# Appendix — Train v. City of New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 35

## Text

Page
Appendix A-.....-------------------------- 1A
Appendix B.-.------------------------------ 35A
Appendix C_------------------------------- 55A
Appendix D_.~..---------------------------- 57A
Appendix E..------------------------------ 59A
Appendix F_....--------------------------- 794A

533-925—-74——-1

NS eet tt

APPENDIX A

Anited States Court of Appeals

For the District of Columbia Circuit

No. 73-1705

‘He Crry or New York on BEHALF oF ITSELF AND ALL
OTHER SIMILARLY SITUATED MUNICIPALITIES WITHIN
THE State OF NEw York City or Detroit, (PARTY
PLAINTIFF )

v.

Russet, E. Train, aS ADMINISTRATOR OF THE UNTTED
States ENVIRONMENTAL PROTECTION AGENCY,
APPELLANT

Appeal from the United States District Court for the
District of Columbia

Decided January 23, 1974

Before: Tamm, Ropinson and Wikey, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Tam.

Tamm, Circuit Judge: This suit was brought as a
class action by the City of New York (hereafter,
““City’’) on behalf of itself and all other similarly
situated municipalities within the State of New York.

1A

2a

The defendant below was Mr. Russell E. Train, Ad-
ministrator of the Environmental Protection Agency *
(hereafter, ‘“‘The Administrator’’). The City of
Detroit, Michigan, was granted leave to intervene as
party plaintiff. On May 8, 1973, the United States
District Court for the District of Columbia granted
City’s motions for summary judgment and to main-
tain this lawsuit as a class action, concurrently deny-
ing the Administrator’s motion to dismiss. The Ad-
ministrator brings this appeal from the trial court’s
ruling, and, for the reasons stated infra, we affirm.

I. Backarounp

This is but one of a number of cases? presently
pending across the country concerning allocation of

* Russell E. Train, Administrator of the Environmental
Protection Agency has been substituted for William Ruckels-
haus, the Administrator of the EPA at the time this action
was commenced. Rule 43(c)(1), Feo. R. App. Proc.

* We provide a list of cases filed as of December 12, 1973:

“Anthony R. Martin-Trigona vy. William D. Ruckelshaus,
N.D.IIL, Civil Action No. 72-3944:

“Campaign Clean Water, Inc. v. Ruckelshaus. E.D. Va..
Civil Action No. 18-73-R, reversed and remanded, Campaign
Clean Water, Inc. v. Train, No. 73-1745 (4th Cir., December 10,
1973) ;

“George E. Brown, Jr. v. Ruckelshaus, C.D. Calif., Civil
Action No. 73-154-AAH;

“Herbert C. Klein, et al. y. Ruckelshaus, D.D.€., Civil
Action No. 151-73;

“State of Minnesota v. United States Environmental Pro-
tection Agency, et al., D. Minn., Civil Action No. 4-73 Civ. 133:

“Mayor Morton Salkind, et al. v. Ruckelshaus, D, N.J., Civil
Action No. 2027-72;

“City of Los Angeles v. Ruckelshaus, C.D. Calif., Civil
Action No. 73-736-JWC;

“State of Texas v. Fri, W.D. Texas, Civil Action No. A-73-
CA-38;

- ee

3a

: a-
funds under the Feederal Water Pollution Act Amen
ments of 1972* (hesreafter, “‘Act’’). In order to place

“State of Maine, et al. v. Robert W. Fri, et al., D. Maine,
Civil Action No. 14-51;;" oe ee
Letter from National! Association o torneys Gene
Impoundment Mailingg List, December 12, 1973; See also
Appellant’s Br. at 2-33. a

*Pub. Law 92-500, 86 Stat. 816, 33 U.S.C. ch. 26 §§1

et seq.

Title I of the actt provides in pertinent part:
“TITLE I—RESEARRCH AND RELATED PROGRAMS
“DECLARAATION OF GOALS AND POLICY

“Sec. 101. (a) Thee objective of this Act is to restore
and maintain the chenmical, physical, and biological integrity
of the Nation’s waters. In order to achieve this objective it is
hereby declared that, consistent with the provisions of this
Act—

“(1) it is the nationnal goal er the he tae of pollutants
into the navigable waters be eliminated :

“(2) it is the natidonal goal that wherever —- an
interim goal of water qquality which provides for protection
and propagation of fisish, shellfish, and wildlife and oy
for recreation in and opn the water be achieved by July 1, 1983;

“(3) it is the natioonal 7%) that the discharge of toxic

llutants in toxic amaounts prohibited ; '
P(A) it is the nationaal policy that Federal financial =
be provided to constitruct publicly owned waste treatmen

rks;
ma (5) it is the nationaal policy that area-wide - treatment
management planning | processes be developed and a
to assure adequate conntrol of sources of pollutants
State ;

“ese #7
“Grants for Con-
Title II of the Act (§§ 201-212) entitled
struction of Treatment t Works” provides in pertinent part:
“Allotment
“Sec, 205. (a) Sumsis authorized to be pursuant
to section 207 for each f fiscal year beginning after June —
shall be allotted by thee Administrator not later than the Janu-

4a

the instant dispute in its proper context it is necessary
to understand the legislative history of the Act. The
Act revised the procedures for funding federal aid to
local governments for the purpose of the construction
of sewage treatment plants. Prior to the Act’s passage,

ary Ist immediately preceding the beginning of the fiscal year
for which authorized, except that the allotment for fiscal
year 1973 shall be made not later than 30 days after the date
of enactment of the Federal Water Pollution Control Act
Amendments of 192. Such sums shall be allotted among the
States by the Administrator in accordance with regulations
promulgated by him, in 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. For the
fiseal years ending June 30, 1973 and June 30, 1974, such
ratio shall be determined on the basis of table ITI of House
Public Works Committee Print No. 92-50. Allotments for
fiscal years which begin after the fiscal year ending June 30,
i974, shall be made only in accordance with a revised cost
estimate made and submitted to Congress in accordance with
section 516(b) of this Act and only after such revised cost
estimate shall have been approved by law specifically enacted
hereafter.

“(b)(1) Any sums allotted to a State under subsection (a) shall
be available for obligation under section 203 on and after the date
of such allotment. Such sums shall continue available for obliga-
tion in such State for a period of one year after the close of the
fiseal year for which such sums are authorized. Any amounts so
allotted which are not obligated by the end of such one-year period
shall be immediately reallotted by the Administrator, in accord-
ance with regulations promulgated by him, generally on the basis
of the ratio used in making the last allotment of sums under this
section. Such reallotted sums shall be added to the last allotments
made to the States. Any sum made available to a State by reallot-
ment under this subsection shall he in addition to any funds other-
wise allotted to such State for grants under this title during any
fiseal year.

“(2) Any sums which have been obligated under section 208 and
which are released by the payment of the final voucher for the

5a

expenditures were first authorized and then spe-
cifically funded by the normal Congressional appte-
priation process. Due to the nature of this process,
local governmental recipients could not ascertain the
exact amount they would receive until after the formal
appropriation. As a result, local governments were

, , .,

j be immediately credited to the State to which suc
Peer wore last allotted. Sach released oume shall bo added to the
amounts last allotted to such State and shall be immeditaely avail-
able for obligation in the same manner and to the same extent as

such last allotment.
“Reimbursemert and Advanced Construction
“See, 206.

“ses 4
e I case where all funds allotted a State under
there is construction of any trestment works project without Se
aid of Federal funds and in accordance with all procedures
all seqsiremente applicable to trestment worl projects, sncaps
those procedures and requirements which limit construction 0
projects to those constructed with the aid of previously allotted
Federal funds, the Administrator, upon his approval of an appli-
cation made under this subsection therefor, is suthorised So pay
the Federal share of the cost of construction of such project wh
additional funds are allotted to the State under this title if prior
to the construction of the project the Administrator approves
plans, specifications, and estimates therefor in the same manner as
other treatment works projects. The Administrator may not
approve an application under this subsection unless an authoriza-
tion is in effect for the future fiscal year for which the application
requests payment, which authorization will insure ouch paymess
without exceeding the State's expected allotment from
wy cen semen ny ont 7dr
title, any treatment works project constructed in oom
this eaction and without the aid of Federal Sunde shall set be ood
sidered completed until an application under the provisions -
subsection with respect to such project has been approved by

6a

a. 7 enter construction contracts with only a
me hen ederal monies would be ultimately passed
The Act was passed to insure that ultimate grantees
could rely in advance on the amounts available. See-
tion 101(a) declares that to clean the nation’s waters
“it is the national policy that Federal financial
assistance be provided to construct publicly owned
waste treatment works.” To this end, the Act created
a funding mechanism known as ‘‘contract authority”.’
The technical operation of the sections of the Act
relating to this “contract authority” spending is at
the heart of this dispute and a thorough understand-
ing of the mechanism is, therefore, imperative.
_ There are six distinct steps involved in funding
under the Act. (1) Authorization by Congress to

Administra . or the availabilit i i
Administrator mir ( y of funds from which this proj
is eligible for reimbursement has expired, whichever first as mgt

“Authorization

“Sec. 207. There is authorized to be a i carry

“Se ! ppropriated to
this ttle, other than sections 208 and 209, for the fiscal year ending
June 30, 1973, not to exceed $5,000,000,000, for the fiscal year end-
ing June 30, 1974, not to exceed $6,000.000,000 and for the fiscal
ee 1975, not to exceed $7,000,000,000.”

