Amicus Brief — Train v. City of New York

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swat RODAK. JH..CLENK

In the Supreme Court of the Unite ste" -——

October Lerm 1973

Nos 73 377 und 73 1378

RUSSELL FE. TRAIN. ADMINISTRATOR. UNTIED

STATES ENVIRONMENTAL PROTECTION \GENCGY

Petitions

THE CITY OF NEW YORK ON BEHALF OF TISELI

AND ALL OTHER SIMILARLY SIEPUATED

MUNICIPALITIES WITHIN

LHE STATE OF NEW YORK. ET Al

RUSSELL FE. TRAIN. ADMINISTRATOR. UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY

Petitione:

CAMPAIGN CLEAN WATER, ING

On a) rits of ( eCrhiorarisla thre / nited Sfale , ¢ our of {pypr

for The Distrv tot Cotlmmbia and thr fFeourth ( re Wes

BRIEF OF THE CENTER FOR GOVERNMENTAI

RESPONSIBILITY AS AMICUS CURIAE IN SUPPORT OF

THE CITY OF NEW YORK

Fletcher N. Baldwin. Ji

Jon | Mills

TABLE OF CONTENTS

CITATIONS

STATEMENT OF INTEREST OF AMICUS

CURIAE

STATEMENT OF FACTS

SUMMARY OF ARGUMENT

I. THE PLAIN MEANING AND LEGIS-

LATIVE HISTORY OF THE ALLOTMENT

PROVISIONS OF THE WATER POLLUTION

CONTROLACT, TOGETHER WITH THE

OVERALL STRUCTURE OF THE ACT,

DEMONSTRATE THAT THE ADMINIS-

TRATOR HAS NO _ DISCRETION TO

REFUSE TO ALLOT

A. THE HISTORY AND PLAIN MEANING

OF THE AUTHORIZATION AND

ALLOTMENT PROVISIONS (SECTION

205 AND SECTION 207) SHOW THAT

ALLOTMENT IS MANDATORY.

1. THE PLAIN MEANING OF THE

ALLOTMENT PROVISION RE-

QUIRES ALLOTMENT OF THE

FULL SUMS LISTED IN SECTION

BF Kndcvcoccdesdhbsehsbwhespeseeseccce

THE LEGISLATIVE HISTORY OF

SECTIONS 205 AND 207 SUPPORTS

THE CONCLUSION THAT WHILE

THERE IS DISCRETION WITHIN

THE ACT TO CONTROL OBLIGA-

“i

TIONS, THERE IS NO DISCRETION

AT THE ALLOTMENT PHASE. .... 9

3. STATEMENTS IN LEGISLATIVE

HISTORY REFERRING TO AU-

THORITY TO “IMPOUND” CON-

FER NO AUTHORITY TO REDUCE

PTT eer erree 15

EXPRESS GOALS AND OVERALL

FUNDING STRUCTURE OF THE ACT

DEMONSTRATE THAT ALLOTMENT

OF AUTHORIZED SUMS IS MANDA-

WONG’ sie tn cdvikes Mikadebassacesawesacees 18

1. GOALS OF THE ACT EXPRESS A

NATIONAL COMMITMENT OF

FUNDS TO RESTORE THE WATERS

OF THE UNITED STATES ......... 20

PERMISSIVE OR MULTIPLE AL-

LOTMENTS WOULD FRUSTRATE

THE INTENT OF THE ACT TO EN-

COURAGE LONG RANGE PLAN.

SPU RN onswehebaven bibs ccdubaenes « 23

3. THE INTERNAL LOGIC OF THE

ACT READ WiTH THE REALLOT-

MENT PROVISION, SECTION 205

(b), INDICATES ALLOTMENT TO

a 25

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

VIDES FOR ADVANCE OBLIGA-

TION OF FUNDS AUTHORIZED

FOR FUTURE ALLOTMENTS, IS

MEANINGLESS UNLESS AL-

LOTMENT IS MANDATORY. ...... 27

ii Page

5. THE OBLIGATION PROVISION

AS WRITTEN INDICATES THAT

THE OBLIGATIONAL PHASE

RATHER THAN THE ALLOTMENT

PHASE IS DISCRETIONARY .......

C. ALLOTMENT IS A BUDGETARY

MECHANISM WHICH IS BOTH GEN-

ERALLY MANDATORY AND SPE-

CIFICALLY MANDATORY IN THE

CONTEXT OF THE ACT. ...............

D. EVEN IF DISCRETION IS FOUND, THE

ADMINISTRATOR'S ACTION IN WITH-

HOLDING FIFTY-FIVE PERCENT OF

AUTHORIZED FUNDS WAS AN ABUSE

OF DISCRETION IN LIGHT OF THE

EXPRESSED GOALS OFTHE ACT .....

REFUSAL TO ALLOT FIFTY-FIVE PER-

CENT OF THE AUTHORIZED FUNDS IS

OUTSIDE THE CONSTITUTIONALAUTHOR

ITY OF THE EXECUTIVE BRANCH......

A. THE “‘FAITHFULLY EXECUTE”

CLAUSE OF THE CONSTITUTION

DOES NOT ACCORD DISCRETION TO

REFUSE TO IMPLEMENT CONGRES-

SIONAL ENACTMENTS. ...............

B. THE EXECUTIVE DOES NOT HAVE

INHERENT AUTHORITY TO REFUSE

TO CARRY OUT THE PURPOSES AND

PROVISIONS OF CONGRESSIONAL

PROGRAMS DULY ENACTED INTO

THE EXECUTIVE’S REFUSAL TO IM-

PLEMENT THE WATER POLLUTION

CONTROL ACT, EVEN AFTER PAS-

SAGE OVER AN EXECUTIVE VETO,

REPRESENTS AN UNCONSTITU-

TIONAL EXPANSION OF THE VETO

PUP. Scccccescencevccscoscenessedcess

Ill. THE SOVEREIGN IMMUNITY DOCTRINE

IS NO BAR WHEN THE ADMINISTRATOR

FAILS TO PERFORM A STATUTORY DUTY

OR EXCEEDS HIS DISCRETION............

IV.

THE ADMINISTRATOR'S ACTIONS

ARE IN VIOLATION OF HIS LEGAL

DUTIES UNDER THE ACT AND CON-

SEQUENTLY SUIT MAY BE BROUGHT

THROUGH AN “OFFICER SUIT,”

A WELL ESTABLISHED EXCEPTION

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

THE ADMINISTRATIVE PROCEDURE

ACT OPERATES AS A WAIVER OF

SOVEREIGN IMMUNITY AND

PERMITS REVIEW OF THE ADMINIS-

TRATOR’S REFUSAL TO ALLOT ......

SOVEREIGN IMMUNITY IS SPECIFI-

CALLY WAIVED BY SECTION 505 OF

THE WATER POLLUTION CONTROL

DETERMINING THE ADMINISTRATOR'S

AUTHORITY TO ALLOT LESS THAN AU-

THORIZEDAMOUNTSISJUSTICIABLEAND

NOT BARRED FROM REVIEW BY THE PO-

LITICAL QUESTION DOCTRINE OR THE

ADMINISTRATIVE PROCEDURE ACT

REVIEW OF THE ADMINISTRATOR'S

FAILURE TO COMPLY WITH THE AL-

LOTMENT PROVISION OF THE

WATER POLLUTION CONTROL ACT

IS JUSTICIABLE AND NOT A “POLITI-

CAL QUESTION.” ........600 cece ee eee

THE ADMINISTRATIVE PROCEDURE

ACT DOES NOT BAR REVIEW AS A

MATTER COMMITTED TO AGENCY

DISCRETION. ........-- cece eee eeeeeeees

CONCLUSION ..... cc ccc ccc ccccesccnsccccrecees

| rrr ere rrr reer rere

CITATIONS

CASES Page

American Ass'n of Colleges of Podiatric Medicine v.

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

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

GE, SOP We WA ITD 6.6 06 sb e00cicissenece . 58

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

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

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

cert. denied, 404 U.S. 842 (1971)... 0.0... 7

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

ED séckiententdbbuekcenueeaaren 14, 49, 51, 53, 58, 64

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

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

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

ee ts SE wedidacdteescccatware 14, 32, 49, 51, 64, 65

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

ES Nak de ahh ck-sdichn De ondcdcakus cod cotewkodnde ns 7

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

1954), vacated as moot, 349 U.S. 909 (1955)... 2... 55

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

6, ee ks 0 ihe Khe ended s kenseekeness 33, 66, 67

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

. Se. CEP GG. TR, GOGO cscs cccnctaccses> . 60

Community Action Programs Executive Directors Ass’n

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

Pi, Seis EIN ahd vite Sacer s aoe eae alan 44

Constructores Civiles de Centroamerica, S.A. v.

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

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

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

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

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

1974. 31

vil

Cases - Continued Page

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

Fong Yue Ting v. United States, 149 U.S. 698 (1893) . 43

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

sch abhi ab ead sa tbs toate nh ae ane cence 8, 41, 44, 47, 49, 64

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

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

SEE dcavadddocas ede spuds edensersewkeeseensees 60

Housing Authority of San Francisco v. HUD,

54D ©. Geum. G56 (UCD Cab. ITZ) 0 cc ccccccccccess 49, 52

In Re Neagle, 135 U.S. 1 (1890) 2.2.2... cece eee ees 46

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

Kendall v. United States ex re/. Stokes, 37 U.S. (12 Pet.)

