Se ee ee rere Tre 37, 38, 45

Note. The Item Veto in the American Constitutional

System, 25 GEO. L. J. 106 (1936)................ 48

Note. Protecting the Fisc: Executive Impoundment

and Congressional Power, 82 YALE L. J. 1636

SE ary scanner eSasshner detest tosedese 65

OMB Report Under Federal acenaeued & Informa-

tion Act:

38 Fed. Reg. 19.581-82 (1973) ............-.-008- 40, 47

39 Fed. Reg. 7707, 7708 (1974) ................... 16, 39

PUBLIC PAPERS OF THE PRESIDENT. State of the Union

Me Es Pe Cob er ca cewaee ei ade oe nse s> 5

P. Rome RTS. MODERN GRAMMAR (1968).........--. 13

S. Rev No 414. 92d Cong... Ist Sess.(1971) .......-. 59

S. REP No. 1292. 92d Cong. 2d Sess. (1972) ......... 37, 38

S. Ree No. 249, 93d Cong.. Ist Sess. (1973) ......... 37

Shinn. The Federal Grant Program to Aid Construction of

VUunicipal Sewage Treatment Plants: A Survey of

the 1972 FWPCA Amendments, 48 TUL. L. REV. 85

Sia a ater oe ew It ee Ooo ee en oe hy 29

Qveen--- - aoe nes eo

NIN

Miscellaneous - Continued

Stanton. The Presidency and the Purse: Impoundment

1803 - 1973, 45 U. COLO. L. REV. 25 (1973) ........

Student Project. Federal Administrative Law Develop-

ments - 1971, 1972 DUKE L. REV. TIS) oo... ‘vs

U.S. BUREAU OF THE BUDGET. EXAMINER'S

HANDBOOK (1952) (quoted by J. Williams. The Im-

poundment of Funds by the Bureau of the Budget

(1955) cited in Joint Hearings on §. 373 Before the Ad

Hoc Subcomm. on Impoundment of Funds of the

Senate Comm. on Government Operations and the

Subcomm,. on Separation of Powers of the Senate

Page

Comm. on the Judiciary, 934 Cong, Ist Sess. (1973),17, 18

1972 U. S. CODE CONG. & ADM. NEWS __...........

USEPA. Report to the Congress: Costs of Construction

of Publicly-Owned Wastewater Treatment Works A-2,

PUREE Sab 20s biked sees sa CObs co nb serene bEsie>

U. S. OFFICE OF MANAGEMENT & BUDGET. CIR-

CULAR NO. A-34. INSTRUCTIONS ON BUDGET

Mee CURE ED oc vhbs ciesvasecsccssaeduee can

R. WALLACE. CONGRESSIONAL CONTROL OF

FEDERAL SPENDING (1960) .........ccccccceeees

9 WEEKLY COMPILATION OF PRESIDENTIAL Doc.

CURSO Ee CORTON aids sce cece hots bk ckh belek tee ee

Williams. The Impounding of Funds by the Bureau of the

Budget, reprinted in Joint Hearings on 8. 373 Before

the Ad Hoe Subcomm. on Impoundment of Funds of

the Senate Comm. on Government Operations and the

Subcomm. on Separation of Powers of the Senate

Comm, on the Judiciary, 934 Cong.. Ist Sess. (1973)

PHHORPSEHHEBAaCCHP PES VPAOVM SAD CSC G ORE RCC HC eOBAO PCTS LOS

STATEMENT OF INTEREST OF AMICUS CURIAE

The Center for Governmental Responsibility files this brief

as amicus curiae under rule 42 (2) with the consent of both Re-

spondents and Petitioner.

The Center is a privately funded non-partisan.

non-profit organization housed at the University of Florida

College of Law committed to the goal of promoting the ac-

countability of government officials and institutions to the

public. Its interest in this case emanates from its detailed

study of the impoundment controversy and its effort to imple-

ment its scholarly conclusions. The year and one-half study

was conducted by the Center's predecessor, the McIntosh

Foundation Executive Impoundment Project.” whose sum-

mary findings have been reproduced at 119 CONG. REC.

$21120 (daily ed. Nov. 27, 1973). The Center has continued

the study of the impoundment issue to date. The study has pro-

duced. among other things. two law review articles: Levinson

& Mills. Impoundment: A Search for Legal Principles, 26 ©.

FLA. L. REV. 191 (1974): Levinson & Mills, Budget Reform

and Impoundment Control, 27 VAND. L. REV. 618 (1974).

Further. the Center has acted as amicus curiae on the issue in

the instant case in three courts: Minnesota v. Train, No.

73-1446 (Sth Cir.. argued Feb. 13. 1974); Texas v. Train, No.

73-3965 (Sth Cir.. argued Apr. 29. 1974); and Florida v. Train,

No. 73-156 (N.D. Fla. Feb. 25. 1974). appeal argued, Civil

No. 73-3965, Sth Cir.. Apr. 29. 1974. The Center's special

interest is in the legal development and resolution of federal

impoundment Issues.

*This project is further described in Joint Hearings on $.373

Before the Ad Hoe Subcomm., on Impoundment of Funds of the

Senate Comm. on Government Operations and the Subcomm, on

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

Cong.. Ist Sess. 22 (1973).

In the Supreme Court of the United States

October Term. 1973

Nos. 75-1377 and 73-1378

RUSSELL FE. TRAIN, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY.

Petitioner

’.

THE CITY OF NEW YORK

ON BEHALF OF ITSELF AND

ALL OTHER SIMILARLY

SITUATED MUNICIPALITIES WITHIN

THE STATE OF NEW YORK. ET AL..

RUSSELL E. TRAIN, ADMINISTRATOR.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY.

Petitioner

CAMPAIGN CLEAN WATER, INC..

On Writs of Certiorari to the United

States Court of Appeals for the

District of Columbia and the Fourth Circuits

BRIEF OF THE CENTER

FOR GOVERNMENTAL RESPONSIBILITY

AS AMICUS CURIAE

IN SUPPORT OF

THE CITY OF NEW YORK

SA SPR ET SF 5 NOREEN SS NR aR

BQeeraercese

STATEMENT OF THE FACTS

In 1972. Congress passed the most extensive program for

cleaning the nation’s waters in history. The Federal Water

Pollution Control Act Amendments of 1972 [hereafter cited

as the “"Water Pollution Control Act’ or the “*Act™’}

established as a national goal the achievement of clean

waters in America by 1985. Congressional hearings on the

proposed legislation were extensive. The bill passed the

Senate by a vote of 74 to 0 anu the House by 336 to II.

On October 17, 1972, the President vetoed the bill because

of what he termed “‘inflationary considerations.”” Congress

considered the veto message and overwhelmingly overrode

the veto. In the House, the vote was 247 to 23: in the

Senate. 52 to 12.

Subsequently. on November 22, 1972, President Nixon

ordered the Administrator of the Environmental Protection

Agency not to allot the full amount provided in the final bill.

Nixon ordered allotment of two billion dollars in fiscal year

1973 and three billion dollars in fiscal 1974. The amounts

established in the bill were five billion dollars for fiscal 1973

and six billion dollars for fiscal 1974. The result was a cut-

back of fifty-five percent of the funding provided by Congress.

SUMMARY OF ARGUMENT

The principal question posited by the instant case is whether

the Administrator of the Environmental Protection Agency

has discretion to refuse to allot the full amounts author-

ized by the Water Pollution Control Act. The statutory

history and the overall structure of the statute demonstrate

that the allotment provision is mandatory. There is no state-

ment in legislative history stating that allotment is discre-

tionary. while one of the principal sponsors of the bill directly

stated that allotment is mandatory. Spending discretion

exists, but at the obligation phase rather than at allotment.

Additionally, the overall scheme of the statute demonstrates

the desire of Congress to provide long range planning certainty

to achieve total restoration of the nation’s waters by 1985.

This purpose is best accomplished through a mandatory

allotment schedule coupled with some discretion in the

obligation phase. There is a substantial negative impact on

long range state planning when there is an exercise of discre-

tion at allotment as distinguished from exercise of discretion

at obligation. While the statute will operate well with manda-

tory allotment, insertion of discretionary allotment would

cause illogical results. Refusal to allot in full will cause perma-

net loss of funds for obligation.

At whatever stage of the funding process. refusa! to allot

or expend fifty-five percent of the Water Pollution Control Act

funds would be an abuse of discretion. Congress intended to

provide funding for the solution of water pollution problems

which would be available to the states. Fifty-five percent

impoundment. substantially curtailing implementation of the

program, is beyond the discretion of the Administrator. Fur-

ther, justifications given as the basis for the refusal to allot were

improper reasons outside the realm of relevant considerations:

therefore. any exercise of discretion on this basis is improper.

pete

’

at . f x ‘

Sey We neyo seers nt aie sebiwisccnanbeh eee: Spel CRA Saag, 23

selec Atria key Sein os

fa Se Roky ay Weahs

Dietetic eleteeete ean meccticietc ac toncenaieresaiei:

Actions by the Administrator were not only outside his

Statutory authority but also beyond his constitutional

authority. Neither the “faithfully execute’ clause nor

“inherent authority” support executive action in refusing to

allot. Cases considering constitutional authority of the

executive branch have consistently held it to be limited

when impinging upon the intent of Congress. especially

in the domestic area. Further, the refusal to allot after a veto

of the Act had been overriden operated as an unconstitu-

tional absolute veto.

Sovereign immunity is no bar to the suit against the

Administrator: first, because of the well established exception

of “officer suit” and, second. because the Administrative

Procedure Act waives sovereign immunity. Similarly.

political question is no bar to justiciability in the instant case

since clear standards exist for judicial review and there is no‘

absolute commitment to a coordinate branch of the absolute

power to spend or not to spend.

In sum. there is no bar to judicial review of the action of

the Administrator in refusing to allot. Further. these

actions were in contravention of the explicit provisions and

purposes of the Act and the Constitution.

ARGUMENT

THE PLAIN MEANING AND LEGISLATIVE HIS-

TORY OF THE ALLOTMENT PROVISIONS OF THE

WATER POLLUTION CONTROL ACT. TOGETHER

WITH THE OVERALL STRUCTURE OF THE ACT.

DEMONSTRATE THAT THE ADMINISTRATOR

HAS NO DISC .L TION TO REFUSE TO ALLOT,

The issue in the instant case is the meaning of the allot-

ment phase of the Water Pollution Control Act -- not the

academic issue of the mandatory or permissive nature of

appropriations generally.' The precise question before the

Court is whether the allotment provision is mandatory

and requires the Administrator to allet the full sums

authorized by Congress. To determine whether an action

within the funding process is mandatory. it is imperative

to analyze not only that particular provision, but all relevant

‘For discussion of the general issue. see Levinson A Mills. Jeypennd

ment: A Search for Legal Principles, 26 U. Fia lL. Rev Wt, 2401974)

No generalization can be made about the mandatory nature of Vanwus phases

of the spending process. There must however be reference to the particular

budgetary provision with the other relevant provisions of the appropriations

act. In fact, President Nixon, in vetoing an HEW-ORO appropriation

recognized the possible effect of statutory language

[Nearly nine tenths of these increases are for mandatory programs

which leave the executive branch no discretion whatever as to the lev et

or the purpose of the added expenditures

Pustic Parexs Or THe PResipent. State of the Union Address

Jun. 27, 1970. at 22

A THE HISTORY AND FEIN MEANING CF Tite

AUTHORIZATION 42D ALLOTMENT Perry reeres

SECTION 28 200 SECTION De) Shem Tat OF

LOTMENT 8 MANDATORY

$207 Tikete o> aathho ined to he agpe prided fe awry

caut tne tithe fw the fecal pew ending bene 1979

eT ee

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Sefetmetie eter ee eee Gt SPThy ettesnin aH! HE ateites tel

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have done so caplicitly. The clause could have toad

uuthotized to be allotted and appropriated not to

exes..."

Whee comidered in and of itself, the Act is clear in de-

chasing that the Adminntrator shall allot the amounts

opecified. There is no need to resort to legislative history

adittacmagty thd thercdanty alloas cagggrante the tmatalatenty nature of

alhodemg et

2 THE LEGISLATIVE HISTORY OF SECTIONS

ws AND D087 SUPPORTS THE CONCLUSION

THAT WHILE THERE 1S) (DISCRETION

WITHIN THE ACT TO CONTROL OBLIGATIONS,

THERE 18 NO DISCRETION AT THE ALLOT-

MENT PHASE

The facws of the statutory comtroversy in the ietant cave

is the interpretation of the incheion or omimaon of three

words and phrunes within sectaane 20 und 207 during the

coractment of the Water Pollan Comtrol Act

1) deletion of “all” i section 20S (a) by the conference

sential ee

(AM) canes aerttmticed ta tre agnpengei nated gout sciadet tar

cota 307 few cach fixcal peat hegmmng after June

0972 olaalll tae alllktignd Poy tae Aahomameets atom

‘D) ahdtkom of mot to erceed” befowe the sume specified

me eoction 307

There o> authorized to he approgiiated tar Carty cust this

title other thee $6208 and 09, for the fecal peur ond

ing Jame . 1973. (mot to erceed) $5,000,000 amp,

cs a ee ee a> ptlvewe eed

Peer ee Ln kB Bd att ints Casts ll @ others

wee eee en ee ee

proomntithy ho aaMaawede ation Me ame lade’ © dhe Ge og out Hae oungpptle

wwe amewomnds Gre guduad Meme = heotign © 1 aetiet States rw

oe we ee ee

th)

for the fiscal year ending !une W. 1973. (not to exceed)

Picken scadetenebesseb deeckesecseacses

(3) the words ‘’shall be allotted” in section 205.

The deletion of “all in conference is asserted to be an

indication that Congress intended to allow discretion in the

allotment phase. However. nowhere in the conference

report or any legislative history is there a direct statement

to that effect. The Administrator relies strongly on a statement

by Representative Harsha:

| 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 ...10 emphasize the President's fles-

ihility to control the rate of spending.

118 CONG. Rec H9122 idaily ed. Oct. 4, 1972) (emphasis

mided). The key to understanding the statement. however.

comes when Representative Harsha further explicates:

Second. | would like to point out that the Admin-

istrator of the Environmental Protection Agency must

approve plans. specifications. and estimates. This is

the pacing item in the expenditures [sic } of funds.

id. temphasis added).

Th: screening procedure and project approval which

Representative Harsha has Wentified as the pacing item to

control the rate of expenditures is the obligation phase

Kepresentative Harsha clearly specifies that it ts this phase

(obligation) of the funding process where he finds the dis-

eretion to control the rate of spending. Moreover. Congress-

man Harsha continues: “lt is clearly the understanding of

the managers that under these circumstances (the application

review procedure} the Executive can control the rate of

espenditures” Id. (emphasis added). The comments of Rep-

resentative Harsha make clear that the statement primarily

cited as making allotment discretionary actually refers to

“obligation.” Nowhere in these comments is there reference

to flexibility” in allotment or to allotment as a“ pacing item.”

