Amicus Brief — Train v. City of New York

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TABLE OF CONTENTS

Table of Authorities

Questions Presented

Statement of the Case

Interest of Amicus Curiae

Summary of Argument

Argument

)

II.

The Act and Its Legislative History Indicate the

Administrator Has No Discretion to Curtail

Authorized Funds at the Allotment Stage

A.

The Act Manifests Clear Congressional In-

tent to Attain Clean Water

The Statutory Scheme Imposes a Clear

Mandatory Duty Upon the Administrator

to Allot

The Amounts Authorized Were Based on

National Needs to Achieve the Act’s Pur-

poses

The Allotment Scheme Was Established to

Aid the States in Planning to Meet Statu-

tory Reyuirements

The Administrator Has No Discretion to Re-

duce Allotments

A.

The Act Requires Full Allotment

i

12

15

18

24

24

B. If the Administrator Has Any Discretion

at the Allotment Stage, He Has Abused It

1. Discretion was not exercised within

the bounds delineated by the Act

2. The refusal to allot 55% of the funds

authorized is a flagrant abuse of dis-

cretion because it effectively frustrates

the intent of Congress as embodied in

the Act

3. The President and the Administrator

cannot do indirectly what the Presi-

dent was forbidden by Congress to do

by veto

III. The Action of the Administrator Is Not So

“Committed to Agency Discretion” As to Be

Nonreviewable

Conclusion

ii

PAGE

30

30

39

TABLE OF AUTHORITIES

PAGE,

Cases:

Campaign Clean Water, Inc. v. Ruckelshaus,

361 F.Supp. 689 (E.D. Va., 1973) \ 31

Campaign Clean Water, Inc. v. Train,

489 F.2d 492 (1973) 41

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402 (1971 39

City of New York, et al. v. 88

358 F.Supp. 669 (1973) 23, 27

City of New York v. Train,

494 F.2d 1033 (19745 14, 17, 18, 25

Kendall v. United States, 12 Pet. 524 (1838) 38

Martin-Trigona v. Ruckelshaus, No. 72-C-3044

(N. D. III., June 29, 1973) 14

Local 2677, American Federation of 2

Employees v. Phillips, 358 F.Supp. 60

(D.D.C., 1973) Ai rae $1

Richards v. United States, 369 v. 8. 1 (4962) * 40

Stark v. Wickard, 321 U.S. 288 (194)⸗- 39

State Highway Commission of Missouri v. Volpe,

479 F.2d 1099 (Sth Cir., 197) 27, 30, 31, 32

State of Florida v. Train, Civ. No. 73-156

(N. D. Fla., Feb. 25, 197 F

State of Maine v. Train, Civ. No 14-51

(D. Maine, June 24, 197447 ²⸗qw]ꝙq ... wal 14

State of Minnesota v. Fri, No. 4-73 Civ. No. 133

(D. Minn. June 25, 1973) e

iii

Section 205

,

PAGE

State of Ohio v. Environmental Protection Agency,

et al., Nos. C.73-1061 and C.74-104

(N. D. Ohio, June 26,1974) 14

State of Texas v. Ruckelshaus, C.A. No. A-13-CA-38

(W.D. Texas, Oct. 2, 1973) dacs 14

Statutes:

37 Fed. Reg. 26282 3 . 33

38 Fed. Reg. 5330, 535.903 (dpd) 34

38 Fed. Reg. 5331, §35.910-1(d) a 14

Administrative Procedure Act, 5 U.S.C. 8701

(Supp. V) (1966) . 1,39

Federal Water Pollution Control Act Ae of

1972, Pub. L. 92-500 (Oct. 18, 1972), 86 Stat. 816,

C. 1251, et. seq.

on 101(a) 3,7

Section, 101(a)(1) 8

Section W1(a) (2) 8

Section 101 (a) (4) 3, 8

Section 201 (a) 8

Section 201 (80 (1) 8

Section 202 (a) 9

Section 203 9, 10, 13

Section 203 (a) 9

Section 203 (b) 9

Section 204 9, 10

Section 204 (a) (2) 9

Section 204 (a) (3) 9

Section 204 (a) (4) 9

Section 204 (a) (5) 9

5, 8, 10, 12, 14, 24, 25, 28, 35

iv

Section 205(a)

Section 205 (b) (1)

Section 207

Section 31

Section 30l(a) ...

Section 301(b)

Section 301 (b) (1) (B)

Section 301 (b) (1) (C)

Section 302

Section 303 (e)

Section 306

Section 307

Section 309 (a) (3)

Section 309 (e) (1)

Section 309 (d)

Section 309 (e)

Section 402 *

Section 402 (b) (1) (A)

Section 402 (k)

Section 403

Section 502 (5)

Section 505 (a)

Section 505 (a) (1)

Section 505 (a) (2)

Section 505 (8g)

Section 509 (b) (1) (F)

Section 510

PAGE

8,12

5 13

5, 9, 12, 15, 24, 25, 26, 28, 35

11

Secondary Authorities:

118 Cong. Rec. H.2726

118 Cong. Rec. H.2727

118 Cong. Rec. H.2728

118 Cong. Rec. H.9122

118 Congo. Rec. H.9123

118 Cong.

118 Cong.

119 Cong.

117 Cong.

118 Cong.

118 Cong.

118 Cong.

118 Cong.

118 Cong.

118 Cong.

118 Cong.

119 Cong.

PEER PERE RE EE

H.10266

H.10267

H.10268

8.17445

8.16870

8.16871

8.18534-35

8.18546

8.18547

8.18548

8.18549

S. 3808

vi

IN THE

Supreme Court of the United States

October Term, 1973

No. 73-1377

RUSSELL E. TRAIN, Administrator, United States

Environmental Protection Agency, Petitioner

vs.