PE bs buduvisnueernaednsawiadsednehedanes 41

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

Land v. Dollar, 330 U.S. 731 (1947) ..............05. 49, 52

Larson v. Domestic & Foreign Commerce Corp.. 337

I voce cckouvercdsstutecéescdetncesess 50, 52

Lee Fook Chuey v. Immigration & Naturalization

Serv., 439 F.2d 244 (9th Cir. (1970) .............45- 19

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

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

(1860), aff'd, 70 Eng. Repr. 703 ...............5-- 19, 20

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

DE c~catsaaceesssteubssoueaseens 41, 44, 49, 54, 56, 64

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

RT re i ATR Re 4 40, 44, 49, 51, 64

Marbury v. Madison, § U.S. (1 Cranch) 137 (1803).... 68

Martin-Trigona v. Ruckelshaus, No. 72-3044(N.D. Ill.

Re BE TED Sodas cecdncndectuceseetineessessees 14

Massachusetts v. Weinberger, Civil No. 1308-73

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

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

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

CS cca cdVebuesiduanceuchekeus ncenenss te 19

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

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

SS OO RR ere erry 31

vill

Cases - Continued Page

Montgomery Environmental Coalition v. Fri,

566 FP. Sapp. BO0 CD. Du. WDD oc ce cccccccsecsecs 60, 61

National Council of Community Mental Health Centers,

Inc. v. Weinberger, 361 F. Supp. 897 (D. D.C. 1973)

sackcudesedasenesestsciecheeuns Fh 41, 44, 47, 49, 53, 63, 64

NLRB v. Fruit & Veg. Packers, Local 760, 377 U.S. 58

SE 9:0 RewNe he Nacin dade edenneens wededs cakes 64 15

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

(D.D.C., July 10, 1973)

National Treasury Employees Union v. Nixon, 492 F.2d

FG iinet we 4hnk 5%) +inenky Shey seehen 41, 52, 64, 65

New York v. Ruckelshaus, 358 F.Supp. 669 (D.D.C.

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

Saw CEE... Ce FIG ne vvivicdvcccspenseece 31, 51, 53, 64

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

re Power 12, 14, 22, 24 - 27, 30, 31, 49, 51

Oklahoma v. Weinberger, 360 F. Supp. 724 (W.D. Okla

SOE 64544646 bsciveht060-0 branes wbitbrebsnsbencees 44

Pealo v. Farmers Home Administration, 361 F. Supp.

SO Re eee eee reer 65

Richards v. United States, 369 U.S. 1 (1962) ......... 19

Riverside v. Ruckelshaus, 4 ERC 1728(C.D. Cal 1972) 59 - 61

Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir. 1971) 50, 53, 54

San Francisco Redevelopment Agency v. Nixon, 329

SS Fog kt S. Ferre 49, 52

Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir.

SOOED dics dunsadncddesiudeseneeabe eis 56

Seafarers Int'l Union of N. America v.

Weinberger, 363 F.Supp. 1053 (D.D.C. 1973)....... 64, 65

Shapiro v. United States, 335 U.S. (1948) .......... 28

Stanfield v..Swenson, 381 F.2d 755 (8th Cir. 1967) .... 7

Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122(1819). 8

State Highway Comm'n v. Volpe, 479 F.2d 1099 (8th

«err 16, 18, 19, 26, 30, 34, 39, 49, 54, 64

Texas v. Fri. No. A-73-C A-38(W. D. Tex., Oct. 2, 1973),

appeal argued, No. 73-3965, Sth Cir., April 29, 1974 .

) che eesiecesecheene eccsesscvesesbvecccces Ma aD

Cases- Continued Page

Udall v. Wisconsin, 306 F.2d 790 (D.C. Cir. 1962), cert.

ED wn cccccncccncccccececs 29

United States v. Curtiss-Wright Export Corp., 299

i heen ceca eee eeeetsecesocecs 44, 47

United States v. Great N. Ry. Co., 343 U.S. 562

ee ee at ebedeceeeececcees 13

United States v. Menasche, 348 U.S. 528 (1955) ...... 27

United States v. Midwest Oil Co.,236 U.S. 459 (1915). 44, 46

United States v. Shreveport Grain & Elevator Co., 287

EET OPO eee eee TTT TTT ETT 8

United States v. Spreckels, 50 F. Supp. 789 (N.D. Cal.

EEE SSS SE EELS IEE OTT OOTEOTT TT TTT TTT TY 59

Warner v. Cox, 487 F.2d 1310 (Sth Cir. 1974)......... 56

Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969) ... 52

Weinberger v. Hynson, Westcott & Dunning, Inc., 412

ee ean cccecchtedaddabesc 27

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

ee oddeenasecécencccee 38, 39, 42, 43, 46

Constitution and Statutes

SU CM, ccc ccc cccccccscccccccccccccces 43, 45

as ceccceeceseccccers 42

Administrative Procedure Act, Section 10, 60 Stat. 243-

IE, IED ccc cccccccccscccsscccsecs 55, 66

12 U.S.C. §1094 (Supp. I] 1972) .... 6... 6c eee ene 40

SE ns ccc cp ceaceencsscaseesoces 39, 40

23 U.S.C. §§101 ef seg. ..... Pee ce dehasakscesee 2y

os ic cacccadectorcenscoccecees 59

I NM on ccc cccccvensccccsccusecsccces 49

Ne ice eedecbeneetesecces 59

Constitution and Statutes - Continued Page

Be es SD hea bk EM dns oblcicRdun ceusinie dueias 49

Oe Wee Se oi beh cas absednneieddenieadsndi 36 - 39

31 U.S.C.A. §581c-1 (Supp. 1974) ...............0.5. 16

Pe ns SE inn Skike Kanu eeedconcine ne 17

Be Wes EE uteiehn s ceddeeenidaeanecun. 25

31 U.S.C.A. §757 (b), note (Supp. 1974) ............. 37

Ft U.S.C.A. SERRE Camm. GPR... ccc ccccccccccccess 38

Federal Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500 (Oct. 18, 1972),86 Stat. 816.

33 U.S.C.A. §§1251 et seq. (Supp. 1974) :

Se Nh sits dae wielded daeckincieeaee oe 20

UD Gibbs ébdcdtedncueseaoereee ‘20

Re. icccnkde condense ae

Ss cdetancncedihicdeladivecial eee 28

Gen sn bianiieddsdsneceenatod 6 - 9, 13, 23, 25, 26, 29

GOGO bvccivouvscocnesvddésvecueeeveeceun 27

ES ee ae a Seg 6 - 10, 31, 62

ES 6bivatctcenbcbstdedetserdbeleelace 57

4064s cunesdsadeninenwebne danas 57, 58, 60, 62

a Sta boduncteedceddueciceeae 49

ee, ET ED dwn celnen sca d ence dcubasuion 59

Pub. L. No. 92-336 (July 1, 1972), 86 Stat. 406........ 37

Pub. L. No. 92-599 (Oct. 27, 1972), 86 Stat. 1324 .... 37, 38

Pub. L. No. 93-53 (July 1, 1973), 87 Stat. 134......... 37

Pub. L. No. 93-173 (Dec. 1, 1973), 87 Stat. 691 ....... 37

Pub. L. No. 93-344 (July 12, 1974) ................... 65

MISCELLANEOUS

ADVISORY COMM'N ON INTERGOVERNMENTAL

RELATIONS, THE GAP BETWEEN FEDERAL AID

AUTHORIZATIONS AND APPROPRIATIONS.

