Amicus Brief — Train v. City of New York

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Supreme Court, U. S.

No. 73-1377 and No. 73-1378 AG 16 1974

IN THE

ICHAEL ROCAX, JR..CL

ERK

SUPREME COURT OF THE UNITED:

OCTOBER TERM, 1973

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

vs.

THE CITY OF NEW YORK ON BEHALF OF ITSELF AND

ALL OTHER SIMILARLY SITUATED MUNICIPALITIES

WITH THE STATE OF NEW YORK

CITY OF DETROIT, PARTY PLAINTIFF

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

vs.

CAMPAIGN CLEAN WATER, INC.

AMICUS CURIAE BRIEF OF THE STATES OF TEXAS,

WISCONSIN, MISSOURI, OKLAHOMA AND KANSAS

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant Attorney Genera! of Texas

PHILIP K. MAXWELL

Assistant Attorney General! of Texas

ROBERT W. WARREN LARRY DERRYBERRY

Attorney General! of Wisconsin Attorney Gene ‘al of Okiahoma

Theodore L. Priebe Pau! C. Duncan

Assistant Attorney General Assistant Attorney General

JOHN C. DANFORTH VERN MILLER

Attorney General of Missouri Attorney General of Kansas

Robert M. Lindholm Curt T. Schneider

Assistant Attorney General Assistant Attorney General

Attorneys for Amici

TABLE OF CONTENTS

r CITATIONS

A. Summary of Argument

B. The only discretion given the Administrator by the

Act in the construction grant funding process is at

the project approval stage, rather than the allotment

stage, and must be exercised in a manner consistent

with the requirements and purposes of the Act....11

1. The Act, its background and purposes............. 12

2. The meaning of the “Harsha Amendments”. .. 16

. The Administrator's argument that he is authorized

to control the “rate” of spending by controlling the

timing of allotments is unsupported in the Act and is

inconsistent with continual funding mechanism of

“reallotment” 27

. Neither the doctrine of sovereign immunity nor that

of political question is applicable to this

I, cnininstencentsnnatnincennnenmaiitaianiibiteaetninintaiiins 28

Fe, IID tnescccunsnesnceeseceesrnnnsesennenqunetenimmniionicnll

CITATIONS

CASES: Pages

Beker v. Carr,

UIA _

Brown v. Board of Education of Topeka,

El SE) | | er 4

Citizens of Overton Park v. Volpe,

401 U.S. 402 (1971) .......cccccccccesssrsroseerrreresesessreersesenees 30

Dugan v. Rank,

B72 U.S. GOB (19GB) .........csccsceessssovecsceseeeoeessssreorssseees 29

Estrada v. Ahrens, 30

296 F.2d 690 (Sth Cir. 1961) ............cciscrccccccssesseeeeseees

First National Bank of Logan, Utah v. Walker Bank and

Trust Co., .