THE CITY OF NEW YORK on Behalf of Itself and

All Other Similarly Situated Municipalities

Within the State of New York, et al.

No. 73-1378

RUSSELL E. TRAIN, Administrator, United States

Environmental! Protection Agency, Petitioner

vs.

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 AMICUS CURIAE ON BEHALF

OF THE STATE OF MINNESOTA

2

QUESTIONS PRESENTED

1. May the Administrator of the U.S. Environmental Pro-

tection Agency ignore Congressional intent and the manda-

tory requirements of the Federal Water Pollution Control Act

Amendments of 1972 by refusing to allot to the States the full

sums authorized by Congress to be appropriated for the con-

struction of publicly owned sewage treatment works?

2. If the Administrator had any discretion in controlling

the rate of spending for construction of publicly owned sewage

treatment works was it erroneously exercised in that (a) it

was exercised at the allotment stage rather than obligation

stage; (b) the decision was based upon evaluation of compet-

ing national policies, priorities, goals, and objectives other

than those established by Congress; (c) the amount withheld

effectively frustrated achievement of the goals and purposes

of the Act, and (d) in impounding the funds the Administra-

tor sought to do indirectly what Congress directly forbade him

to do by overriding the Presidential veto of the Act?

3. Is the allotment of funds within the narrow exception

of being so “committed to agency discretion” that it is beyond

judicial review even though the Act provides adequate stan-

dards by which the discretion may be evaluated to determine

whether it was erroneously exercised?

3

STATEMENT OF THE CASE

The cases before the Court present issues of statutory con-

struction to determine the existence of discretion, or the extent

of any such discretion, granted to the Administrator of the

United States Environmental Protection Agency (hereinafter

the Administrator) in allotting funds among the States pur-

suant to the Federal Water Pollution Control Act Amendments

of 1972 (hereinafter the Act).'

The pervasive objective of the Act as stated in Section

101(a) “is to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” Congress declared

in Section 101 (a) (4) of the Act that it is the national policy

that Federal financial assistance be provided to construct pub-

licly owned treatment works; ... .” This policy is a vital

part of the Act and is essential to achieve its objective. Con-

gress authorized to be appropriated amounts not to exceed $5

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

for fiscal 1975 to carry out this policy. Section 207.

The President vetoed the Act on October 17, 1972. The

President in his message to Congress stated:

Even if this bill is rammed into law over the better

judgment of the Executive—even if the Congress de-

faults its obligation to the taxpayers—lI shall not de-

fault mine. Certain provisions of S. 2770 confer a

measure of spending discretion and flexibility upon

the President, and if forced to administer this legis-

1 Pub. IL. 92-500 (Oct. 18, 1972), 86 Stat. 816, 33 U.S.C. 1251, et seq.

The Act is commonly referred to by section rather than by its

Code Citation. Therefore all references to the Act hereinafter will

be by section number of the Act as enacted, Pub. L. 92-500.

d

lation I mean to use those provisions to put the

brakes on budget-wrecking expenditures as much as

possible.

118 Cong. Rec. S. 18534-35 (Daily ed., October 17, 1972).

Congress considered the veto message and overwhelmingly

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

Senate, it was 52 to 12. The President’s intention was later

carried out by his directive to the Administrator to allot to

the States $2 billion instead of the $5 billion authorized for

fiscal 1973, $3 billion instead of the $6 billion authorized for

fiscal 1974 and, although not an issue herein, $4 billion instead

of the $7 billion authorized for fiscal 1975.

Respondent City of New York has obtained from the Court

below an order which compels the Administrator to allot

among the States the full amounts authorized by Congress.

Respondent Campaign Clean Water has obtained an order for

a de novo review of the Administrator’s decision to determine

if he abused his discretion. Petitioner seeks review of both

cases, which have been consolidated in this Court.

INTEREST OF AMICUS CURIAE

The Court’s decision in these cases will substantially affect

the State of Minnesota by setting a precedent which will be

decisive in its case against the Administrator in the United

States Court of Appeals for the Eighth Circuit. Minnesota ob-

tained from the United States District Court for the District

of Minnesota, Fourth District, an order to compel the Admin-

istrator to allot to Minnesota the full sums Congress autho-

rized to be appropriated for the construction of publicly owned

= @ ns —

5

treatment works as provided in Sections 205 and 207 of the

Act.“

The Administrator appealed the order to the Court of Ap-

peals for the Eighth Circuit. Written briefs and oral argu-

ment have been presented to the Court of Appeals. The case

is presently pending for decision. Minnesota’s case involves

virtually identical issues to those involved in the cases present-

ly before the Court.

The Administrator’s action resulted in a drastically reduced

allotment to the State of Minnesota. For fiscal years 1973 and

1974 Minnesota received a total of $101.5 million instead of

the $222.5 million authorized, or a total reduction of $121 mil-

lion. The direct effect on Minnesota is that numerous sewage

treatment works in the State will not be constructed or up-

graded. Consequently, the cutback on the allotments to Minne-

sota guarantees that its municipalities and sanitary districts

will fail to meet the requirements and goals of the Act.

