# 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%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 35 ## Text ; ’ 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 tv 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 28 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. A. 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 49 V 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 66 vi 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 ix 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 \l 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 x 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 ee 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) XV 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 v. 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 y 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 1 5 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. 3 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. 4 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. 6 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. 7 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.” 8 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). 9 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) 10 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 T 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. 12 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). 13 118 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.” 18 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” 19 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. 20 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. 21 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. 22 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. 24 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). 27 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). 28 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). 30 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 31 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- 32 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. 33 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. 34 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. 35 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. 36 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- 37 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 38 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. 39 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. 40 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 41 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- 42 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0075%3A12. Public record. Not legal advice.