- fe FT) | 2

Larson v. Domestic & Foreign Corp.,

337 U.S. CBZ (1949) ..............cccsssrsvessrecreserreesesneoessones 29

Marbury v. Madison,

5 U.S. (Cranch) 137 (18038) ........:ccceesee ceeeeeeseeeees 32,33

National Labor Relations Bd. v. Fruit & Veg. Pack. &

Whse., Loc. 760,

fil | fT) | | ee 23

Pan American \ orld Airways, Inc. v. Civil Aeronautics Bd.,

380 F.2d 779 (2nd Cir. 1967); affd. per curiam sub.

nom., World Airways, Inc. v. Pan American Airways,

Inc.,

SOL UB. CBE (IBGB) .cccccrcrvecccerescsrcccveccssocevscessvssssees 22,23

CASES: Pages

Scanwell Laboratories, Inc. v. Shaffer,

424 F.2d 859 (D.C. Cir. 1970) ooo... eecccecscesceseees —

Schwegmann Bros. v. Calvert Distillers Corp.,

8 Tee 22

Sioux Tribe of Indians v. United States,

I i 21

State Hwy. Comm'n of Missouri v. Volpe,

347 F. Supp. 950 (W.D. Mo. 1972) ooo. cccccccceeeeeeeeees 25

State Hwy. Comm'n of Missouri v. Volpe,

479 F.2d 1099 (8th Cir. 1973) 00... ceeceeeeeees 24,25

Taylor v. McElroy,

I i Ss 4

Texas v. Fri, A-73-CA-38

(W.D. Tex., decided Oct. 2, 1973) oooccccccccccccccessceseeeeeeees 7

Texas v. Train, 73-1895

(Sup. Ct., filed June 19, 1972) ov... ccccccecesesceceseees 3

Texas v. Train, 73-3965 & 73-4026

(Sth Cir, filed Jam. 14, 1074) ...........c.cccccoosecccesessseesees 3

Texas v. Train, A-74-CA-004

(W.D. Tex., filed Jan. 14, 1974) ......cccccccseccceccsesceseees 7

Turner v. City of Memphis,

I UN 4

United States v. Richard M. Nixon,

42 U.S.L.W. 5237 (July 24, 1974) ooo. 33,33

United States v. United Mine Workers of America,

gt, ERAT ar eee ne NCE 21

STATUTES

5 U.S.C. § 701, et seq. (1964) (Administrative Procedure Act)

§ 702 (Section 10) (1964) .......cccccccceeeeeeeeeeeeeeeees 29

23 U.S.C. § 101, et seg. (1964) (Federal-Aid Highway ae

Bh I GD ccciinccnicctenssseiacicitddidadsaniemninemens 24

33 U.S.C. § 1158 (1970) (Federal Water Pollution Control

Act of 1956 [as amended]) ................ccceseecceeeesssseeeeees 12

33 U.S.C. § 1251, et seq. (Supp. 1974) (Federal Water

Pollution Control Act Amendments of 1972) ............ 2

§ 195 1a) (1974 Geapp.) ..........ccccccesrcsscveveseeseeees 14

$ 1285 (1974 Supp.)(Sec. 205 of the Act) 1 ae

§ 1285(a) (1974 Supp.) (Sec. 205(a) of the Act) x

$ 1285(b)(1) (1974 Supp.) ..........cccccccseeeeeeeeeeeees 28

§ 1287 (1974 Supp.) (Sec. 207 of the Act) .. 16,19,

20,21,22,23,24,26

§ 1311(b)(1)B) (1974 Supp.) ..........ccccceeeeeeeeees 14

§ 1311(b 2B) (1974 Supp.) ...........cccceeeeeeeeeeees 14

S 1919 (1074 Seapp.) .....0..cccereeccccrcrcsrscsssccccsseeners 15

8 2GGS (1O74 Benge.) .....cvsereescccereccsreiscsssccccsecevess 15

auf Yous

OTHER AUTHORITIES CITED

118 Cong. Rec.:

S 16871 (Daily ed. Oct. 4, 1972) woo... 3,19

S 16872 (Daily ed. Oct. 4, 1972) oooccccccccccceccece, 24

S 18534 (Daily ed. Oct. 17, 1972) ooccccccccecccccee. 20

S 18546 (Daily ed. Oct. 17, 1972) o...ccccccceesee. 21

S 18547 (Daily ed. Oct. 17, 1972) ooo.ccccccccccccee. 22

S 18549 (Daily ed. Oct. 17, 1972) ooocecccccccccceees. 21

H 2506 (Daily ed. March 27, 1972) ......0..0....... 24

H 9119 (Daily ed. Oct. 4, 1972) oooococccccccccccccce. 26

H 9122 (Daily ed. Oct. 4, 1972) ooo..ececcccccceeeee 17

H 10268 (Daily ed. Oct. 18, 1972) ooo... oc. 21

ROOKS rages

C. WRIGHT, FEDERAL COURTS § 106, pp. 477-78 (1970) ...4

TEXAS POLLUTION REPORTS, July 2, 1974 at p. 2 ............. 8

LEGISLATIVE AND ADMINISTRATIVE

MATERIALS

Environmental Protection Agency, Report to the Congress:

Costs of Construction of Publicly-Owned Waste Water

Treatment Works: 1973 “Needs” Survey (revised —

BI scececccuiscssnsenesiunasiecisiciansiintieieveanneiescinnetnniinninaiinnnenanniel

Joint Hearings on Impoundment of Appropriated Funds by

the President Before the Ad Hoc Subcomm. on

Separation of Powers of the Senate Comm. on the

Judiciary, 93d Cong., Ist Sess. (1973) ................ 21,23

Hearings Before the Committee on Public Works, House of

Representatives, 92d Cong., Ist Sess., on H.R. 11896,

SAEs CUES daninccietuitiiniiacndaidderiiientipsendannainnindbniacnneneien 13

Hearings Before the Subcommittee on Air and Water

Pollution of the Senate Committee on Public Works, 93d

Cong., Ist Sess., on the Environmental Protection

Agency's 1973 Needs Survey at pp. 27, 32-33 ....... 9,16

S. Rept. No. 92-414, 92nd Cong. Ist Sess. 5 (1971); 2 U.S.

Code Cong. Admin. News at 3672 (1972) ............... 13

—

No. 73-1377 and No. 73-1378

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

vs.

THE CITY OF NEW YORK ON BEHALF OF ITSELF AND

ALL OTHER SIMILARLY SITUATED MUNICIPALITIES

WITH THE STATE OF NEW YORK

CITY OF DETROIT, PARTY PLAINTIFF

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vs.

CAMPAIGN CLEAN WATER, INC.

AMICUS CURIAE BRIEF OF THE STATES OF TEXAS,

WISCONSIN, MISSOURI, OKRLAHOMA AND KANSAS

INTRODUCTION

In October, 1972, after more than two years of

deliberation, Congress overwhelmingly passed a

far-reaching water pollution control bill which had as

its objective the restoration of the nation’s waters to

their natural state.' The heart of this ambitious

undertaking was the commitment of vast amounts of

federal funds to state and local governments to assist in

the contruction of sewage treatment plants. The

administration had opposed the bill because of the

funding mechanism employed in the bill to ensure the

availability of these sums. Consistent with that

position, the President vetoed the bill, citing its

inflationary nature. When the vetoed bill was returned

to the Congress, the principal spokesmen for the bill in

both houses, while acknowledging the magnitude of the

federal spending called for, reiterated the vital

importance of cleansing this country’s lakes and

streams; the veto was overriden by decisive margins.

A month later, the President ordered the

Administrator of the Environmental Protection

Agency’ to allot to the States only $5 billion of the $11

'The bill, S. 2770, 9¥d Cong., 2d Sess., was enacted as the Water

Pollution Control Act Amendments of 1972, P.L. 92-500, 86 Stat.

816, 33 U.S.C. §§ 1251 et seq. (Supp. 1974) (hereinafter referred to

as the “Act”).

“Hereinafter referred to as “the Administrator”. At the time the

actions complained of herein took place and at the time this action

was commenced, the Administrator was William D. Ruckelshaus.

nd present Administrator is Russell E. Train, the Petitioner

erein.

iti

billion authorized by Congress for the first two fiscal

years of the program’s operation, thus seeking to

accomplish by the controversial practice of

“impoundment” what he had failed to achieve in

exercising his constitutional veto power.

INTEREST OF AMICI

The first interest of the amici is purely a legal one.

The Court’s decision in the instant cases will be largely

determinative of similar litigation presently pending in

the Court of Appeals for the Fifth Circuit in which

Texas, Wisconsin, Missouri, Oklahoma, and Kansas,

amici herein, are parties.‘ Amici have petitioned for

writ of certiorari prior to a decision on the merits by the

court of appeals, feeling that judicial economy and the

interests of all parties would be served by joining the

Texas case with the City of New York and the Campaign

Clean Water cases for final resolution by the Court.’

