# Amicus Brief — Train v. City of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0075%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 35 ## Text 95 E 5 * N * 15 „ * * > . ton OS * ; s 7 8 — STAT LS igh, 3 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 . 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0075%3A09. Public record. Not legal advice.