Further. because of the different phases in the Act. control

over allotment does not so much affect the rate of spending as

it does the amount of spending.’ further indicating that the ref-

erence to discretion relates to obligation.

A colloquy between former Representative Ford and

Representative Harsha further supports the interpretation

that discretion was granted only at the obligation phase:

As 1 understand the comments of [Representative

Harsha}. the inclusion of the words in section 207 in

three instances of “not to exceed” indicates that it ts a

limitation. More importantly that it is not a mandatory

requirement that in | year ending June 30, 1973.

there would be $5 billion and the next year ending

June W. 1974. $6 billion and a third year ending

June W. 1975, $7 billion obligation or expenditure’

Id. at HYD (emphasis added). Representative Harsha

responded:

1 de not see how reasonable minds could come to any

other conclusion than that the language means we can

obligate or expend up to that sum -- anything up to

that sem but not to exceed that amount.

Id. semphasis added).

Vikament relites only to the amount 4 state may obligate. Obligation

oy ecu at Vateous times during the year after adounistrative review of

spin eons, thereby pacing the rate of cxapenditure. See p.24.29.32 intra

it is clear that. if what Representative Harsha says ts

accurate. namely that anything up to the maximum sum can

be obligated or expended, then discretion at the allotment

phase is virtually impossible. That is, if the Administrator

exercises any discretionary reduction at the allotment phase.

then what Representative Harsha proclaims as possible

becomes impossible.”

The legislative history is totally devoid of any statement

that discretion exists at the allotment phase to withhold

funds. In fact. as explained above. the statements advanced

by the Administrator as indicating a discretionary allotment

do not even refer to the allotment phase. Instead, the

legislative history is replete with direct statements referring to

discretion at the obligation phase. This pattern of legislative

history. tending to place discretion at obligation rather than

allotment. is further strengthened by a categorical state-

ment in the legislative history by a principal sponsor of

the bill which directly applied to sections 205 and 207 and

explains their effect:

Under the amendments proposed by Congressman

William Harsha and others. the authorizations for

vbligational authority ave “not to exceed” $18 billion

over the next 3 years. Also, “‘all” sums authorized to be

obligated need not be committed, though they must be

allocated.{ | These two provisions were submitted to give

the administration some flexibility concerning the

vhligation of construction grant funds.

“Allotment necessarily precedes obligation. If allotment ts discretion

ary. then the Administrator cannot possibly obligate up to the maximum

sum. unless he exercises his discretion to allot the full amount. If allotment

is mandatory. then Congressman Harsha’s statement is correct and the

Administrator can obligaie up to the full amount. There is ample history

supportive of making full amounts available for obligation. Sec footnote 1

und accompanying test mifra

The Senate bill had used the term “allocate” rather than allotment

MK Rev No 1465, 92d Cong.. 2d Sess. 113 (1972). See New York »

Jrain. 494 F.2d 103%, 1043 9. 19¢4D.C. Cir. 1974)

118 CONG. REC. S18546 (daily ed. Oct. 17. 1972) (remarks

of Senator Muskie) (emphasis added), This siatement by

Senator Muskie. Senate sponsor of the Act. in no way con-

flicts with the statements of Representatives Harsha and

Ford. The statement does. however. provide a critical clari-

fication. Rather that merely alluding to where discretion ts

vested. Senator Muskie clearly states when discretion ts

not vested.

The deletion of the word ‘all from section 205 has been

given undue weight. The provision has essentially the same

meaning with or without “all.” Moreover, this Court has

Stated that statutes must be interpreted on “the basis of

what Congress has written, not what Congress might have

written.” United States v. Great N. Ry. Co., 343 U.S. S62.

§75(1952). The act of deleting the word “‘all”” should be accord-

ed no particular significance if the meaning of the provision

is not affected by the omission. ** All sums” ts equal to sums”

albeit less emphatic.”

“it is a general principle of English grammar that when there is the

absence of a qualifying adjective. the noun t considered a totality. See

P. ROBERTS. MODERN GRAMMAR 29 (1968). An illustration of the signifi-

cance that Congress apparently gives to the term” all’ 1s found in the legis-

lative history of the old Senate Bill, Section 205 of that bill read. all allen a-

tions to the states under Section 205 are to be made on the basis of popula-

tion” (emphasis added). The commentary by the committee explaining this

section reads as follows: “This section provides that sans appropriat do

authorized to be obligated for the construction of treatment works under

lithe 1. will be allocated among the states on the basis of population alone”

(emphasis added). Library of Congress. 4 Legislative History of tu Water

Pollution Control Act Amendments of 1972 at 1448 19749), The significance

of this passage is the absence of “all” before “sums in the commenturs

indicating a tendency in Congress not te use an adjective inthis contest. and

probably for ae particular reason -- whether that mhective be “some ll

or “the

i ee

Despite the legislative history cited above. a district

court. in dicta. has concluded that the allotment phase was

discretionary. Brown v. Ruckelshaus, 364 F. Supp. 258.

268 (C.D. Cal. 1973). But to reach this conclusion the

court examined legislative history referring only to dis-

cretion at the obligation phase--a proposition not even al

issue. While legislative history supports the Administrator’ s

position in Brown that not every penny must be spent in

any given year, the history does not support the conclusion

that allotment is discretionary.

Another district court found discretion based on the act

of deletion--what the court termed “‘syntactical history.”

Campaign Clean Water, Ine, v. Ruchelshaus, 361 F. Supp.

689. 698-99 (ED. Va.). remanded with directions sub nom.

Campaign Clean Water, Ine. v. Train, 489 F.2d 492 (4th Cir.

1973). In the presence of what the court felt to be an unclear

levislative history subjecting the Act to two interpretations.

this “syntactical history” was found to be persuasive. How-

ever. no substantiation was offered as to what the “syntactical

history” of the deletion was. only ex post facto commentary.

If legislative history ts unclear. “syntactical history” is non-

existent. Nevertheless. Judge Merhige declares this deletion to

be the principal source for concluding that Congress intended

the Administrator to exercise some discretion with respect

to allotments. The weight of opinion is. however. in disagree-

ment with Judge Merhige’s conclusion.” The mere removal of

4 word is subject to many interpretations aad is of itself not

sufficient to support a major deviation from the plain meaning

and legislative history of a statute.

‘New York +. Fram, 494 F.2d 10850 DC. Cir, 1974); Texas v. Fest.

No AATEC AWD. Tes. Oct. 2 1973); Martin-Trigonas. Ruchelshaus.

No 72 M440 N D. BL, June 29, 1974), Minnesota» USEPA, No. 4-73 Crs

13341. Minn. June 25. 197%). appeal areucd., Cw No. 73-1446. Sth Cu

feb 1%. 1974. Bat we Brown ©. Ruckelshaus. 4 F. Supp. 28K 1C.D. Cal

1974) tabectu

In sum. a combination of circumstances indicates the

mandatory nature of allotment. First. no legislator directly

refers to allotments as discretionary. Those who supported

discretion in allotment, if there were any. did not express

their opinion:'” and were unable to pass any language

explicitly discretionary. Third. one of the principal sponsors.

Senator Muskie made a direct statement that the deletion of

all’ did not affect the mandatory allotment provision.

Fourth, the plain meaning and statutory history support

mandatory allotment and discretionary obligation. The

total impact of these circumstances clearly shows allotment

to be mandatory. Both the legislative history. which clearly

supports the mandatory nature of allotment. and the plain

meaning of the words of the allotment provision admit of 10

reasonable interpretation other than a mandatory allotment

provision.

3. STATEMENTS IN LEGISLATIVE HISTORY

REFERRING TO AUTHORITY TO “IMPOUND”

CONFER NO AUTHORITY TO REDUCE ALLOT-

MENTS.

The Administrator contends that certain excerpts from

the legislative history indicate that the power to impound

authorized funds was conferrred upon the Executive. Briet

for Petitioner at 14 ef seq. The contention is unsupported.

first because these cited statements refer to discretion only

at the post-allotment phase (obligation) and, second,

because any reference to Office of Management and Budget s

authority to impound is inapplicable in the instant case.

The Administrator contends that the quoted language

confers a general power to impound independent of the Act.

Brief for Petitioner at 10, 44. The primary thrust of this

argument depends upon Representative Harsha’s statement

“The silence of sponsors of amendments is pregnant » ith signifi

Ccatecc NI Ki 7 j rust A Veu Puckers. | ocal Tt) 377 { ee. oe 1\iyS)

PRT ree ee Tee Boer aE yr tt

comparing impoundment under the Highway Trust Fund

with impoundment under the Act. Brief for Petitioner at 17.

Congressman Harsha stated:

Surely. if the administration can impound monies from

the highway trust fund which does not have the flex-

ibility of the language of the water pollution contro! bill.

it can just as rightly control expenditures from the

contract authority produced in this legislation by that

sume means.

118 CONG. REC. H9122 (daily ed. Oct. 4. 1972). Although

the statement indicates a conferring of control over spending

power, the only power exercised by the Executive in the

Highway Trust Fund to which Representative Harsha refers

occurs at the obligation phase with “contract controls.”’

See State Highway Comm'n v. Volpe, 479 F.2d 1099,

1103-04 (8th Cir. 1973). In fact. the Executive and the

Eighth Circuit have recognized that the Highway Trust

Fund's “allotment” process is ministerial. See p.29-30 infra.

The Administrator also infers a general power to impound

from other statements referring to the Office of Management

and Budget.'' Even if the OMB has adequate impoundment

power under the Anti-Deficiency Act. the OMB has failed

to utilize any option which might exist. In OMB's report

of February 19, 1974. pursuant to the Federal Impoundment

and Information Act. 31 US.C_A. §58le-1 (Supp. 1974). it

omitted the withheld allotments from its list of

impoundments. 39 Fed. Reg. 7707. 7708 (1974). Since

none of the present withholding was accomplished through

Serutor Nelson stated

Oniv if the Presidents Office of Management and Budget or the

Congress specifically directed otherwise would the money not be

avulable at the levels in the legislatumn, according to my under

standing

1S CONG REC SIORNR daily ed. Oct. 4. 1972)

any OMB authority. the Administrator may not rely upon

powers vested in the President through the OMB. Con-

sequently. any references to OMB “impoundment” are

inapplicable since that power, whether or not it exists. has

not been exercised.

Further. even if the OMB had utilized its power to reserve

under the Anti-Deficiency Act. 31 U.S.C $665 fc) (1970),

that action would have exceeded their authority. Reserves

cannot contravene the intent of the Congress. In a report to

the Senate Appropriations Committee recommending

reserves. the Bureau of the Budget and the Comptroller

General stated that there was a need “for machinery to

conserve appropriations which are in excess of actual

requirements.”"'* This emphasizes that the purpose was not

to allow the reserving of required funds.

In another report. prepared by the House Appropriations

Committee to accompany the 1950 amendments to the Anti-

Deficiency Act. the following discussion stemmed from

consideration of President Truman's impoundment of Air

Force funds:'*

It is perfectly justifiable and proper for all possible

economies to be effected and savings to be made. but

there is no warrant or justification for the thwarting of «

major policy of Congress by the impounding of funds.

ven more persuasive ts the Bureau of the Budget Examiners

Handbook written in 1952. shortly after the 1950

amendments to the Anti-Deficiency Act. which stated:

Quoted m leint Heurin on S474 Betore the Ad He

Sabeomm on leipoundment of F ands of the Senate Comm, on Governme

(iperutions an J the Sub omm. on Separation of Powers of the Senut

Comm. on the Judmwiat id Cong., Ist Sess. 107 11974) (emphists vided

HK. Ree No 1797, Bist Cong. 2d Seas, 311 01041)

a ee RN ee a A _ -

Reserves must not be used to nullify the intent of Congress

with respect to specific projects or level of programs.”'*

The decision of the Eighth Circuit in State Highways

Comm'n v. Volpe, 479 F.2d 1099, 1118 (1973), reaffirmed

these interpretations and considered the Anti- Deficiency Act

as no justification for “violating the purposes and objectives

of the particular appropriation statute.”

A withholding of the magnitude accomplished by the

Administrator in the instant case. if done by reserving,

would be an encroachment on congressional intent and

would be outside the purview of the Anti-Deficiency Act.

However. as previously stated. this question is not directly

before the Court since the refusal to allot was by the

Administrator and not the OMB. Consequently, all

references to legislative history which are argued as granting

impoundment authority regarding allotment cither refer to

another phase of the Act (obligation) or to unexercised

OMB reserve authority,

B EXPRESS GOALS AND OVERALL FUNDING

STRUCTURE OF THE ACT DEMONSTRATE THAT

ALLOTMENT OF AUTHORIZED SUMS IS MANDA

TORY.

(The Act] has received more thorough consideration and

has engendered more productive discussion than any

other in which | have participated during my service in

the Senate.

118 CONG REC. SIGKRI idaily et. Oct, 4, 1972) (remarks of

Senator Cooper). Since a determination of the manditoriness of

Te SS Boma Or Tat Boooet Paaminees Mascon 119%)

squatted by J Witham. The linpeunding of Lands © the Barran of Oe

Biadert VS onted in Join’ Hearinwes ce 847) Betove he Ad Hew Sah

conn vn bapoundment of bands of the Senate Comm. vn Cranprnmen

Operations and the Sabeommn. on Scperatinn of Power: of the Seteate

Com on the Juduiare, 9 Com jet Seon B46. BO CITED

allotment affects the entire Act. it is necessary to caamine

allotment in the contest of the other relevant provisions of

the Act. The Act. as Senator Cooper points out above. «as

carefully constructed. However, if allotment is conudered

discretionary. this well-planned Act reaches illogical rewults

Congressional enactments “should never be construed a»

establishing statutory schemes which are Mogical, unjest or

capricious.” Lee Fook Chucy . lmmigration & Natural

cation Serv, 499 F.2d 244, 249 HH Cor, 1970)

The logic and goals of the entire Act are essential in roter:

preting the allotment provision. A» the Court obernved

in Richards v. United States, M49 U.S. 1. Ut 1962)

We believe it fundamental that 4 section of » statue sthowk!

not be read in isolation from the contest of the whole Sct,

and that in fulfilling our responsibility im imterpreting

legislation. "we must not be guuded by a ingle seniome

or member of a sentence. but | howl’) lovk (0 the proey

sions of the » hole law . and to te otyest and pola). (flout

notes omition)

Statutory construction and the legislative histery of the Sot

cannet oxi independently of in 2 ba uum

We are not only dealing with the language of the -stute

hast we must lack a+ well to the logan of Congress ond the

breed nathonal polices whch wae cr ulenoed hy ae chat

men!

Willer «. Amacment Laterprees, Ine. WA EF Ud MD Ot

Mth Cir. nm

The Eighth Circuit reaffirmed this principle wo State Migt

wav Commas. Volpe, cting Richards and Lard Camptell »

statement of over a century age that

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appropriations committees below the authorized level -- a

common occurrence.'’ Thus. contract authority was utilized

tomsure that full amounts authorized would be made available

for obligation.'* a purpose which would be frustrated by per-

missive allotments.