While granting of certiorari in these circumstances

*As used herein, the term “impoundment” means any action of the

Executive which prevents the allotment, obligation, or

expenditure of funds authorized or appropriated by Congress.

‘Texas v. Train, Nos. 73-3965 & 73-4026 (5th Cir., filed Jan

1974). Writien briefs have been filed and oral argument was held

before the court of appeals on April 29, 1974, the date on which this

court granted petitions for certiorari in the instant cases. On Mav

28, 1974, the court of appeals informed counsel that “. ..

Py ae ——e Ata, jis pr 5d ——— pending decision of

ourt in the [City of New York and Ca

Water cases)... .” (Addendum I hereto). a

‘Texas v. Train, No. 73-1895 (Sup. Ct., filed June 19, 1974).

- =

would both be appropriate and consistent with the past

practice of the Court,” prudence dictates that an amicus

brief be filed at this time so that the views of Texas and

her sister States in this litigation may be known to the

Court in the event certiorari is denied.

The second interest derives from the concern of amici

for the health, safety, and welfare of their citizens who

depend for their recreation, their livelihood, and their

very existence on the waters of the States. Without the

funds that have been impounded by the Administrator,

many needed municipal pollution control facilities will

not be built, and the waters into which raw or

inadequately treated municipal sewage now runs daily

will continue to deteriorate.

A good starting point to understanding the damage

the Administrator has inflicted by his impoundment

action is to note the dramatic difference between the

sums the amici States have actually received under the

reduced allotments ordered by the President and the

sums these States would have received had full

allotment been permitted. That difference is revealed

in the following tables.

"See e.g., Turner v. City of Memphis, 369 U.S. 350 (1962); Taylor v.

McElroy, 360 U.S. 709 (1959); Brown v. Board of Education of

ae —— 1 (1952); C. WRIGHT, FEDERAL COURTS § 106, pp.

77-78 | ),

ianidliiiiy

Table 1: Full Allotments & Reduced Allotments for

Fiscal Years 1973 and 1974

States’ FULL ALLOTMENT REDUCED ALLOTMENT

Percentage $5 Billion $6 Billion $2 Billion $3 Billion

Shure 1973 1974 1973 =— se

Texas $138,470,000 $165,744,000 $55,388,000 $83,082,000

2.7694%

Wisconsin $ 87,075,000 $104,490,000 $34,830,000 $52,245,000

1.7415%

Missouri $ 82,780,000 $ 99,336,000 $33,112,000 $49,668,000

1.6556%

Oklahoma $ 23,040,000 $ 27,648,000 $ 9,216,000 $13,824,000

.4608%

Kansas $ 18,710,000 $ 22,452,000$ 7,484,000 $11,226,000

3742%

Table 2: Summary of Total Allotments & Effect on

States for Fiscal Years 1973 and 1974.

Total Reduced Total Full TOTAL

Allotment Allotment AMOUNT

State 1973 & 1974 1973 & 1974 WITHHELD

Texas $138,470,000 $304,214,000 $165,744,000

Wisconsin $ 87,075,000 $191,565,000 $104,490,000

Missouri $ 82,780,000 $182,116,000 $ 99,336,000

Oklahoma $ 23,040,000 $ 50,688,000 $ 27,648,000

Kansas $ 18,710,000 $ 41,162,000 §$ 22,452,000

As can be seen rather readily, the practical effect of the

Administrator’s action was to give to the States for

fiscal years 1973 and 1974 what they should have

received for 1973 alone. In short, the States were

effectively denied their fiscal 1974 allotment.

The amount in controversy, then, insofar as amici are

concerned, is approximately $420 million. In anyone’s

terms, this is a truly significant sum of money. The

sheer size of the amount suggests strongly that its

impoundment has injured the amici States grievously.

But the true magnitude of the damage cannot be

assessed until what has been withheld is contrasted

with what the States really need to meet the clean

water goals of the Act.

The Administrator, predictably, would have the

Court believe that his impoundment of these great

sums has caused no injury at all. Appended to his brief

is a table summarizing the status of the grant program

as of May 31, 1974.’ It shows generally that the States

have yet to use up even the limited amounts they have

already been alloted. Texas, for example, is shown

as having obligated 99% of its 1973 allotment ($55

million), but only 5% of its 1974 allotment ($83 million),

and none of its 1975 allotment ($107 million). The

implication, indeed the express meaning, of this data,

according to the Administrator, is that the States have

not suffered any adverse effect — that is, no qualified

project has been turned back — because of the paucity of

"Brief for the Petitioner at 49.

—

the allotments, and that no such effect will be felt

unless the President, when the currently allotted sums

are exhausted, “decides not to authorize immediately

further allotments... .”*

This picture is highly misleading. First of all, it is

grossly at odds with the evidence — evidence

undisputed by the Administrator — presented in Texas

v. Train which showed that Texas, as of June, 1973, had

164 present and pending grant applications totalling

$179,456,924, approximately $41 million more than

the combined total of the Texas allotments for fiscal

years 1973 and 1974.’ The evidence also showed that 34

grant applications had already been returned to Texas

as not being high enough on the State’s priority list to

be eligible for 1973 funds.'® This evidence was likewise

undisputed by the Administrator. The situation is no

better today, even though the allotment for fiscal year

1975 has now been received.'' Texas’ current list of

‘Id. at ..

“Affidavit of Hugh C. Yantis, Executive Director of the Texas

Water Quality Board filed in Texas v. Fri, A-73-CA-38 (W.D. Tex.,

decided Oct. 2, 1973). This evidence was specifically noted by the

district court in ruling that the Administrator had violated the

- Act. See copy of the district court’s unpublished — appended

to the petition for certiorari filed by amici. Note 5, supra. Similar

undisputed evidence was offered by Wisconsin and Missouri and

may be found in the printed appendix in the court of appeals at

pages 61-70 and pages 86-89, respectively.