*It appears that there was a substantial bet
amounts authorized and the amounts sgguapiaiaa oy tn

year : nay : .
on eae Works, in its report on its version of the Act,

legislation, only $2.2 billion was appropriated. The
*
projects eligible for Federal payments has reached a total of nearly

S. Rep. No. 92-414, 92nd C
Song., Ist Sess. 5 (1971).
* See S. Rep. No. 92-414 supra at 35. , '

i.

7A

appropriate funds (§ 207); (2) “allotment” of these
authorized sums among the various states, pursuant
to formula (§ 205); (3) review by the Administrator
of project proposals submitted by a particular munic-
ipality (§§ 203, 201(g) (2) and 204) ; (4) “obligation”’
by the Administrator of the federal share of an
approved project (§§ 203 and 201(g)(1)); (5) appro-
priation by Congress of funds to pay obligated con-
tracts as they fall due; and (6) disbursement of the
funds (§ 203 (b) and (c)).

After the Act was enacted into law, over presiden-
tial veto,’ the President wrote to the Administrator,
directing him to allot “$2 billion of the amount au-
thorized for the fiseal year 1973, and no more than $3
billion of the amount authorized for the fiseal year
1974.”" The Administrator followed orders and allo-
eated a total of $5 billion* for both fiscal years. It is
this final action by the Administrator which has been
labeled ‘“Presidential 1mpoundment”* and which was
successfully challenged in the trial court by plaintiff-
appellee City.

7 Nee Presidential Veto Message of October 17, 1972, 18 Cone.

Rec. S 18534 (daily ed. October 17, 1972).

‘Letter from the President to Mr. William Ruckelshaus,
dated November 22, 1972, J.A. at lia.

*37 Fed. Reg. 26282 (December 8, 1972).

* Not all commentators have agreed ow a precise definition of
“impounding”. Compare Boggs, Executive Impoundment of
Congressionally A pprepriated Funds, 24 U. Fra. L. Rev. 221,
292 (1972) with Note, /mpoundment of Funds, 86 Harv. L. Rev.
1505 ni (1973) and Fisher, Funds Impounded by the Presi-
dent: The Constitutional Issue, 38 Gro, Wasn. L. Rev. 124
(1969). It is true that we are concerned here with the mecha-
nism of contract authorization rather than direct appropriation.
We today only decide whether the Act permits withholding of
funds at the allotment stage. We will not, therefore, pursue the
sematic argument that because of the different funding mecha-
nism that is not an “impoundment of funds” but rather a “far

8a
II. Tue Tria Covrr’s Ruta

: Plaintiff-appellee City * basically argued, below t

&§ 205 (a) and 207 of the Act, read together, bdrm
the Administrator to allot among the states the sums
of $5 billion and $6 billion in fiscal years 1973 and
1974 respectively. Once allotted, these amounts would
then be available for obligation under the Act. By the
allotment of only $5 billion total for fiseal year 1973
and 1974, it is argued that the Administrator violated
the statute.

The Administrator, defendant-appellant, made sev-
eral arguments in the trial court. He argued that (7)

more serious case.” See Brief of California Attorney Gen
reser Curiae at 6. The wisest course to leave the ee
~ — definition of “Impoundment” to the legal commen-
On the subject of impoundment i
_ th generally, especiall
yo oye problems, sce also Note, The Lik-ly pl .
Vrecutive Impoundment, 59 Towa L. Rev. 50 (1973): Com-
ment, Presidential Impounding of Funds: The Judicial Re-
—_ 40 U. Cut. L. Rev. 328 (1978); Note, Protecting
~ — Executive Impoundment and Congressional Power
2 Yim La. 1636 (1973); Miller, Presidential Power to Im.
one A ppropriated Funds: An Evercise in Constitutional
ecision-Making, 43 N..1, Rev. 502 (1965): Church, Jm-
pound ment of Appropriated Funds: The Decline of Congres-
sional Control Over Executive Discretion, 22 Sran L. Rev
1240 ( 1970) ; Fisher, Presidential Spending Discretion and
ag Controls, 37 Law & Contemp. Pron. 135 (Win-
yom J ages n, a of Powers and the Uncommon
* The Case gains. Impounding of Weapons
STs 57 Gro, L.7. 1159 (1980). aren epee
legal literature contains no detailed analysis of the
a problem sub judice. See Note, supra, 82 ame LJ. at
; Note, supra, 59 Iowa L. Rev. at 55 n42: Note, sw
66 anv. L. Rev. at 1826 0.106 —
arguments of plaintiff-interventor, City of Detroi
were found by the trial court to be “substantially the te

9a

the trial court lacked jurisdiction, the suit being
barred by the doctrine of Sovereign Immunity; and
(2) that the claim failed to present a justiciable case
or controversy because (a) it was “hypothetical and
premature” and (b) it stated a “political question”
thus beyond the jurisdiction of the court. The trial
court found against the Administrator on all these
arguments,” but appellant brings before this court
only two issues: (1) whether Sovereign Immunity
bars this suit; (2) whether §§205(a) and 207 of
the Act confer discretion on the Administrator to de-
termine the sum to be alloted under the Act.

Ill. Sovereign IMMUNITY

It is our opinion that the trial court was correct in
holding that City’s suit is not barred by the principle
of sovereign immunity, Counsel for the Administrator
conceded at oral argument that the law of this circuit,
Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859,
873 (D.C. Cir. 1970) ; Constructores Civiles de Centro-
america v. Hannah, 459 F.2d 1183, 1191 (D.C. Cir.
1972), permits the maintenance of this suit with the
Administrator as defendant.” In view of this conces-

as those of plaintiff City, and so all arguments were treated
together. City of New York v. Ruckleshaus, Civil Action No.
2466-72 (D.D.C. filed May 8, 1973) J.A. at 53a n.3, We agree
and will not differentiate between plaintiff and plaintiff-
intervenor.

"City of New York, supra note 10, J.A. at 56a-63a.

* Tape of oral argument November 2, 1973, contains the
following colloquy :

“Judge Wilkey: Would you like to elaborate upon the ques-
tion of sovereign immunty ¢

“Counsel: As I understand the doctrine of sovereign immu-
nity, as developing a close relatioaship between the merits and
the doctrine. The exception to the doctrine which is claimed to
be applicable by the plaintiff here is that the Administrator

10a

sion, we need do no more than state that we hold the
suit is not barred. We agree with the reasoning of the

was essentially acting in violation of the statute, acting outside
the scope of his authority, and therefore not acting on behalf
of the sovereign but simply as an individual in excess acting
outside the law who should be ordered to act within the law.
Our contention is that he was acting within the statute, prop-
erly exercising his authority, therefore acting on behalf of the
sovereign and if we are persuasive on the merits, then we
should also win on the doctrine of sovereign immunity. The—
Now it may be andI...

“Judge: [Inaudible] appreciate any idea of sovereign im-
munity does it? If you go on that theory the sovereign is no
better off than any other citizen.

“Counsel: I think we are getting close to that. There may
survive a zone of plausibly legal activities where the government
has a kind of special position—a certain deference that a court
will find a kind of protection of sovereign immunity reaches
somewhat beyond the very strictest construction of the statute.
I find the present state of the law in somewhat of a turmoil
and I think this circuit has developed a number of new doc-
trines which throw much of recent law into question, particu-
larly the Scanwell case and I don’t think the Supreme Court
has had the time to sort out the wisdom of that and the impact
of that, and I~

“Judge: Are you reserving the sovereign immunity argument
for the Supreme Court ?

“Counsel: We are reserving the argument for the Supreme
Court and we would be delighted, just delighted to prevail
on it here.

“Judge: That doesn’t leave you much choice in that regard
does it?

“Counsel: You mean to reserve it or to—

“Judge: Yes, to reserve it.

“Counsel: Obviously the problem of the position of sovereign
immunity is one that impacts not just on this case but many,
many cases for the government and we are in a position where
we do not win frequently at the moment on the issue of sov-
ereign immunity, but where it is not yet responsible for us not
to urge it and hopefully there will be some more authorita-

lla

trial court and here adopt the opinion below on the ex-
tent that it treats the Sovereign Immunity question.”