FISCAL YEARS 1966-1970 (1970). ... ... 2... 2. ee eee 292

THE BUDGET OF THE UNITED STATES GOVERN-

SCENT ~ APPENDIX CIDTSD .. cc cccc cccccescccccces 38

S. BAILEY, CONGRESS MAKES A LAW: THE STORY

BEHIND THE EMPLOYMENT ACT OF 1946 (1950)... 40

GDC.P.R. SSS. DG CIGTED oc ccccdeccccccccceccsces 60, 61

4B C.P.R. SE9G.3 GP CIDTD. ccccccccccccccecccccesss 61

Comment, Presidential Impoundment of Funds: The

Judicial Response, 40 U. CHI. L. REV. 328 (1973) .. 55

93 CONG. REC. 3637-45 (1947) ........ 0c cece eee eee 38

116 CONG. REC. 740 (1DTO) . «2... ccc cece cece ccceees 20

117 CONG. REC. (daily ed. Nov. 2, 1971) ......... 92 - 24

118 CONG. REC. (daily ed. Mar. 29, 1972) ......... 24

118 CONG. REC. (daily ed. Oct. 4, 1972).......... 10, 11,

nade dhedevensuekdbccusens saueeeueeadss 16, 18, 20, 21, 33

118 CONG. REG. (daily ed. Oct. 10, 1972) ........... 38

118 CONG. REC. (daily ed. Oct. 17, 1972) ...13, 20 - 22, 38

118 CONG. Rec. (daily ed. Oct. 18, 1972) ........... 38

119 CONG. REC. (daily ed. July 30, 1973)........ 40, 44, 64

119 CONG. REC. (daily ed. Nov. 27, 1973).......... 40, 45

120 CONG. REC. (daily ed. Mar. 28, 1974) ........... 39

120 CONG. REC. (daiiy ed. June 21, 1974) .......... 66

120 CONG. REc. (daily ed. July 15, 1974) ..........- 65

E. CORWIN, THE PRESIDENT: OFFICE AND POWERS

OO OO: CEB occ cccticccccevcessvccccseecocvses< 48

5 J. ELLIOT, DEBATES ON THE ADOPTION OF THE

FEDERAL CONSTITUTION (ed. 1941) .............. 48

Fisher, Presidential Spending Discretion and Congress-

ional Controls, 37 LAW & CONTEMP. PROB. 135

SEED ccccuvedenecdénaceuweedecdbesecdeccotuwees 45

Miscellaneous - Continued

Fisher, impoundment of Funds: Uses and Abuses,

23 BUFFALO L. REV. 141 (1973). ................ 44. 46

L. FISHER. COURT CASES ON IMPOUNDMENT OF

FUNDS: A PUBLIC POLICY ANALYSIS. (Congress-

ional Research Service. Library of Congress, multilith,

Sy Sein vcktus ctactdacnsndebbadisedeinine 51

Hearings on Executive Impoundment of Appropriated

Funds Before the Subcomm. on Separation of Powers

of the Senate Comm. on the Judiciary, 92d Cong.., Ist

Bh, GEE icccesdcubetdenshebhedeeee. a 30, 39, 46

Hearings on “Sovereign Immunity’’ Before the Sub-

comm. on Administrative Practice and Procedure of

the Senate Comm. on the Judiciary, 91st Cong.. 2d

SED cccticismninnsiiodastikiedaiecAbtis scale 49

H. R. Doc. No. 398, 69th Cong. Ist Sess. (1927) ..... 42

H. R. REP. No. 1797, 8ist Cong., 2d Sess. (1951) ...-. 17

H. R. REP. No. 1465, 92d Cong., 2d Sess. (1972) ... 12, 29

H. R. REP. No. 1606, 92d Cong., 2d Sess. (1972). .... 38

H. R. REP. No. 1614, 92d Cong., 2d Sess. (1972)..... 38

H. R. REP. No. 1101, 93d Cong., 2d Sess. (1974) . 65

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

on Impoundment of Funds of the Senate Comm. on

Government Operations and the Subcomm. on Separa-

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

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

Letter from President Nixon to William D. Ruckelshaus.

EPA Administrator, November 22, 1972, reproduced

in Hearings on Federal Budget for 1974 Before the

House Comm. on Appropriations, 93d Cong., Ist

SR. Fe ED cet cdttedacestdcihscedsbhadeones 34

Letter from Franklin Delano Roosevelt reproduced in

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

the Senate Comm. on Appropriations, 78th Cong., Ist

RR oe nae te Ee 45

Levinson & Mills, Impoundment: A Search for Legal

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

xin

Miscellaneous - Continued Page

Levinson & Mills, Budget Reform and Impoundment

Control, 27 VAND. L. REV. 615 (1974) ............. 46

Library of Congress, A Legislative History of the Water

Pollution Control Act Amendments of 1972 (1973)... 18

Findings of McIntosh Foundation Executive Impound-

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

ie Ca wot Binks te tie ecieneiginenanieenies 40, 45

Memo from William Rehnquist reproduced inJoint Hear-

ings on §. 373 Before the Ad Hoc Subcomm. on

Impoundment of Funds of the Senate Comm. on

Government Operations and the Subcomm. on Separa-

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

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

Miller, ‘impoundment: The New Constitutional Crises, :

THE PROGRESSIVE, March, 1973 .:....0........... 44

N. Y. Times, April 20,1973, at 11,col. 5S. 2..0.0.2.0000.. 45

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

SEED. occ cnnndsnedcentacdanctatononencouuns 37, 38, 45

Note, The Jtem Veto in the American’ Constitutional

System, 25 GEO. L. J. 106 (1936)... .......--. if (@

Note, Protecting the Fisc: Executive Impoundment

and Congressional Power, 82 YALE L. J. 1636

MIDTD). oc ccccccccsccccens MEI. BUIGA ITE 60% 65

OMB Report Under Federal Impoundment & Informa- —

tien Act:

38 Fed. Reg. 19,581-82 (1973) ........... 600-2 ee. 40, 47

39 Fed. Reg. 7707. 708 (1974) 2.220. 16, 89

PUBLIC PAPERS OF THE PRESIDENT. State of the Union

Adidvose: Sah. BBs WFGO 3s 6503 2 SOE OSE, ei dee 5

P. ROBERTS. MODERN GRAMMAR (1968).......-.--- 13

S. REP. No. 414, 92d Cong., Ist Sess.(197}) ........-. 59

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

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

Shinn. The Federal Grant Program to Aid Construction of

Municipal Sewage Treatment Plants: A Survey of

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

id a web rekee ered db baeesschGeaseded 29

xiv

Miscellaneous - Continued Page

Stanton, The Presidency and the Purse: Impoundment

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

Student Project, Federal Administrative Law Develop-

ments - 1971, 1972 DUKE L. REV. 115

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

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

poundment of Funds by the Bureau of the Budget

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

Hoc Subcomm. on Impoundment of Funds of the

Senate Comm. on Government Operations and the

Subcomm. on Separation of Powers of the Senate

Comm. on the Judiciary, 93d Cong, Ist Sess. (1973),17, 18

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

USEPA, Report to the Congress: Costs of Construction

of Publicly-Owned Wastewater Treatment Works A-2.

EARS ey Mek ane eae ee 33

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

CULAR NO. A-34, INSTRUCTIONS ON BUDGET

EXECUTION (1971)

R. WALLACE, CONGRESSIONAL CONTROL OF

FEDERAL SPENDING (1960)

9 WEEKLY COMPI: ATION OF PRESIDENTIAL Doc.

I I ehh Sei eo La 42

Williams, The Impounding of Funds by the Bureau of the

Budget, reprinted in Joint Hearings on S. 373 Before

the Ad Hoc Subcomm. on Impoundment of Funds of

the Senate Comm. on Government Operations and the

Subcomm. on Separation of Powers of the Senate

Comm. on the Judiciary, 93d Cong., Ist Sess. (1973)

STATEMENT OF INTEREST OF AMICUS CURIAE

The Center for Governmental Responsibility files this brief

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

spondents and Petitioner.

The Center is a privately funded non-partisan,

non-profit organization housed at the University of Florida

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

countability of government officials and institutions to the

public. Its interest in this case emanates from its detailed

study of the impoundment controversy and its effort to imple-

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

was conducted by the Center's predecessor, the McIntosh

Foundation Executive Impoundment Project,* whose sum-

mary findings have been reproduced at 119 CONG. REC.

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

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

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

& Mills, impoundment: A Search for Legal Principles, 26 U.

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

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

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

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

73-1446 (8th Cir., argued Feb. 13, 1974); Texas v. Train, No.

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

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

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

interest is in the legal development and resolution of federal

impoundment issues.

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

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

Senate Comm. on Government Operations and the Subcomm. on

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

Cong., Ist Sess. 22 (1973).

In the Supreme Court of the United States

October Term, 1973

Nos. 75-1377 and 73-1378

RUSSELL E. TRAIN, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Petitioner

THE CITY OF NEW YORK

ON BEHALF OF ITSELF AND

ALL OTHER SIMILARLY

SITUATED MUNICIPALITIES WITHIN

THE STATE OF NEW YORK, ET AL..,

RUSSELL E. TRAIN, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Petitioner

CAMPAIGN CLEAN WATER, INC.,

On Writs of Certiorari to the United

States Court of Appeals for the

District of Columbia and the Fourth Circuits

BRIEF OF THE CENTER

FOR GOVERNMENTAL RESPONSIBILITY

AS AMICUS CURIAE

IN SUPPORT OF

THE CITY OF NEW YORK

STATEMENT OF THE FACTS

In 1972, Congress passed the most extensive program for

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

Pollution Control Act Amendments of 1972 [hereinafter cited

as the *‘Water Pollution Control Act’’ or the **Act’’)

established as a national goal the achievement of clean

waters in America by 1985. Congressional hearings on the

proposed legislation were extensive. The bill passed the

Senate by a vote of 74 to 0 and the House by 336 to 11.

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

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

considered the veto message and overwhelmingly overrode

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

Senate, 52 to 12.

Subsequently, on November 22, 1972, President Nixon

ordered the Administrator of the Environmental Protection

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

Nixon ordered allotment of two billion dollars in fiscal year

1973 and three billion dollars in fiscal 1974. The amounts

established in the bill were five billion dollars for fiscal 1973

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

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

SUMMARY OF ARGUMENT

The principal question posited by the instant case is whether

the Administrator of the Environmental Protection Agency

has discretion to refuse to allot the full amounts author-

ized by the Water Pollution Control Act. The statutory

history and the overall structure of the statute demonstrate

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

ment in legislative history stating that allotment is discre-

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

stated that allotment is mandatory. Spending discretion

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

Additionally, the overall scheme of the statute demonstrates

the desire of Congress to provide long range planning certainty

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

This purpose is best accomplished through a mandatory

allotment schedule coupled with some discretion in the

obligation phase. There is a substantial negative impact on

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

tion at allotment as distinguished from exercise of discretion

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

tory allotment, insertion of discretionary allotment would

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

net loss of funds for obligation.

At whatever stage of the funding process, refusal to allot

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

funds would be an abuse of discretion. Congress intended to

provide funding for the solution of water pollution problems

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

impoundment, substantially curtailing implementation of the

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

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

improper reasons outside the realm of relevant considerations;

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

Actions by the Administrator were not only outside his

Statutory authority but also beyond his constitutional

authority. Neither the ‘‘faithfully execute’’ clause nor

“inherent authority’’ support executive action in refusing to

allot. Cases considering constitutional authority of the

executive branch have consistently held it to be limited

when impinging upon the intent of Congress, especially

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

of the Act had been overriden operated as an unconstitu-

tional absolute veto.