’’Yantis affidavit. This evidence was likewise noted in the district

court’s opinion.

‘Practically before the ink was dry on the district court’s order

disallowing the impoundment of 1973 and 1974 funds, the

Administrator, on January 10, 1974, impounded $3 billion of the

$7 billion authorized by the Act for fiscal year 1975. Texas has filed

suit challenging this action. Texas v. Train, No. A 74CA004(W.D.

Tex., filed Jan. 14, 1974).

= =

grant applications amounts to $169 million,

approximately $27 million more than the $142 million

still available for obligation.'*? Many of these

applications are for just the preparation of preliminary

design studies. To actually construct these projects will

require at least $615 million. Thus the real deficit in

grant funds is approximately $450 million.**

These figures, while staggering, still do not show

fully the dimensions of the municipal waste treatment

problems facing the States, because they only represent

waste treatment needs that have been formally

translated into grant applications. What are the real

needs of the States? The latest EPA survey of what it

will cost the States to meet the goals and deadlines of

the Act reveals that the nationwide figure is not $18

billion, as estimated by EPA in 1971 and adopted by

Congress in the Act in 1972, but over three times that

amount — $60.1 billion.'* The striking difference

between the EPA estimated needs in each of the amici

‘°These figures are based on data comailed by the Texas Water

—- ~ » F— commnenieeres Lana to the hee pe |

oO iona tion uly 2, . A news account 0

that letter anda listing of the Texas projects that will not be funded

as a result of the inadequacy of the present allotments is attached

hereto as Addendum II. TEXAS POLLUTION REPORTS, July 2, 1974

at p. 2.

"Id.

‘Environmental Protection Agency, Report to the Congress: Costs

of Construction of Publicl "Ouned Waste Water Treatment Works:

1973 “Needs” Survey (revised, Nov.1973) at B-1.Among the reasons

listed by EPA for the over 300% increase between 1971 and

1973 estimates were the Act's 1977 “secondary treatment

deadline, new requirements to meet more ~; water quality

standards, and increased construction costs. Id.

States and the amounts the Administrator l.us allotted

is shown in the following table.

Table 3: Estimated Costs vs. Amounts Allotted

Combined Allotment

Estimated Cost'* FY 1973-1975 Deficit

(Millions of (Millions of (Millions of

State Dollars) Doliars) Dollars)

Texas 889 244 645

Wisconsin 787 139 648

Missouri 972 158 814

Oklahoma 624 70 554

Kansas 671 58 613

That the States desperately need what has been

withheld from them in water pollution funds is

therefore beyond the slightest question. The delays that

have precluded the immediate obligation of the

patently inadequate sums that have been allotted —

the principal cause of which has been EPA’s changing

grant requirements'* — should not be allowed to

obscure this fact. Moreover, the Administrator's

impoundment of funds has undeniably had a “chilling

effect” on those municipalities who might otherwise

have sought a grant from EPA. With present

“Id. at 12.

'*See, Hearings Before the Subcommittee on Air and Water

Pollution of the Senate Committee on Public Works, 93d Cong., I st

Sess., on the Environmental Protection my 1973 Seedeiiseay

- 7 32-33 (remarks of John Qua puty Administrator

o 1

allotments obviously inadequate to fund even existing

grant applications, there is little incentive to suffer the

time and expense of completing and processing a grant

form. Allotment of the funds that have been impounded

would clearly allow more applications to be processed

by the States and forwarded to EPA for its

consideration. In a word, the Act’s program to help

cleanse this Nation’s waters of municipal waste could

proceed as Congress intended.

ARGUMENT AND AUTHORITIES

A. Summary of Argument.

It is the position of amici that the Administrator is

afforded no discretion by the Act to determine what

amounts to allot among the States and that, indeed, he

is required to allot $5 billion and $6 billion for fiscal

years 1973 and 1974, respectively, which are the full

sums authorized by the Act. First, the conclusion that

Congress intended to permit an allotment of less than

the full sums authorized to be appropriated is totally at

odds with the clear legislative intent, manifested by the

Act as a whole and its legislative history, that the

objectives of the Act be achieved and that the full sums

authorized for municipal sewerage construction

represented the minimum amounts required to do so.

Secondly, the legislative history of the Conference

Committee amendments upon which _ the

Administrator relies to justify his action makes clear

= =

that any contro] over the rate of actual expenditure

funds was intended by Congress to be exercised at the

project approval stage, rather than at the allotment

stage, and even then only insofar as it remained

consistent with the clean water objectives of the Act.

Thus by reducing allotments for anti-inflationary

considerations, the Administrator acted at the wrong

time for the wrong reason. The Administrator’s

recently contrived argument that he is empowered to

make subsequent allotments, thereby controlling the

“rate” of spending, is without support in the Act and is,

indeed, at odds with the Act’s mechanism for continual

funding, the process of “reallotment”.

The Administrator’s jurisdictional arguments are

likewise without merit. At issue is whether the

Administrator violated the Act by impounding over

half what Congress had so carefully concluded would be

required to assist the States and cities in meeting the

Act’s rigorous deadlines and goals. Determining what

the law is has historically been the function of the

Judiciary, and neither the doctrine of sovereign

immunity nor that of political question are available to

block the courts from performing that function in this

case.

B. The only discretion given the Administrator by the

Act in the construction grant funding process is at the

project approval stage, rather than the allotment

stage, and must be exercised in a manner consistent

with the requirements and purposes of the Act.

-—_ =

1. The Act, its background and purposes.

Trying to avoid the inescapable conclusion that he

has blatantly ignored the will of Congress by the action

complained of here, the Administrator has omitted

from his brief any discussion of the overall Act as it

interrelates with the grant program, and has likewise

failed to mention the background against which the Act

was passed. No doubt the City of New York and

Campaign Clean Water will detail these matters for the

Court. Amici would simply note two salient points.