IV. THe MEANING OF §§ 205(a) AND 207

We now turn to the analysis which is central to res-
olution of the matter sub judice, *.c. the meaning of
§§ 205(a) and 207 of the Act which are reproduced in
the margin supra. Appellee-City relies upon the phrase
‘‘shall be allotted’ in § 205(a), arguing that by the
use of ‘‘shall’’, rather than a word plainly conferring
greater discretion (e.g. ‘“‘may’’), Congress intended
that allotment under the Act be mandatory. The Ad-
ministrator, on the other hand, asserts that changes in
these sections of the Act, prior to its enactment, show
a legislative intent to confer discretion upon the Ad-
ministrator. H.R. 11896, the bill from which § 205
and 207 ultimately were derived, was amended in con-
ference. The phrase ‘‘not to exceed’’ was inserted be-
fore each specified sum § 207 and the word “all” was
deleted from before the phrase ‘‘sums authorized to
be appropriated’’ in § 205(a). Appellant argues that
these changes indicate that Congress intended to give
the Administrator absolute discretion over whether
and how much to allot under the Act.

A. The Overall Intent of the Act

Initially, it is to be noted that a “plain meaning”
analysis will not suffice here. As the Administrator
admits ‘‘there is no happy marriage between the pro-
visions of the statute ... .’’** We agree for we can
find no way to harmonize the term ‘‘shall allot” and
the language concerning sums “‘not to exceed.’’ Ac-

tive pronouncements from the Supreme Court within a few
years that will clarify where we stand.”
8 City of New York, supra note 10, J.A. at 5€a-57a.

4A ppellant’s Reply Brief at 2.

12a

cordingly, we turn to an analysis of relevant legisla-
tive history to ascertain whether the legislature in-
tended any discretion at the ‘‘allotment”’ stage of the
funding mechanism. The Wilderness Society v. Mor-
ton, Nos. 72-1796, 1797, 1798 (D.C. Cir., February 9,
1973 slip op. at 22).

The legislative history is extensive, covering some
1700 pages.” Of particular importance are the views
expressed by Congressman William Harsha and Sen-
ator Edmund Muskie, sponsors of the legislation.”
The amendments upon which the Administrator relies
were authored and sponsored by Congressman Harsha,
and are commonly referred to as the ‘‘ Harsha Amend-
ments.”’

*“A Legislative History of the Water Pollution Control
Act Amendments of 1972,” Committee Print, Committee on
Public Works, 93rd Cong., Ist Sess.. January 1973. Senator
Muskie commented on the magnitude of the legislative task:

“I have been a Member of the Senate for 13 years, and I
have never before participated in a inference which has con-
sumed so many hours, been so arduous in its deliberations. or
demanded so much attention to detail from the members. The
(lifficulty in reaching agreement on this legislation has been
matched only by the gravity of the problems with which it
seeks to cope.”

118 Cone. Rec. S 16869 (daily ed. October 4, 1972).

* See, e.q.. First National Bank of Logan. Utah v. Walker
Rank and Trust Co., 385 U.S. 252, 261 (1966); Schwegmann
Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-95 (1951).

Congressman Harsha is the ranking minority member of
the House Committee on Public Works which reported H.R.
11896. He was the bill’s floor manager and also a member of
the conference committee which developed the final language
of the Act.

Senator Muskie is chairman of the Senate Subcommittee
on Air and Water Pollution which reported S. 2770, the Senate
version of the Act. He was floor manager for that bill and
a member of the conference committee.

cunbaivaait ealill

Se ee ee

13a

After a careful reading of the relevant legislative
materials, we believe that throughout the lengthy leg-
islative process, Congress manifested an intent to spe-
cifically commit federal funds. It did so in recognition
of the necessity of assuring the states that federal aid
would be available. The need was recognized in 1971
by the Senate subcommittee considering water
pollution :

At a bare minimum the credibility of the ex-
isting federal commitment must be re-estab-
lished by backing words of authorization with
monies of appropriation. Whenever the nation
seeks to encourage cities to plan and construct
improvements which require many years to
complete, the Congress must build reliability
into its federal grant incentives. Major facilities
cannot be stopped in midstream. A change in
federal grant policy to establish a reliable com-
mitment is vital but is not the only change that
ean and should be made in the federal legisla-
tive and regulatory approach to water pollution
abatement.

U.S. Senate Committee on Public Works, Water Pol-
lution Control Legislation Hearings, pt. 1, at 521
(1971).

This commitment continued and the subcommittee
on Air and Water Pollution concluded in 1972:

The language of subsection (b) [sic] of Sec-
tion 207 provides that funds authorized for
fiscal years 1973, 1974, and 1975, shall be avail-
able for obligation by contract upon their allo-
cation to the States. The importance of assured
Federal financial support to the achievement of
the objectives of this title and to our national
purpose of cleaning up polluted waterways can-
not be overstated. The task is a massive one im
terms of the work to be done and the funds to
be expended.

14a

S. Rep. No. 92-414, 92nd Cong., Ist Sess, 35 (1971).

The two principal sponsors of the Act both clearly
articulated their belief that federal money must be
spent, and, in fact, strongly indicated their recognition
that the full $18 billion would be allotted. Senator
Muskie stated:

The conferees spent hours and days studyin
the problem of financing the yn eiiest a0.
quired by this new legislation. The members
agreed in the end that a total of $18 billion had
to be committed by the Federal Government in
75 percent grants to municipalities during fiscal

ears 1973-75. That is a great deal of money;
ut that is how much it will cost to begin to
achieve the requirements set forth in the
le ~~ no*

TY. President, to achieve the deadlines w
talking about in this bill we are going to pe
the strongest kind of evidence of the Federal
Government’s commitment to pick up its share
of the load. We cannot back down, with any
credibility, from the kind of investment in
wastc treatment facilities that is called for by
this bill. And the conferees are convinced that
- level of — that is authorized is

e minimum dose of medicin i
the problems we face. or

118 Cong. Rec. S 16870-71 (daily ed. Oct
(emphasis added). 2 a
It is evident that Congress was concerned wi
Ati with pos-
sible inflationary effects. However, it is just as evident
that Congress believed that the full $18 billion ex-
penditure was necessary. Senator Cooper” stated:

I believe that the funding levels for th
other provisions of the bill, which total pod 4

27 Senator Cooper was the ranki inori
: ng minority member of the
Senate Com :
a. mittee on Public Works and a floor mai = af ie

15a

billion—subject to the usual presidential respon-
sibility for evaluating these needs in relation
to other national priorities—are responsible,
are consonant with the magnitude of our Na-
tion’s water quality problems, and will not have
an inflationary effect upon our economy. * * *
*

Contract authority is provided for up to $5 bil-
lion in 1973, $6 billion in 19/4, and $7 billion in
1975. This will be allocated to the States on the
basis of the Environmental Protection Agency’s
annual assessment of needs established without
regard to budgetary limitations and other non-
water quality factors.

Id. at S 16881 (emphasis added). Senator Bayh also
emphasized the necessity of a full Federal commit-
ment:

The conferees agreed to accept the House
authorizations for grants to the States
for the construction of waste treatment plants,
including sewage collection systems. This is con-
struction which is absolutely essential if we are
to make any meaningful progress toward the
national goals established in the bill. The total
authorization for this purpose is $18 billion over
the 3 fiscal years ending in 1975. There is no
doubt that this money is needed, for without
substantial authorizations he [sic] bill would be
little more than a series of empty promises.
The amounts allocated for grants for construc-
tion of treatment works will be distributed to
the States on the basis of need, with the Federal
share of construction costs being 75 percent.

Id. at S 16892-93 (emphasis added). Congressman
Johnson made clear the intent of the House to spend
$18 billion to meet the water pollution problem. In his
report to the House, he stated:

You may recall that the bill that passed this

body last March called for authorizing a little
more than $24.6 billion, the Senate bill author-

533-925—74-—_2

164

ized $20 billion, and the administration re-

_ quested $6 billion. The conferees have agreed on
essentially the same figures as in the House bill,
#24.6 billion for the period through fiseal 1975.
A total of $18 billion of this sum is for con-
struction grants, and breaks down not to exceed
#5 billion for fiseal 1973, $6 billion for fiscal
1974, and $7 billion for fiscal 1975.

Naturally, the large difference in what the
administration asked, and what the conference
hill provides, raises the question of why the
substantial discrepancy ?

There is only one answer to that and it is
that if we set out to do this job there is no way
we can accomplish it without paying the price.
If we want clean water. we have to pav for
clean water. If we want the States and cities to
move aggressively ahead in building waste treat-
ment plants they must have Federal aid, and
they must have confidence that Washington
will continue to live up to its commitments.

Td. at H 9130 (emphasis added).