There is an adverse environmental effect from the Admin-

istrator’s refusal to allot because inadequately treated sewage

and industrial wastes will continue to be discharged into Min-

nesota waters. The stoppage of construction of treatment

works for fiscal 1973 is estimated to result in a flow of 285

million gallons per day of inadequately treated sewage. The

pollution and health effects from untreated sewage are well

established.

The State of Minnesota has great interest in achieving and

maintaining high water quality necessary for the propagation

2 State of Minnesota v. Fri, No. 473, Civ. 133 (D. Minn, June 25,

1973). The opinion and order of Federal District Court Judge Miles

. Lord has not been reported. The factual references made here-

by the State of Minnesota are based on affidavits that are part

Minnesota's case. The affidavits were not disputed

6

of fish and wildlife and recreation in and on its waters. The

recreational benefits accruing to the State from fish and game

are estimated to be valued at approximately $200 million per

year. Pollution from untreated sewage primarily causes

oxygen depletion and artificial enrichment of lakes and rivers

which adversely affect the propagation of fish and recrea-

tional uses. Construction of secondary treatment facilities re-

duces or eliminates these detrimental effects.

Minnesota urges that the result in this case should be to re-

quire the Administrator to allot the Congressionally autho-

rized funds now withheld from the States.

SUMMARY OF ARGUMENT

1. Under the Act the Administrator has no discretion to

determine the amounts to allot among the States. The Act con-

tains mandatory language that the $5 billion and $6 billion

for fiscal years 1973 and 1974, respectively, “ shall be allotted

by the Administrator.” Congress intended the full sums au-

thorized to be appropriated to be allotted among the States.

This intent is manifested in the Act as a whole and its legis-

lative history.

2. If the Administrator has been granted any discretion

by the Act he exercised it erroneously. First, any discretion

rests at the obligation stage instead of the allotment stage.

Second, even if there existed discretion at the allotment stage

it was flagrantly abused by the Administrator. His discretion

is circumscribed by the bounds of the Act and may not be exer-

cised for reasons remote and unrelated to the Act. Third, the

refusal to allot 55% of Congressionally authorized funds was

an abuse of discretion because it was in derogation of the

policy and goals established by Congress in the Act. The im-

7

poundment of the authorized funds was an attempt to undo

what Congress accomplished by exercising its Constitutional

right to override the Presidential veto of the Act: emphatical-

ly mandating that the full $18 million be allotted to the States.

8. The Administrator’s action does not fall under the

narrow exception of the Administrative Procedure Act

making nonreviewable actions totally committed to Agency

discretion where the statutory authority is so broad that there

ie no law to apply. The Act provides definite standards against

which the Administrator's action can be reviewed to deter-

mine if he has misconstrued his powers and abused his dis-

cretion.

ARGUMENT

I. THE ACT AND ITS LEGISLATIVE HISTORY INDICATE

THE ADMINISTRATOR HAS NO DISCRETION TO CUR-

TAIL AUTHORIZED FUNDS AT THE ALLOTMENT

STAGE.

A. The Act Manifests Clear Congressional Intent to Attain

Clean Water.

The Act is a comprehensive and far-reaching law designed

to clean up the Nation’s waters. The provisions for Federal

financial assistance to construct publicly owned treatment

works are major features of the Act and a keystone of the

statutory objective. It is important that these financial provi-

sions be put in proper context with cther provisions of the Act

relevant to the statutory scheme to attain clean wate”.

The Act begins by stating that its objective “is to restore

and maintain the chemical, physical, and biological integrity

of the Nation’s waters.” Section 101(a). To achieve this ob-

8

jective, Congress declared as goals of the Act that “the dis-

charge of pollutants into the navigable waters be eliminated

by 1985” and that “wherever attainable, an interim goal of

water quality which provides for the protection and propaga-

tion of fish, shellfish, and wildlife and provides for recrea-

tion in and on the water be achieved by July 1, 1983.” Section

101(a)(1), (2). Congress unequivocally stated in the Act that

“it is the national policy that Federal nancial assistance be

provided to construct publicly owned waste treatment works.”

Section 101(a) (4).

Title II of the Act is entitled “Grants for Construction of

Treatment Works.” The purpose of this title ic “to require and

to assist the development and implementation of waste treat-

ment plants and practices which will achieve the goals of this

Act.” Section 201(a). The Administrator “is authorized to

make grants to any State, municipality, or to intermunicipal

or interstate agency for the construction of publicly owned

treatment works.“ Section 201(g)(1). Congress “authorized

to be appropriated to carry out this title . . for the fiscal

year ending June 30, 1973, not to exceed $5,000,000,000, for

the fiscal year ending June 30, 1974, not to exceed

$6,000,000,000 and for the fiscal year ending June 30, 1975,

not to exceed 87,000, 000,000.“ Section 207.

A state’s share of the authorized amounts for fiscal 1973

and 1974 is determined by a statutory formula based on “the

ratio that the estimated cost of constructing all needed publicly

owned treatment works in each State bears on the estimated

cost of construction of all needed publicly owned treatment

works in all of the States.” Section 205. Allotments to the

States commencing in fiscal 1975 are to be made in accordance

with revised cost estimates submitted to and approved by Con-

gress. Section 205(a).

The designated shares are to be allotted among the States

by the Administrator. Those allotted funds then are available

for grants to construct publicly owned treatment works within

the State. Section 203. An individual applicant for a grant sub-

mits plans, specifications, and estimates for each proposed

project to the Administrator for his approval. Approval of

the plans, specifications, and estimates by the Administrator

is deemed to constitute a contractual obligation of the United

States for the payment of its proportional contribution to such

project. Section 203(a).