First, until the passage of the Act in 1972 the federal

program of waste treatment grants had been an

abysmal failure. One of the principal reasons was the

method of funding the program — the traditional

authorization/appropriation process. Under the old

Federal Water Pollution Control Act, as amended, only

those sums actually appropriated by Congress

pursuant to the authorization contained in the Act

could be allotted to the States and “{nJeither a finding

by the Secretary that a project meets the requirements

of this subsection, nor any other provision of this

subsection shall be construed to constitute a

commitment of the United States to provide funds or

pay any grant for such project.” 33 U.S.C. § 1158 1970).

As happens so often, Congress never appropriated as

much as it had authorized. As an inevitable result,

construction of treatment works proceeded at an

agonizingly slow pace. In 1971 the Senate Committee

on Public Works, in a report to the full Senate on its

version of the new Act (S. 2770), observed that:

- =

[t]he lack of adequate funding of grants to assist

States and localities in sametresting sewage

treatment plants is causing critical problems.

Of the $3.4 billion authorized for this een by

the 1966 legislation, ye | $2.2 billion was

appropriated. The backlog of projects eligible for

ederal payments has reached a total of nearly $2

billion.'

The Administration’s proposal for federal assistance for

waste treatment construction, embodied in S. 1013

submitted by Senator John Sherman Cooper in 1971,

would have perpetuated the traditional funding process

with an authorization to appropriate $6 billion over a

three year period. Both the Senate (in S. 2770) and the

House (in H.R. 11896) rejected this approach in favor of

contract authority. Congress stood firm in its choice of

this funding mechanism, despite the opposition of then

Administrator Ruckelshaus that the contract authority

approach “sidesteps all the safeguards provided by the

budgetary-appropriations process.”'*

It is at best illogical, and at worst absurd, to suggest

that Congress chose allotment and contract authority

"'S. Rept. No. 92-414, 92nd Cong., Ist Sess. 5 (1971); 2 U.S. Code

Cong. Admin. News at 3672 (1972); Library of Congress, A

Legislative History of the Federal Water Pollution Control Act

Amendments of 1972 at 1415, 1423 (hereinafter referred to as

Legislative History}.

“Hearings Before the Committee on Public Works, House of

Saprgeonsations, £00 Cong. Ist Sess..on H.R. 11896,H.R. 11895 at

297; Legislative Hi at 1195. (Ruckelshaus letter of December

os bad , to Rep. John A. Blatnik, Chairman, Committee on Public

orks).

- =

over the Administration’s objections to remove the

uncertainty from the construction grant program, and

then simultaneously reinjected the same uncertainty

back into the system by giving the Administrator the

discretion to choose the amount to be made availab!e by

allotment.

Second, the 1972 Act made the grant program an

integral part in achieving the Act’s overall purpose —

“to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C. §

1251(a)(1974 Supp.). Of the $24.6 billion authorized to

implement the Act, $20.75 billion ($18 billion for fiscal

years 1973-1975, and $2.75 billion for reimbursement

of projects already underway in 1972 with State funds)

was designated for the grant program.

Congress concluded that these substantial sums for

waste treatment plant construction were needed to

assist States and local governments in achieving two

specific requirements of the bill. First, the Act requires

generally that “secondary” or “more stringent” sewage

treatment be achieved in all publicly owned treatment

works existing on July 1, 1977. 33 U.S.C. §

1311(b)(1)(B)\(1974 Supp.). Secondly, the Act requires

that by July 1, 1983, all publicly owned treatment

works provide for the application of the “best

practicable” waste treatment technology over the life of

the plant. 33 U.S.C. § 1311(b)(2)(B)(1974 Supp.).

Having set the deadlines and goals and provided the

financial assistance to meet them, Congress created a

rigorous mechanism of enforcement. Violation of the

Act renders a municipality liable for civil penalties up

to $10,000 a day. Willful or negligent violations are

punishable by criminal fines from $2,500 to $25,000 per

day, by imprisonment for not more than one year, or

both.'* 33 U.S.C. § i319 (1974 Supp.). The Act may also

be enforced by private citizens. 33 U.S.C. § 1365 (1974

Supp.). Successful private litigants may obtain, in

addition to injunctive relief, their costs of litigation,

including attorney and expert witness fees. Id.

By enactment of this interrelated statutory scheme of

deadlines, assistance, and enforcement, Congress

sought to require the Administrator to conduct a waste

treatment plant construction grant pr_gram to ensure

generally the restoration of the nation’s navigable

waters to their natural state, the attainment of

secondary or more stringent treatment by mid-1977,

and the employment of “best practicable” treatment

technology by mid-1983.

The Administrator’s impoundment of funds has made

attainment of these goals impossible, and has left the

States and cities vulnerable to civil and criminal

“If a municipality is a party to a civil action under the Act, the

State in which the municipality is located must be joined as a party

and, to the extent that State law prevents the municipality from

raising funds to pay a civil penalty, the State shall be liable for the

payment of any judgment.

liability. This cannot have been the intent of

Congress.*°

2. The Meaning of the “Harsha Amendments”.

Ignoring the rest of the Act and its legislative history,

the Administrator cites two small alterations made in

S. 2770 by the Conference Committee as supporting his

right to allot as much or as little as he pleases.*' The two

amendments in question were to Sections 205 and 207

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

italicized material added).

ALLOTMENT

Sec. 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 lst immediately preceding the beginning

of the fiscal year for which authorized, except that

the allotment for fiscal year 1973 shall be made not

later than 30 days after the date of enactment of the

Federal Water Pollution Control Act Amendments

eee

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

**In the hearings on EPA’s 1973 needs survey, Senator Muskie

expressed concern over this problem, ~ ey ty ~ Congress

considered funding as inextricably related to the deadlines and

segeety objectives.” See N Survey Hearings, supra, note 16

at 52.