The President, in his veto message to Congress on
October 17, shared this view that the Act would
require ultimate expenditure of $18 billion for sewage
treatment under § 207 of the Act:

T am compelled to withhold mv approval from
S. 2770, the Federal Water Pollution Control
Act Amendments of 1972—a hill whose landable
intent is outweighed by its uneonscionable $24
billion price tag. My proposed legislation, as
reflected in my budget, provided sufficient funds
to fulfill that same intent in a fiscally respon-
sible manner. Unfortunately the Congress ig-
nored other vital national concerns and broke
the budget with this legislation,

118 Cong. Rec. S 18534 (daily ed. October 17, 1972).
In the discussion of the Act prior to its being en-
acted over the veto, Congress again clearly expressed

17a

its intention to pprovide the full $18 billion. Senator
Muskie spoke of t the President’s concerns:

mayy I say to [Senator Scott], when we
s... nieese of legislation like this, with its
requiremennts imposed on industry, with its re-
quirementss imposed on the States, with its re-
quirementss imposed on the local governments,
the questionn that faces us then is, as we imposed
this commititment on them, what commitment are
we prepared to ay on the part of the Fed-

Goverrmmen ;

"This popint was well debated in the Senate
when we ttook up this bill. I made it clear, the
committee > made it clear, that what we were =
ing of thee Congress was a commitment =
these peopple in other levels of government a
the privateée sector could rely upon. Of course
there is a. commitment. The President 3 years
ago, in hiss state of the Union message, said he
had preenmpted the environmental issue and
that he waas making a commitment.
* * *

The confiferees spent hours and days studying
the problerm of financing the cleanup effort >
quired by © this new legislation, and specifically
studying hhow much money would be necessary
to achieve * the objective and goals of the act, as
set forth inn section 101(a).

i 17, 1972).
118 Cong. Rec. SS 18548 (daily ed. October 7
Congressman Haarsha responded in a like vein:

. Speeaker, there is another point which T
hn raisee. We have known all along that it
would tak&e a massive amount of money and
time to reeclaim and to — our —
water resoources. But, we dare not measure the
cost of thisis water bil! merely in terms of dollars
alone. Wee cannot measure the wealth of our
great natunral resources in dollars alone—and if
we wait tooo long, all the dollars on earth won't

18a

buy back what we’ve lost. Under these circum-
stances, I am firmly convinced that the price of
killing this water bill—of sustaining this Presi-
dential veto—is far, far too costly.
Furthermore, the President maintained that
a vote to override the veto of the Water Pol-
lution Control Act Amendments of 1972 was
a vote to imerease the likelihood of higher
taxes. So be it, the public is prepared to pay
for it. To say we can’t afford this sum of
money ts to say we can’t afford to support life

on earth.
* * °

Mr. Speaker, this is perhaps the most im-
portant environmental legislation the
has yet enacted. The question is not, “Can we

118 Cong. Ree. H 10268-69 (daily ed. October 18,
1972) (emphasis added).

The cardinal principle of interpretation is “to
give effect to the intent of Congress.’’ United States
v. American Trucking Assn’s, 310 U.S. 534, 542
(1940). We have included these extensive excerpts at
this point because we find them in a clear expression
of legislative will. We find that it was Congress’ in-
tention that the full $18 billion be spent to control
water pollution. Had the statute been clearly drawn,
this would end our inquiry, if in fact one need ever
have begun. Unfortunately, we must still eonfront
the problem of the Administrator’s arguable discre-
tion to allot or not allot. We do so in the belief that
the legislative history, as quoted above, manifests an
intent to create a procedure which would insure that
the total authorized funds would be made available to
the states. It is this goal which must guide us in in-

19a

terpreting the funding mechanism, for if discretion
in allotment would make the achievement of this goal
more difficult, it must be assumed that Congress in-
tended no such authorization. See, e.g., United States
v. Congress of Industrial Organizations, 335 U.S. 106,
112 (1948); Vermilya-Brown Co., Inc. v. Connell, 335
U.S. 377, 388 (1948).

B. THE MEANING OF THE HARSHA AMENDMENTS

We now turn to the analysis of §§ 205(a) and 207,
particularly with regard to the effect of the Harsha
Amendments. As we indicated earlier, it is important
to keep in mind the distinct stages involved in the
contract-grant mechanism. Appellant-Administrator
argues, primarily from the Harsha Amendments, that
the Act permits discretion at the allotment phase. Ap-
pellee-City counters that while the Administrator
might control the timing of future spending through
delay of obligation, he must fully allot. We agree with
Appellee because, after careful consideration of the
relevant history, we find it clear that the Congres-
sional intent, both before and after the Harsha amend-
ments, was to make allotment mandatory.

Section 205(a), by its terms, supports the Appellee.
It is mandatory in tone: “‘Sums authorized to be ap-
propriated pursuant to section 207 for each fiseal
year . . . shall be allotted by the Administrator. . . «

Emphasis added.)

OThe Appellant argues that the Harsha Amend-
ments, by adding “not to exceed” in § 207, manifest an
intent to make the allotment (under § 205) discre-
tionary. However, the imposition of a ceiling on auth-
orized appropriations is not inconsistent with the Ap-
pellees’ position concerning mandatory allotment.
Logically, it could be interpreted to mean that the

20a

amount obligated (later appropriated and expended )
in any fiseal year may be less than the maximum
amount authorized. We concede that the elimination
of the word “all” from § 205(a) is a source of con-
fusion. At least one court™ has chosen to rely en-
tirely upon this syntatical change, although there is
no precise explanation of its meaning. We consider
it more useful to examine the statements of sponsors
purporting to explain the intended effect of the
Harsha Amendments; we find that allotment remained
mandatory.

Perhaps the clearest statement in the Congressional
history is that of Senator Muskie in explaining the
purpose behind the Harsha Amendments:

In our last conference, the able and distin-
_— ranking minority member of the House

ommittee on Public Works offered two amend-
ments which he indicated would reduce opposi-
tion to the bill from the White House and the
Office of Management and Budget. These two
amendments were accepted by your conferees
and by other House conferees in order to re-
move the Be ner Naf Ss ye on the basis of the
money authorized - legislation.

Under the amendments pro by Con-
gressman WILLIAM HARS A and others,
the authorizations for obligational authority are
“not to exceed” $18 billion over the next 3
years. OO
|

74A

Mr. Geratp R. Forp. Mr. Speaker, this clari-
fies and certainly ought to wipe away any doubts
anyone has. The language ts not a mandatory re-
quirement for full obligation and expenditure up
to the authorization figure in each of the 3 fiscal
years.

Id., at H9123 (emphasis added. )

The Administrator is not supported in his interpre-
tation of the Act’s legislative history by citing remarks
of Congressman Harsha concerning authority for
Executive “impoundment” of funds. During the de-
bates on H.R. 11896, Congressman Harsha took note
of recent impoundments by the Executive branch of
moneys allocated among the States under the Federal-

Aid Highway Act of 1956, and made the following ob-
servation:

[T]he Committee on Public Works is acutely
aware that moneys from the highway trust fund
have been impounded by the Executive. Ex-
penditures from the highway trust fund are
made in accordance with similar contract au-
thority provisions to those in this bill. Obviously
expenditures and appropriations in the water

llution control bill could also be controlled.

owever, there is even more flexibility in this
water pollution control bill because we have
have added “not to exceed” in section 207, as I
indicated before.

Surely, if the administration can impound
moneys from the highway trust fund which
does not have the flexibility of the language of
the water pollution control bill, it can just as
rightly control expenditures from the contract
authority produced in this legislation by that
same means.

Td., at H9122 (emphasis added).

The impoundments of Federal-Aid Highway Act
moneys referred to by Congressman Harsha were of
funds already allotted, i. e., the controls were being

75a

exercised at the obligation levei rather than at the
allotment level.” Thus, these comments tend to sup-
port the position of the plaintiff rather than that of
the defendant in regard to which administrative fune-
tions are discretionary and which mandatory under
the Act which this Court is called on to construe. It
seems obvious from the remarks just quoted that, as
Senator Muskie observed :

Under the amendments pro by _Con-

WILLIAM HARSHA and others,

the authorizations for obligational authority

are “not to exceed” $18 billion over the next 3

Also, “all” sums authorized to be obli-

gated need not be committed, though they must

be allocated. These two provisions were sug-

gested to give the Administration some flexibil-

ity concerning the obligation of construction
grant funds.

Td., at 816871 (emphasis added).

The President appears to have concurred in the
views of the sponsors concerning § 205 and § 207 of
the Act, for in his message explaining his veto of the
bill, he stated :

Certain provisions of ... [the bill] confer
a measure of spending discretion and flexibility
upon the President, and if foreed to administer
this legislation I mean to use those provisions
to put the brakes on budget-wrecking expendi-
tures as much as possible.
But the law oe mig Magen oo — and
unnecessary price from the public. Por | am
convinced . that the saeauage for full fund-

*° Jt should be noted that the Court of Appeals for the Eighth
Cireuit has construed the Federal-Aid Highway At as re-
quiring obligation of allotted funds, and has thus declared the
impoundments referred to by Congressman Harsha to be illegal.
State Highway Commission of Missouri v. Volpe, 479 F.2d 1099,
(8th Cir., 1973).