Provisions of a statute should not be interpreted to frustrate

ihe goals of Congress regarding funding levels. As expressed

by the lower court in the instant case:

We find that it was Congress’ intention that the full

$18 billion be spent to control water pollution... . {T}he

legislative history ...manifests an intent to create a pro-

cedure which would insure that the total authorized funds

would be made available to states. It is this goal which

must guide us in interpreting the funding mechanism. for

if discretion in allotment would make the achievement of

this goal more difficult. it must be assumed that Congress

intended no such authorization.

New York v. Train, 494 F.2d 1033, 1042(.D.C. Cir. 1974). The

Act clearly contemplaies full expenditure of funds to imple-

ment the goal of cleaning the nation’s waters.'”

'? Under normal budgetary procedures, appropriations are often made at

a level lower than authorizations. Sce ADVISORY COMM'N ON

INTERGOVERNMENTAL RELATIONS. THE GAP BETWEEN Fe DERAL AID

AUTHORIZATIONS AND APPROPRIATIONS. FISCAL YEARS 1966-1970

(1970).

"(LJjet us put up the Federal share ia a way. with language and an

understanding. that makes it clear we are not backing off."" 117 CONG. RE«

$17446 (daily ed. Nov. 2. 1971) (remarks of Senator Muskie).

If the Administrator's argument were to be accepted. he could con-

ceivably “control” allotment to $0; it is worth considering the fate of this

program at the Administrator's present rate cf allotment. Senator Muskie

estimated that even with full allotment, it would take seven years to expend

the $18 billion. 118 CONG. REC. S18847 (caily ed. Oct. 17. 1972). At the

Administrator's present 457 rate of allotment. the optimum time for

expenditure of the full $18 billion is approximately 18 years.

p PERMISSIVE OR MULTIPLE ALL OPMENTS

WOULD FRUSTRATE THE INTENT OF THE ACT TO

ENCOURAGE LONG RANGE PLANNING

The Administrator asserts authority to allot funds for any

given year at any time and that “there ts no practical

diffe, ence in result between exercising such control at the allot-

ment or at the obligation stage.” Brief for Petitioner at 23.

Neither the contention for multiple allotments nor the asser-

tion that there is no practical difference is supportable.

Nowhere in the Act is there provision for multiple allot-

ments or disposition of funds authorized but not allotted. On

the other hand, section 205 (b) (1) of the Act deals extensively

with the reallotment of funds allotted but not obligated. The

inference is that incomplete obligation was anticipated by

Congress. but incomplete allotment was not.

The Administrator has adopted the position that funds not

allotted will be available for obligation indefinitely. Brief for

Petitioner at 25 et seg. However. there is no support for such

a contention in the Act. and the idea that the Administrator

may absolutely control release of unallotted funds forever by

multiple allotments is plainly unreasonable.

One of the primary problems with the Federal Water Pollu-

tion Control Act of 1956 was that its yearly appropriation

scheme caused uncertainty because of its failure to give notice

to the states of future federal commitments. The appropriation

method was deemed neither practical nor economical. 117

CONG. REC. $17445-52 (daily ed. Nov. 2. 1971).

»4

Contract authority?" the new method incorporated in sec-

tion 203 of the Water Pollution Control Act Amendments of

1972. was designed to allow flexibility in the planning stage

and give long range assurances to the states and local agencies

that the funds were available in the amount specified by

Congress. Representative Harsha stressed that:

It ts essential that the States, the interstate agencies and

the cities have both the ability for and a basis for long-

range planning, construction scheduling and financing

Waste treatment plants ....

118 CONG, REC. H2727 (daily ed. March 29, 1972); see 117

CONG. REC. SI7451 (daily ed. Nov. 2. 197)) (remarks of

Senator Muskie). The District of Columbia Circuit Court stated

simply, [t]he Act was passed to insure that ultimate grantees

could rely in advance on the amounts available.”” New York v.

Train, 494 F.2d at 1036-37. In Texas v. Fri, No. A-73-CA-38.

Slip Op. at 5 (W.D. Tex.. Oct. 2. 1973), the district court

saw the same issue to be one of logic:

The feeling was that without unequivocal federal financial

commitment state and local governments would have

difficulty entering into iong term contrects and financing

long term bonds. /1 is illogical to think that Congress

would inject the same uncertainty back into the system it

had sought to avoid with the allotment procedure by giv-

ing the Administrator discretion to choose the amount to

be made available to the state and local governments.

(emphasis added).

“"With a “contract authority ~ method of funding. Congress authorizes

an amount to be committed by the Administrator according to conditions and

limitations s‘«cified by law. The actual appropriation of funds by Congress is

pro forma ond takes place after obligation of funds by the Administrator. Se”

117 Cos G. Rec. $17448-S2 (daily ed. Nov. 2. 1971): U. S. Orrick OF

MAN/SGEMENT & BUDGET. CIRCULAR NO. A-34, INSTRUCTIONS ON

BUr GET EXECUTION §21.1, at 6 (1971).

Exercise of discretion at the allotment phase clearly pre-

cludes effective long range planning by states and localities --

a primary goal of the Act. Exercise at the obligation phase

would not hinder planning but would control the rate of

expenditure to qualified applicants. Conseguently. the

Administrator’ s contention that there is no practical difference

in exercise of discretion at obligation or allocment ts fallacious.

Exercise of discretion through multipie allotment frustrates

one of the primary goals of the Act -- long range planning

by states.

Moreover. the Administrator argues for discretion at both

the allotment and obligation phases. Brief for Petitioner at 23.

This would result in almost total uncertainty about the level of

funding. and render long range planning impossible.

3. THE INTERNAL LOGIC OF THE ACT READ WITH

THE REALLOTMENT PROVISION, SECTION 205 (b).

INDICATES ALLOTMENT TO BE MANDATORY.

Under section 205 (b), budget authority allotted but unobli-

gated after an initial thirty-month period is redistributed by re-

allotments to the states and continues to be available for obliga-

tion. Reallotment of unobligated funds thus permits a constant

level of funding to continue to be available to the states in order

to facilitate the accomplishment of the goals of the Act. If un-

allotted. however. the funds are never available for reallot-

ment or obligation and therefore are permanently lost to the

states.2! See New York v. Train, 494 F.2d at 1049.

21 The Act requires the Administrator to make allotments by a fixed date

under section 205 (a). Once properly allotted. section 205 (b) (1) requires:

Any sums allotted to a State .. .shall be available for obligation . . .in

such State for a period of one year after the close of the fiscal year for

which such sums are authorized.

Thus. since subsection (b) (1) is the exclusive provision for obligational

availability and since it specifies a definite obligational period, see 31 U.S.C.

§701 (b), anv amounts unallotted by the statutory date are never available for

obligation and consequently lapse. See 31 U.S.C. §701 (a) (2). Further, these

same unallotted sums can not be reallotted since only those amounts allotted

by the statutory date may be reallotted under section 205 (b) (1).

“

The reallotment procedure. read together with a mandatory

allotment provision, supports the policy of the Act to encour-

age planning. It is well established that separate provisions of

a single act should be interpreted so as to reach the ** ‘most

harmonious, comprehensive meaning possible’ in light of

the legislative policy and purpose.” Weinberger vo Hynson,

Westcott & Duaning, Inc., 412 U.S. 609, 631-32 (1973). Find-

ing allotment permissive would clearly frustrate the overall

purpose of the Act.

4. SECTION 206 (f) (1). WHICH PROVIDES FOR AD-

VANCE OBLIGATION OF FUNDS AUTHORIZED

FOR FUTURE ALLOTMENTS, IS MEANINGLESS UN-

LESS ALLOTMENT IS MANDATORY.

Section 206 (f) (1) allows the Administrator to obligate

funds in advance for a state’s particular project. even if the

funds allotted for that fiscal year have been fully obligated.

This is possible only if the authorization for the subsequent

fiscal year will ensure payment of the obligation incurred.

If a state may not be sure of the level of future allotments, as

would be the situation with permissive allotment, this provi-

sion is meaningless.

The proposition is well established that a statute must be

construed, if at ali possible, to give effect to all its pro-

visions. United States v. Menasche, 348 U.S. $28, 338-539

(1955). As the D.C. Circuit has observed:

Section 206 (f) (1) would have scant operative effect if

the ““state’s expected allotment’’ could not be known

because the Administrator had discretion to allot only a

portion of such authorization. This is further evidence of

a legislative purpose to make allotment mandatory.

New York v. Train, 494 F.2d at 1049-50.

Mandatory allotment allows the Administrator to use his

discretion as to individual projects and to exercise control over

the obligation and rate of expenditure of funds without jeop-

ardizing the level of tunding available. The reallotment pro-

vision was provided by Congress to allow the Administrator

to use discretion at the obligation phase without raising the

danger that states would Lave insufficient time to obligate

deferred projects. Cf. State Highway Commien v. Volpe, 479

F.2d 1099, 1114-15 (1973).

The Administrator argues that funds currently unallotted

will not be lost to the states because section 205 is not a once-

a-vear action. Section 205 states:

the allotment for fiscal year 1973 shall be made not later

than .... (emphasis added).

This provisior obviously contemplates only an annual allot-

ment. A system allowing more than one allotment would wreak

havoc with state planning. States must plan to accompiish

the maximum within the amounts allotted. The January allot-

ment for a fiscal year and the carryover to the next fiscal year

gives the states time to plan how best to attain their goals.

These proposed mid-way allotments do not give the states

adequate notice or time to plan the efficient use of funds. In

many cases, it would be impossible for a state to expand a pro-

gram after it is started. Plans or specifications would have to be

redrawn, and the program would have to be resubmitted to

the Administrator. If approved, bids would have to be relet.

This system is not only inefficient but clearly contrary to the

intent of Congress.

The District of Columbia Circuit Court reached the same

conclusion and observed, “the Act nowhere mentions any

type of later augmentation procedure’’ for additional allot-

ments. New York v. Train, 494 F.2d at 1049. Therefore. the

loss of funds resulting from the reallotment procedure when

allotment is read to be permissive cannot be cured by

secondary allotments not permitted by the Act.

iris

ay Fr

van aig? name tons toh

ARR MBER REA SRL ROR CA RE BETS

5 it ct alae SI

& paAeatecey Bihan

s THE OBLIGATION PROVISION AS WRITTEN INDE

CATES THAT THE OBLIGATIONAL PHASE RATHER

THAN THE ALLOTMENT PHASE IS’ DISCRE-

PIONARY.

Section 203 sets the general scheme for contract authority

and requires applicants to submit plans and specifications after

allotment. Approval is based upon satisfying the grant condi-

tions specified in section 204. Only if discretion Is present al

the obligation phase rather than at the allotment phase

can the Administrator intelligently exercise his discretion.

At this point, after allotment and the submission of plans,

the Administrator has at his disposal the information necessary

to evaluate specific projects and the needs of states -- informa-

tion not available at the allotment phase. Therefore, the

Administrator can better decide upon reductions or delays

which least damage the goals of the Act.

Discretionary allotment would hamper effective operation

of the obligation phase by precluding the exercise of informed

discretion. If a statute is susceptible to either of two opposed

interpretations (in the instant case either mandatory or dis-

cretionary allotments), the statute must be read **in the manner

which effectuates rather than frustrates the major purpose of

the legislative draftsmen.”’ Shapiro v. United States, 335

U.S.1, 31(1948). Consequently, the allotment provision should

be read as mandatory to promote the purpose of advance plan-

ning and informed exercise of discretion.

C. ALLOTMENT IS A BUDGETARY MECHANISM

WHICH IS BOTH GENERALLY MANDATORY AND

SPECIFICALLY MANDATORY IN THE CONTEXT

OF THE ACT.

Petitioner's argument that allotment is discretionary fails to

take cognizance of the characteristics of allotment as a budget-

ary tool. Allotment in the Act is a technical process in the

implementation of contract authority. The amount each state

is allotted is determined by the “ratio that the estimated cost

of constructing all needed publicly owned treatment works in

each State bears to the estimated cost of construction of all

needed publicly owned treatment works in all of the States.”’

Section 208 of Pub. L.. No. 92-500, 86 Stat. 816. See also Shinn.

The Federal Grant Program to Aid Construction of Municipal

Sewage Treatment Plants: A Survey of the 1972 FWPCA

Amendments, 48 TUL L. REV. 85. 88 (1973). The Adminis-

trator then determines, through the obligation phase. the

extent of the actual needs of the states. Allotment provides

a ceiling within which the Administrator may exercise inform-

ed discretion by evaluating proposals from the states.

Allotment has been found ministerial in other spending

enactments. In Udall v. Wisconsin, an action involving alloca-

tion of wildlife restoration funds to states. the court found the

Secretary of the Interior was “‘given no discretion in the

initial apportionment.’ 306 F.2d 790, 793 (D.C. Cir. 1962).

cert. denied, 371 U.S. 969 (1963), Apportionment in Udall is the

same as allotment in the instant case. The Udall court also

recognized that there was discretion later in the funding

process: “‘approval or disapproval of a conservation project

submitted by a state ...involves an administrative judgement

..+. 306 F.2d at 793 n.15.The same discretionary role is play-

ed by obligation in the instant case.

Also indicative of the nature of allotment in the instant case

is the practice of “apportionment” in the Federal- Aid High-

way Act, 23 U.S.C. §§ 101 et seg. (1970). The Conference

Report accompanying the Water Poliution Control Act specifi-

cally refers, questions on the interpretation of the mechanics of

contract authority funding to the Federal- Aid Highway Act.

H.R. REP. NO. 1465, 92d Cong., 2d Sess. 111 (1972). Further.

the Administrator, in his brief. recognized congressional

Ww)

references to the procedures of the Highway Act. Within

the meaning of the Highway Act, apportionment ts a ministe-

rial function -- the Secretary of Transportation has no discre-

tion. “*Apportionment’” by the Secretary among the states

according to a set formula is exactly the same as allotment.

As the Eighth Circuit Court of Appeals observed:

[The Secretary is required to apportion among the

several states certain sums authorized to be appropriated

for expenditure.

State Highway Comm'n v. Volpe, 479 F.2d 1099, 1107

(8th Cir. 1973). As authority for the sbove statement, the

Eighth Circuit cited former Federal Highway Administrator

F.C. Turner, who observed that:

There is absolutely no discretion of any kind in our office

with respect to how much any State gets in any of these

categories of funds [pursuant to the formula}. The appor-

tionment is specified in the law and we distribute it right to

the dollar.

Hearings on Executive lmpoundment of Appropriated Funds

Before the Subcomm. on Separation of Powers of the Senate

Comm, on the Judiciary, 92d Cong., Ist Sess. 80 (1971), as

quoted in State Highway Comm'n v. Volpe, 479 F.2d at

1107 n.8. The District of Columbia Circuit Court directly con-

curred in the conclusion of the Volpe court that ‘‘allotment”’

under the Highway Act is mandatory.