"Brief for the Petitioner at 16-19.

ain

fiscal year ending June 30, 1974, not to exceed

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

30, 1975, not to exceed $7,000,000,000.

The explanatory statements made by Congressman

Harsha, the conferee at whose suggestion the

amendments were made, and those of Senator Muskie,

the manager of the Senate conferees and the bill’s

principal sponsor, make clear, however, that these

amendments were simply to clarify the Administrator's

flexibility to control the actual expenditure of funds,

and were not meant to permit a reduction in the

amounts made available at the allotment stage for

potential obligation and expenditure. Here it is

important to remember that commitment or obligation

of funds can occur under the Act only when and if the

Administrator approves a specific waste treatment

project. 33 U.S.C. § 1284 (1974 Supp.).

In explaining the amendments to the House on

October 4, 1972 (before the President’s veto),

Congressman Harsha stressed that their sole purpose

was to ensure that the Administrator would have

flexibility with regard to the obligation and

expenditure of funds:

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 by the managers of the

bill to emphasize the President’s flexibility to

control the rate of spending. (Emphasis added.)**

**118 Cong. Rec. at H 9122 (Daily ed. October 4, 1972); Legislative

History at 243.

ax | Jaum

A discussion among Congressmen Gerald R. Ford,

Harsha and Jones™ sheds further light on the meaning

and intent of the amendments:

MR. GERALD R. FORD .... I think it is vitally

important that the intent and purpose of section

207 is spelled out in the legislative history here in

the discussion on this conference report.

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”

indicates that is a limitation. More importantly

that it is not a mandatory requirement that in 1

roms ending June 30, 1973, there would be $5

illion 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. 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... .

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 a s with the gentleman

from Ohio. (Mr. 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 ——> mind

of the intent of the language. It is reflected in the

language just ane by the gentleman from

Ohio. (Mr HARSHA).

*“Congressman Jones was Chairman of the Conference Committee

and * floor manager of the bill.

—

Mr. GERALD R. FORD. Mr. Speaker, this

clarifies and certainly ought to wipe away any

doubts anyone ias. The language is not a

mandatory requirement for full obligation and

expenditure up to the authorization figures in each

of the 3 fiscal years. (Emphasis added. )**

Senator Muskie’s” explanation of the Harsha

amendments on October 4, 1972, similarly stated that

the amendments were intended only to grant

obligational and expenditure flexibility and that the

sums specified in Section 207 must be allotted, even

though they need not de fully obligated:

Under the amendments proposed by

Congressman WILLIAM HARSHA and others, the

authorization for oligational authority are “not to

exceed” $18 billionover the next 3 years. Also, “a//”

sums authorized to be obligated need not be

committed, though they must be allocated. These

two provisions vere suggested to give the

Administration seme flexibility concerning the

py of construction grant funds. (Emphasis

a oa

It was with this understanding of the meaning and

intent of the amendments that the Congress

overwhelmingly passed the bill. The President

evidenc-d a like understanding of the effect of Sections

**1 13 Cong. Rec. at H. 9123; Legislative History at 247.

“Senator Muskie is Chairman of the Senate Subcommittee on Air

and Water Pollution (which rted the Senate version, S 2770),

and he was the sponsor of the legislation, a floor manager and a

member of the Conference Committee.

**118 Cong. Rec. at S 16871; Legislative History at 166.

=—™=

205 and 207 when he vetoed the bill. He stated in his

veto message that:

Certain provisions of. . . [the bill] confer a measure

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

unnecessary 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 maximum authorized amount

could ay be claimed and paid out, no matter

what technical controls the bill appears to grant

the Executive. (Emphasis added).*’

The President thus expressed a clear understanding

that Sections 205 and 207, as amended by the conferees,

only gave the Administrator “spending discretion and

flexibility”. The President realized that the sums

specified in Section 207 had to be allotted and thus

available for obligation. He was prompted to veto the

bill by his fear that pressures to obligate available

funds would overcome the Administrator’s spending

flexibility.

After the President’s veto the conference amendment

of Sections 205 and 207 were again discussed in both

houses. On October 17, 1972 Senator Muskie reiterated

that the sole intent and purpose of the amendments was

*"118 Cong. Rec. at S 18534 — S 18535 (Daily ed. October 17,

1972); Legislative History at 139.

= ™

(ED tne 2g or

to give the Administrator some flexibility concerning

the obligation of the sums specified in Section 207 but

that he must, in any event, allot those sums.*"

Congressman Harsha repeated his explanation of the

amendments to the House on October 18, 1972.

I want to point out 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

flexibility to control the rate of spending.

Second, I would like to point out that the

a ae of the agen ee

ency must approve plans, specifications, an

eatimates. This ie the ing ion in he enpenditure

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. at S 18546, S 18549; Legislative History at 116,

122. On January 31, 1973 Senator Muskie stated before the Senate

Subcommittee on Separation of Powers that the Act mandated

allotment of $5 billion and $6 billion in fiscal years 1973 and 1974

respectively. See > anere, Joint Hearings on Impoundment of

A } Fu by the President Before the Ad Hoc Subcomm.

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

Cong., 1st Sess., 407-408 (1973). Because of Senator Muskie's

important role respecting the of the Act, his statement,

made so recently after enactment of the Act and directed to the

construction in question, is entitled to great weight in interpreting

the statute. See, United States v. United Mine Workers of America,

330 U.S. 258, 281-282 (1947); Sioux Tribe of Indians v. United

States, 316 U.S. 317, 329-330 (1942).

**118 Cong. Rec. at H. 10268 (Daily ed. October 18, 1972);

Legislative History at 98.The use of the word “emphasize” 0,

Congressman Harsha is an acknowledgement that his

- ye were not intended to make a substantive change in

the Act.