76a

ing under this bill would be so intense that
funds approaching the maximum authorized
amount could ultimately be claimed and paid
out, no matter what technical controls the bill
appears to grant the Executive. 118 Cong. Ree.
at H10266 (daily ed. October 18, 1972) (em-
hasis added).
In other words, the President believed that the Act
required the Administrator to allot the full amount
authorized, and he feared that once the Administrator
had made the allotments, he might be under great
pressure to approve grant applications up to the
amount of the allotments. Congress, believing that the
needs to which the Act was addressed were sufficiently
urgent that expenditure of the full amounts author-
ized might be necessary,” and believing frther that
the Administrator was given sufficient discretion to
avoid any y and improvident obligation of funds,
passed the bill over the President’s veto.

The question whether the entire amount should be
obligated is, of course, not befo .: this Court. The only
question is whether the full allotments must be made,
and the answer to that on the basis of the foregoing
review of the sponsors’ comments seems clear. The
language of the pertinent sections of the Act, read
in the light of their legislative history, clearly indi-
cates the intent of Congress to require the Adminis-
trator to allot, at the appropriate times, the full sums

** The central purpose of the Act as set forth in the first sec-
tion is to effectuate “the national goal that the discharge of pol-
lutants into the navigable waters be eliminated by 1985.” § 101
(a)(1). Congressman Harsha recognized that achieving this
goal might well require spending the entire $18 billion author-
ized to be appropriated; and he observed: “To say we can’t
afford this sum of money is to say we can’t afford to support
life on earth.” 118 Cong.Rec. H10268 (daily ed. October 18,
1972).

77A

authorized to be appropriated by § 207.” Hence, this
Court has no choice other than to declare that § 205(a)
of the Act requires the Administrator to allot among
the states $5 billion for fiscal year 1973 and $6 billion
for fiscal year 1974.

The only question remaining for decision is whether
plaintiff’s action may be maintained as a class action
on behalf of all similarly situated municipalities with-
in the State of New York. Defendant has opposed
maintenance of this suit as a class action solely on
the ground tuat plaintiff does not satisfy subsections
(a)(3) and (a)(4) of Rule 23, Fed.R.Civ.P., ie., it
is contended that plaintiff’s claim is not typical of
those of the proposed class members and that plain-
tiff cannot adequately represent the class: The Court
does not find these points well taken. Differences in
amounts which various municipalities might receive
from the State allotment have no bearing on the legal
issue of whether the allotment as a whole should be
increased: Neither can such differences make the City
of New York something less than an adequate repre-
sentative of the class as required by Rule 23(a) (4).
Competition for shares of a common fund does not bar
a class action on behalf of all competitors when the
relief sought would lead to an increase in the total
amount of that fund. Berman v. Narragansett Racing

** As previous discussion has indicated, pp. 675-676, s «pra,
this construction of the Act does not infringe upon any pre-
rogative of the Executive branch. The Court is thus not con-
fronting any delicate constitutional question of the kind which
Mr. Justice Brandeia, ir Ashwander v. Tennessee Valley Au-
thority, 297 U.S. 288, 345-348, 56 S.Ct. 466, 80 L.Ed. 688
(1936), counseled courts to avoid. Hence defendant’s reliance on
Ashwander as authority for the proposition that the Act
should be construed so as to enhance his powers at the expense
of those of the Congress is not well taken.

78A

Association, 414 F.2d 311, 317 (1st Cir. 1969), cert.
denied, 396 U.S. 1037, 90 S.Ct. 682, 24 L. Ed.2d 681
(1970). The Court finds that plaintiff satisfies all the
requirements of Rule 23(a) and 23(b)(1)(A),
(b) (1) (B), and (b) (2); accordingly, the suit can be
maintained on behalf of the proposed class.

APPENDIX F

CAMPAIGN CLEAN Water, Inc.
Vv.
Wim D. RvckersHavs, ADM. ENVIRONMENTAL
Prorection AGENCY

Civ. A. No. 18-73-R

United States District Court, E. D. Virginia, Rich-
mond Division, June 5, 1973.

ORDER

MERHIGE, District Judge:

In accordance with the memorandum this day filed
and deeming it just and proper so to do, it is adjudged
and ordered that:

1) Upon the Court’s own motion, Robert W. Fri,
Acting Administrator of the Environmental Protec-
tion Agency, shall be, and is hereby, substituted for
William D. Ruckelshaus as the proper party defend-
ant.

2) Campaign Clean Water, Inc., is granted leave to
proceed in this action on behalf of its members and
those similarly situated in the Commonwealth of
Virginia.

3) Defendant’s motion to dismiss shall be, and the
same is hereby, denied.

4) Plaintiff’s motion for summary judgment shall
be, and the same is hereby granted.

5) It is declared that the announced policy of the
Administrator to refuse to allot $6 billion of the desig-

794

80A

nated $11 billion under Section 205 of the Federal
Water Pollution Contrel Act Amendments of 1972, 33
U.S.C, 1251 et seq., for the fiscal years 1973 and 1974
constitutes an abuse of diseretion under the authority
and powers conferred by the Act. Accordingly, said
policy shall be, and the same is hereby, declared null
and void.

6) The defendant is directed to report to the Court
within ten (10) days of this date those actions taken
to conform the administration of the Act to the prin-
ciples enunciated in the memorandum.

MEMORANDUM

MeruHIGe, District Judge:

Campaign Clean Water, an environmental group
organized to ‘“‘promote the ecological and environ-
mental advancement of Virginia,’’ seeks in this action
to compel the defendant Administrator of the Environ-
mental Protection Agency (E.P.A.) to allot among the
states the full sums authorized to be appropriated by
Section 207 of the Federal Water Pollution Control
Act, as amended by Public Law 92-500 (the “ Act”)
and to estop him from withholding funds so allotted.
Jurisdiction is alleged pursuant to 28 U.S.C. §§ 1331
and 1361. The parties are presently before the Court
pursuant to plaintiff's motion for summary judgment
and defendant's cross-motion to dismiss. Respective
counsel have submitted comprehensive memoranda on
the issues raised, and it is upon same that this matter
is ready for disposition.

The facts are not in dispute. For preliminary pur-
poses they are as follows: On October 4, 1972 the
Congress passed a water pollution bill authorizing
appropriations in the amount of $11,000,000,000 for
waste treatment plant construction grants for fiscal

Bla

years 1973 and 1974. The bill was vetoed on October
17, 1972 by the President who stated that he found
the measure to be of an “inflationary” nature. The
Congress promptly overrode the veto. On November
28, 1972 the Administrator announced that pursuant
to the President’s direction he was allotting only
$5,000,000,000 of the total $11,000,000,000 for treat-
ment plant construction projects for fiseal years 1973
and 1974. It is the Administrator’s announced action,
which is popularly referred to under the rubric of
“impoundment of funds’’, which is challenged in this
suit.

The issues raised are as follows:

1, Whether plaintiff has standing to maintain this
action.

2. Whether this action is rendered moot by virtue
of City of New York v. Ruckelshaus, 358 F.Supp. 669,
CA No. 2466-72 (1D.C.1973).

3. Whether the defendant is immune from this suit
by virtue of the sovereign immunity doctrine.

4. Whether this matter presents a justiciable con-
troversy.

5. Whether, upon the merits, plaintiff is entitled to
the relief sought.

These issues will be considered in seriatim.

I, STANDING

Campaign Clean Water, Inc., as described in the
complaint, is a Virginia corporation “organized to
promote the ecological and environmental advance-
ment of Virginia. Its officers, directors, and financial
contributors include Virginia residents who use the
nation’s waters for both sport and commercial fishing
and for other recreational purposes.’’ The affidavit of
the organization’s president, Newton H. Ancarrow,

82a

indicates that it was created through the efforts of
various groups. Included among the founders is the
Chesapeake Bay and its Tributaries Watermen’s
Union, whose members derive their income from shell-
fishing, and among its contributors are the Virginia
Beach Innkeepers Association and other individuals
who engage in boating and swimming on Virginia’s
waters and who own waterfront property. They allege
that their interests are impaired by the discharge of
untreated or inadequately treated sewage from overly
burdened waste treatment plants into the waters of
Virginia.

In particular, it is alleged that individual members
of the groups who have formed and contributed to
Campaign Clean Water, Inc., have suffered economic
injury from contaminated waters caused by sewage
discharge from several plants operated by the Hamp-
ton Roads Sanitation District. Members of the Chesa-
peake Bay and its Tributaries Watermens Union, for
example, allege that shellfish beds in the area have
been rendered unusable by such contamination. The
injuries of the various members of Campaign Clean
Water, Inc., are tied to the acts of the defendant by
the allegation, supported by a letter from the General
Manager of the Hampton Roads Sanitation District,
that the withholding of funds will have a disastrous
effect on future plans for water treatment plants on
Virginia’s waters and will thus allow the injury to the
plaintiff’s interests to continue.