‘*‘{]]mpoundment™ under the Federal- Aid Highways Act

is achieved only by the limiting of contracts awarded (i.e.

obligation). There is no possibility under that Act to re-

duce at the ‘‘allotment”’ stage.

New York v. Train, 494 F.2d at 1046-47 (emphasis added).

The conferees’ reference to the mechanics of the Highway Act

is strong indication that they expected allotment to be manda-

tory.

3] >

At least four federal district courts and the District of

Columbia Circuit Court of Appeals have held that allotment

in the Water Pollution Control Act ts a non-discretionary,

administrative procedure. **

“2 Inthe lower federal court which tried the rstant case, the district court

held:

{t}he language of the pertinent sections of the Act..read in the light of

their legislative history, clearly indicates the intent of Congress to

require the Administrator to allot, at the appropriate times, the full

sums authorized to be appropriated by §207.

388 F. Supp. at679¢D. D.C. 1973). This opinion was affirmed by the District

of Columbia Circuit:

{Blelieving as we do that there is a clear distinction under the Act

between allotment and obligation and that there can be no discretion as

to the former, we find it unnecessary to consider whether an allotment

could be “augmented” in a later fiscal year; full allotment must be

made in each fiscal year.

New York v. Train, 494 F.2d at 1049. In Texas v. Fri, the district court

found:

in light of the high priority placed by Congress on the Act, the language

of the Act, and the legislative history of the Act, this Court concludes

thatthe Administrator has a mandatory duty to allot to the Plaintiffs the

sums authorized by Congress in §207 of the Act in accordance with

§205 (a).

No. A-73-C A-38, Slip Op. at 5-6(W.D. Tex.. Oct. 2, 1973), appeal argued,

No. 73-3965, Sth Cir., April 29, 1974. In Minnesota v. USEPA, it was held:

In failing to allot all of the money authorized in this matter, the Ad-

ministrator is acting in express violation of the purposes of the Act

itself as well as in violation of the purposes of the Act as set forth by

Congress.

No. 4-73 Civ. 133, Slip Op. at 13-14 (D. Minn., June 25, 1973). appeal

argued, Civil No. 73-1446, 8th Cir., Feb. 13, 1974. Also, in Florida v. Train,

the district court stated:

In view of the legislative history behind the Act and the goals sought to

be achieved by the Act it js illogical to believe that Congress accorded

the Administrator discretion at the allotment stage.

No. 73-156, Slip Op. at 6(N.D. Fla., Feb. 25, 1974), appeal argued, Civil

No. 73-3965, Sth Cir., Apr. 29, 1974,

Re eeetmay ar POLI POWER RAE A a RTT IE ER Meg, AE POLI HRS: BREMEN tu DEERME pr em Calta a SORTS SINE EES a

As these causes have recognized, the function of allotment is

merely to parcel out the authorization and is not tantamount to

expenditure by the Federal Government. The general utiliza-

tion of allotment as a ministerial procedure to divide funds

among the states rebuts the Administrator's contention that

allotment is discretionary.

D. EVENTF DISCRETION IS FOUND. THE ADMINISTRA.-

TOR’S ACTION IN WITHHOLDING FIFTY-FIVE

PERCENT OF AUTHORIZED FUNDS WAS AN ABUSE

OF DISCRETION IN LIGHT OF THE EXPRESSED

GOALS OF THE ACT.

The district court in Campaign Clean Water, Inc. v. Ruckel-

shaus, 361 F. Supp. 689 (E.D. Va. 1973). determined that the

allotment phase of the Act confers discretion on the Adminis-

trator. On appeal to the Fourth Circuit, neither party sought

review of the district court's finding of discretionary allotment.

In fact, the Fourth Circuit made emphatic declarations that the

issue of whether allotments were mandatory was not before

them. Campaign Clean Water, Inc. v. Train, 489 F.2d 492, 497

(4th Cir. 1973). Most courts have found allotment manda-

tory.** However, even if the Court held allotment discretion-

ary, the actions of the Administrator constitute a per se abuse

of discretion and are reviewable by the Court. If allotment

is held to be non-mandatory, then the issue is whether the

Administrator's decision to allot only 45% of the authorized

amount constituted a per se abuse of discretion.

The standards as contained within the Act show that 45%

allotment is aper se abuse of any arguable discretion since the

goals of the Act cannot be accomplished at this rate of allot-

ment. The purpose of establishing contract authority as the

method of funding was to facilitate state planning. A cut of 55%

in the amount of the funds allotted inhibits the ability of the

*8See id.

States to plan and thus frustrates the intent of Congress. As a

result of the Administrator's actions the states are unable to

make long range plans, with the result that the cities are unable

to determine the amount of funding they will receive from the

state. See p. 24-25 supra.

As previously stated, the amount allotted was deemed by

Congress to be the “‘minimum amount needed” to attain the

goals of the Act. See LIS CONG. REC. S16870-71 (daily ed. Oct.

4. 1972) (remarks of Senator Muskie). Therefore. a cut of

more than half the funds, before the Administrator has eval-

uated any state plans or surveys. cannot be made without com-

pletely frustrating the goals of the Act: and frustrating the goals

of the Act is not a power within the discretion of any admints-

trator.** In order for the goals of the program to be a. complish-

ed by 1985 it is essential that the states know how much money

is available for which they can attempt to qualify.

In reviewing the Administrator's actions the Court must‘

consider *“‘whether the decision was based on a consideration

of the relevant factors ... °° Citizens to Preserve Overton Park

v. Volpe, 401 U.S. 402, 416 (1971). On November 22, 1972.

President Nixcn announced that the amounts allocated under

the Act would be considerably reduced from the amounts

authorized. This announcement was made prior to any admin-

istrative examination of proposed state plans or surveys and

therefore apparently was not based on relevant water quality

factors. In fact, the expressed justification was not based on

water quality factors:

These amounts will provide for improving water quality

and yet give proper recognition to competing national

priorities for our tax dollars, the resources now available

*4*E ven if discretion is available. allotting 48° of the authorization is a

per se abuse of discretion since the 1973 °° Needs Survey” indicates that the

states presently need at least 60 billion dollars to implement their plans

USEPA. Report to the Congress: Costs of Construction of Publicly-Ow ned

Wastewater Treatment Works A-2, B-1 (1973).

for this program and the projected condition of the Fed-

eral treasury under existing [ax laws and the statutory

limit on the national debt.

Letter from President Nixon to William D. Ruckleshaus, EPA

Administrator, November 22. 1972. reproduced in Hearings

on Federal Budget for 1974 Before the House Comm, on

Appropriations. 93d Cong.. Ist Sess. 194-95 (1973); see Brief

for Petitioner at 44. Further, the Administrator directly states

in his brief that he may exercise allotment discretion “in the

interest of overall government fiscal policies that are not re-

lated to the particular program involved.” Brief for Petitioner

at 10.

Fiscal considerations are the same rationale used by Presi-

dent Nixon in vetoing the water bill. While an acceptable rea-

son for veto. fiscal considerations are unrelated to the imple-

mentation of the Act itself. Such extrinsic considerations were

attacked in State Highway Comm'n v. Volpe, 479 F.2d 1009,

1114-15 (8th Cir. 1973):

We find nothing within these provisions of the { High-

way] Act which explicitly or impliedly allows the Secre-

tary to withhold approval . . .for reasons remote and un-

related to the Act.

When the provisions of the Federal-Aid Highway Act

are considered as a whole. it is apparent that the Secretary

does not have the authority to withhold funds for ants

inflationary purposes.

The statute in the instant case does not contain provisions for

withholding for the purpose of controlling inflation. The court

in State Highway Commn ¥ Volpe, 479 F.2d at 1114, stated

that:

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.

- 7 ET er em

— —

It is clear that the decision not to allot 55° of the funds

authorized is an abuse of discretion, since it cannot be shown

that the President's decision was based on a consideration of

factors relevant to implementation of the program. In sum. the

withholding in the instant case would be a per se abuse of any

available discretion for two reasons. kirst. the 587 withhold-

ing totally frustrates the purposes of the program and secondly

the reasons for impounding were irrelevant considerations.

Il. REFUSAL TO ALLOT FIFTY-FIVE PERCENT OF

THE AUTHORIZED FUNDS IS OUTSIDE THE CON-

STITUTIONAL AUTHORITY OF THE EXECUTIVE

BRANCH.

A finding on consiitutional authority is not imperative to

render a decision in the instant case since an order could be

issued to the Administrator to follow mandatory provisions of

the Act and, given compliance. there would be no necessity

to hold on a constitutional basis.*” However. impoundment 4

a pervasive issue which has given rise to extensive litigation.

Further. the President** as well as his spokesmen*’ have

directly asserted the constitutional authority to impound. An

opinion from the Court on the constitutional framework for

impoundment would therefore prove valuable as a guideline

to lower courts. However. it should be noted that the newly

enacted Budget and Impoundment Control Act of 1974 may

have a profound effect on the impoundment issue and asser-

tions of constitutional authority .**

However. the Administrator does allude to the constitutional author-

ity of the President to control expenditures. Brief for Petitioner at 12

See none Winfra.

24S

"See note 71 infra.

”

A. THE “FAITHFULLY EXECUTE” CLAUSE OF THE

CONSTITUTION DOES NOT ACCORD DISCRETION

TO REFUSE TO IMPLEMENT CONGRESSIONAL

ENACTMENTS.

The Executive argues that the “faithfully execute’ clause

confers the right to selectively enforce or **harmonize™ alleg-

edly conflicting statutes involving federal spending. The

Administrator states:

{the President) has the responsibility to evaluate the com-

peting needs of this program and other claims on the limit-

ed total federal financial resources from which all expend-

itures are made.

Brief for Petitioner at 12. This argument implicitly interprets

“faithfully execute” as a grant of discretion and authority. In

fact. the faithfully execute clause represents a duty to perform

rather than a grant of discretion. The Executive must attempt

to execute the laws in good faith -- not circumvent the intent of

Congress.

Conflict purportedly results when Congress appropriates

more funds than are allowed to be spent under limited revenues

and a debt limit. However. this conflict, when and if it exists.

need not be resolved by unilateral executive impoundment.

Even assuming arguendo that such a conflict was presented

in this case, Congress has specified procedures for the Exec-

utive to follow in such an event. In the Budget and Account-

ing Act of 1921, section 202, 31 U.S.C. $13 (a) (1970), the Con-

gress provided that if estimated revenues for the fiscal year

plus estimated Treasury surplus carried over into that year are

less than projected expenditures. then “‘the President in the

Budget shall make recommendations to Congress for new

taxes. loans, or other appropriate action to meet the estimated

deficiency."’ (emphasis added). The legislative history of this

section clearly indicates that the word “shall’” was inserted

to mandate the Executive to return to the Congress and not to

take unilateral action. Significantly. in the precursor of this

section the language was permissive and not mandatory.2"

Notably, the Executive has often requested Congress to

increase the debt ceiling to meet excess expenditures. In fact,

from March 15, 1972 to date, Congress has adjusted the ceiling

five times.*” These legislative responses indicate Congress

generally favers increased spending over maintenance of the

existing public debt and does not wish substantive programs

to be sacrificed to maintain that ceiling. See Note. /mpound-

ment of Funds 86 HARV. L. REV. 1505, 1522 (1973).

Further, as a temporary expedient. the Executive could

draw upon the Treasury's cash reserve of $6 billion and margin

for contingencies of $3 billion to avoid exceeding the debt limit.

Congress has acknowledged that this $9 billion could be drawn

upon to pay obligations without extending the debt limit. S. REP.

No. 1292. 92d Cong.. 2d Sess. 5-6 (1972): see S. REP. NO. 249.

93d Cong.. ist Sess. 10(1973). Therefore. before there is even a

remote possibility of a conflict with the debt ceiling. the Execu-

tive could draw upon the $9 billion cushion for a considerable

*“The predecessor to 31 U.S.C.§13 (a). the “Smith Amendment.”* 35

Stat. 1027. March 4. 1909, read as follows:

[To |the endthat [the President | muy ... advise the Congress how in

his judgment the estimated appropriations could with least injury

to the public service be reduced so as to bring the appropriations with-

in the estimated revenues. or. if such reduction be not in his judgment

practicable without undue injury to the public service. that he may

recommend to Congress such loans or new taxes as may be necessary

to cover the deficiency. (emphasis added).

The essence of the “Smith Amendment” was later incorporated into the

Budget and Accounting Act of 1921. 31 U.S.C. $13. The principal difference

between the original language and the amended language ts that “*may recom-

mend” was changed to “shall recommend.”’

* Pub. L. No. 93-173( Dec. 1. 1973). 87 Stat. 691; Pub. L. No. 93-53 (July

1. 1973). 87 Stat. 134: Pub. L. No. 92-599( Oct. 27. 1972}. 86 Stat. 1324: Pub.

1. No. 92-336 (July 1. 1972). 86 Stat. 406: Pub. L. No. 92-550 (March 15,

1972). 86 Stat. 63. 31 U.S.C.A. §757 (b). note (Supp. 1974)

Ae IG Oy RNB PR We aks PY. aealeae Ai AES

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period of time without first having to return to Congress with

new recommendations.*'

Significantly, the statutory procedure required by 31 U.S.C.

§13 (a) and the other alternative modes of solution to the alleg-

ed debt ceiling conflict present a strikingly similar parallel to

the situation facing President Truman during the **Steel Sei-

zure Crisis.” The Court in Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 587 (1952), struck down the Pres-

ident’s attempted seizure of the steel mills, holding that the

seizure could not be justified under his constitutional powers.

In 1947, Congress. in rejecting an amendment granting power

to seize private industries in emergencies,** expressed its view

that it would prefer to deal with such problems itself on an ad

hoc basis pursuant to presidential recommendations. 343 U.S.

at 599-600 (Frankfurter, J.. concurring); sce 93 CONG. REC.

3637-45 (1947).

+'In some circumstances the Government might even be able to extend

payments of contracts by afew weeks, so that outlays would occur inthe next

fiscal year. Note. Impoundment of Funds, 86 HARV. L. Rev. 1505, 1$22

(1973). In fact, this Administration has on one occasion delayed payment of

general revenue sharing disbursements so as to be accounted for in the

succeeding fiscal year. THE BUDGET OF THe UNITED STATES

GOVERNMENT. 1974 -- APPENDIX 764 (1973); see Pub. L. No. 92-512, $102,

86 Stat. 919, 31 U.S.C.A. §1221 (Supp. 1974).

*2Notably. the prior congressional rejection of the power exercised by

President Truman is directly analogous to the case at bar. In recent action on

the public debt. Congress increased the borrowing power of the Government

while rejecting a limit on fiscal 1973 expenditures. Pub. L. No, 92-599 (Oct.