Sovereign immunity is no bar to the suit against the

Administrator; first, because of the well established exception

of “officer suit’ and, second, because the Administrative

Procedure Act waives sovereign immunity. Similarly,

political question is no bar to justiciability in the instant case

since clear standards exist for judicial review and there is no

absolute commitment to a coordinate branch of the absolute

power to spend or not to spend.

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

the Administrator in refusing to allot. Further. these

actions were in contravention of the explicit provisions and

purposes of the Act and the Constitution.

ARGUMENT

THE PLAIN MEANING AND LEGISLATIVE HIS-

TORY OF THE ALLOTMENT PROVISIONS OF THE

WATER POLLUTION CONTROL ACT, TOGETHER

WITH THE OVERALL STRUCTURE OF THE ACT,

DEMONSTRATE THAT THE ADMINISTRATOR

HAS NO DISCRETION TO REFUSE TO ALLOT.

The issue in the instat* case is the meaning of the allot-

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

academic issue of the mandatory or permissive nature of

appropriations generally.' The precise question before the

Court is whether the allotment provision is mandatory

and requires the Administrator to allot the full sums

authorized by Congress. To determine whether an action

within the funding process is mandatory, it is imperative

to analyze not only that particular provision, but all relevant

'For discussion of the general issue. see Levinson & Mills, Jimpound-

ment: A Search for Legal Principles, 26 U. FLA L. Rev. 191, 214 (1974).

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

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

budgetary provision with the other relevant provisions of the appropriations

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

recognized the possible effect of statutory language:

{NJearly nine tenths of these increases are for mandatory programs

which leave the executive branch no discretion whatever as to the level

or the purpose of the added expenditures.

PusLic Papers Or THE PRESIDENT. State of the Union Address.

Jan. 27, 1970, at 22.

portions of the funding process of that statute.2 When the

allotment phase is read as mandatory, the expenditure scheme

ef the Act is logical and internally consistent. Further,

mandatory allotment best implements the goals of the Act.

In contrast,if the allotment provision is read as dis-

cretionary, the funding procedure becomes speculative and

the Act is effectively crippled.

This is not to say the Administrator has no discretion

in the implementation of the Act. In fact, discretion is

apf irently accorded at the obligation phase. However, the

plain meaning and the history of the relevant provisions

show that the allotment phase is mandatory.

A. THE HISTORY AND PLAIN MEANING OF THE

AUTHORIZATION AND ALLOTMENT PROVISIONS

(SECTION 205 AND SECTION 207) SHOW THAT AL-

LOTMENT IS MANDATORY.

The sums authorized to be appropriated must be fully

allotted as specified by Congress in sections 205 and 207:

§205--Sums authorized to be appropriated pursuant

to section 207...shall be allotted by the Administrator

not later than the January Ist immediately preceding

the beginning of the fiscal year for which authorized... .

§207--There is authorized to be appropriated to carry

out this title. . .for the fiscal year ending June 30, 1973,

“In the instant case, it should be noted that the Act reverses the normal

budgetary procedure whereby sums are appropriated by Congress and later

obligated and expended by an executive agency (see Appendix). In the Act.

funds are first authorized under section 205 to be ap ropriated later to carry

out the purposes of the Act. The Administrator is then required under

section 205 to allot the authorized contract authority among the states. Once

allotted, the sums become available to the states for obligation. The

Administrator then reviews grant applications submitted by states and

municipalities to determine if they satisfy statutory and regulatory criteria.

If approved, a contractual obligation arises and, upon project completion,

an appropriation liquidates the obligation.

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.

1. THE PLAIN MEANING OF THE ALLOTMENT

PROVISION REQUIRES ALLOTMENT OF THE

FULL SUMS LISTED IN SECTION 207.

Initially, it should be recognized that ‘shall allot’’ is an

intrinsically mandatory phrase. See Boyden v. Comm'r of

Patents, 441 F.2d 1041, 1043 & n.3 (D.C. Cir.), cert. denied,

404 U.S. 842 (1971); Stanfield v. Swenson, 381 F.2d 755,

757 (8th Cir. 1967). It is therefore mandatory that, under

section 205 (a), the Administrator allot sums authorized to

be appropriated in section 207. The sums authorized to be

appropriated in section 207 are five and six billion dollars.

No other sums are mentioned. The plain meaning of the

language, therefore. is that the Administrator must allot

the amount authorized to be appropriated.

Since sections 205 and 207 are plainly expressive of a

mandatory allotment, resort to legislative history is un-

necessary. Interpretation of the funding provisions of the

Act should remain within its four corners, giving due

weight to the plain meaning, internal logic and goals of the

Act's provisions. Use of extrinsic evidence must be predi-

cated upon a finding that a statute is ambiguous or that

its plain meaning leads to absurd or futile results. Church

of the Holy Trinity v. United States, 143 U.S. 457, 460 (1892).

The fact that the Administrator claims that there is an

ambiguity is not conclusive. The Administrator offers legrs-

lative history in support of its assertion that the construction

of the statute is doubtful. Extrinsic evidence, however, must

‘be used “to solve, but not to create an ambiguity.”

United States v. Shreveport Grain & Elevator Co., 287

U.S. 77, 83 (1932); Hamilton v. Rathbone, 175 U.S. 414, 421

(1899). When considered by itself, the Act is clear in

decla .g that the Administrator shall allot the amounts

specified.

It must also be recognized that the ‘not to exceed”’

language in section 207 does not modify the clear meaning

of **shall allot’’ as has been argued by the Administrator. See

Brief for Petitioner at 15. The Administrator argues that

“not to exceed’ shows that the sums mentioned are only

ceilings which reflect an intent to allow obligation of

lesser amounts. However, section 205 is designed to

mandate allotment and to specify the date for allotment

while section 207, where the phrase ‘‘not to exceed’

appears, is designed to specify the year of availability and

the maximum sums authorized to be appropriated. Perhaps

there might be warrant for imposing “‘not to exceed”

on section 205 if there were no other explanation for its

existence in the Act, cf. Sturges v. Crowninshield, 17 U.S.

(4 Wheat.) 122. 202 (1819), but there is another explanation.

The phrase operates as a limit on appropriations (a limit

on the Congress)* and a ceiling on the authority of the

Administrator to obligate funds. The phrase means *‘no

more than."’ Further, “‘not to exceed"’ paces expenditure.

Section 207 utilizes ‘not to exceed” three different times as a

ceiling on amounts which mzy be spent in each year so as

to pace expenditure of the total of 18 billion dollars. If in

fact Congress were actually attempting to utilize “not to

exceed” to be expressive of discretionary allotment it could

‘In a discussion of an act with an “authorization to appropriation”

mechanism similar to that in the instant case, a district court stated that

authorization provisions appeared to be a limitation on Congress, rather

than on the Administrator, to prevent appropmation of more funds than

those authorized for a given program. Guadamuz v. Ash, 368 F. Supp.

1233. 1239-40 (D. D.C. 1973).

have done so explicitly. The clause could have read

‘‘authorized to be allotted and appropriated not to

exceed....°”*

When considered in and of itself, the Act is clear in de-

claring that the Administrator shall allot the amounts

specified. There is no need to resort to legislative history

although that history also supports the mandatory nature of

allotment.

2. THE LEGISLATIVE HISTORY OF SECTIONS

205 AND 207 SUPPORTS THE CONCLUSION

THAT WHILE THERE I1S_ DISCRETION

WITHIN THE ACT TO CONTROL OBLIGATIONS,

THERE IS NO DISCRETION AT THE ALLOT-

MENT PHASE. |

The focus of the statutory controversy in the instant case

is the interpretation of the inclusion or omission of three

words and phrases within sections 205 and 207 during the

enactment of the Water Pollution Control Act:

(1) deletion of ‘‘all’’ in section 205 (a) by the conference

committee:

[All] sums authorized to be appropriated pursuant to

section 207 for each fiscal year beginning after June

30, 1972. shall be allotted by the Administrator... .

(2) addition of “not to exceed”’ before the sums specified

in section 207:

There is authorized to be appropriated to carry out this

title, other than §§208 and 209, for the fiscal year end-

. ing June 30 1973, [not to exceed] $5,000,000,000,

The statute was evidently drawn with core. It, language is plain and

unambiguou: . What the Government asks Is not a construction of a statute,

but, in effect, an enlargement of it by the court. so that what was omitted.

presumably by inadvertence, may be included within its scope. To supply

omissions transcends the judicial function.”’ Iselin v. United States, 270

U.S. 245, 250-51 (1925)

for the fiscal year ending June 30, 1973, [not to exceed]

Es Saiib vids chen checheetudcdeurcudeders.

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

The deletion of ‘‘all’’ in conference is asserted to be an

indication that Congress intended to allow discretion in the

allotment phase. However, nowhere in the conference

report or any legislative history is there a direct statement

to that effect. The Administrator relies strongly on a statement

by Representative Harsha:

I want to point out that the elimination of the word

‘all’ before the word *‘sums’* in section 205 (a) and

insertion of the phrase “‘not to exceed"’ in section

207 was intended ...to emphasize the President's flex-

ibility to control the rate of spending.

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

added). The key to understanding the statement, however.

comes when Representative Harsha further explicates:

Second, I would like to point out that the Admin-

istrator of the Environmental Protection Agency must

approve plans, specifications, and estimates. This is

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

id. (emphasis added).

The screening procedure and project approval which

Representative Harsha has identified as the pacing item to

control the rate of expenditures is the obligation phase.