The doctrine of standing, emanating from the case
or controversy requirement of Article III of the
Constitution and from general principles of judicial
administration, seeks to ensure that the plaintiff to an
action has “alleged such a personal stake in the out-
come of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues

83a

upon which the Court so largely depends . . .” Baker
v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d
663 (1962). Problems of standing in actions against
publie officials may arise in either of two contexts,
depending upon whether the plaintiff relies in his
action upon a statute authorizing the invocation of
the judicial process.

The majority of cases in which the plaintiff relies
upon such a statute involves the Administrative Pro-
cedure Act (APA) and its language granting the
right of review to any party ‘‘suffering legal wrong
because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a
relevant statute.’’ 5 U.S.C. § 702. Standing in such
cases is available only where the plaintiff has alleged
active injury in fact at the hands of the defendant
and where the alleged injury was to an interest ‘‘argu-
ably within the zone of interests to be protected or
regulated”’ by the statutory requirements to which the
plaintiff seeks to compel adherence. Association of
Data Processing Service Organizations, Inc. v. Camp,
397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184
(1970). Where the plaintiff does not rely upon a
specific statute such as the APA, he still must meet
standing requirements which are virtually identical
to those imposed by the APA. Specifically, he must
allege an actual injury to himself and in addition
show that such injury is to an interest that is pro-
tected by the legal right which he asserts is violated
by the defendants’ act. Linda R. 8. v. Richard D.,
410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973).
As the Supreme Court has framed the second aspect,
there must be a “logical nexus between the status
[of the plantiff] asserted and the claim sought to be
adjudicated.” Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct.
1942, 1953, 20 L.Ed.2d 947 (1968).

S4A

Although the plaintiff does not invoke the APA
in pursuing this claim, the Court is satisfied that the
action is one which could have been brought pursuant
to that act. See City of New York v. Ruckelshaus,
358 F.Supp. 669, CANo. 2466-72 (D.D.C.1973).
Even if it could not, however, the Court’s foregoing
discussion leads it to conclude that generally the same
standards apply as would apply in an APA case. In
either case, Campaign Clean Water clearly has stand-
ing in this action.

The allegations of the complaint and affidavit in-
dicate that individual members of groups belonging
to and contributing to the plaintiff suffer direct,
pecuniary injury as a result of waste contamination
in Virginia’s waters. Such injury is particularized
and sets these members apart from the public, in gen-
eral. Since an organization whose members are in-
jured may represent those members in judicial pro-
ceedings, Sierra Club v. Morton, 405 U.S. 727, 739,
92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); James River
and Kanawha Canal Parks, Ine., v. Richmond Metro-
politan Authority, 359 F.Supp. 611 (E.D.Va.1973),
Campaign Clean Water, Inc., may assert these claims.
The fact that the groups representing the individuals
injured rather than the individuals themselves are
the actual members of Campaign Clean Water is un-
important, since it is the interests of the individual
persons that the plaintiff ultimately represents.

The Court further finds that the requisite nexus
between the injury and the right asserted exists in
this case. The plaintiff by its allegations directly at-
tributes the injury incurred to the inadequacy of waste
treatment plants, particularly in the Hampton Roads
area. With federal money, new treatment plants will
be built and old ones improved, all of which will lessen
the existing damage suffered by the plaintiff. Since

85a

the plaintiff’s assertion is that the defendant is under
a duty to release federal funds for waste treatment
plants, it is clear that the injury incurred falls within
the scope of interests benefitted by that duty. Accord-
ingly, Campaign Clean Water, Inc., has standing to
pursue this action.

Il, MOOTNESS

The Court sua sponte raises the issue of mootness in
view of the recent District Court decision of Judge
Oliver Gasch in City of New York v. Ruckelshaus, 358
F.Supp. 669, CANo, 246-72 (D.D.C. 1973). In that
action, the plaintiffs, the Cities of New York and
Detroit, challenged the refusal of the present de-
fendant to allot the funds appropriated under the
Act which are the subject of this action. Judgmert
was entered for plaintiffs. Whether or not the Admin-
istrator will appeal that decision is unknown at this
time.

The Court has examined Judge Gasch’s opinion and
concludes that, in light of the relief sought and order
entered in that matter, the present action is not moot.

The City of New York sued on behalf of itself and
all similarly situated municipalities in the State of
New York. The City of Detroit, additionally, was
granted leave to intervene as plaintiff. While the re-
lief granted included inter alia declaratory and in-
junctive relief which applies to the whole fund, the
Court has some doubts that the present plaintiffs
could, in view of the class definition in City of New
York, properly enforce that judgment as it applies to
them.

There is, however, a more compelling reason mili-
tating against mootness which, in part, derives from
the peculiar nature of the administrative procedures

86A

under the Act. While these procedures will be re-
viewed at length infra, for these purposes a brief sum-
mary will suffice.

The procedure is as follows:

Section 207 authorizes specific sums of money to be
appropriated, The administrator is required by § 205
to allot the sums in accordance with a formula set
forth in § 205(a). Once allotted to the states or muni-
cipalities’ contract authority exists up to these
amounts. In a second stage, the Administrator reviews
grant applications from the states and municipalities
to determine whether they satisfy the criteria of § 204
of the Act. Once these plans are approved, a con-
tractual obligation on the part of the United States
arises to pay the federal share allocable to the project.
In sum, there is a two step process of 1) allotment and
2) expenditure.

The City of New York suit challenged only alleged
abuses of discretion by the defendant with respect to
allotment. Relief with respect to the expenditure stage
was neither sought nor granted. This action seeks re-
lief with respect to alleged abuses of discretion or
possible abuses of discretion at both stages of the pro-
gram. For this reason as well, this action is not moot.

Ill, SOVEREIGN IMMUNITY

The defendant grounds his motion to dismiss in part
upon an asserted application of the “sovereign im-
munity” doctrine. The gravamen of that doctrine has
been stated in Land v. Dollar, 330 U.S. 731, 67 S.Ct.
1009, 91 L.Ed. 1209 (1947): a suit is one against the
sovereign, and therefore barred, if ‘‘[t]he ‘essential
nature and affect of the proceeding’ may be such as
to make plain that the judgment sought would ex-
pend itself on the public treasury or domain, or in-
terfere with the public administration.” While the

87a

instant matte squarely falls within this definition, it
also falls witin a well-settled exception to the sover-
eign immunit doctrine.

Said excepion is expressed in Dugan v. Rank, 372
U.S. 609, 838.Ct. 999, 10 L.Ed.2d 15 (1963), which
holds that a uit may be brought against an officer of
the United ‘tates to challenge an action which al-
legedly exceds statutory authority or, if within the
scope of autlority, is premised upon a power which
is unconstituional. See also Malone v. Bowdoin, 369
U.S. 643, 647 82 S.Ct. 980, 8 L.Ed.2d 168 (1962). One
common vehcle for challenging an official’s action
upon this thery is mandamus jurisdiction, 28 U.S.C.
§ 1361, whichis relied upon here by plaintiff.

The complint alleges that the defendant has ex-
ceeded his sttutory authority in impounding funds.
If sustained n the merits, plaintiff will come within
the above reited exception to the doctrine. Accord-
ingly, at thisstage, the Court is satisfied that Cam-
paign Clean Water has carried its burden in over-
coming the be of sovereign immunity.

IV, JISTICIABLE CASE OR CONTROVERSY

The defendnt urges that this action does not pre-
sent a justicible case or controversy. A two-pronged
argument is presented, and the two issues raised
thereby will b considered in turn.

A, Ripeness

Defendant :ontends that this action is premature.
The gravame: of that argument is that plaintiff (or
those interest: it represents) is without a claim absent
specific denialof funds to proposed projects. Because
no proposals iave been submitted and rejected, it is
argued that te present claim is hypothetical.

533-025-—74-—T

88a

Defendant’s argument is without merit. Legislative
history is probative of the fact that the scheme of
allotment followed by obligation was adopted in the
Act to facilitate long range planning, a necessary ele-
ment in the development of water treatment plants.
118 Cong. Ree. H. 2727 (3/29/72); City of New York
supra. Because funds are allotted on a yearly basis
(Section 207), it appears that those funds not allotted
in the appropriate vear are forever lost. The failure
to allot, therefore, may have a decisive and detrimen-
tal impact upon treatment plant development plan-
ning. Said impact gives rise in part to the injuries al-
leged here and satisfies the Court that this action is
not premature.

B. Political question

The defendant urges that plaintiff has called upon
the Court to decide a ** political question,”’ which it is
asserted is beyond the proper exercise of federal court
jurisdiction. Colegrove v. Green, 328 U.S. 549, 66 S.Ct.
1198, 90 L.Ed. 1432 (1946), Baker v. Carr, 369 U.S.
186, 82 S.Ct. 691 7 L.Ed.2d 663 (1962). While the
Court is cognizant that the issue raised here has con-
temporary political overtones, it is satisfied, for rea-
sons that follow, that this matter does not present a
political question in the legal sense. The Supreme
Court in Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at
710 clarified this distinction and enunciated as well
the standard by which political questions may be iden-
tified :

It is apparent that several formulations
which vary slightly according to the settings in
which the questions arise may describe a polit-
ical question, although each has one or more

* However, funds allotted for a given year but not obligated
may be reallotted the following fiscal year § 205(b) (1).