Prior to final approval of a treatment works project, the

Administrator must consider the “limitations and conditions”

of Section 204. For example, the Administrator is to deter-

mine that (a) the treatment works is in conformity with any

applicable State plan under Section 303(e) of the Act, (b)

such works have been certified by the appropriate State water

pollution control agency as entitled to priority over such other

works in the State, (c) there are adequate provisions satis-

factory to the Administrator for assuring pioper and efficient

operation and maintenance, and (d) the size and capacity of

the works relate directly to the needs to be served by the

works. Section 204(a)(2), (3), (4) and (5).

The Federal share of the construction costs for approved

projects is 75 per centum. Section 202(a). Expenditures of

allotted funds are to be made by the Administrator in the form

of payments to the recipient of a grant as the work progresses

and costs of construction are incurred on the project. Section

203 (b).

The successive administrative stages involving Title II

grants thus include:

(a) the authorization of funds to be appropriat-

ed, Section 207,

10

(b) the allotment by the Administrator of these

funds among the States, Section 205,

(e) the submittal by the grantees of plans, speci-

fications and estimates of treatment works projects

to the Administrator for approval, Section 203,

(d) the review by the Administrator of the proj-

ects pursuant to the limitations and conditions of

Section 204,

(e) the approval by the Administrator of the

project which thereby obligates the Federal govern-

ment to pay 75 percent of the eligible costs, Section

203, and

(f) the payment to the grantees by the Admin-

istrator of project progress payments from the al-

lotted funds, Section 203, and the appropriation by

Congress of the funds necessary to cover the Admin-

istrator’s expenditures on the project.

The issues before the Court involve the Administrator’s ac-

tion at the allotment stage.

Title III of the Act is entitled “Standards and Enforce-

ment.” The discharge of any pollutant by any person is unlaw-

ful except when in compliance with various sections of the Act.

Section 301(a). Persons operating publicly owned treatment

works are included and are subject to enforcement actions.

Section 301(b) provides that “[i]n order to carry out the

objective of this Act there shall be achieved . . .” for all pub-

licly owned treatment works secondary treatment by July 1,

1977, and the best practicable waste treatment technology by

July 1, 1983. States are prohibited from adopting or enforcing

an effluent limitation that is less stringent than those estab

lished under the Art. Section 510.

11

Title VI of the Act is entitled Pernits and Licenses.” Sec-

tion 402 establishes the National Polutant Discharge Elimi-

nation System (hereinafter NPDES) which requires permits

be obtained for the discharge of polutants. The discharges

from publicly owned treatment works require an application

for an NPDES permit. Section 402 (c). These permits must

“insure compliance with, any applicable requirements of sec-

tions 301, 302, 306, 307 and 403; . . Section 402 (b) (1)

(A). Neither the Administrator nor 1 State can issue a per-

mit to a publicly owned treatment works under Section 402

which does not insure that requiremerts of the existing water

quality standards are complied with ao that effluent limits of

secondary treatment are achieved by ‘uly 1, 1977.

Any person, which by definition indudes a municipality or

a sanitary district, Section 502(5), fund willfully or negli-

gently violating the effluent limitatiors of Section 301 is pun-

ishable by a fine of not less than $2,50) nor more than $25,000

per day of violation or by imprisonmert for not more than one

year, or by both. Section 309 (e) (1) Any person who merely

violates Section 301 effluent limitations is subject to a civil

penalty not to exceed $10,000 per day of such violation. Sec-

tion 309(d).

If the Administrator <inds any person in violation of Sec-

tion 801, he is required to issue an order to obtain compliance

or to bring a civi action. Section 309(a)(3). A person who

violates an order issued by the Administrator is subject to the

civil penalty provision. Section 309(d). Whenever a munici-

pality isa party to a civil action brought by the United States,

the State is to be joined as a party. The State is liable to the

extent that its law prevent [a] the municipality from raising

revenues needed to comply with such judgment.” Section

309(e).

12

Any citizen adversely affected may commence a civil action

against any person who is alleged to be in violation of an ef-

fluent standard or limitation under the Act. Section 505 (a)

and (g). Federal district courts are given jurisdiction over

these suits to enforce effluent standards and to apply any ap-

propriate civil penalty under Section 309(d) of the Act. Sec-

tion 505(a) (2). Any interested person may seek judicial] re-

view of any NPDES permit issued or denied under Section

402. Section 509(b) (1) (F).

The statutory scheme includes a broad objective, with de-

clared goals and policies, established deadlines for achieve-

ment of effluent standards and limitations, permits for dis-

charge of pollutants, and strong enforcement penalties to as-

sure compliance. The Administrator’s refusal to allot 55% of

the funds authorized must be viewed from the total perspec-

tive of the Act. These features of the Act cannot be isolated

from Sections 205 and 207. The Administrator’s narrow focus

on Sections 205 and 207 distorts the clear thrust of the Act

which is to abate water pollution.

B. The Statutory Scheme Imposes a Clear Mandatory Duty

Upon the Administrator to Allot.

The requirement to allot the full amounts is clear and

unambiguous.

Sums authorized to be appropriated pursuant to sec-

tion 207 for each fiscal year beginning after June 30,

1972, shall be allotted by the Administrator not later

than the January 1st immediately preceding the be-

ginning of the fiscal year for which authorized, ex-

cept that the allotment for fiscal year 1973 shall be

made not later than 30 days after the date of enact-

ment of the Federal Water Pollution Control Act

Amendments of 1972.