Representative Harsha clearly specifies that it is this phase

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

cretion to control the rate of spending. Moreover, Congress-

man Harsha continues: ‘‘It is clearly the understanding of

the managers that under these circumstances [the application

review procedure] the Executive can control the rate of

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

resentative Harsha make clear that the statement primarily

cited as making allotment discretionary actually refers to

‘‘obligation."" Nowhere in these comments is there reference

to “*flexibilitv’* in allotment or to allotment as a “pacing item.””

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

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

it does the amount of spending,® further indicating that the ref-

erence to discretion relates to obligation.

A colloquy between former Representative Ford and

Representative Harsha further supports the interpretation

that discretion was granted only at the obligation phase:

As I understand the comments of [Representative

Harsha], the inclusion of the words in section 207 in

three instances of *‘not to exceed” indicates that it is a

limitation. More importantly that it is not a mandatory

requirement that in | year ending June 30, 1973,

there would be $5 billion and the next year ending

June 30, 1974, $6 billion and a third year ending

June 30, 1975, $7 billion obligation or expenditure?

Id. at H9123 (emphasis added). Representative Harsha

responded:

I do not see how reasonable minds could come to any

other conclusion than that the language means we can

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

that sum but not to exceed that amount.

Id. (emphasis added).

TAlloiment relates only to the amount a state may obligate. Obligation

may occur at various times during the year after administrative review of

applications, thereby pacing the rate of expenditure. See p.28.29.32 infra.

It is clear that, if what Representative Harsha says is

accurate, namely that anything up to the maximum sum can

be obligated or expended, then discretion at the allotment

phase is virtually impossible. That is, if the Administrator

exercises any discretionary reduction at the allotment phase,

then what Representative Harsha proclaims as possible

becomes impossible.*®

The legislative history is totally devoid of any statement

that discretion exists at the allotment phase to withhold

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

by the Administrator as indicating a discretionary allotment

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

legislative history is replete with direct statements referring to

discretion at the obligation phase. This pattern of legislative

history, tending to place discretion at obligation rather than

allotment, is further strengthened by a categorical state-

ment in the legislative history by a principal sponsor of

the bill which directly applied to sections 205 and 207 and

explains their effect:

Under the amendments proposed by Congressman

William Harsha and others, the authorizations for

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

allocated.{"] These two provisions were submitted to give

the administration some flexibility concerning the

obligation of construction grant funds.

“Allotment necessarily precedes obligation. If allotment is discretion-

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

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

is mandatory, then Congressman Harsha's statement is correct and the

Administrator can obligate up to the full amount. There i. ample history

supportive of making full amounts available for obligation. Sec footnote 15,

and accompanying text infra.

*The Senate bill had used the term “‘allocate’’ rather than allotment.

H.R. Rep. No. 1465, 92d Cong., 2d Sess. 113 (1972). See New York v.

Train, 494 F.2d 1033, 1043 n.19(D.C. Cir. 1974).

118 CONG. REC. $18546 (daily ed. Oct. 17, 1972) (remarks

of Senator Muskie) (emphasis added). This statement by

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

flicts with the statements of Representatives Harsha and

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

fication. Rather that merely alluding to where discretion is

vested, Senator Muskie clearly states when discretion is

not vested.

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

given undue weight. The provision has essentially the same

meaning with or without “‘all."’ Moreover, this Court has

stated that statutes must be interpreted on ‘‘the basis of

what Congress has written, not what Congress might have

written.’ United States v. Great N. Ry. Co., 343 U.S. 562,

575 (1952). The act of deleting the word *‘all”’ should be accord-

ed no particular significance if the meaning of the provision

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

albeit less emphatic.*

*It is a general principle of English grammar that when there is the

absence of a qualifying adjective, the noun is considered a totality. See

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

cance that Congress apparently gives to the term “‘all”’ is found in the legis-

lative history of the old Senate Bill. Section 205 of that bill read, “‘all alloca-

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

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

section reads as follows: ‘This section provides that sums appropriated or

authorized to be obligated for the construction of treatment works under

Title Li, will be allocated among the states on the basis of population alone”

(emphasis added). Library of Congress, A Legislative History of the Water

Pollution Control Act Amendments of 1972 at 1448 (1973). The significance

of this passage is the absence of *‘all’’ before “sums” in the commentary,

indicating a terdency in Congress not to use an adjective in this context, and

probably for no particular reason -- whether that adjective be “some.” “all”

or “the.”

billion figure and correctly found it to be a clear expression

of Congressional] will.

We find that it was Congress’ intention that that full

$18 billion be spent to control water pollution.

494 F.2d at 1042.

This conclusion should also be reached by this Court. If the

full amount is not allotted, as the law requires, the needs and

goals of this Nation to clean up its waters will not be met. Sub-

sequent estimates now unfortunately demonstrate that the

Congressional estimate itself was short.° Congress certainly

did not intend that the development of a shortgage would

justify a reduction in allotment.

D. The Allotment Scheme Was Established to Aid the States

in Planning to Meet Statutory Requirements.

In the developmental! stages of the Act amendments were

proposed in both houses of Congress to strike the contractual

obligation authority which binds the United States to pay its

proportional share upon approval of a project by the Admin-

istrator. The traditional method of funding has been the op-

posite: to reimburse the grantee through the unnual appro-

priations process. The experience of Congress with the old

method was that it did not work as intended and that the re-

quirements of the Act necessitated a firm commitment that

could be relied on by potential grantees for long range plan-

ning purposes. Congressman Jim Wright, a member of the

House Public Works Committee and later a conferee, in de-

bating the issue on the floor of the House, made the follow-

ing points which emerged as the prevailing view in the House:

*The Administrator's report to Congress indicates total national

needs of $615 billion, of which $60.1 is eligible for federal grant

participation. “Report to Congress—Cosis of Construction of Pub-

licly-Owned Wastewater Treatment Works—1973 ‘Needs’ Survey.”

s,s”

The bill requires that by 1976 every publicly owned

plant in the Nation must provide at least secondary

treatment, aud that by 1981 it must employ as a

minimum “the best practicable technology.” °

The bill promises that the Federal Government will

contribute its pro rata share of the cost.

But what good is that requirement, and what good

is that promise, if we do not absolutely intend to de-

liver upon our part of the bargain?

Why should advance obligational authority be nec-

essary? The events of the last few years suggest the

answer. -

The authorization for fiscal 1969 was $700 million,

but the appropriation was only $214 million—less

than one-third—and the amount actually spent was

only $134 million.

For the 4 years, 1968 through 197i, the shortfall

of appropriations below .he amounts held out in the

authorization bill totaled approximately $1.2 billion.

And because of periodic administrative freezes on

construction grants, the shortfall in the amounts

actually granted came to approximately $1.6 billion.

Mr. Chairman, many municipalities, faced with

truly critical water pollution problems and intent

on solving those problems in a timely fashion not-

withstanding the failure of the Federal Government

to live up to its part of the bargain, went ahead on

their own and built the plants.

Obviously it would not be our intention to penal-

ize those communities for having demonstrated the

6 The dates were changed in the final version of the Act to 1977 and

1983 respectively.

initiative and determination to move ahead. And

so this bill authorized more than $2 billion to reim-

burse them for that portion of the authorized Federal

share that was withheld from them.

But other communities waited, because they were

unsure of the strength of the congressional commit-

ment. And because they waited, the cost both to them

and to the Federal Government is considerably great-

er today than it would have been had they been en-

couraged to proceed 4 years ago.

So this is the acid test. We decide right now just

how serious we are about cleaning up the streams of

this country. Do we mean it, or do we not? Are we

certain, or are we uncertain?

I for one am certain. I believe that most of the

Members are. I am ready to make that commitment.

I think the Public Works Committee is certain, and

the majority of the House is certain. We can prove

it by voting down this amendment and saying to the

communities of this Nation that once they put their

hands to the plow, they need not turn back.

Now, this can only be accomplished if there is

assured availability of Federal grant funds for

future years. This necessary assurance is not pro-

vided by merely advancing appropriations for 1 year.

That will not meet the needed assurance of long-term

planning. This is a continuing program.

The construction of a waste treatment plant con-

sists of planning; economic and engineering feasi-

bility studies; preliminary engineering for the prepa-

ration of plans, specifications, and estimates; the ac-

quisition of land where appropriate, and the actual

physical construction of the building itself. Under

this legislation each one of these steps is ordinarily

a separate project, a separate contract, and it is

funded as completed or as work progresses. This is

not the case under existing law where 25 percent of

the total project must be completed before any pay-

ment can be made.

At the time any one of these preliminary steps is

taken, such as the plans, specifications, and esti-

mates, there is no assurance that appropriated funds

(Emphasis added.) 118 Cong. Rec. H. 2726 (Daily ed. Mar. would be available for subsequent projects for land

29, 1972). acquisition and the actual building of this plant for

which the plans, specifications, and estimates are

Congressman Harsha emphasized the need for advance plan- : ;

ning and assured availability of funds. being prepared. This, therefore, makes the orderly

ecenen At tn itude of this om, it be continuous planning and scheduling of work im-

possible.

essential that the States, the interstate agencies and '

the cities have both the ability for and a basis for 7 pose reat dis ia te greene aed

long-range planning, construction scheduling and j ;

financing waste treatment plants, including the sale Seuator Muskie presented similar prevailing arguments in

of bonds that they have to sometimes negotiate. the Senate.

Mr. President, in this bill we have undertaken to

do something that we have never done before on a

problem with such long-range impact as this. We

have set deadlines that must be met by industry, and

presumably by all polluters, includiag governmental

polluters. We have set a deadline in 1976 and we have

set a deadline in 1981; and finally we set the goal of

no discharges of pollutants into any waterways by

1985.’