89a

elements which identify it as essentially a func-
tion of the separation of powers. Prominent on
the surface of any case held to involve a politi-
eal question is found a textually demonstrable
constitutional commitment of the issue to a
coordinate political department; or a lack of
judicially discoverable and manageable stand-
ards for resolving it: or the impossibility of
deciding without an initial policy determination
of a kind clearly for nonjudicial discretion; or
the impossibility of a court’s undertaking inde-
pendent resolution without expressing lack of
the respect due coordinate branches of govern-
ment; or an unusual need for unquestioning
adherence to a political decision already made,
or the potentiality of embarassment from multi-
farious pronouncements by various departments
on one question.

Unless one of these formulations is inextricable
from the ease at bar, there should be no dis-
missal for nonjusticiability on the ground of a
political question’s presence. The doctrine of
which we treat is one of “political questions,”
not one of “‘political cases.” The courts cannot
reject as “no law suit” a bona fide controversy
as to whether some action denominated ‘‘politi-
cal” exceeds constitutional authority.

In determining whether this action, by reason of the
above recited standards, presents a political question,
the Court has considered defendant’s assertion that
“[w]hile spending controls are not ‘textually com-
mitted’ by the Constitution to any of the three de-
partments, it is clearly not a matter for the judiciary.
Moreover, the grant of ‘executive power’ in Article IT
comes very close to a ‘textually demonstrable’ commit-
ment of this responsibility to the President.’’ Defend-
ant’s brief at 11. Defendant overstates the issue here
present: contra to defendant’s broad assertions, the
Court is required to determine whether the specific

90a

Act in question mandates spending policies in contra-
vention to those announced by the Administrator. This
Is & narrow issue and a matter of statutory interpreta-
tion. The Court recognizes that this conclusion im-
pliedly makes short shrift of defendant’s underlying
contention that spending of funds legislatively appro-
priated is solely within the province of executive
discretion. Nevertheless, to support defendant’s con-
tention would require the Court to postulate a broad
reading of executive power which includes the prop-
osition thet the Congress may make funds available
for spending or mandate the manner in which they
are spent, but may not mandate that they, in fact, be
spent. That contention has in essence been firmly re-
jected in a well-reasoned opinion by Judge Jones in
Local 2677 v. Phillips, 358 F.Supp. 60 (D.D.C.1973).
As Judge Jones noted in language appropriate here
“(t]he defendant really argues that the Constitution
roger the discretionary power upon the President
refuse to execute laws passed ngress wi

which he disagrees.”’ adh i

More than a century ago the United States Supreme
Court laid to rest any contention that the President
~y ha gty ge See Kendall v. United States,

et. 524, S. 524, 9

the Court stated: eee ee

To contend, that the obligation imposed th
president to see the laws faithfully auasiol
implies a power to forbid their execution, is a
novel construction of the constitution, and en-
tirely inadmissible. 37 U.S. at 611.
See also National Automatic laund
: ry v. Shultz, 143
Lf ‘S.App.D.C. 274, 443 F. 2d 689, 695 (1971), holding
that ‘‘the Judicial branch has the function of requiring
the executive (or administrative) branch to stay with-
in the limits prescribed by the legislative branch.”

9la

Accordingly, the issue before the Court calls for an
interpretation of the Act. There is no issue here vis-a-
vis “‘executive power” and in that respect this case
does not present a political question. Defendant also
urges that there is a “lack of judicially discoverable
and manageable standards for resolving” the questions
posed here. The Court disagrees. The Court is not
being asked to supervise the operations of the EPA.
Solely sought here is declaratory and injunctive relief
with respect to the announced policy of impoundment.
The standards for fashioning that relief, if appro-
priate, will be discussed in conjunction with the
merits. At this stage, however, the Court fails to dis-
cern a political question lurking in the record before
it.

V. THE MERITS

Plaintiff essentially challenges the defendant’s an-
nounced policy with respect to impoundment of allot-
ments and prays as well that the Court retain juris-
diction so as to grant appropriate relief to prevent
abuse of discretion with respect to appropriations. The
allotment question will be considered first.

A. Allotment
The relevant portions of the Act read inter alia as

follows:
ALLOTMENT

See. 205. (a) Sums authorized to be appro-
priated pursuant to section 207 for each fiscal
year beginning after June 30, 1972, shall be
allotted by the Administrator not later than
the January Ist immediately preceding the be-
ginning of the fiscal year for which authorized,
except that the allotment for fiseal year 1973
shall be made not later than 30 days after the
date of enactment of the Federal Water Pollu-

92a

tion Control Act Amendments of 1972. Such
sums shall be allotted among the States by the
Administrator in accordance with regulations
promulgated by him, in the ratio that the esti-
mated 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. For the fiscal years ending June 30,
1973, and June 30, 1974, such ratio shall be
determined on the basis of table ITT of House
Public Works Committee Print No. 92-50.
Allotments for fiscal years which begin after
the fiseal year ending June 30, 1974, shall be
made only in accordance with a revised cost
estimate made and submitted to Congress in
accordance with section 516(b) of this Act and
only after such revised cost estimate shall have
A approved by law specifically enacted here-
after.
AUTHORIZATION

Sec. 207. There is autherized to be appropriated
to carry out this title, other than sections 208
and 209, for the fiscal year ending June 30,
1973, not to exceed $5,000,000,000, for the fiscal
year ending June 30, 1974, not to exceed $6,-
000,000,000, and for the fiscal year ending June
30, 1975, not to exceed $7,000,000,000.

The specific issue is whether the langauge of § 205,
“Sums authorized to be appropriated ... shall be
allotted . . .’’ allows the discretionary impoundment
policy announced by the Administrator. The parties
have taken preliminary positions upon the face of the
statute. Plaintiff urges that the phrase ‘‘shall be
allotted”” proseribes the exercise of discretion an-
nounced by the defendant; the Administrator, on the
other hand, urges that the language “not to exceed”
in section 207 is expressive of the range of discretion
built into the Act. See Housing Authority of San

93a

Francisco vy. United States Department of Housing
and Urban Development, 340 F.Supp. 654 (N.D.Cal.
1972). Because the statute itself gives rise to con-
flicting interpretations, inquiry directed beyond the
precise language is called for.

Defendant urges that legislative history is suppor-
tive of his position. Specifically he cites amendment
of the language in question by a House-Senate con-
ference committee which deleted the word “all” before
the phrase “sums authorized to be appropriated” in
§ 205 and the addition of the aforementioned phrase
‘not to exceed” in § 207. With specific reference to
§ 205 the Court finds the amendment highly signifi-
cant. Thus, the House bill originally considered read:

“All sums authorized to be appropriated .. .
shall be allotted by the Administrator...” (em-
phasis supplied).

The amended section reads as amended :

“Sums authorized to be appropriated . . . shall
be allotted by the Administrator .. .”

Defendant urges that the only logical interpretation
of this amendment is that the Congress did not intend
that “all” sums authorized be appropriated, or con-
versely, that the Administrator was given authority to
exercise his discretion in that regard. The views of
Congressman Harsha, the House sponsor, are support-
ive of this view:

Furthermore, Mr. Speaker, we have empha-
sized over and over again that if Federal spend-
ing must be curtailed, and if such spending
cuts must affect water pollution control author-
izations, the administration can impound the

money.
I ae to point out that the elimination of
the word “all” before the word “sums” in sec-
tion 205(a) and insertion of the phrase “not
to exceed” in section 207 was intended to em-

944

phasize the President’s flexibility to control the
rate of spending. 118 Cong.Rec. H. 10268.

Yet the Senate sponsor, Senator Muskie, was of the
opinion that this “flexibility to control the rate of

spending” occurred at the obligation rather than
allotment stage :

Under the amendments proposed by Congress-
man WILLIAM HARSHA and others, the au-
thorizations for obligational authority are “not
to exceed” $18 billion over the next 3 years.
Also, “all” sums authorized to be obligated need
not be committed, though they must be allo-
cated. These two provisions were suggested to
give the Administration some flexibility con-
cerning the obligation of construction grant

funds.

Id., at S 16871 (emphasis added).

This view is itself not inconsistent with other re-
marks by Congressman Harsha which followed his
above recited statement:

I might add, while this legislation does provide
for contract authority, the present administra-
tion recommended contract authority in H.R.
18779, the bill I introduced in behalf of the
administration some time ago. Furthermore, let
me point out, the Committee on Public Works
is acutely aware that moneys from the high-
way trust fund have been impounded by the
Executive. Expenditures from the highway
trust fund are made in accordance with similar
contract authority provisions to those in this
bill. Obviously expenditures and appropriations
in the water pollution control bill could also be
controlled. However, there is even more flexibil-
ity in this water pollution control bill because
we have added “not to exceed” in section 207, as
I indicated before.