27, 1972), §201. 86 Stat. 1324, reprinted in 1972 U. S. Cope CONG. & ADM

News 1542. Congress specifically voted on and rejected two amendments

which would have given the Executive the discretionary power to impound

appropriated funds. 118 CONG. REC. H10282-84 (daily ed. Oct. 18, 1972): id.

at H10224-34, $18506, SI8SO8, S18S10, S$18512-30 (daily ed. Oct. .7, 1972):

id. at H9363-401 (daily ed. Oct. 10, 1972). Compare H. R. Rep. No. io14, 92d

Cong.. 2d Sess. 3-4 (1972), reprinted in 1972 U. S. Cope CONG. & ADM

News. 4976-77, with H. R. Rep. NO. 1606, 92d Cong., 2d Sess. 3-4 (1972). re-

prinied in 1972 U. S. Cope CONG. & ADM. News 4972-73; see S. REP No

1292, 92d Cong.. 2d Sess. 1-2. 7-9 (1972). reprinted in 1972 U.S. Cont

ADM. NEWS 4948-49, 4954-56.

That is precisely the policy expressed in 31 U.S.C. §13 (a):

The President cannot unilaterally do that which he can only

recommend. As Justice Clark stated: “[W]here Congress has

laid down specific procedures to deal with the type of crisis

confronting the President, he must follow those procedures

in meeting the crisis... .°° 343 U.S. at 662. Thus. given the

several alternatives available to the Executive to deal with the

alleged conflict between the debt ceiling and appropriations.

the executive branch should choose one of them rather than

circumvent the intent of a congressional enactment, as it has

done in the instant case by reducing allotments.*”

Therefore. the debt ceiling conflict cannot serve as a legal

justification for the unilateral termination of a congressionalls

authorized program. The Administrator has alleged only a po-

tential conflict. Even if such conflict were real. statutory pro-

cedures are available to resolve the conflict. procedures which

the Executive has failed to follow. Moreover. as Youngstown

has determined, when a subject is within the purview of con-

gressional power, and Congress has acted. the President may

not act in contravention of the stated legislative policy. 343 U.S.

at 386-89.

rurther, the Executive has urged the responsibility to man-

age the economy under the 1946 Employment Act. 18 U.S.C.

§§1021-25 (1970). as conflicting with expenditure statutes."!

~ “Whatever the merit of Administrator's reliance on the debt ceiling. it is

clearly a reason collateral to and remote from the purposes of the water

pollution control program. Therefore, it falls within the prohibition estab-

lished by State Highway Comm'n v. Volpe, 479 F.2d 1099, 1114 Sth Cir

1973). where the court held that the Secretary of Transportation could not

withhold funds from state highway programs for reasons remote from and

unrelated to those which Congress had established. See Guadamuz v. Ash.

368 FF. Supp. 1233. 1241 (D.D.C. 1973).

“OMB Report Under Impoundment & Information Act. 39 Fed. Ree

7707, 7708 (1974). reprinted in 120 CONG. REC. $4616, $4617 (daily ed. Mar

28. 1974); Hearings on Executive Impoundment of Appropriated Funds

Before the Subcomm. on Separation of Powers of the Senate Comm. on the

Judiciary, 92d Cong... Ist Sess. 97 (1971) testimony of Caspar Weinberger).

a? ahaa SNRs a A Ee Bi Gime ae

Say Mabe eRe RS Rt els PRR at a a WU EEA to Aba Pe ad

Bs catetartiaartttueaiin’ cats

The Employment Act was designed to institutionalize the bud-

get as an economic tool. S. BAILEY. CONGRESS MAKESALAW:

THE STORY BEHIND THE EMPLOYMENT ACT OF 1946, at

11-12 (1950). The Employment Act itself gives ne particular

power to the President. In fact. it limits him to an advisory role

and places enactment power in Congress. There is no refer-

ence to inflation in the Act, and the timing of its passage im-

mediately after World War II confirms that the main concern

was promoting an economy able to provide jobs for the return-

ing veterans, rather than fighting inflation.*° In its original form

the bill was titled Full Employment Act and was dedicated to

that goal. S. BAILEY. supra; see 15 U.S.C. §1021 (1970). A log-

ical construction of the Employment Act indicates that it con-

templates final policy determinations be:7g made by Congress.

Although recommendations from the President are envision-

ed. the provisions for a congressional committee indicate the

intent for ultimate legislative input. See 15 U.S.C. §§1022-24

(1970). The Act would, therefore, not justify impoundment

without review or approval by Congress.** See Massachusetts

v. Weinberger, Civil No. 1308-73 (D.D.C., July 26, 1973), re-

printed in 119 CONG. REC. S15044, §$15045 (daily ed. July 30,

1973). See also Louisiana v. Weinberger, 369 F. Supp. 856,

864 (E.D. La. 1973).

™Economic studies have raised questions as to the efficacy of im-

poundment as a fiscal tool. The studies indicate that current impoundments

have caused some unemployment and have failed to significantly reduce

inflation. Levinson & Mills, Budget Reform and Impoundment Control, 27

VAND.L. REV. 615, 620-21 (1974); Findings of McIntosh Foundation Execu-

tive Impoundment Project. 119 CONG. REC.S21120, §$21124 (daily ed. Nov.

27, 1973).

The Administration has also cited the Economic Stabilization Act

Amendments of 1971, 12 U.S.C. §1094 (Supp. I] 1972), as a broad grant of

power to the President to impound for economic reasons. OMB Report

Under Federal Impoundment & Information Act, 38 Fed. Reg. 19,582

(1973). However. amendments enacted in 1973 contain a direct prohibition of

impoundments underthe Act. Pub. L. No. 93-28 ( Apr. 30. 1973). §4, 87 Stat.

27. 12 U.S.C.A. §1904, note (Supp. 1974).

Thus, when juxtaposed with the statutory mandate of the

Water Pollution Control Act for full allotment and the policy

that the waters of America be restored by 1985, neither the

debt ceiling nor the 1946 Employment Act present the Execu-

tive with conflicting statutory responsibilities so as to justify

unilateral reduction of allotment under the “faithfully exe-

cute”’ clause. Reason and precedent dictate that the direction

to “faithfully execute” is not a carte blanche to arbitrarily cur-

tail some programs and execute others. See National Council

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

F. Supp. 897, 901 (D. D.C. 1973). See also National Treasury

Employees Union v. Nixon, 492 F.2d 587, 604 (1974). In a

memo regarding impoundment written while an Assistant

Attorney General, Justice William Rehnquist reasoned: “Tht

seems an enomalous proposition that because the Executive

branch is bound to execute the laws, it is free to decline to

execute them.’**’ Further. the Court has stated:

To contend that the obligation imposed on the President

to see the laws faithfully executed, implies a power to for-

bid their execution, is a novel construction of the consti-

tution, and entirely inadmissable.

Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524.

613 (1838).

The Executive's failure to faithfully execute the Water Pol-

lution Control Act, by refusing to allot, amounts to legislation,

a power clearly prohibited to the Executive. See Local 267/,

AFGE v. Phillips, 358 F. Supp. 60, 76-77 (D. D.C. 1973). See

also Guadamuz v. Ash, 368 F. Supp. 1233, 1241-42 (D.D.C.

1973). Inthe Federal Convention of 1787. the States unanimous-

ly rejected a motion “that the National Executive have a power

**Memo from William Rehnquist reproduced in Joint Hearings on S.

373 Before the Ad Hoc Subcomm. on Impoundment of Funds of the Senate

Comm. on Government Operations and the Subcomm. on Separation of

Powers of the Senate Comm. on the Judiciary, 934 Cong., 1st Sess. 390. 394

(1973).

id SD eee Blea ee a il Bes ATES BN CME SBE rk

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Si Gis ne eee SEOs Ey or BS

ie FERPA RICE

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to suspend any Legislative act.....°** As the Court stated in

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587

(1952). “the President's power to see that the laws are faith-

fully executed refutes the idea that he is to be a lawmaker.”

Clearly, the faithfully execute clause does not authorize the

Executive's actions in the instant case. In fact, the clause pro-

hibits and condemns the failure to fulfill the mandate of the

Water Pollution Control Act.

B. THE EXECUTIVE DOES NOT HAVE INHERENT

AUTHORITY TO REFUSE TO CARRY OUT THE PUR-

POSES AND PROVISIONS OF CONGRESSIONAL PRO-

GRAMS DULY ENACTED INTO LAW.

The President asserts that he has the inherent power to im-

pound,” on the basis of the constitutional provision that

‘(t]he executive Power shall be vested in a President of the

United States of America.” U. S. CONST. art. IT, §1. In deter-

mining the extent of power inherent in the presidency, there are

generally three criteria: (1) the lack of an express constitutional

commitment of power to a coordinate branch or of an express

prohibition ofits exercise by the President; (2) the historical

and customary exercise of a power by the Executive over a

KH. R. Doc. No. 398, 69th Cong.. Ist Sess. 152 (1927) (Documents I-

lustrative of the Union of American States); see id. at 753.

At a news conference held in January, 1973, the President stated:

The constitutional right for the President of the United States to im-

pound funds and that is not to spend money. when the spending of

money would mean either increasing prices or increasing taxes for all

the people. that right is absolutely clear.

9 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 11 (1973). See

also Joint Hearings on S. 373, supra note 37, at 270 (statement of OMB

Director Roy Ash); id. at 369 (statement of Deputy Attorney General Joseph

Sneed); id. at 836-37 (Dep't of Justice Answers to Questions Concerning

impounding of Appropriated Funds Posed by Sen. Ervin in his letter of Feb.

14, 1973. to the Dep. Att'y Gen.).

long period of time, coupled with tacit or express congression-

al approval; and (3) the existence of a situation that necessi-

tates executive action for the public interest. See Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-89 (1952): Fong

Yue Ting v. United States, 149 U.S. 698, 711 (1893): Legal

Tender Cases, 79 U.S. (12 Wall.; 457, 534-35 (1871).

No provision of the Constitution clearly commits the *‘im-

poundment’’ power to a coordinate branch or explicitly pro-

hibits its exercise by the President. The grant of the appropria-

tion power to Congress does not. on its face, give Congress

power over the manner in which appropriations are executed,

although this extension may be reasonably implied as a neces-

sary adjunct. However, other constitutional provisions bear

directly on the issue and provide a textually demonstrable

commitment of the power to make policy as distinguished from

merely spending. Article 1 of the Constitution vests the legisla-

tive power in the Congress. This implies that Congress alone

shall determine national policy except: (1) when a veto is sus-

tained, (2) when a statute is declared unconstitutional, or (3)

when the Constitution commits certain policymaking power to

another branch.*° One of the principal methods by which Con-

gress can determine national policy is by enacting authoriza-

tion or appropriation bills. Thus. if the Executive impounds

funds or terminates programs and thereby frustrates the con-

gressional policy underlying the authorization or appropria-

tion, he usurps the policymaking power, which article I vests in

Congress. Therefore, as to impoundments that affect legisla-

tive policv. a textually demonstrable commitment is present

Levinson & Mills. /mpoundment:A Search for Leval Principles, 26 U.

FLA. L. REV. 191, 193 (1974).

which precludes exercise of inherent presidential authority."'

Where the text is unclear, the standard is whether the prac-

tice is one of long standing and whether action or inaction of

Congress has added a gloss to presidential powers. In United

States v. Curtiss-Wright Export Corp.. 299 U.S. 304 (1936),

the Court ruled that the President was the nation’s representa-

tive in foreign affairs and cited prior congressional acts which

took cognizance of that fact. In United States v. Midwest Oil

Co., 236 U.S. 459 (1915), the Court found that even congres-

sional silence could acknowledge the existence of an executive

power, The Court emphasized, however, that the holding did

not “‘mean that the Executive [could] by his course of action

create a power.”* /d. at 474. Thus. even though an act may con-

tinually occur, it may still be unconstitutional.

The President is currently relying heavily on long standing,

congressional inaction in the face of ongoing impoundment.*”

However. the historical argument as applied to the instant case

and other contemporary impoundments is without support

since President Nixon’s impoundments are significanth dif-

ferent from those of past administrations.** Before Franklin

TSreLouisiana V. Weinberger, 369 F. Supp. 856, 864-65 (E.D. La.

1973): Guadamuz v. Ash, 368 F. Supp. 1233, 1241, 1243-44 (D. D.C. 1973);

Community Action Programs Executive Directors Ass'n of New

Jersey. Inc. v. Ash, 365 F. Supp. 1355, 1360-61 (D. N.J. 1973).

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

361 F. Supp. 897, 9010D. D.C. 1973); Oklahoma v. Weinberger, 360 F. Supp.

724, 728 (W.D. Okla. 1975); Local 2677, AFGE v. Phillips. 358 F. Supp. 60.

76-78 (D. D.C. 1973); American Ass'n of Colleges of Podiatric Medicine v.

Ash. Civil No. 1139-73, Slip Op. at 3(D.D.C., Oct. 26, 1973): Massachusetts

y. Weinberger, Civil No. 1308-73 (D.D.C., July 26, 1973) reprinted in 119

ConG. Rec, S1S044, § 15045 (daily ed. July 30, 1973); National League for

Nursing v. Ash, Civil No. 1316-73, Slip Op. at 4(D.D.C., July 10 1973),

See Joint Hearings on 8.373, supra note 37, at 389 (remarks of Dep.

Atty Gen. Sneed).

‘Levinson & Mills, /mpoundment: 4 Search for Legal Principles,

supra note 40, at 198-99 (1974), see Fisher, /mpoundment of Funds:

Uses and Abuses, 23: BUFFALO L. Rev. 141, 143-70 (1973); Miller,

Impoundment: The New Constitutional Crisis, THE PROGRESSIVE, March

1973, at 1S.

D. Roosevelt there were but isolated instances of impound-

ment,'! President Roosevelt impounded only public works and

military appropriations."” The aaministrations of Presidents

Truman, Eisenhower, and Kennedy reveal no pattern of im-

pounding domestic non-military appropriations.” Further,

two Presidents specifically stated they felt they did not have

the power to affect statutory policy by controlling spending."

Not until the Johnson Administration have amounts been im-

pounded from domestic programs for fiscal reasons. How-

ever, the Johnson precedent, less than ten years old, provides

no support for similar action by his successors. The Nixon

impoundments, while similar in the aggregate amounts involv-

ed, are qualitatively different. The Johnson impoundments had

relatively minor impact upon most programs.** In contrast,

President Nixon has deliberately and frankly imposed his own

"See Stanton, The Presidency and the Purse: Impoundment 1803-1972,

45 U. Coto. L. REV. 25, 26-28 (1973).

"Williams, The Impounding of Funds by the Bureau of the Budget,

reprinted in Joint Hearings on §.373, supra note 37, at 844,

"See Fisher, Presidential Spending Discretion and C ‘ongressional Con-

trols, 37 LAW & CONTEMP. Pros. 135, 162 (1972).