(Emphasis added.) Section 205 (a).

13

Contrary to the Administrator’s contention, the authorized

funds do not remain indefinitely available for allotment. Sec-

tion 205(b)(1) provides:

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 obligation in such State for a

period of one year after the close of the fiscal year

for which such sums are authorized. Any amounts 80

allotted which are not obligated by the end of such

one-year period shall be immediately reallotted by the

Administrator, in accordance with regulations prom-

ulgated 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 reallotment under this sub-

section shall be in addition to any funds otherwise

allotted to such State for grants under this title

during any fiscal year.

(Emphasis added.)

Only the funds allotted by the Administrator remain avail-

able for obligation. If the Administrator does not follow the

statutory requirements by allotting and immediately reallot-

ting* the authorized funds at the time and dates indicated,

14

the unallotted funds lapse and are irretrievably lost to the

States. The mandatory language of Section 205 precludes sup-

plemental allotments. Numerous courts have arrived at the

same conclusion. City of New York v. Train, 494 F.2d 1033

(1974) ; State of Ohio v. Environmental Protection Agency,

et. al., C. 73-1061 and C. 74-104 (N.D. Ohio, June 26, 1974);

State of Maine v. Train, Civ. No. 14-51 (D. Maine, June 21,

1974) ; State of Florida v. Train, Civ. No. 73-156 (N.D. Fla.,

Feb. 25, 1974); State of Texas v. Ruckelshaus, C.A. No. A-

73-CA-38 (W.D. Tex., Oct. 2, 1973); Martin-Trigona v.

Ruckelshaus, No. 72-C-3044 (N.D. III., June 29, 1973); and

State of Minnesota v. Fri, No. 4-73, Civ. 133 (D. Minn., June

25, 1973).

The State of Minnesota does not desire to disparage the de-

clared intentions of the Administrator eventually to commit

the full amount of funds authorized by Congress. However,

the Administrator has indicated in the Federal Register that

“Tajllotments shall be made not later than the January

first preceding the beginning of the fiscal year for which au-

thorized, except for the allotment for fiscal year 1973 which

is made herein.” 38 Fed. Reg. 5331, §35.910-1(d), Feb. 28,

1973. Moreover, the Administrator has not indicated in the

Federal Register any intention to allot the full sums autho-

rized by Congress. No regulations have been promulgated re-

garding the procedure under which these funds are to be “sup-

plementally” allotted to the States. The only way the State of

Minnesota and other States can be legally certain that all au-

thorized funds will be made available to them for obligation

is by the Administretor’s adherence to the statutory allotment

requirement of the Act.

15

C. The Amounts Authorized Were Based on National Needs

to Achieve the Act’s Purposes.

The designated sums in Section 207 were based on estimates

of the needs of the Nation to construct and upgrade sewage

treatment works to meet the requirements of the Act. The

Congressional Record is replete with evidence supporting the

$18 billion figure.

The National League of Cities and the U.S. Conference of

Mayors estimated the total construction needs of municipali-

ties at approximately $35 billion between the years 1972 and

1977. 118 Cong. Rec. H. 10267 (Daily ed. Oct. 18, 1972). The

U.S. Environmental Protection Agency’s own cost estimates

for constructing waste treatment facilities planned for fiscal

years 1972 through 1974 was $14.5 billion. The former Ad-

ministrator of the Agency, William Ruckelshaus, explained

in his letter to the President urging him not to veto the Act

that the dollar figures were consistent with the needs estimate

that his Agency ted provided Congress.“ The Ruckelshaus

letter states in pertinent part as follows:

The total value of construction initiated in the

near-term under the enrolled bill is expected to cor-

respond closely to the total value of construction that

would have been initiated under the Administration

bill. Under the Administration’s proposal, communi-

ties were free to continue to initiate reimbursable

projects, were not constricted by the $6 billion au-

thorization, and could have substantially increased

this amount. Reimbursable projects are precluded

„See also Senator Muskie’s explanation of how the Conferees ar-

rived at the authorized levels. 118 Cong Rec. 8.18548 (Daily ed.

Oct. 17, 1972).

16 17

under the enrolled bill and the $18 billion contract tion of municipal waste treatment facilities needed to

grant authority represents a ceiling, while the Ad- meet water quality standards.”

ministration’s $6 billion proposal represented a floor. (Emphasis added.) 118 Cong. Rec. S. 18546 (Daily ed. Oct.

With the projected close correspondence in a total 17, 1972).

near-term value of construction starts, the potential Senator Muskie asked the Senate crucial questions re-

inflationary impact upon the entire construction garding the high costs of attaining clean water and gave the

sector would be minimized. following answers:

The total amount of contract grant authority con-

tained in the enrolled bill is formulated from the Ad-

ministration’s estimate of construction needs as sub-

mitted to the Congress in February of this year. The

total Federal share of 75% would amount to $13.6

billion. This needs estimate did not include funds for

combined storm and collection sewers, or for recycled

water supplies. These are project eligibilities newly

specified by the enrolled bill.

This needs estimate provided to the Congress was

constructed to support the commitment of the Presi-

dent in his State of the Union message of January 22,

1970, to “put modern municipal waste treatment

plants in every place in America where they are

needed to make our waters clean again, and to do it

now.” This commitment was repeated in the Febru-

ary 1970, Message on the Environment, which enun-

ciated funding support for “every community that

needs it with secondary waste treatment, and also

special, additional treatment in areas of special need,

including communities of the Great Lakes.” The com-

Can we afford clean water? Can we afford rivers

and lakes and streams and oceans which continue to

make possible life on this planet? Can we afford life

itself? Those questions were never asked as we de-

stroyed the waters of our nation, and they deserve

no answers as we finally move to restore and renew

them. These questions answer themselves. And those

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 crisis.