Surely, if the administration can impound
moneys from the highway trust fund which

95a

does not have the flexibility of the language of
the water pollution control bill, it can just as
rightly control expenditures from the contract
authority produced in this legislation by that
same means.’

Second, I would like to point out that the
Administrator of the Environmental Protection
Agency must approve plans, specifications, and
estimates. This is the pacing item in the expend-
itures of funds. It is clearly the understand-
ing of the managers that under these circum-
stances the Executive can control the rate of
expenditures.

Td. at H 10268.

Judge Gasch in City of New York concluded from
this language and other by-play that, in accordance
with Senator Muskie’s views, the discretionary ele-
ments incorporated into the Act and referred to by
the various legislators were meant to apply to execu-
tive control over the “rate of spending,”’ but that the
rate of spending was to be monitored only at the ob-
ligation stage and not by the withholding of allot-
ments. rhe

This Court respectfully declines to adopt this inter-
pretation, primarily because it appears to de-empha-
size the syntactical history of Section 205 which shows
the purposeful removal of the word “all’’ from
§ 205. While the legislative debates lend strength to
Judge Gasch’s conclusion, the Court, the plaintiff,

*As Judge Gasch observed in City of New York, Cong.
Harsha’s position has itself been rendered suspect by a subse-
uent Court decision :
: It should be noted that the Court of Appeals for the Eighth
Circuit has construed the Federal-Aid Highway Act as requir-
ing obligation of allotted funds, and has thus declared the im-
poundments referred to by Congressman Harsha to be illegal.
State Highway Commission of Missouri v. Volpe, 479 F.2d
1099 (8th Cir., 1973).

96a

and, to a limited extent, the defendant, are in agree-
ment that legislative history is in the main unclear,
politically charged, and in the Court’s view, to some
degree based upon suspect constitutional interpreta-
tion of the powers of the President.’ In this context
the syntactical history must be given great weight.
See generally Gilbert v. General Electric, 347 F.Supp.
1058 (E.D.Va. 1972). The Court accordingly con-
cludes that the Congress did intend for the execu-
tive branch to exercise some discretion with respect
to allotments. Plaintiff, in fact, does not seriously
dispute this conclusion, but contends that ‘‘the Con-
gress could not have intended to give the Administra-
tor the discretion to gut the Act.” This latter conten-
tion merits close scrutiny.

Legislative history from the time of the veto is
especially helpful because the executive’s position with
regard to bill passed was framed in the context of
its alleged inflationary impact. Accordingly, the issue
of just how much was required to be spent under the
terms of this legislation was central to the discussion
that followed.

The President’s veto message with regard to the
Act is made perfectly clear in the following language
from his veto message :

Certain provisions of ... [the bill] confer a
measure of spending discretion and flexibility
upon the President, and if forced to adminis-
ter this legislation I mean to use those provi-
sions to put the brakes on budget-wrecking
expenditures as much as possible.

“See note 2, supra (re: highway fund impoundments) and
discussion at page 695, ante (re: general power of the ex-
ecutive to withhold funds absent congressional authorization.)

Q97A

But the law would still exact an unfair and
unnecessary price from the public. For I am
convinced . . . that the pressure for full fund-
ing under this bill would be so intense that
funds approaching the maximum authorized
amount could ultimately be claimed and paid
out, no matter what technical controls the bill
appears to grant the Executive. 118 Cong.Ree.
at H 10266 (daily ed. October 18, 1972) (em-
phasis added).

Both houses of Congress promptly overrode the
veto. Prior to the respective votes, Senator Muskie
reiterated the national commitment to clean water,"
and cognizant of the spending discretion vested by
the Act in the President, urged that the large scale
policy adopted be reaffirmed by overriding the veto.
188 Cong.Rec. S 18546 et seq. Eighty-one percent of
the Senators present voted to override.

Representative Harsha, upon resubmission, ex-
pressly addressed the alleged inflationary nature of
the bill, stating that a large seale water improvement
effort was worth the price that might be caused:

I don’t think there is one Member of this body
who has not asked his constituents whether or
not they were willing to pay the high price to
achieve our national environmental goals. I
don’t think that there is one Member of this
body who could report that after such poll-
ing, his constituents objected * * *

* * * (T]he President maintained that a vote
to override the veto of the Water Pollution
Act Amendments of 1972 was a vote to increase

* Interestingly, the Senate had originally chosen not to pass
an administration bill (S. 1013) which would have authorized
sums close to those slated for spending under the challenged

impoundment policy.

O8A

the likelihood of higher taxes. So be it, the pub-
lic is prepared to pay for it. To say we can’t
afford this sum of money is to say we can’t
afford to support life on earth. Id. at H 10268."

The House voted by a margin of 91% of those pres-
ent to override.

From the above recited history, the Court draws
several conclusions:

1) The Congress passed a large scale clean water
bill committing the nation to an extensive program to
fight pollution. In so doing, the Senate rejected a

smaller scale commitment proposed by the administra-
tion.

2) The Congress purposefully incorporated provi-
sions in the Act which would allow some degree of
spending discretion by the executive. These provisions
were motivated in part by a desire to avoid a veto,
see 118 Cong.Rec. at S. 16871, and in part by the as-
sumption of some legislators (notably Rep. Harsha),

*The tenor of these remarks is akin to the remark of
Senator Muskie prior to passage of the bill:

“* * * [T]}hose who say that raising the amounts of money
called for in this legislation may require higher taxes, or that
spending this much money may contribute to inflation simply
do not understand the language of this [water pollution] crisis.

“The conferees spent hours and days studying the prob-
lem of financing the cleanup effort required by this new leg-
islation. The members agreed in the end that a total of $18
billion had to be committed by the Federal Government in
75-percent grants to municipalities during fiscal years 1973-
75. That is a great deal of money; but that is how much it
will cost to begin to achieve the requirements set forth in
the legislation. * * *

“* * * [T)}he conferees are convinced that the level of in-
vestment that is authorized is the minimum dose of medi-
cine that will solve the problems we face. 118 Cong. Rec.
S 16870 et seq.”

99a

but not all (notably Senator Muskie), that some funds
may be impounded.

3) The President vetoed the bill because of its al-
leged inflationary impact, notwithstanding his recog-
nition of the discretionary provisions of the bill.

4) The Congress overrode the veto by large mar-
gins, reaffirming the massive national commitment to
environmental protection and the willingness to incur
vast expenses in achieving that commitment.

Upon the foregoing, the Court is well-satisfied that
the challenged impoundment policy, by which 55% of
the allocated funds will be withheld, is a violation of
the spirit, intent and letter of the Act and a flagrant
abuse of executive discretion. Accordingly, the Court
will enter a declaratory judgment holding that that
policy is null and void.

Further relief, however, is not now required. The
Court will not and cannot supervise the Administrator
in the administration of the Act. Issuance of an in-
junction would accordingly be inappropriate. While
the Court has no reason to conclude that the defendant
will not make a good faith effort to proceed in the
allotment of funds in accordance with the letter and
spirit of this memorandum, it does note that the plain-
tiff may at any time move to reopen this matter so as
to contest such future actions or lack of actions on
the part of the Administrator as they may contend
are arbitrary, capricious or violative of the Act as
herein enunciated, At this stage, the Court will only
require that the defendant report to the Court within
ten (10) days of this date such actions as have been
taken to conform the administration of the program to
the principles enunciated in this memorandum.

100A

B. Appropriations

lor the reasons heretofore stated, the Court is satis-
fied that the defendant may not with propriety adopt
policies which contravene the letter and spirit of the
Act. However, specific relief with respect to future
appropriations at this stage would be premature,
especially in view of the expert discretion designed for
the appropriations stage. See City of New York,
supra. For these purposes, the Court concludes that
the declaratory relief issued with respect to the allot-
ment stage will place the defendant on notice that a
similarly designed and motivated impoundment policy
with respect to appropriations would contravene the
letter and spirit of the Act.

VI. SCOPE OF RELIEF

In view of the nature of the relief granted, the
Court declines to issue same with respect to those
interests not represented directly by plaintiffs. To do
otherwise would potentially burden the Court and
prospective parties with reviewing individual actions
of the Administrator which may apply to locations in
more appropriate forums. Accordingly, declaratory
judgment will be issued only with respect to those
interests in Virginia represented by the plaintiff or-
ganization. This determination as well precludes fur-
the difficulties of class determination and notice not
warranted by the nature of the relief given.

An order consistent with this memorandum shall
issue.

U6 GOVERNMENT PRINTING OFFICE terTe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0075%3A02. Public record. Not legal advice.