"With regard to his own exercise of spending discretion, President

Franklin D. Roosevelt. a proponent of a strong presidency, stated: “[o}ur

Statutory system of fund apportionment is not a substitute for item or blanket

veto power and should not be used to set aside or nullity the expressed will of

Congress....°° Letter from President Roosevelt reproduced in part in

Hearingson H.R. 3598 Before a Subcomm. of the Senate Comm, on Appro-

priations, 78th Cong., Ist Sess. 739 (1944), President Kennedy also rejected

a broad power to impound with regard to federal funds to be given to segre-

gated schools. Although he believed such funding violated the equal protec-

tion and due process clauses as interpreted by the Court, he stated: “I don't

have the power to cut off the aid in a general way... .and | think it would

probably be unwise to give the President of the United States that kind of

power.” N.Y. Times, April 20, 1973, at Hl. col. 8,

Note, /mpoundment of Funds, 86 HARV. L. Riv. 1808, 1812 (1973):

Findings of McIntosh Foundation Executive Impoundment Project, 119

CONG, REC. S21120, S21125 (daily ed. Nov, 27, 1973),

ROT) reds eohaew) en “ ‘ - 8 ee ere

priorities,*” and has thereby frustrated the intent of Congress

with regard to numerous domestic programs.” This policy-

oriented series of impoundments ts unsupported by tradition’!

and. therefore, can not justify reliance upon inherent authority

as a predicate for terminating congressionally authorized pro-

grams,

The public interest factor, the third criterion for recognition

of inherent executive power, applies only to saort-term reac:

tions to emergency situations, In re Neagle, 135 U.S. 11890),

where legislative ratification is expected, United States v. Mid-

west Oil Co., 236 U.S, 489 (1915), In the instant case no such

emergency has even been alleged by the Administrator.

Further, even a purported ‘national emergency" is notalways

sufficient to sustain a claim of inherent power. In Youngstown

Sheet & Tube Co. v. Sawyer, 343 U. S. §79 (19582), the Court

ruled that the President was not empowered to seize the steel

mills in order to maintain production for the war effort.

Moreover. even if a “national emergency” of a magnitude to

justify 58% allotment reduction was in existence, there is no

expectation of legislative ratification. United States v, Mid-

west Oil Co., 236 U.S. 459 (1915). To the contrary, congres-

sional response to this kind of behavior by the Executive has

been severe.”*

Wt is difficult to deny that President Nixon himself felt that allotment of

authorized funds was mandated by the Act, precisely because he vetoed iton

the grounds that it was too expensive. There was no point in the veto-if the

unfettered discretion the President now asserts had existed. In effect, the

President has reinstated the veto which Congress ov errode by merely read-

ing the statute as he chose.

Fisher, Lmpoundment of Funds: Uses and Abuses, supra note 43, 4

169-88: Levinson & Mulls, Bialget Reform and impoundment Control, 2

VAND L. REV 618, 618, 620 (1974), Levinson & Mills, Jarpoundment

Search for Leval Principles, supra note 40, at 199,

—

‘Yd: Joint Hearings on 8, 373, supra note 37, passin: Hearings on

Evecutive Impoundment, supra note 44, passim

“The new Congressional Budget and Impoundment Control Actot 1974

has restricted authority to accomplish withholding such as that accomplished

in the instant case. See note 7h infra,

Another limitation to inherent power, which is particularly

related to President Nixon's impoundments, was stressed in

Curtiss-Wright, 299 U.S. 304(1936), where the Court recogniz-

ed a distinction between inherent power in the realms of for-

eign policy and domestic affairs. The Court stated that inherent

powers were much more restricted in the domestic arena. id.

at 320, in which most of President Ni..on's IMpoundments have

occurred, including the instant case. See OMB Report Under

Federal Impoundment & Information Act, 38 Fed. Reg.

19.581 (1973). Thus, the impounding of domestic pro-

grams can derive little authority from the President's foreign

affairs powers. See Guadamuzv. Ash, 368 F, Supp. 1233, 1243-

44 (D.D.C 1973); National Council of Community Mental

Health Centers, Inc. v. Weinberger, 61 F. Supp. 897, 901

(D.D.C. 1973). To conclude otherwise would justify domestic

executive action on a foreign policy basis fer almost any act

imaginable. The distinction between the President's domestic

and foreign affairs powers is meaningful only upon the assump-

tion that some activities are regarded, for these purposes. as

being too remote from foreign affairs. Impoundment of domes-

tic program funds has only an indirect connection with foreign

affairs, and does not invoke the foreign affairs power in the

way indicated by Curtiss-Wright,

No constitutional authority in the Executive. inherent or

otherwise. grants the power to usurp prerogatives of another

branch or ignore duly enacted laws. The Constitution recog:

nizes specifically the Executive's role regarding the enactment

of laws. The concept of inherent authority cannot be used as a

means of appending an unconstitutional veto power to the leg

timate executive duty to implement legislative policy. The

Presider? must not be allowed to accomplish through im-

poundment that which he could not accomplish through veto of

the Water Pollution Control Act.

C. THE EXECUTIVE'S REFUSAL TO IMPLEMENT THE

WATER POLLUTION CONTROL ACT, EVEN AFTER

PASSAGE OVER AN EXECUTIVE VETO. REPRE-

SENTS AN UNCONSTITUTIONAL EXPANSION OF

THE VETO POWER.

The President's role in legislation is made clear in the veto

provision of the Constitution, Art. 1. $7. When Congress pass-

es a bill, the President has the power to veto it, after which it

returns to Congress and may be overridden. Discussions of the

veto power in the Constitutional Convention show that a veto

without override was considered (termed absolute negative”)

but was rejected unanimously as placing too much authority in

the hands of a single man.** In the case at bar. the unilateral

refusal to implement a duly enacted statute deprived Congres»

of its constitutional opportunity to override President Nixon's

veto” accomplished by means of impoundment. If the Presi-

dent frustrates the will of Congress by impounding. with no

opportunity for congressional override. he achieves the equiv-

alent of an absolute veto. In the instant case. the use of the con-

stitutional veto had already been overrden and the impound-

ment operated as a second and absolute veto.

Moreover. the Executive in the instant case has exercised an

unconstitutional item veto by failing to allot 55° of authorized

funds. while allotting the balance. The Constitution makes no

provision for an item veto and the numerous proposals to intro-

duce this feature into the Constitution have been rejected.**

? § £icsor, Desates On Tat Adortios Ov Tue Peoewat

CONsTiTUTIo® 141-44. $% MH fee 194i)

+ Comer. Tee Peestoest Orrick ASD Powtes m0 1tth od

941 Bo Wart act. Concarssion al Contam On Prorat SPENDING

(41-42 (196, cee Note, The Item Veto in the Ameran Constitutional

Svatewe, 24 Geo LF. 106(19%Od Jott Hearings on § 473, supra note 87, at

110-14 (Attachment to Statement of Comp. Gen bimer Stast>)

Congress overrode the presidential veto of the Act by » sub-

stantial margin and it should have henceforth been implement-

ed consistent with the expressed will of the Act. Refusal to

carry out the Act amounted to 4 circumvention and an addition

to the constitutional process of veto.

Il, THE SOVEREIGN IMMUNITY DOCTRINE ISNOBAR

WHEN THE ADMINISTRATOR FAILS TO PERFORM

A STATUTORY DUTY OR EXCEEDS HIS DISCKE-

TION.

The assertion of sovereign immunity has been almost uni-

formly rejected in impoundment cases*® and does not present

a bar to justiciability in the instant case. Rejection of sovereign

immunity is supported by the reasoning that the doctrine is not

intended to protect actions outside the law. The doctrine of

wvereign immunity has been continually eroded both through

specific waivers** and a general narrowing of the doctrine’

although it is still routinely raised by the Government.**

“New York v. Train, 494 F.2d 1033, 1048-9 DC Cir, 1974): Cam-

pan Clean Water, Inc. + Train, 489 F 2d 492. 495 14th Cir, 1973) State

Highway Comm'rs Volpe. 479 F.2d 1099, 112308th Cir, 1979): Louisiana +

Weinberger, M9 F. Supp. 8%. 861-62 (FD. La. 1973): CGuadamuz ¥. Ash.

48 F.Supp. 123°, 12381D. D.C. 1973): Browns Ruckelshaus, 364 F. Supp

298, 26110. D. Cal. 1973); National Council of Community Mental Health

Centers, Inc. ¥. Weimberger, Wi f Supp. 897, WOKD DC. 197%: Local

Housing Authority of San Francisco + HUD, 340 F. Supp. 654, 656.N_D

Cal 1972); San Francisco Redevelopment Agency + Nixon, 329 F Supp

672 (ND. Cai. 1971)

“Two major examples of general waivers of immunity ate the Tucker

Set, 28 U S.C. $1491 (1970), and the Tort Claims Act of 1946, RU SO

91346 1b) 1 1970): specific statutes alo allow suit against individual agencies.

we. «., Housing Act of 1997. 42 US. 61401-3561 197H)

“Eee. Land ¥. Dollar, 130 U8. 731 (19487)

“See Hearings on Sinercign Immunitn Before the Sub omm. on

(dministrative Practicn and Prwedure of the Senate Comm. on thy

Judiciary, Wt Cong, 1b Sess 8-W, 64-75 (1970)

7 — o — —F ere Oe eR Sees

A. THE ADMINISTRATOR'S ACTIONS ARE IN VIOLA-

TION OF HIS LEGAL DUTIES UNDER THE ACT AND

CONSEQUENTLY SUIT MAY BE BROUGHT

THROUGH AN “OFFICER SUIT.” A WELL ESTAB-

LISHED EXCEPTION TO SOVEREIGN IMMUNITY.

Judicial review has been made available when the officer or

federal agency has acted in excess of its statutory authority.

acted in an unconstitutional manner, or acted pursuant to an

unconstitutional grant of authority. Dugan v. Rank, 372 U.S.

609. 621-22 (1963); Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682, 689-91 (1949). In addition. Rockbridge v.

Lincoln, 449 F.2d $67, $72-73 (%h Cir. 1971), established that

the exception applies when an official fails to perform a statu-

tory duty. An action. within the exception to the doctrine,

against an official or agency is commonly known as an “officer

suit.” The philosophy behind the exception to the sovereign

immunity doctrine is expressed in The Floyd Acceptances, 74

U. S. 666, 676-77 (1868):

We have no officers in this government. from the Presi-

dent down to the most subordinate agent. who does not

hold office under the law, with prescribed duties and limit-

ed authority.

It is explicitly alleged in the instant case that the Administra-

tor not only acted beyond his statutory authority in failing to

comply with the mandatory allotment. but he also acted in an

unconstitutional manner. All courts which have ruled on the

Water Pollution Control Act impoundments have found that

sovereign immunity presents no bar to judicial review when

———————————

there is an allegation and subsequent finding of violation of

statutory or constitutional duty.

Of the over sixty impoundment cases decided to date” in

"Judge Merhige. in Campaign Clean W ater, Inc. v. Ruckelshaus, OI

F. Supp. 689. 694-95 (ED. Va.) remanded with directions sv nom. Cam-

pain Clean Water, Inc. v. Train, 489 F.2d 492 (4th Cir. 1973). held-

‘ae Instant matter squarely falls .. .within a well-settled exception to

the sovereign immunity doctrine... .suit may be brought against an

officer of the United States to challenge an action which alleved/y eX-

ceeds statutory authority or, if within the scope of authority. is pre-

Mised upon a power which is unconstitutional... . The complaint

alleges that the defendant has exceeded his statutory authority in

impounding funds. If sustained on the merits. plaintiff will come with-

in the above recited exception to the doctrine. (emphasis added).

In New York v. Ruckelshaus. WR F. Supp. 669. 673(D. D.C. 1973). aff'd sub

nom New York v. Train, 494 F.2d 1033( D.C. Cir, 1974), Judge Gasch held:

plaintiffs action falls sguarely within the exception covering suits

challenging actions by federal officers which go beyond the scope of

their statutory powers.

Phe court in Brown v. Ruckelshaus noted:

Both complaints alle ve that the E PA has exceeded its Statutory author-

ity in impounding the authorized funds. If sustained on the merits.

Congressman Brown and Los Angeles would fall within the

exception... .

64 F. Supp. 258. 261(C.D. Cal. 1973) (emphasis added). See New York v.

Train, 494 F.2d 1033, 1038(.D.C. Cir. 1974); Campaign Clean Water. Inc. v.

Frain, 489 F.2d 492. 495 (4th Cir. 1973). Further. other courts considering

impoundment cases have consistently ruled that allegations of breach of

“Matutory duty defeat any claim of sovereign immunity. In Louisiana

4 cinhereer, 69 F. Supp. 856, 861-62(E.D. La. 1973). the court maintained:

It has now been held in several cases that the sovereign immunity

doctrine does not bar impoundment suits which are based on the

allegation that defendants’ actions are beyond the scope of their

Satutory authority and are. therefore. unconstitutional. (emphasis

added).

“The most comprehensiv> collection of impoundment cases decided by

federal courts is L. Fisuer.C JRT CASES ON IMPOUNDMENT OF FUNDs

4 PuBLic PoLicy ANAL ysis (Congressional Research Service. Library of

Congress. multilith. March 15. 1974),

2 hake DUN Sy ltle

Rte DieRe Ae ent = et

ot ee ee

OR OSCR

ales sch eteRlgPn on

inte ab

Soe SR ae NO.

Brite: itt 20

ee EE NS rn Pee

4”

which sovereign immunity has been raised, only one has ac-

cepted the defense of sovereign immunity.®! Housing Author-

itv of San Francisco v. HUD, 340 F. Supp. 654, 656(N. D. Cal.

1972). In this case, the district court interpreted the statute

involved to be discretionary. Sovereign immunity applied since

the Administrator, in the court's understanding, acted within

the discretionary language. Given this conclusion, the holding

is consistent with the doctrine of Larson.

An additional restriction to waiver of sovereign immunity

exists where a judgement **would expend itself on the public

treasury or domain or interfere with the public administra-

tion.”’ Land v. Dollar, 330 U.S. 731, 738 (1947). This was fur-

ther detailed by the Court in Larson to allow sovereign immu-

nity to prevent a suit where judgement "will require affirmative

action by the sovereign or the disposition of unquestionably

sovereign property.”” Larson v. Domestic & Foreign Finance

Corp., 337 U.S. 682, at 691 n.11 (1949). The Ninth Circuit

interpreted Larson as applying where “relief sought would

work an intolerable burden on governmental functions. out-

weighing any consideration of private harm.” Washington v.

Udall, 417 F.2d 1310, 1318 (9th Cir. 1969).