The conferees spent hours and days studying the

problem of financing the cleanup effort required 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% 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.

(Emphasis added.) 118 Cong. Rec. S. 16870 (Daily ed. Oct.

4, 1971).

The Court of Appeals for the District of Columbia in its de-

cisiou in City of New York v. Train, supra, extensively re-

viewed legislative history that preceded adoption of the $18

mitment was re-endorsed in the February, 1971, Mes-

sage on the Environment with a statement that we

should provide “adequate funds to ensure construc-

disagreement with the President’s dire predictions of

the Act’s impact on the economy.

Furthermore, it was the expressed intent of Congress

that the Administrator's discretion would be limited by

the purposes and objectives of the Act. Congressman

Jones, in the course of his explanation of the Conference

Report to the House, declared that the Congress has

given to the Administrator the most explicit guidance

that it could contrive as to what factors and parameters

he is to take into account in the administration of this

act.”*’ Moreover, Senator Muskie, in discussing the

Conference amendments to Sections 205 and 207,

which were intended to emphasize the Administrator's

obligational and expenditure flexibility, also addressed

the question of the limits of the Administrator's

discretion, stating that “|t|]he conferees do not expect

these provisions to be used as an excuse in not making

the commitments necessary to achieve the goals set

forth in the act.”**

In short, the Administrator's discretion under

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

He may not use the narrowly circumscribed authority

over project approval to defeat or postpone the clean

water goals of the Act.

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

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

"118 Cong. Rec. at S 16871 (Daily ed. October 4, 1972).

—26—

Amici urge the Court to consider this portion of their

argument most seriously. The Administrator has

effectively announced in his brief“ that if he loses this

round and is required to allot, he will attempt to

circumvent the Court’s judgment by placing the newly

allotted funds in “reserve” accounts and simply refuse

to obligate them. This would obviously violate the Act,

since these sums would clearly not be “available” for

obligation, notwithstanding the Administrator's

sophistical argument to the contrary.“ The Court must

make it plain that the Administrator must allot all

sums authorized and that no alternate actions that

likewise defeat the purposes of the Act will be tolerated.

C. The Adminis‘rator’s argument that he is authorized

to control the “rate” of spending by controlling the

timing of allotments is unsupported in the Act and is

inconsistent with continual funding mechanism of

“reallotment”.

The Administrator, in a vain attempt to make control

over allotments equivalent to control over the “rate” of

spending, now says he expects ultimately to allot the

sums he has withheld.*' By periodically augmenting

the allotments, so the new argument goes, the

Administrator extends the time in which the

authorized sums are available and hence reduces the

Brief for Respondent at 27-28.

“Td. at 28, n 12.

"Brief for Petitioner at 26, 29.

_ =

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

accomplishes is postponement of the program and the

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

noted in City of New Vork.

the Act nowhere mentions any type of later

augmentation procedure, and rather states in

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

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

the Court’s).

Moreover, if Congress had intended the

Administrator to have the kind of control over

allotment he seeks to establish in this case, there would

have been scant need for Congress to provide for the

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

1285(b)(1)(1974 Supp.). Plainly, Congress constructed

the statutory mechanisms of allotment and reallotment

to provide for continual funding over an extended

period of time to remove the uncertainty that had

plagued the grant process prior to the 1972 Act. As

indicated earlier, the notion of administrative

discretion to allot any given amount at any given time

is totally at odds with this carefully conceived statutory

scheme.

D. Neither the doctrine of sovereign immunity nor that

of political question is applicable to this controversy.

“Combined Appendix at 33A.

—28—

—

Amici are of the firm view that the Administrator has

no discretion at the allotment stages. Nevertheless, we

do not believe that a contrary conclusion would require.

as the Administrator contends,** dismissal of the suit.

First, the action falls squarely within the exception to

the doctrine of sovereign immunity which allows suits

against federal officials who have allegedly acted

beyond their statutory powers or have exercised their

statutory powers in a constitutionally void manner.

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

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

The mere fact that discretion is vested in a federal

administrative officer does not mean that he has free

reign to abuse that discretion, and whether an abuse

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

statutory authority, is clearly within the Dugan and

Larson exception.

Moreover, sovereign immunity has been waived by

the United States in cases of this sort by enactment of

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

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

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

wrong because of agency action, or adversely affected or

aggrieved by agency action wthin the meaning of a

relevant statute, is entitled to judicial review thereof.”

** Brief for Petitioner at 30, et seq.

8

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

the court explained the impact of the APA on sovereign

immunity thusly:

By providing judicial review in an action brought

by “any person adversely affected or — b

any agency action” Congress permitted suits whic

under established tests would certainly be barred

as suits against the government ... The Act

thereby makes a clear waiver of sovereign

immunity in actions to which it applies.” Estrada

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

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

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

The Administrator tries to hide behind the provision

of the APA that excludes suits complaining of actions

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

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

narrow exception . applicable in those rare instances

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

given case there is no law to apply, Citizens to

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

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

but rather in such highly detailed and specific terms as

to negative even the slightest degree of discretion at the

allotment stage. But assuming, arguendo, some

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

express commitment to specific deadlines and goals and

the unmistakable evidence in the legislative history of

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

by the Congress that judicial review of agency action will be

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

sovereign immunity; any other construction would make the

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

supra, 424 F.2d at 874. N

= *

— '

—— — U—— ee — — — — pews | «

Congressional resolve to achieving these deadlines and

goals provides ample guidelines for judicial

determination of whether that discretion has been

abused.