There is only one way to meet deadlines like that,

and that is to make a total commitment now. If we

indicate in any way any reservations about our com-

mitment as a government and as a Congress to the

achievement of those goals in the point of view of the

public sector, what we have done is undermine the

credibility of our determination to insist on that goal

and its achievement by the private sector.

To achieve the deadlines we are talking about in

this bill—I think all of us in the committee are proud

of it, and we are committed to it—we are going to

need the strongest kind of evidence of the Federal

Government's commitment to pick up its share of the

load. We cannot budge, with any credibility, from the

kind of investment in waste treatment facilities that

is called for by this bill. The municipalities, through

the Conference of Mayors, have estimated at the

request of the committee that the initial investment

required is $30 to $35 billion. The authorization we

have provided in this bill of $14 billion* for 4 years

to meet the Federal share is a hard, conservative

figure. All we are saying in asking the Senate to ap-

prove contract authority is a commitment now to that

$14 billion. If we have any hesitation about that

commitment, then we will eliminate the contract au-

thority and keep our options open.

(Emphasis added.) 117 Cong. Rec. S. 17445 (Daily ed. Nov.

2, 1971).

As noted by the District Court in City of New York v.

Ruckelshaus, supra, 674 F. Supp. at 674:

The seriousness of the planning problem was under-

stood by Congress. It was one of the reasons for util-

izing the device of allotment, thereby making funds

available for obligation [by contract authority], in

lieu of the ordinary appropriations procedure.

It strains credulity to assume that Congress established the

allotment and contract authority funding mechanism to cor-

rect the vagaries of the annual appropriation process, and

coincidently granted the Administrator discretion to undercut

its commitment by reintroducing the uncertainties of the old

system back into the process. The firm commitment of Con-

gress vanishes with any exercise of discretion by the Admin-

istrator at the allotment stage. If the funding provisions are

to have any meaning at all, it can only be concluded that Con-

gress did not intend the sums authorized for allotment to be

altered at the whim of the Administrator.

7 The dates were changed in the final version of the Act to 1977,

1983, and 1985 res vely.

* This was changed to $18 billion in the final version of the Act.

Il. THE ADMINISTRATOR HAS NO DISCRETION TO RE-

DUCE ALLOTMENTS.

A. The Act Requires Full Allotment.

The Administrator contends that he has discretionary au-

thority to allot less than the full amounts authorized to be ap-

propriated. The basis for this contention rests entirely on

amendments that were agreed to by the House and Senate Con- —

ferees considering the bill. The phrase “not to exceed” was

placed before the sums specified in Section 207 and the word

“all” was deleted before the phrase “[s]ums authorized to be

appropriated” in Section 205.° The Administrator’s position

is untenable.

The overriding intent of Congress was to commit the Fed-

eral government to a program assuring financial means to ac-

complish the tasks envisioned in the Act. The pertinent lan-

guage of the Act and its legislative history, as outlined in Part

* The two amendments in question were to Sections 205 and 207 of

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

material added):

ALLOTMENT

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

pursuant to section 207 for each fiscal year beginning after

June 30, 1972, shall be allotted by the Administrator not later

than the January Ist immediate 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. .

- AUTHORIZATION

Sec. 207. There is authorized to be appropriated to carry out

this title .. . for the fiscal year ending June 30, 1973, not to

exceed $5,000,000,000, for the fiscal year ending June 30, 1974,

not to exceed $6,000,000,000 and for fiscal year ending June 30,

1975, not to exceed $7,000,000,000.

The “not to exceed” language was an amendment only to the House

version of $.2770; the words already appeared in the comparable

section of the Senate bill.

I of this amicus brief, clearly indicate that the Administrator

must allot the full sums authorized to be appropriated by Sec-

tion 207. Indeed, it is only by full allotment that there could

even be control over the rate of spending at subsequent stages.

The Amendments relied on by the Administrator were spon-

sored by Congressman William H. Harsha of Ohio.'® At the

time the Act was being considered, Congressman Harsha was

the ranking minority member of the House Public Works Com-

mittee, which reported on the House version of the Act. He

was also the floor manager of the bill and a member of the con-

ference committee. Congressman Harsha explained to the

House the meaning of his amendments.

. . . | want to point out that the elimination of the

word “all” befere the word “sums” in Section 205

(a) and insertion of the phrase “not to exceed” in

Section 207 was intended by the managers of the bill

to emphasize the President’s flexibility to control the

rate of spending.

(Emphasis added.) 118 Cong. Rec. H. 9122 (Daily ed. Oct. 4,

1972).

Significantly, Congressman Harsha was merely emphasizing

what the Act already provided: namely, full allotment and de-

ferred spending. At a later point of the debate, a colloquy be-

tween Congressmen Jones, Ford and Harsha revealed the

intent of the amendments.

Mr. Gerald R. Ford. Mr. Speaker. I think it is

vitally important that the intent and purpose of Sec-

tion 207 is spelled out in the legislative history here

in the discussion of this conference report.

10 The District Court in The City of New York v. Train, supra, noted

that the views of sponsors of the legislation at issue are of par-

ticular importance when reviewing its legislative history. 358

F.Supp. at 677.

As I understand the comments of the gentleman

from Ohio [Harsha], the inclusion of the words in

Section 207 in three instances of “not to exceed” in-

dicates that is a limitation. More importantly, that it

is not a mandatory requirement that in one year end-

ing June 30, 1973, there would be $5 billion and the

next year ending June 30, 1974, $6 billion and a third

year ending June 30, 1975, $7 billion obligation or

expenditure?

Mr. Harsha. | do not see how reasonable minds

could come to any other conclusion that the language

means we can obligate or expend up to that sum—

anything up to that sum but not to exceed that

amount....

Mr. Gerald R. Ford. Mr. Speaker. I would like to

ask the distinguished chairman of the subcommittee

and the chairman of the House conferees whether he

agrees with the gentleman from Ohio [Harsha].

Mr. Jones of Alabama. My answer is “yes.”’ Not

only do I agree with him, but the gentleman from

Ohio offered this amendment which we have now

under discussion in the committee of conference, so

there is no doubt in anybody’s mind of the intent of

the language. It is reflected in the language just

explained by the gentleman from Ohio [Harsha].

Mr. Gerald R. Ford. Mr. Speaker. This clarifies

and certainly ought to wipe away any doubts anyone

has. The language is not a mandatory requirement

for full obligation and expenditure up to the au-

thorization figure in each of the three fiscal

years. ... :

(Emphasis added.) 118 Cong. Rec. H. 9123 (Daily ed. Oct. 4,

1972).

This history necessarily reflects the understanding of the

Congress that there must be full allotment, for only by such

full allotment could it be possible for subsequent expenditures

to be made up to the authorization figure. From the above ex-

change it is clear that any discretion of the Administrator re-

garding the authorized funds was intended to be exercised only

through the mechanism of obligation and expenditure at later

stages, and not through the allotment process.

Congressman Harsha further noted that even in the exercise

of discretion by the Administrator at a later point in time such

discretion related solely to approval of plans, specifications

and estimates.

. . » I would like to point out that the Administrator

of the Environmental Protection Agency must ap-

prove plans, specifications and estimates. This is the

pacing item in the expenditures of funds. It is clearly

the understanding of the managers that under these

circumstances the Executive can control the rate of

expenditures.

(Emphasis added.) 118 Cong. Rec. H. 9122 (Daily ed. Oct. 4,

1972)."!

Congressman Harsha explained the impact of the Act’s

funding provisions in terms of expenditures in future fiscal

11 Congressman Harsha reiterated his comments on the floor of the

House after the President's veto. 118 Cong. Rec. H.10268 (Daily

ed. Oct. 18, 1972). Congressman Harsha cited as support for the

existence of flexibility the fact that impoundments by the execu-

tive branch of highway funds. 118 Cong. Rec. H.9122 (Daily ed.

Oct. 4, 1972). The District Court in The City of New York v.

Ruckelshaus, supra, 678 F.Supp. at 678, pointed out:

.. . The impoundments of Federal-Aid Highway Act moneys

2 to LA ay ony Harsha were of funds allotted,

., the con were being exercised at the obligation level

mn than at . allotment: level.

(Emphasis added.) ificantly, the very highway impound-

ments referred to by Harsha were declared to be

illegal by the Court in State Highway Commission of Missouri

v. Volpe, 479 F.2d 1099 (8th Cir., 1973).

years. In so doing, he demonstrated that it was his understand-

ing that Sections 205 and 207 required allotment of the full

amount of the sums specified in Section 207.

{T]he first major impact of obligations from the $5

billion authorizations for the fiscal year ending June

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

As a matter of fact, for fiscal year 1973 if all the

money were obligated and placed under contract,

there would only be $20 million needed to meet the

obligations.

(Emphasis added.) 118 Cong. Rec. H. 10268 (Daily ed. Oct.

18, 1972).

Unquestionably, when Congressman Harsha spoke hypo-

thetically of the obligation of the entire $5 billion, he neces-

sarily expressed his recognition that the entire $5 billion had

to be available by allotment for obligation. His statement was

intended to emphasize to the House that the President’s fear

about “budget-wrecking” was unwarranted in view of the fact

that there would be an inherent lag between the time when

funds were obligated and the time when they would actually

be spent.