The instant case involves no expenditure on the treasury

or interference with public administration. If anything, the

action in the case at bar promotes compliance with public ad-

ministration according to the law. Further, there is no expend-

iture from the treasury for two reasons. First. ordering the

"'In another case. San Francisco Redevelopment 4 gency v. Nixon, 329

F. Supp. 672(N.D. Cal.1971), the district court avoided consideration of the

exception to sovereign immunity by simply holding that mandamus would

not lie io force President Nixon to allot funds. The court believed it could not

direct a mandate toward the person of the President. This view, however. has

been overruled. k.v., National Treasury Employees Union v. Nixon, 492

F.2d $87. 6161 D C. Cir. 1974).

st Ra a ll A 0

§3

Administrator to allot results only in funds being made avail-

able for obligation and does not result in expenditure.** Second,

the funds are already authorized to be expended by law; there

is No uNconsented 4rain on the treasury -- “the sovereign” has

already consented to expenditure by making a law allowing

expenditure.“* The Ninth Circuit in Rockbridge similarly

reasoned:

“In New York v. Ruckelshaus, 388 F. Supp. 669, 673 (D. D.C. 1973),

Judge Gasch held:

Defendant is not aided by the general rule set forth in Land vy.

Dollar... for. . the relief sought by plaintiff in this action does not

a. Pequire the expenditure of unappropriated public funds (or indeed of

any public funds at all). nor will it interfere with the law ful exercise of

defendant's discretionary powers under the Act... . Plaintiff is de-

manding only that funds be allotted as, in its view. Congress required.

Similarly. it was held in Brown v. Ruckelshaus. ¥64 F. Supp. 258. 261(C_D.

Cal. 1973):

Here the suit is... .requesting relief that does not require the expendi-

ture of any unappropnated funds. They only ask for the allotment of

the funds. and the EPA retains the discretion not to incur any obliga-

tion to expend them. There is no interference with the lawful exercise

of Defendant's discretionary powers under the Act.

The district court in Texas v. Fri held:

the relief would not cause the expenditure of any unappropriated funds

but only the allotment to the States of such funds... While these

funds would become available for obligation, they would not thereby

become obligated until Defendant approves a specific grant.

No. A-73, CA-38, Slip Op. at 3(W.D. Tex.. Oct. 2. 1973). appeal argued,

No. 73-3965, Sth Cir.. Apr. 29, 1974,

“Lower courts have consistently held that sovereign immunity is not a

bar if the funds to be expended have already been authorized or appropriated

by Congress. In National Council of Community Mental Health Centers.

Inc. v. Weinberger, Wl F. Supp. 897, 900 (D. D.C. 1973). the court held:

[A}ny affirmative order of this Court would be premised on a determi-

nation that official action by the defendants in refusing to spend és

beyond their statutory or constitutional powers. This would go no

further than to require the spending of funds already appropriated by

Congress to achieve the declared purposes of the Act. Accordingly.

there can be no effective assertion of sovereign immunity and the

defendants’ actions are reviewable by the courts.

(cont'd)

Beretta remade an Oe oo SRC

Appellants are not seeking money damages from the

government, nor are they seeking to assert some right

against it or to block a government project. The relief

they seek does not in any way affect the sovereign power

of the United States. The government is not asked to give

up a right, to grant a concession, to dispose of property

or to relinquish authority. Appellants merely seek a court

order directing certain government officials to perform

acts which Congress has already directed those officials

to perform....

449 F.2d 567. 573 (9th Cir. 1971).

Judgement in the case at bar is not an ‘intolerable burden”

but merely an enforcement of a duty. The action does not seek

the actual expenditure of funds, but is only seeking perform-

ance of a ministerial act. The Executive may not rely on the

doctrine of sovereign immunity to frustrate the will of the sov-

ereign. The Constitution vests control over the government s

property and grants the power to appropriate and legislate to

Congress. When Congress enacts a law to expend, as with the

Water Pollution Control Act. enacted over presidential veto.

** (cont'd)

(D.D.C. 1973). held:

the relief which the Plaintiffs seek would not be a drain on the public

purse. No injunction to spend unappropriated funds ts sought...

{A]ny order of this Court requiring the defendant to act in accordance

with the mandate of Congress would draw upon funds appropriated

for that purpose.

In State Highway Comm'n vy. Volpe, 479 F.2d 1099, 1123 (8th Cir. 1973). the

Eighth Circuit Court of Appeals maintained:

we do not consider the court's decree . .as being affirmative in nature.

It requires only that the defendent officers cease unauthorized ac-

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

gress has already authorized them to be appropriated and expended.

the sovereign has expressed its will.“ The Administrator

alleges “plaintiff is seeking to compel a government official to

furnish him with greater government funds than the official be-

lieves is appropriate ....°° Brief for Petitioner at 37-38. The

observation is exactly true and demonstrates precisely why

States and municipalities must seek to compel the ‘official’ to

perform his duty according to statutory intent as interpreted by

the Court rather than according to what the official “believes

is appropriate.”’

B. THE ADMINISTRATIVE PROCEDURE ACT OPER-

ATES AS A WAIVER OF SOVEREIGN IMMUNITY

AND PERMITS REVIEW OF THE ADMINI-

STRATOR’S REFUSAL TO ALLOT.

While sovereign immunity can be avoided by the “officer

suit.” it is also waived by the APA. which would likewise

allow review in the instant case. The provision which supports

waiver is section 10. 5 U.S.C. §702. Whether section 10 con-

stitutes a basis for waiver of sovereign immunity has been a

much debated issue. The Administrator summarily alleges the

APA is nota waiver of sovereign immunity, citing Blackmar v.

Guerre, 342 U.S. 512. 515-16 (1952), in which the statement

was made: “"Still less is the Act to be deemed an implied

waiver of all governmental immunity from suit.’

Of course the argument in the instant case is not that there

is a general waiver of all immunity but that the A PA, in in-

stances where an administrator exceeds his authority, grants

the right to review to ** [a] person... .adversely affected or

aggrieved by agency action. ..."° 5 U.S.C. §702 (1970).

“In effect. the enactment of legislation to dispose of property is a waiver

of sovereign immunity. See Comment. Presidential Impounding of Funds:

The Judicial Response, 40 U. CHL L. REV... 328. 349 (1973). Waiver is

undisturbed by later administrative actions contrary to congressional policy.

Clakamas County v. McKay. 219 F.2d 479, 493 ( D.C. Cir. 1954), vacated as

moot, 349 U.S. 909 (1955).

Sovereign immunity has been increasingly abrogated by find-

adopt this position."* Although a majority of circuits have not

accepted the proposition that the APA is an implied waiver.

the better conclusion is that an act which shows as one of its

goals reviewability of agency action would contemplate a

waiver of sovereign immunity to allow that review.*’ As the

Es D.C. Circuit has reasoned: ** It seems axiomatic to us that one 7

3 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 illu-

sory.” Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 874

(D.C. Cir. 1970).

C. SOVEREIGN IMMUNITY IS SPECIFICALLY

WAIVED BY SECTION 505 OF THE WATER POL-

LUTION CONTROL ACT.

One method of removing sovereign immunity is by specific

waiver. The Act contains such provisions under which a

citizen is given jurisdiction to sue an administrator for alleged

failure to perform an act which is not discretionary under the

statute. Respondents in the instant case fall within the purview

of the statutory waiver:

ah Dieta MERLE AG AERA EE EN EER

‘>See Student Project. Federal Administrative Law Developments -

1971, 1972 Duke L. Rev. LIS, 244. ~

*6Scanwell Labs.. Inc. v. Shaffer, 424 F.2d 859, 873 (D.C. Cir. 1970):

Oi aE

Kletschka v. Driver. 411 F.2d 436, 445 (2d Cir. 1969); Estrada v. Ahrens, 296

F.2d 690(Sth Cir. 1961): See Warner v. Cox, 487 F.2d 1301, 1304-05 (Sth Cir.

; 1974) (APA constitutes general waiver except in actions ex contractu for

é money damages). <

F ‘7 4¢cord. Constructores Civiles de Centroamerica, S.A. v. Hannah,

‘ 459 F.2d 1183, 1191 (D.C. Cir. 1972); Local 2677, AFGE v. Phillips, 358 F.

3 Supp 60, 69 (D. D.C. 1973).

i :

CITIZEN SUITS

Sec. 505 (a) Except as provided in subsection (b) of this

section. any citizen may commence a civil action on his

own behalf --

(2) against the Administrator where there is

alleged a failure of the Administrator to perform any

act or duty under this Act which is not discretionary

with the Administrator.

The district courts shall have jurisdiction, without regard

to the amount in controversy or the citizenship of the

parties, to enforce such an effluent standard or limitation,

or such an order, or to order the Administrator to perform

such act or duty, as the case may be. and to apply any

appropriate civil penalties under section 309 (d) of this

Act. [emphasis added ]

(g) For the purposes of this section the term

‘citizen’ means a person or persons having an interest

which is or may be adversely affected.

GENERAL DEFINITIONS

Sec. 502. Except as otherwise specifically provided.

when used in this Act:

(5) The term ‘person’ means an individual.

corporation, partnership, association, State, municipal-

ity, commission, or political subdivision of a State. or

any interstate body.

The foregoing provisions eliminate the need for the Court to

consider jurisdiction over the subject matter and parties to this

suit. These provisions require only an allegation that the

Administrator has failed to perform a non-discretionary act to

acquire jurisdiction. That is the allegation in the instant case

with regard to allotment.

It is noteworthy that for the first time, before this Court, the

Administrator alleges as a defense Respondents’ failure to

comply with the sixty-day statutory time limit in section S05S(b).

It is not appropriate for the Administrator to plead prior igno-

rance of this provision, for it would then be difficult to argue

that Respondents should be held to Know what the Administra-

tor did not. Even so, the Administrator could not convincingly

plead ignorance, for in Brown v. Ruckelshaus, the court noted

the temporal defect challenged here, stating that it might be

grounds for dismissal. 364 F. Supp. 258, 265 n.10 (C.D. Cal.

1973). Notably, the court in Brown relegated this point to a

footnote and proceeded to hear the case on its merits. Since

Brown was decided a month before the Fourth Circuit heard

Respondent's case, the Administrator should have known

about the defense. Thus, by failing to object and pleading the

instant case on the merits, the Administrator waived any pro-

cedural irregularity arising out of the failure to give notice in

exactly the manner prescribed by the statute. Cf. Arp v.

United States, 244 F.2d 571, 574 (10th Cir.), cert. denied, 355

U.S. 826 (1957).

The Administrator has argued that Respondents have access

to the district court only under the provisions of section 505(a)

(2), even though Respondent did not invoke it. Brief for Peti-

tioner at 40-41. However, section 50S(e) specifically states

that:

Nothing in this section shall restrict any right which any

person (or class of persons) may have under any statute

or common law to seek enforcement of any effluent

standard or limitation or to seek any other relief inc/ud-

ing relief against the Administrator or a state agency).

(emphasis added).

This language is expressly contrary to the Administrator’ s con-

tention that section 505 is the exclusive method for waiver of

sovereign immunity. Having alleged that the Administrator

has failed to perform a ministerial duty owed to it by the

ae ag i a rma

Administrator, Respondent stands on its invocation of juris-

diction under 28 U.S.C. §1331 and § 1361 -- which, according to

section 505 (e), it has the privilege of doing.

It is pertinent that section 304 (a) (2) of the Clean A Actof

1970, 42 U.S.C. §1857 h-2 (b) (2). is substantially the same as

section 50S (b) (2) of the Water Pollution Control Act in requir-

ing sixty days notice to the Administrator prior to filing suit.

See S. REP. NO. 414, 92d Cong., Ist Sess. 79(1971). Failure to

comply with the sixty-day limit in the Clean Air Act was the

subject of Riverside v. Ruckelshaus, 4 ERC 1728 (C. D. Cal.

1972), in which the plaintiffs admittedly failed to give the

Administrator sixty days notice before filing the action. How-

ever, the court found “substantial compliance by plaintiffs

within the sixty-day notice provision’ because:

1) The plaintiffs filed their complaint on September 6, 1972.

Personal service of the complaint on the Administrator

constituted actual notice of the plaintiffs’ demand for

action by the Administrator,

2) Sixty days elapsed between the filing date and the date that

hearing on plaintiffs’ request for injunction was complete

and the court rendered its judgment.

3) During that sixty-day period, the Administrator had all

the beneficial effect of the sixty-day notice Pp OVISION, so

that the purposes of the provision were fulfilled.

4) During the sixty-day period in which the action was pend-

ing, the Administrator not only failed to comply with

plaintiffs’ request. he reiterated publicly his intention not

to do so.

Id. at 1730-31. All of these elements are also present in the

instant case.

Even more to the point is the conclusion of the court in

Riverside that the complaint itself can consitute notice so long

Ss “diligent prosecution” of the complaint does not commence.

wr sixty days has elapsed. See 4 ERC at 1731. Cf. United

States v. Spreckels, 50 F. Supp. 789, 790 (N.D. Cal. 1943).

Another case, Montgomery Environmental Coalition \. 414i,

366 F. Supp. 261 (D. D.C. 1973), which considered the effect of

the sixty-day limitation under section 505 (a) (2), reached a re-

sult comparable to that in Riverside under different facts. The

Montgomery court was considering an “amended complaint’

which was, in effect, a supplemental pleading subject to the

sixty-day limit. /d. at 265. The court felt that since the viola-

tions alleged in the supplemental pleading did not create sur-

prise or prejudice the rights of the defendants, nor frustrate

the congressional purpose of the provision -- which was “‘to

give the ‘State and Federal governments’ sufficient time to

‘develop fully, and execute the authority contained’ in section

1342,”’ there was justification for waiving the provisions for

sixty-day notice. /d. at 266.

It is clear that the purpose of section 505 (a) (2) is to enlarge

citizens’ access to the courts to enforce the provisions of the

Act. Its function is not, as one court has stated regarding the

Ciean Air Act, a mechanism whereby failure to precisely

comply causes plaintiffs tc forfeit their statutory right to be in

dist.ict court. Highland Park v. Train, 374 F. Supp. 758, 768

(N.D. Ill. 1974). Where a statute provides judicial review of

an administrative action, it should not be prohibited absent

clear and convincing evidence that such denial was the legisla-

tive intent. Cf. City-vide Coalition v. Philadelphia Housing

Auth. 356 F. Supp. 123 (E.D. Penn. 1973).

In Riverside, the plaintiffs had the benefit of the regulations

promulgated by the Administrator in December 1971 regarding

the Clean Air Act. See 40 C.F.R. §54.3 (a) (1972). These regu-

lations specified the elements required for giving notice of

alleged failure of the Administrator to perform a ministerial

act. The requirements are: (1) identification of the provision

of the Act allegedly requiring an act by the Administrator; (2)

description with reasonable specificity of the Act claimed not

done by the Administrator; and (3) name and address of the

person giving notice, As the court found, all of these elements

were included in the Riverside complaint which constituted

compliance with the notice requirements under the reguleton

Significantly, all of these clements were abo present m Re

spondents’ complaints in the instant case.