The Administrator also argues that to try to resolve

whether there has been an abuse of discretion in this

case would require the courts to decide a “political

question.”* The standards for determining whether

this issue presents a nonjusticiable political question

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

369 U.S. 186 (1962):

Prominent on the surface of any case held to

involve a political question is found a textually

demonstrable constitutional commitment of the

issue to a coordinate political department; or a lack

of judicially discoverable and manageable

standards of resolving it; or the impossibility of

deciding without an initial policy determination of

a kind clearly for nonjudicial discretion; or the

impossibility of a court’s undertaking independent

resolution without expressing lack of the respect

due coordinate branches of government; or an

unusual need for unquestioning adherence to a

political decision already made; or the potentiality

of embarassment from multifarious

pronouncements by various departments on one

question. 369 U.S. at 217.

As in his Administrative Procedure Act argument,

the Administrator urges again that there are no

criteria by which to judge whether he has abused his

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

take over the management of the Environmental]

Protection Agency, or to assume the weighty role of the

Brief for Petitioner at 47.

— =

President of the United States; it is being asked to

construe a statute and to determine whether Congress

intended to grant the Administrator discretion to take

the action complained of here. Since Marbury v.

Madison, it has always been “emphatically the

province and duty of the judicial department to say

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

This Court recently reaffirmed the principle of

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

political question was similarly urged as a bar to

judicial review of Executive action. United States v.

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

The issue was whether the doctrine prevented the

Court from deciding whether the President had to

comply with a subpoena to produce certain tape

recordings and documents relating to his conversations

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

is impliedly made here, that the Judiciary should defer

to the judgment of the Executive as to what the law

requires. The language used in rejecting the claim is

particularly applicable to the instant controversy.

Notwithstanding the deference each branch must

accord the others, the “judicial power of the United

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

the Constitution can no more be shared with the

Executive Branch than the Chief Executive, for

example, can share with the Judiciary the veto

power, or the Congress share with the Judiciary

the power to override a presidential veto. Any other

conclusion would be contrary to the basic concept of

separation of powers and the checks and balances

that flow from the scheme of a tripartite

—32—

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

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

“emphatically the province and the duty” of this

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

claim of privilege presented in this case. Marbury

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

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

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

intrinsically judicial determination of whether the

impoundment of such vast sums of money was

authorized by Congress in the Act.

CONCLUSION

The court of appeals in City of New York was

eminently correct in ruling that the Administrator was

required to allot the full amounts authorized by the Act

for waste treatment construction grants. City of New

York should therefore be affirmed and Campaign Clean

Water should be reversed and judgment rendered for

full allotment in favor of Respondent Campaign Clean

Water.

Even if the Court be convinced that some discretion

at the allotment stage was vested in the Administrator

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

appeals judgment in Campaign Clean Water be

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

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

marked disparity between what the Administrator has

allotted and what is really needed to meet the letter and

intent of the Act — shows clearly that that discretion

has been flagrantly abused.

— *

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant Attorney General

of Texas

Assistant Attorney General of Texas

P.O. Box 12548, Capitol Station

Austin, Texas 78711

AC 512 — 475-4143

ROBERT W. WARREN LARRY DERRYBERRY

Attorney General of Wisconsin Attorney General of Oklahoma

Theodore L. Priebe Paul C. Duncan

Assistant Attorney General Assistant Attorney General

JOHN C DANFORTH VERN MILLER

Attorney General of Missouri Attorney General of Kansas

Robert M Lindholm Curt T. Schneider A

Assistant Attorney Genera! Assistant Attorney General

Attorneys for Amici

PROOF OF SERVICE

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

States of Texas, Wisconsin, Missouri, Oklahoma and

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

Supreme Court of the United States, hereby certify

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

the foregoing brief to the Supreme Court of the United

States and on the several parties thereto, as follows:

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

addressed envelope, with air mail postage prepaid, to

Robert H. Bork, Solicitor General, Carla Hills,

Assistant Attorney General, Daniel M. Friedman,

Deputy Solicitor General, Edmund W. Kitch, Assistant

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

Davies, Attorneys, De, ai ment of Justice, Washington,

D.C., 20530.

2. Norman Redlich, Corpor::tion Counsel, John R.

Thompson, First Assistant Corporation Counsel, Evan

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

Assistant Corporation Counsels, Attorneys for the City

of New York, Municipal Building, New York, New

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

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

20006, Of Counsel, in duly addressed envelopes with air

mail postage prepaid.

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

— 2000 P Street, N.W., Washington, D.C., 20036.

Attorneys for Respondent, Campaign Clean Water. ina

duly addressed envelope with postage prepaid.

— MAXWELL

Assistant Attorney General

ADDENDUM I

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

EDWARD W. WADSWORTH 600 CAMP STREET

CLERK NEW ORLEANS, LA. 70130

May 28, 1974

TO ALL COUNSEL OF RECORD:

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

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

Environmental Protection Agency.

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

Gentlemen:

I am directed by the Court to advise that the disposition

of the referenced cases is being withheld pending

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

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

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

Very truly yours,

EDWARD W. WADSWORTH, Clerk

—37—

By /s/ Richard E. Windhorst, Jr.