~~ a

Congressman Harsha then explained the impact of the

Act’s funding provision in terms of expenditures in

future fiscal years. In so doing, he demonstrated clearly

that it was his understanding that Sections 205 and 207

required allotment of the full amount of the sum

specified in Section 207:

[The first — impact of the 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.)*°

Congressman Harsha’s hypothetical presumed that

the entire $5 billion would be available by allotment for

obligation and was intended to emphasize to the House

that the President’s fear about “budget-wrecking” was

unwarranted in view of the lag between the

“obligation” of funds and the time when they would

actually be spent. Senator Muskie made the same point

to the Senate the day before, when he noted that the full

$18 billion authorized by the Act probably would not be

spent until the end of fiscal year 1979."

The statements of these legislators, as the creators of

the Act, are of controlling weight in interpreting the

meaning, intent and purpose of Section 205 and 207.

See, e.g., First National Bank of Logan, Utah v. Walker

Bank and Trust Co., 385 U.S. 252 (1966); Schwegmann

Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395

(1951); Pan American World Airways, Inc. v. Civil

Id.

"118 Cong. Rec. at S 18547 (Daily ed. Oct. 17, 1972); Legislative

History at 119.

—22—

Aeronautics Bd., 380 F.2d 770, 779-782 (2nd Cir. 1967);

affd per curiam sub nom., World Airways, Inc. v. Pan

American Airways, Inc., 391 U.S. 461 (1968). These

members of the House and Senate Public Works

Committees were fully familiar with the funding

mechanism of the Act. They knew the difference

between allotment, obligation, and expenditure and

cannot be assumed to have used these words looseiy or

inadvertently. It is especially significant, moreover,

that on October 18, 1972, after the President’s veto and

veto i.essage, Congressman Harsha expressed an

understanding that the Act mandated the allotment of

the full amount of the sums specified in Section 207. As

sponsor of the amendatory language upon which

Defendant has relied to reduce allotments,

Congressman Harsha’s understanding is particularly

persuasive. See, National Labor Relations Bd. v. Fruit

& Veg. Pack. & Whse., Loc. 760, 377 U.S. 58, 66-67

(1964).

There emerges only one interpretation of Sections

205 and 207. The Administrator must allot among the

States $5 billion in fiscal year 1973, $6 billion in fiscal

year 1974 and $7 billion in fiscal year 1975". He may,

“Former EPA Administrator Ruckelshaus candidly recognized,

after he left EPA, that this was his interpretation of what Congress

had intended:

I think this was the intention of Senator Muskie and others when the law was

get out of the business of having to draw up priorities with various

projects, and be able to say they can fund them all at once. | also recognize it is

very frustrating to the States, that they have to go —y - this priority

_— again when they felt they were out of it, as a result of the amount of

ing

Joint Hearings on I undment of Appropriated Funds by the

President hefore the Ad Hoc Subcomm. on Separation of Powers o

the Senate Comm. on the Judiciary, 93d Cong., 1st Sess., at 41

(1973).

ain

however, in the exercise of his discretion to approve

construction project plans, specifications and estimates

under Section 203, control the rate of obligation of those

allotted sums and hence the rate of expenditures

resulting from such obligations. This obligational and

expenditure flexibility is the only discretion afforded

the Administrator with regard to the sums specified in

Section 207.

Even at the contract approval stage, however, the

Administrator may not refuse to obligate funds on the

grounds unrelated to the Act. The most instructive

authority on this point is the Eighth Circuit’s

well-reasoned opinion in State Hwy. Comm’n of

Missouri v. Volpe, 479 F.2d 1099 (8th Cir. 1973), not

only because it involved the Federal-Aid Highway

Act,** expressly acknowledged by Congress as the

model for Title II of the Act,** but because the reason for

the impoundment was the need to control inflationary

pressures.

In that case the Secretary of Transportation had

apportioned (allotted) the total sum authorized to be

appropriated*’ but had imposed “contract controls”

forbidding actual obligation of the full amount so

apportioned. The State Highway Commission of

Missouri brought suit seeking to compel the Secretary

"23 U.S.C. § 101, et seg. (1964).

**118 Cong. Rec. H 2506 (Daily ed. March 27, 1972); Jd. at S 16872

(Daily ed. Oct. 4, 1972); Legislative History at 367, 368.

“See, 23 U.S.C. § 104(b) (1964).

—24—

A ID ce

to rescind the controls and to release the funds. The

trial court held for the plaintiff** and the Eighth Circuit

affirmed. In so doing, the court of appeals analyzed the

whole act to discern its intent and purposes and

concluded that:

To reason that there is implicit authority within

the Act to defer approval for reasons totally

collateral and remote to the Act itelf requires a

strained construction which we refuse to make. It is

impossible to find from these specific grants of

au a discretion in the Secre to withhold

approval on projects Congress has specifically

directed because of a system of priorities the

Executive chooses to impose on ali expenditures.

The Congressional intent is that the Secretary may

exercise his discretion to insure that the roads are

well constructed and safely built at the lowest

possible cost, all in furtherance of the Act, but

when the impoundment of funds impedes the

orderly progress of the federal highway program,

this hardly can be said to be favorable to such a

rogram. In fact it is in derogation of it. It is

ai icult to perceive that Congress intended such a

result. State Hwy. Comm'n of Missouri v. Volpe,

479 F.2d at 1114 (8th Cir. 1973).

Likewise in the instant case Congress cannot be

presumed to have intended to permit the Administrator

to disapprove a construction project because of

considerations related to inflation. As made plain

earlier, Congress knew of the Administration's

objections to the funding provisions of the Act and by

overriding the veto, Congress reiterated its

*State Hwy. Comm'n of Missouri v. Volpe, 347 F. Supp. 950 (W.D.

Mo. 1972).

- =

Despite the legislative history cited above, a district

court, in dicta, has concluded that the allotment phase was

discretionary. Brown v. Ruckelshaus, 364 F. Supp. 258,

268 (C.D. Cal. 1973). But to reach this conclusion the

court examined legislative history referring only to dis-

cretion at the obligation phase--a proposition not even at

issue. While legislative history supports the Administrator's

position in Brown that not every penny must be spent in

any given year, the history does not support the conclusion

that allotment is discretionary.