In the instant case. however. the Respondents had se

benefit of guidelines regurding notice requirements wader the

1972 Water Pollution Control Act Amendments. These regulle

tions, 40 C.F.R. $135.3 (b) (1973). were not promulgated

until June 1, 1973, some six months after filing of Respondents

366 F. Supp. 261, 266 (1973). Thus. Respondents had me

regulation regarding notice with which to comply. and a» the

court in Riverside concluded, it is not unreasonable to comeder

the filing of a complaint as notice. This statement soem cope

cially apt when the requirements for notice are not yet wm eee

ence. Moreover, the complaint complied with all the requere

ments for adquate notice as subsequently defined by the

Administrator. 40 C.F.R. $135.3 (b) (1973). Notably. these

regulations were virtually identical to those promulgated

pursuant to the notice provisions of the Clean Aw Act

Compare 40 C.F.R. $135.3 (bh) with id. 984.3 cd

Petitioner errs in its conception of the application of the

sixty-day time limitation. The Administrator reasons thet smce

only forty-eight days elapsed from the Adminictrater’s se

nouncement of abbreviated allotments until Ming of Ke

spondent Campaign Clean Water's complaint of Jamuey 1*

the statute could not have been complied with Brief foe

Petitioner at 41. First. this conception ignores the passivity of

giving notice under the provision of the Act Melee the

public announcement. Even more important. however @ the

shaus, 4 ERC at 1731. it ignores that the salt was mot reds

“commenced” until well beyond the sixty days. te the some

that it was not argued until more than saty days after fidl amg tha

complaint. Further, the sixty-day notice deadline shold mot be

applied rightly when the Administrator can be presumed to

have constructive notice of the omission of which Respondent

has complained.

Section 207 itself requires that allotment occur not Later than

thirty days after October 18, 1972. Thus. November 17 was

the statutory deadline. If the Administrator is held to notice

of what the statute says, the failure to allot fully by November

17 was a violation and the Administrator had notice of his

srolation under the Act. Thus. filing by Respondent on January

15. 1973, was just hours short of the required sinty-day delay.

The notice provision is meant to give the Administrator fai

warning of his omission. In the instant case. the Administrator

had not only fair warning of the objection to his action in re-

ducing allotment, he was acutely aware of it, There is no

pemuasive reawn for the sixty-day requirement when the

Administrator makes clear bis intention to behave in 4 given

way according to his own interpretation of the Act. The ques:

tion then becomes one of law rather than of fact, and no

amount of fact-finding by the Administrator will cure the con-

troversy ~ only immediate recourse to the courts. As well,

the Administrator has not alleged that he received no notice

from Respondents. In the absence of promulgated regulations.

it would seem only equitable that any communication from

Respondent would comply. expecially if it contained at least

those elements specified by the Administrator pursuant to the

Clean Ait Act. Since the Administrator failed to timely pro-

mulgate regulations defining notice as explicitly required by

section $05 (b) (2). he can hardly be heard to complain if 4

court's view of “notice” is not his own,

iV. DETERMINING THE ADMINSTRATOR'S AUTHOR:

TY TO ALLOT LESS THAN AUTHORIZED &-

MOUNTS IS JUSTICIABLE AND NOT BARRED

FROM REVIEW BY THE POLITICAL QUESTION

DOCTRINE OR THE ADMINISTRATIVE PROCE-

DUKE ACT.

\ REVIEW OF THE ADMINISTRATOR S FAILURE TO

COMPLY WITH THE ALLOTMENT PROVISION OF

THE WATER POLLUTION CONTROL ACT IS JUST

ICLABLE AND NOT A “POLITICAL QUESTIONS

The Administrator has urged that the issue before the Court

in the instant case is a non-justiciable political question. Brief

for Petitioner at 45, 47-48. Considering the sume argument, the

court in National Council of Community Mental Health

Centers, Inc. ¥. Weinherger, 301 F. Supp, 897, 900 ¢ DDC

1973), stated: “When Congress directs that money be spent

and the President. as Chief Executive, declines to permit the

spending. the resulting conflict ts not political.” The court con-

tinued: “To say that the Constitution forecloses judicnal

scrutiny in these circumstances ts to urge that the Executive

alone can decide what is best and what the law requires 4d.

at 900-01. The role of the courts in the American system pre-

cludes an interpretation which would result in unilateral inter

pretation of laws by the baxccutive.””

in Baker v. Carr, 49 U.S. 186, 217 (1962). the court enu-

merated six conditions that would preclude the hearing of a

case under the political question doctrine: (1) 4 textually de-

monstrable constitutional commitment of the issue to a coords

nate political department, (2) 4 lack of judicially discoverable

or manageable standards for resolving the issue. (4) the impor-

sibility of deciding the issue without an initial policy determina-

tion of a kind clearly for nonjudicial discretion, (4) the imposst-

bility of a court's undertaking independent resolution without

THe os crmptastic ally the pravvimce sted abasty oof the pudic tal deprartenent to

wy @ hod the law i” Mashury + Madion $0 S11 conchy 197. 177 018)

” CR Oe ee 8 pee - —

expressing lack of the respect due coordinate branches of

government. (5) an unusual need for unquestioning adherence

to a political decision already made. and (6) the potentiality

of embarrassment from multifarious pronouncements by vari-

ous departments on one question.

The Administrator in the instant case has specifically argued

that the issue before the Court is committed to the “political

departments” and that there are no judicially manageable

standards for resolving it. Brief for Petitioner at 45, 47.

As to commitment to a coordinate branch. it is clear that

the issue before the Court can be determined only by the

judicial branch and is not committed to the other “political

departments.’ The issue before the Court is whether the Envi-

ronmental Protection Agency has exceeded its authority in

refusing to allot. The issue is one of statutory interpretation

of the Administrator's discretion under the Act. It is axiomatic

that “(ajn agency may not finally decide the limits of its statu-

tory power. That is a judicial function.” See Highway

Comm'n. Volpe, 479 F.2d 1099, 1124 (8th Cir, 1973).

Additionally. judicially manageable standards for resolving

the issue sub judice ave readily available. The tssue is not

“an unstructured managerial issuc.”’ Brief for Petitioner at 48.

The mandate for full allotment is expressed in the statute.

The interpretation of the statutory duty of an agency is clearly

judicially manageable and is a basic function of the judiciary.””

—“Fihaker v. Carr. 49 U.S. at 211; National Treasury Employees Union

v. Nixon. 492 F.2d at 605; State Highway Comm'n v. Volpe, 479 F.2d 1099.

1106-07 (Sth Cir, 1973): Louisiana v. Weinberger. 69 F. Supp. 856. 862

(E.D. La. 1979: Guadamuz v. Ash. 368 F. Supp. 1273. 12380D. D.C. 1973):

Brown v. Ruckelshaus, 364 F. Supp. 258. 261-621C. D. Cal 1974): Seafarers

int'l. Union of N. America v. Weinberger. 363 F. Supp. 1053, 1059°D. DLC

1973); National Council of Community Mental Health Centers ¥. Wein-

berger. 361 F. Supp. #97, 900-01 (D. D.C. 1973); Campaign Clean Water.

Inc. ¥. Ruckelshaus. 361 F. Supp. 689. 696 (ED. Va). remanded with

directions sub nom. Campaign Clean Water, Inc. v. Train, 489 F.2d 492 (4th

Cir, 1970: New York v. Ruckelshaus, 16% F. Supp. 669, 675-76 1D. D4

1973). aff'd sub nom. New York v. Train, 494 F. 2d 1033(1974); Local 2677,

AP GE ¥. Phillips, 358 F. Supp. 60, 67-68 (1D. D.C. 1973), Massachusetts »

Weinberger. Civil No. 1308-73 (D.D.C. July 26, 1973). reprinted in 119

CONG REC S$15044, $15045 idaily ed. July W, 1973)

“

The instant case moreover does not require the judiciary to

supervise agency action.’” Only in a totally discretionary stat-

ute imposing no duty upon an administrator would a lack of

manageable standards exist.

While the political question doctrine may continue to be

raised as a bar to impoundment litigation.”' there is no basis

for non-justiciability. The issue presented in the instant case

does not fit into the formulations set forth in Baker v. Carr,

369 U.S. at 217, relied upon by the Administrator. The Court

must merely apply judicial standards of statutory construction

to determine whether the Administrator has the discretion to

refuse to fully allot authorized sums. The resolution of that

issue Clearly does not involve a nonjusticiable political ques-

tion.

See National Treasury Employees Union v. Nixon. 492 F.2d at 605:

Campaign Clean Water, Inc. v. Train. 489 F.2d 492. 498-99 (4th Cir. 1973).

cert. granted 948. Ct. 1991 (1974); Seafarers Int'l Union of N. America v

Weinberger. 363 F. Supp. 1053. 1089( D. D.C. 1973); Pealo v. Farmers Home

Administration. 361 F. Supp. 1320. 1324 (1973): Note. Protecting the Fisc.

Executive Impoundment and Congressional Power, 82 YALE L. J. 1636.

1651 (1972).

On July 12. 1974, the President signed the Congressional Budget and

Impoundment Control Act of 1974. providing inter alia for impoundment

resolution by the political departments. Pub. L.. No. 93-344. 120 CONG. REx

1839 (daily ed. July 15, 1974). The Act may have an effect on future

impoundment litigation and perhaps the future disposition of the case sub

judice, since the Administrator has alluded to the possible use of obligational

controls in the event of an adverse holding. Brief for Petitioner at 14. It

should be recognized that the Act's procedures for impoundment control

could raise the political question issue in the context of a designation to a

coordinate branch since Congress is granted the authority to override an

impoundment.

Nevertheless impoundment should remain a justiciable issue. The Act

explicitly does not ratify or approve “any impoundment heretofore...

executed or approved by the President or any other Federal officer or em-

Ployees.....° H. R. Rep. No. 1101. 93d Cong.. 2d Sess. 40. at $1001 (2)

(1974). Further the Act does not affect “in any way the claims . . of any party

(cont'd)

} 66

B. THE ADMINISTRATIVE PROCEDURE ACT DOES

NOT BAR REVIEW AS A MATTER COMMITTED TO

AGENCY DISCRETION.

The Administrator contends the APA precludes judicial

review of his refusal to allot since the agency action at issue

is a matter committed to agency discretion. Brief for Petitioner

at 41-43. The Court in Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402 (1971), clarified the provision for preclu-

sion of judicial review expressed in 5 U.S.C. §701 (a). This

section was characterized as**very narrow™’ and limited in

application to “those rare instances where ‘statutes are drawn

in such broad terms that in a given case there is no law to

apply.” “ 401 U.S. at 410. In determining whether agency

actions were reviewable. the Court in Overton Park looked to

the statute to see if it contained definite standards for the

agency head. The Court found reviewable the statute allowing

the Secretary to approve a project utilizing public parklands

"¢ cont’ d)

to litigation concerning any impoundment . . . fd S001 G). Additionally.

the Act inno way supercedes any mandatory budgetary provisions, id. 91001

(4), and consequently federal courts clearly continue to have jurisdiction to

;

enforce such ministerial actions.

Senator Ervin pointed out the import of the Act on impoundment

litigation on the day of Senate passage:

7 ee or ee

The Comptroller General will be granted authority to sue in the Fd-

eral (sic] District Court for the District of Columbia to enforce the

provisions of the title. . . _This authority is not intended to infringe upon

the right of any other party to initiate litigation... ..

‘ \ disclaimer section directs that nothing in the impoundment title

should be construed as ratifying or approving any past or present

impoundment. affecting the claims or defenses of any party to litigation

concerning any impoundment, or asserting or conceding the constitu.

tional powers or limitations of either the Congress or the President.

The disclaimer also disavows any intention by Congress to supercede

any law which requires the mandatory obligation of budget authority.

since several such statutes have been enacted in response to the

wholesale impoundment of funds appropriated for specific programs.

120 CONG. REC $11222 (daily ed. June 21. 1974).

only if there was no “feasible and prudent alternative."* 401

U.S. at 411. The standards in the Water Pollution Control Act

allotment provision are far more explicit regarding allotment

than the statute in the Overton case. The mandatory nature of

the Water Pollution Control Act needs no further description

here. The duty of the Administrator in allotment was clearly

ministerial. The overall logic, specific language. and legislative

history of the Act admits of no other interpretation than that

allotment is a mandatory duty.

The Administrator alleges that the allotment phase of the

Water Pollution Control Act “*does not announce any specific

precepts that are to guide the President in determining allott-

ments [sic }.°° Brief for Petitioner at 43. However. in fact. the

Act announces a very specific standard -- mandatory allot-

ment. There are no detailed standards since allotment is minis-

terial. Detailed standards regarding approval appear at the

obligation phase since that is where discretion is exercised and

explicit standards are necessary.

The Water Pollution Control Act contains an explicit

directive to allot. There is no latitude for what Petitioner

describes as questions of judgement requiring close analysis

and delicate choices. Brief for Petitioner at 42-43. Allotment is

not an act committed to agency discretion. Consequently. the

APA presents no bar to reviewability.

CONCLUSION

The Administrator failed to comply with a statutory require-

ment of the Water Pollution Control Act by failing to allot

six billion dollars authorized by Congress. Plain meaning, leg-

islative history and the overall structure of the Act demon-

strate the allotment of full sums is mandatory. Moreover. the

issue before the Court is justiciable and not barred by the

doctrines of sovereign immunity or political question.

For the reasons stated herein, the Center for Governmental

Responsibility urges this Court to affirm the judgement of the

Court of Appeals for the District of Columbia and reverse

the decision of the Fourth Circuit Court of Appeals.

Respectfully submitted,

FLETCHER N. BALDWIN, JR.

JON L. MILLS

Attorneys for Center for Governmental

Responsibility

Counsel gratefully acknowledge the research assistance pro-

vided in this case by the following law students at the Univer-

sity of Florida: Albert J. Hadeed, Anne Conway, Jacqueline

Griffin. Edmond T. Henry, II] and Janet Studley.

ACTION TAKEN

LEVEL OF BUDGET

VUTHORITY

LEGISLATION

CONTROLLING

DISCRETION

\VAIL ABLE

REFERENCES TO

DISCUSSION IN

BRIEF

METHOD OF EXPENDITURE IN THE WATER POLLUTION CONTROL ACT

Authorization

APPENDIX

Allotment

Obligation

Appropriation

LEGEND

‘”

billions of $

be Actual level of funding

ee Proper level of authorized funding

(before impoundment)

1a08 Ceiling of authorized obligation

after mandatory allotment

NN Ceiling of authorized obligation

after improper exercise of discre-

tion at allotment

§207

“not to exceed

[specified amounts]

§205

Sums authorized

“shall be allotted”

§ §203. 204

Framework of con-

tract authority.

Limitations and

conditions.

Art. 1. §9

U_S. Constitution

Pro forma proce-

dure liquidating

appropriation.

Congress sets

ceiling for rest

of process. Ac-

cords discretion

exercised in re-

maining steps.

NONI

Sets ceiling for

obligation

Administrator s

approval or dis-

upproval or grant

upon conditions

specified.

NONE

Payment of con-

tracts made

6 - 12

6 - 16, 18 - 19, 22 - 32

10 - 12, 14 - 16, 18,

22 - 29, 32 - 34

6 n. 2, 24 n. 20

;

Breese BOR ed caf tes bee ah ere a as

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