Thus, the pacing of expenditures is built into the funding

mechanism, but such pacing is itself dependent upon full al-

jotment as an absolute prerequisite. Senator Muskie made the

same point to the Senate when he nvted that the full $18 billion

authorized by the Act probably would not be spent until the

end of fiscal year 1979.'* Senator Muskie at the time was

12 Senator Muskie introduced into the record a table indicating the

impact of the $18 billion on the budget. It was estimated that due

to the extended period of time needed for construction that actual

expenditure under full obligation would be the following per-

centages of the sums authorized to be appropriated: for the first

year, 5 percent; the second year, 20 percent; the third year, 30

t; the fourth year, 40 percent; and for the fifth year, 5 per-

cent. 118 Cong. Rec. S. 18547 (Daily ed. Oct. 17, 1972).

Chairman of the Senate Subcommittee on Air and Water Pol-

lution, which reported out the Senate version of the Act. He

was a floor manager of the bil] and a member of the confer-

ence committee. Senator Muskie, in a specific reference to the

amendments proposed by Congressman Harsha, made it clear

to the Senate that the meaning of the Act is as contended by

the State of Minnesota and the City of New York herein.

Under the amendments proposed by Congressman

William Harsha and others, the authorizations 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 allocated. These two provisions were suggested to

give the administration some flexibility concerning

the obligation of construction grant funds.

(Emphasis added.) 118 Cong. Rec. S. 16871 (Daily ed. Oct. 4,

1972.:8

Incredibly, the Administrator points to the legislative his-

tory and incredulously contends that Congressman Harsha,

Senator Muskie and others, when explaining their understand-

ing of the amendments, and in their use of such descriptive

terms as “the obligation of construction grant funds,” “the

expenditure of funds,” “controlling the rate of spending,” and

the “pacing item in the expenditure of funds,’ did not thereby

intend to distinguish between the allotment stage, and the ob-

ligation and expenditure stages, of the statutory scheme. The

Administrator's contention is based upon a palpable miscon-

struction of the Act’s allotment provisions and constitutes a

misrepresentation of the legislative history.

18 Senator Muskie reiterated his comments on the floor of the Senate

after the President's veto. 118 Cong. Rec. 8.18546, S.18549 (Daily

ed. Oct. 17, 1972).

B. If the Administrator Has Any Discretion at the Allot-

ment Stage, He Has Abused It.

1. Discretion was not exercised within the bounds delineated

by the Act.

The Administrator’s discretion involves solely approval or

disapproval of projects based upon criteria set forth in the

Act. The Administrator has abused this limited discretion by

his refusal to allot over one half (55 percent) of funds au-

thorized by Congress to construct publicly owned treatment

works. The objectives of the Act, its goals, policies, effluent

limitation deadlines, and enforcement provisions have been ig-

nored by the Administrator. He has made no effort to justify

his action other than by reference to the President’s evalua-

tion of competing national priorities, regardless of the de-

clared intent of Congress as stated by law.

The Administrator may not arrogate such legislative power

to himself. Congress alone enacts the law. Congress established

bounds within which the Administrator is required to work

in exercising any limited discretion he may have. These bounds

are delineated by the clear language of the Act. The Adminis-

trator may not look beyond these bounds for supporting ration-

ale to red ce the allotment of funds. If his decision had been

based on the needs and problems of sewage treatment facili-

ties construction, it might have been on more solid ground.

However, a decision based on totally unrelated considerations

is contrary to law. This principle was firmly established in

a case analogous to those before the Court, i.e., State Highway

Commission of Missouri v. Volpe, 479 F.2d 1099, 1114 (8th

Cir., 1973). The issue before the court in Volpe was whether

the Secretary of Transportation may defer authority to obli-

gate highway funds previously apportioned to the State or

Missouri under the Federal-Aid Highway Act of 1956 when

the reasons given for deferment by the Secretary were the

status of the economy and the need to control inflationary

pressures. The funding scheme in the Highway Act is that

principally adopted by Congress in the Act under considera-

tion. The rationale of the Volpe case is irrefutable and should

be recognized by this Court.

To reason that there is implicit authority within the

Act to defer approval [of projects] for reasons total-

ly collateral and remote to the Act itself requires a

strained construction which we refuse to make. It is

impossible to find from these specific grants of au-

thority discretion in the Secretary to withhold ap-

proval on projects Congress has specifically directed

because of a system of priorities the Executive

chooses to impose on all expenditures. The Con-

gressional intent is that the Secretary may exercise

his disci 2tion to insure that the roads are well con-

structed and safely built at the lowest possible cost,

all in furtherance of the Act, but when the impound-

ment of funds impedes the orderly progress of the

federal highway program, this can hardly be said to

be favorable to such a program. In fact, it is in dero-

gation of it. It is difficult to perceive that Congress

intended such a result.

(Emphasis added.) 478 F.2d at 1114. See also Campaign

Clean Water, Inc. v. Ruckelshaus, 361 F. Supp. 689 (E.D. Va.

1973) ; Local 2677, American Federation of Government Em-

ployees v. Phillips, 358 F. Supp. 60 (D.D.C., 1973).

The rationale of Volpe, supra, bears forceful application

to the present case. The Congressional intent as manifested

in the Act here absolutely requires the Administrator to pro-

vide federal financial] assistance for construction of publicly

owned sewage treatment works. The Administrator was given

discretion only to insure that the facilities aie well designed

and constructed for efficient operation and are capable of

meeting the needs of the people in the areas to be served at

the lowest possible cost. The Administrator’s unlawful action

here has the effect of disapproving numerous projects with-

out proper review under the limitations and conditions of

Section 204, thereby subverting the legislative objective.

Judge Miles Lord, in considering State of Minnesota v. Fri,

supra, followed the rationale of Volpe, supra. He correctly

noted :

Nothing in the Act gives the Administrator the

authority to consider matters outside the corners

of the Act itself. In failing to allot all of the money

authorized in this matter, the Administrator is acting

in express violation of the Act itself as well as in vio-

lation of the purposes of the Act as set forth by Con-

gress. Furthermore, to the extent the Administrator

has some discretion in this matter, the refusal to allot

nearly half of the funds authorized for reasons not

related to the Act and its stated purposes marks a

clear abuse of such discretion.

(Emphasis added.) Slip Op. at 14.

The Administrator cannot be allowed to exercise discretion

as though the Act did not exist. The Act alone must be the

basis for any exercise of discretion by the Administrator.

2. The refusal to allot 55% of the funds authorized is a fla-

grant abuse of discretion because it effectively frustrates

the intent of Congress as embodied in the Act.

The action of the Administrator drastically reduced the

States capacity to carry out the purposes of the Act to fund

the construction of sewage treatment facilities for the abate-

ment of pollution of the waters of the State. The present Min-

nesota allotment is $121 million short of full allotment for the

two fiscal years in question.'* The Minnesota Pollution Con-

trol Agency, the agency administering the federal grant pro-

gram, had pending 140 grant applications to upgrade or con-

struct publicly owned treatment works for fiscal year 1973.

These applications represented an estimated total construc-

tion cost of $212 million. If 75 percent federal funding were

available, this would amount to $160 million. Consequently,

the needs of Minnesota outstripped the Administrator’s al-

lotted amount for fiscal 1973 alone by a minimum of $119

million. Under the Administrator’s allotment only 13 of the

140 applicants of the MPCA would be fully funded and one

or two others stood to be partially funded. The total number

of grant applicants for fiscal 1974 is approximately 200. This

figure includes a carry-over of those projects from fiscal 1973

which were not funded. The Administrator’s allotment allows

funding of only five additional projects in fiscal 1974.'*

Minnesota’s case is not an isolated example. Its experi-

ence is duplicated in many, if not all States, with the result

that thousands of plant construction projects have gone un-

funded. Many more will go unfunded in the upcoming fiscal

14 Allotment Regulation, 37 Fed. Reg. 26282 (1972).

15 These facts were presented by affidavits in State of Minnesota v.

Fri, supra, and were not dispuied by the Administrator.

years as the needs of the States go unmet. These monies will

not be forthcoming unless allotted as required by law. The

program initiated by the Act has effectively ground to a halt,

frustrating the express intentions of the Congress.'®

Furthermore, the intricate statutory scheme is so interre-

lated that the action of the Administrator has set off a

domino-like chain reaction. Not only are projects halted now

but municipalities are discouraged from proceeding with con-

struction plans on their own. EPA regulations prohibit the

awarding of any grant if initiation of the project construc-

tion has occurred, 38 Fed. Reg. 5330, §35.903(d) (1973). The

inevitable result is that no eligible applicant or grantee will

proceed with construction until the Administrator approves

its project and thereby legally guarantees 75 percent federal

funding. The Act holds out a generous “carrot” which no po-

tential recipient can, as a practical matter, refuse. Conse-

quently, no construction or upgrading of publicly owned treat-

ment works in Minnesota and other States will be initiated

until federal grants are made available for obligation by the

Administrator.

The resulting total paralysis of the program is an intoler-

able situation for potential grantees. They are faced with

statutory deadlines to meet specific effluent limitations. All

publicly owned treatment works in existence on July 1, 1977,

are required to have effluent limitations based on a minimum

of secondary treatment. More stringent standards may be ap-

plicable to public treatment works by July 1, 1977, if neces-

sary to meet water quality standards established pursuant to

16 This Court should not be misled by Table I, Petitioner's Brief,

p. 49, showing that many States have not fully obligated the re-

duced allotments. Minnesota has numerous project —_

pending approval by the Administrator. Indeed Table I more cor-

rectly indicates the grant program is floundering because of the

Administrator's failure to make a full commitment of the funds.