Richard E. Windhorst, Jr., Chief

Judicial Support Division

REW, Jr.:rev

Messrs. Robert E. Kopp &

Eloise E. Davies

Mr. Theodore L. Priebe

Mr. Paul C. Duncan

Mr. Philip Maxwell

Mr. Curt Schneider

ADDENDUM 11

Page 2 TEXAS POLLUTION REPORT 5 24, 1974

WATER FUNDS: FPA Regions! Adm Busch

says Texas has received the ane share of

wastewater grants awarded in Region VI Texas,

Loursiana, Arkansas, Oklahoma and New Mexico

Of the $69,101 286 awarded im the region since

July. 1973, Texas got $37. 441.255 The funds come

from the Congressionally appropriated $9 billion for

the states in fiscal years 1973, 1974. and 1975. With

two of the years over, EPA has allocated $3 bilhon

nationwide, or $134,756,239 to States in Region

IV Busch aid, “The agency expects to award much

of the remaming $6 bilhon im the next UO months”

Busch added, “I am extremely pleased with the

progress being made m our construction grants

program, and am confident that a solid wave has

been established to carry forward a program in

achieving our goal of clean water. We will be

working closely with State and local officials n the

moaths ahead to keep the program moving | am

also pleased to announce that the States in Region

V! were the first in the nation to submit their

priority lists for FY °75 funds.”

FUND DEFICIT. Even with Texas getting the

ns share of the Federal money available, the

Water Quality Board says that Texas cities have 204

projects that won't be funded because beders! funds

available in FY “75 are $27,000,000 short of what 1s

needed The WOR'S project hist includes

$169 100,000 in proyects. while available Federal

funds amount to $142,100,000 Board bxec Dur

Yantes wrote Texas members of Congress about the

problem and included a detailed fist of whih

progects will be funded and which ones are Caught in

the $27 nalen deficit. He added that “te complete

construction just for thes hist” would requne

$615,000,000 in the future and $675 000,000 if

related costs, such as imfiltration studies, are

meluded Yantis said that means the real de fe im

grant funds is “approximately $450 to $500

million.”

Proyects fathng into the $27,000,000-short and.

von t be funded category by Congressional eee

ae Dest 1 Joaquin, Seven Pornts, Hatlville,

Campbell, Omaha, Bullard, Douglassville Nate tt.

Murchison, Reno, Broaddus, Winfield. Tensha,

tennws MUD and Athens, Dist 2) Montgomery

County MUD 6, Liberty Danville FWSD 1. Lary

River Improvement Dist of Montgomery County.

Devers, Coldsprings, Sour Lake, Kirhyvilie, North

uch MUD, Whispering Oaks, Orange. ade ISD.

Konnte. Grapeland. Tucker ISD. Woodville

Jewett, Kennard and Hardin County WCID |. Dist 3

Richardson, Little Fim, Glenn Heights, Datlas (4

proyects), Murphy. Woodland Hills, Connth and

Dallas County Commonty College. Dest ieee

Lindale, Highland Village, Rowlett, Kemp Rove

City, Campbell, Bullard. Little tha, iake Dallas

MUA. Glenn Heights, Collinowille, Aubrey Tom

Bean, Pilot Pont, Fate, Connth and Westinster

Dist $ ie proyects im Dallas County listed rn Lest

1, plus Seagoville, Dist 6 The progects in Dallas

County m Dist} plus Garrett, Streetman and

Hubbard, Dists 7. K. I and 22, Harris EWSD 6,

Tomball, Spenwick Place MUD, College View MUD

Clearwoods Improvement Dist, Hares County woID

1. Port of Houston, Lomax, Harris UD 8. Fort Bend

WCID >. Dist 9 — Galveston WCID 19. Beach City,

Jefferson WCID 10, Ren Oaks, San Leon MUD.

Port of Galveston and Jefferson FWSD |. Dist 10

Phlugerville, Burton, Carmine, Florence, Hays

County Wimberly WSD. Dime Box. Ghdden FWSD,

Clay, Sunset Valley, Hempstead, Snook, Fayett

Mo Gregor, Bell WOID 4) Bort Gates, Gotdthwante

Rownd Rock, Hutte Lorene Milam WOID |

Marble bath, ene Plewitt, Morgan. Lott, brodell

and Lacs Lakewew. Dt ft? North ent MWD

owed ea Oe 88 Megarge! Wondthorst

Chokdress and Canyon, Dat 14 Wharton WORD IY

VitonaCasdalupe Blanc RA Corpus Chest and

Nueces WOID TS. Dist 18 Port Manstield PUD

and tdiowh., Det te Odessa Van then

Cohioowth bt Hancock WCED TE ged Barstow Dist 17

Haskell, Sun Saba. Anson. Tye Nan Cross

Plans De teen Newark liyton Comanche

CGamewille, Goree. borsan and Stephenville Dist 19

Shallow ater Odessa (listed om Dist Loa, Abernathy

New Deal and Smyer, Dist 20 © San Antomw (2

proyects) and Somerset, Dist 20 those listed in

Det 0 plus Sunme Beach MUD 1. Boerne

Junoon. Fredencksburg, Crockett WOID 1

Sterling City. Brackettville, Winters, New Brauntels

and Mertzon Dist 23) Those listed in Dist 20 plus

Carnze Springs. Laredo. Nataha, Jourdenton, By

Wells. Dilley and Maverick County, Dist 24 those

listed wy other Dallas County districts plus Flower

Mound and Sanger