State law or regulation. Section 301(b) (1) (B) and (C). This

means that all publicly owned treatment works presently have

less than three years to be in compliance with Federal and

State laws and regulations. Construction of major projects

can easily take three or four years. Those treatment works

that fail to meet the effluent standards face a civil penalty of

up to $10,000 per day of violation. Section 309(d). Any citi-

zen adversely affected by a violation of an effluent standard

may initiate legal action. The remedies available by a citizen

suit could include appropriate civil penalties under Section

309(d) of the Act. Section 505(a)(1) and (2). As a result,

without the allotment of the impounded funds, many commu-

nities, particularly smaller ones, will simply be unable to com-

ply with the effluent standards and will thereby be subject to

enormous penalties.

Congress could not have intended for its purposes to be so

effectively emasculated by the action of one official at one

stage of the statutory scheme. The Administrator suggests

that he has the authority and will eventually allot the full

amount of the authorized funds, and thus there is no adverse

effect on the States. This assumes that there is legal merit to

the Administrator’s interpretation of Sections 205 and 207,

an interpretation which must be rejected as a spurious after-

thought.

When Sections 205 and 207 are analyzed in the context of

the whole Act and its legislative history, the inevitable con-

clusion is that the Administrator must allot the full sums au-

thorized by Congress. It is inconceivable that Congress in-

tended to grant the Administrator unfettered discretion at

the allotment stage and thereby make the Act a series of empty

promises.

Failure to allot over half of the sums authorized for fiscal

year 1973 and 1974 was a clear abuse of discretion.

3. The President and the Administrator cannot do indirectly

what the President was forbidden by Congress to do by

veto.

When the Act was first passed by Congress the President

exercised his veto power over it. At that time he understood

that Congress intended the full allotment of funds. In his veto

message he stated:

Certain provisions of .. . [the) bill confer a mea

sure of spending discretion and flexibility upon the

President, and if forced to administer this legislation

I mean to use those provisions to put the brakes on

budget-wrecking expenditures as much as possible.

But the law would still exact an unfair and unnec-

essary price from the public. For I am convinced

. . . that the pressure for full funding under this bill

would be so intense that funds approaching the mazi-

mum authorized amount could ultimately be claimed

and paid out, no matter what technical controls the

bill appears to grant the Executive.

(Emphasis added.) 118 Cong. Rec. H. 10266 (Daily ed. Octo-

ber 18, 1972).

The President recognized that the Act required the use of

the funds for the purposes appropriated and vetoed it for that

reason. Congress overrode this veto, reaffirming its strong

commitment to the program.

It is significant that the President, in vetoing the bill,

actually assumed an interpretation of the Act contrary to that

subsequently taken in impounding the funds. The President

initially assumed the existence of discretion only at the spend-

ing level. However, after the veto was overridden the Presi-

dent assumed the right to impound at the earlier stage of al-

lotment. The fact that the President originally interpreted the

Act in the same manner as that contended by the Respondents

constitutes a compelling argument against the subsequent

contrary interpretation taken by the President through the

Administrator. Presumably, the President concluded that he

would be under pressure to spend more than he desired unless

he impounded at the allotment stage. The President and the

Administrator cannot do indirectly what the President origi-

nally recognized he could not do directly.

Where the Executive Branch is mandated by Congress to

expend funds for a well-defined program containing specific

time tables set up to reach the desired goal, it is the duty of the

Executive to execute that law. The Executive may not decline

to execute it.

The position of the State of Minnesota is further supported

with compelling effect by a memorandum authored by Justice

William Rehnquist when he was serving as an Assistant At-

torney Genere] in the Office of Legal Counsel of the Depart-

ment of Justice. The memorandum was addressed to the

Deputy Counsel to the President and concerned the President’s

authority to impound funds appropriated for aid to federally

impacted schools. It reads in part as follows:

With respect to the suggestion that the President

has a constitutional power to decline to spend appro-

priated funds, we must conclude that existence of

such a broad power is supported by neither reason

nor precedent. There is, of course, no question that an

appropriation act permits but does not require the

executive branch to spend funds. See 42 Ops. A.G.

No. 32, p. 4 (1967). But this is basically a rule of

construction, and does not meet the question whether

the President has authority to refuse to spend where

the appropriation act or the substantive legislation,

fairly construed, require such action.

It is in our view extremely difficult to formulate a

constitutional theory to justify a refusal by the Presi-

dent to comply with a Congressional directive to

spend. It may be argued that the spending of money

is inherently an executive function, but the execution

of any law is, by definition, an executive function,

and it seems an anomalous proposition that because

the Executive Branch is bound to execute the laws, it

is free to decline to execute them.

(Emphasis added.) The Rehnquist memorandum is reprinted

at 119 Cong. Rec. S. 3808 (Daily ed. March 1, 1973).

The principle that an administrative official may be com-

pelled to expend money mandated to be spent was estab

lished long ago in Kendall v. United States, 12 Pet. 524 (1838),

where it was held that mandamus law to compel the Post-

master General to pay to a contractor an award which had

been arrived at in accordance with a procedure directed by

Congress for settling the case. Here the Executive Branch

should thus be compelled to act within the bounds defined by

the law by allotting the monies needed to implement the com-

prehensive program to attain clean water.

Ill. THE ACTION OF THE ADMINISTRATOR IS NOT SO

“COMMITTED TO AGENCY DISCRETION” AS TO BE

NONREVIEWABLE.

The Administrator contends that his refusal to allot 55%

is nonreviewable because it comes within the admittedly “very

narrow” exception of the Administrative Procedure Act, 5

U.S.C. §761 (Supp. V) making actions “committed to agency

discretion by law” not subject to review. This contention has

no merit, for the exception is limited to cases where the stat-

ute is “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). In this case there is abundant

statutory language governing the bounds of the Administra-

tor’s actions. Once these limits are exceeded the action is re-

viewable. It is clear'y the business of the judicial branch to

determine the limits of statutory grants of authority. Justice

Reed in Stark v. Wickard, 321 U.S. 288, 309-10 (1944), placed

the issue in proper perspective.

When Congress passes an Act empowering admin-

istrative agencies to carry on governmental activi-

ties, the power of those agencies is circumscribed by

the authority granted. This permits the courts to par-

ticipate in law enforcement entrusted to adminis-

trative bodies only to the extent necessary to protect

justifiable individual rights against administrative

action fairly beyond the granted powers. The respon-

sibility of determining te limits of statutory grants

of authority in such instances is a judicial function

entrusted to the courts by Congress by the statutes

establishing courts and marking their jurisdiction.

Cf. United States v. Morgan, 307 U.S. 183, 190-91.

This is very far from assuming that the courts are

charged more than administrators or legislators with

the protection of the rights of the people. Congress

and the Executive supervise the acts of administra-

tive agents. The powers of departments, boards and

administrative agencies are subject to expansion,

contraction or abolition at the will of the legislative

and executive branches of the government. These

brancl. . have the resources and personnel to exam-

ine into the working of the various establishments

to determine the necessary changes of function or

management. But under Article III, Congress estab-

lished courts to adjudicate cases and controversies

as to claims of infringement of individual rights

tives and goals, its project review provisions, its time limits

and its effluent limitations. As Judge Russel stated in Cam-

paign Clean Water v. Train, 489 F.2d 492, 498 (1973).

[T]he executive . . . has the constitutional duty to

execute the law in accordance with the legislative

purpose so expressed. When the executive exercises

its responsibility under appropriate legislation in

such a manner as to frustrate the Congressional pur-

pose, either by absolute refusal to spend or by a with-

holding of so substantial an amount of the appropria-

tion as to make impossible the attainment of the leg-

islative goals, the executive trespasses beyond the

range of its legal discretion and presents an issue of

constitutional dimensions which is obviously open to

whether by unlawful action of private persons or by judicial review.

thori inistrati .

qaavtien ef GHRETRSTEEES GOEEEIEEIETS geues The Act does not confer upon the Administrator or his

In determining whether the Administrator’s action is in- agency the discretion to deny allotment of funds using any

consistent with the Act, this Court should follow the basic other standards but those provided in the Act. The Adminis-

canon of construction observed in Richards v. United States: trator is asking the Court to recognize discretion that totally

We believe it fundamental! that a section of statute disregards the Act and thereby negates the existence of any

should not be read in isolation from the context of the law applicable to him. The Administrator’s contention is un-

whole Act, and that in fulfilling our responsibility in tenable.

interpretating legislation, ‘““‘we must not be guided by

a single sentence or member of a sentence, but

[should] look to the provisions of the whole law, and

to its object and policy.”

369 U.S. 1, 11-12 (1962).

The provisions of the Act provide the appropriate stan-

dards. A court by analysis of the Act can easily determine that

the latitude of the questioned discretion is not as broad as the

Administrator mistakenly asserts. The standards for review

are found in the purposes and policies of the Act, its objec-

CONCLUSION

The State of Minnesota respectfully requests that the Court

hold that the Administrator is mandated by the Act to allot

to the States the full amount of sums authorized by Congress

for the construction of publicly owned sewage treatment fa-

cilities. In the alternative, the Court should hold that the ac-

tion of the Administrator constituted an abuse of discretion.

Respectfully submitted,

WARREN SPANNAUS

Attorney General

State of Minnesota

BYRON E. STARNS

-Deputy Attorney General

PETER W. SIPKINS

Solicitor Genera!

ELDON G. KAUL

Special Assistant

Attorney General

1935 W. County Road B2

Roseville, Minnesota 55113

Attorneys for the Amicus

State of Minnesota

August, 1974

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.