Another district court found discretion based on the act

of deletion--what the court termed “‘syntactical history.”

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

689, 698-99 (E.D. Va.), remanded with directions sub nom,

Campaign Clean Water, Inc. v. Train, 489 F.2d 492 (4th Cir.

1973). In the presence of what the court felt to be an unclear

legislative history subjecting the Act to two interpretations,

this “syntactical history’’ was found to be persuasive. How-

ever, no substantiation was offered as to what the “syntactical

history’ of the deletion was, only ex post facto commentary.

If legislative history is unclear, “*syntactical history’’ is non-

existent. Nevertheless, Judge Merhige declares this deletion to

be the principal source for concluding that Congress intended

the Administrator to exercise some discretion with respect

to allotments. The weight of opinion is, however, in disagree-

ment with Judge Merhige’s conclusion.” The mere removal of

a word is subject to many interpretations and is of itself not

sufficient to support a major deviation from the plain meaning

und legislative history of a statute.

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

No. A-73C A-38(W. D. Tex... Oct. 2, 1973); Marvin- Trigona v, Ruckelshaus,

No. 72-30440N_D. TL. June 29, 1973); Minnesota v. USEPA, No. 4-73 Civ,

133.¢D. Minn., June 28, 1973), appeal argued, Civ. No. 73-1446, 8th Cir.,

Feb. 13, 1974. But see Brown v. Ruckelshaus, 364 F. Supp. 258(C.D. Cal.

1973) (dicta)

In sum, a combination of circumstances indicates the

mandatory nature of allotment. First, no legislator directly

refers to allotments as discretionary. Those who supported

discretion in allotment, if there were any, did nof express

their opinion;'® and were unable to pass any language

explicitly discretionary. Third, one of the principal sponsors,

Senator Muskie made a direct statement that the deletion of

‘all’ did not affect the mandatory allotment provision.

Fourth, the plain meaning and statutory history support

mandatory allotment and discretionary obligation. The

total impact of these circumstances clearly shows allotment

to be mandatory. Both the legislative history, which clearly

supports the mandatory nature of allotment, and the plain

meaning of the words of the allotment provision admit of no

reasonable interpretation othe: ihan a mandatory allotment

provision.

3. STATEMENTS IN’ LEGISLATIVE HISTORY

REFERRING TO AUTHORITY TO “IMPOUND”

CONFER NO AUTHORITY TO REDUCE ALLOT-

MENTS.

The Administrator contends that certain excerpts from

the legislative history indicate that the power to impound

authorized funds was conferrred upon the Executive. Brief

for Petitioner at 14 ef seq. The contention is unsupported.

first because these cited statements refer to discretion only

at the posi-allotment phase (obligation) and, second,

because any reference to Office of Management and Budgets

authority to impound is inapplicable in the instant case.

The Administrator contends that the quoted language

confers a general power to impound independent of the Act

Brief for Petitioner at 10, 44. The primary thrust of this

argument depends upon Representative Harsha’s statement

‘The silence of sponsors of amendments is pregnant with signifi-

cance.’ NLRB v. Fruit & Vege. Packers, Local 760, 377 U.S. 58, 66 (1964).

comparing impoundment under the Highway Trust Fund

with impoundment under the Act. Brief for Petitioner at 17.

Congressman Harsha stated:

Surely, if the administration can impound monies from

the highway trust fund which does not have the flex-

ibility of the language of the water pollution control bill,

it can just as rightly control expenditures from the

contract authority produced in this legislation by that

same means.

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

the statement indicates a conferring of control over spending

power, the only power exercised by the Executive in the

Highway Trust Fund to which Representative Harsha refers

occurs at the obligation phase with ‘‘contract controls.”’

See State Highway Comm'n v. Volpe, 479 F.2d 1099,

1103-04 (8th Cir. 1973). In fact, the Executive and the

Eighth Circuit have recognized that the Highway Trust

Fund's ‘allotment’ process is ministerial. See p.29-30 infra:

The Administrator also infers a general power to impound ,

from other statements referring to the Office of Management

and Budget.'' Even if the OMB has adequate impoundment

power under the Anti-Deficiency Act, the OMB has failed

to utilize any option which might exist. In OMB's report

of February 19, 1974, pursuant to the Federal Impoundment

and Information Act, 31 U.S.C.A. §58Ic-1 (Supp. 1974), it

omitted the withheld allotments from its list of

impoundments. 39 Fed. Reg. 7707, 7708 (1974). Since

none of the present withholding was accomplished through

"Senator Nelson stated:

Only if the President's Office of Management and Budget or the

Congress specifically directed otherwise would the money not be

available at the levels in the legislation, according to my under-

standing.

118 CONG. REC. S16888 (daily ed. Oct. 4, 1972).

—_———@-- _——-———

any OMB authority, the Administrator may not rely upon

powers vested in the President through the OMB. Con-

sequently, any references to OMB “impoundment” are

inapplicable since that power, whether or not it exists, has

not been exercised.

Further, even if the OMB had utilized its power to reserve

under the Anti-Deficiency Act, 31 U.S.C. §665 (c) (1970),

that action would have exceeded their authority. Reserves

cannot contravene the intent of the Coneress. la a report to

the Senate Appropriations Committee recommending

reserves, the Bureau of the Budget and the Comptroller

General stated that there was a need ‘‘for machinery to

conserve appropriations which are in excess of actual

requirements.’''* This emphasizes that the purpose was not

to allow the reserving of required funds.

In another report, prepared by the House Appropriations

Committee to accompany the 1950 amendments to the Anti-

Deficiency Act, the following discussion stemmed from

consideration of President Truman's impoundment of Air

Force funds:'*

It is perfectly justifiable and proper for all possible

economies to be effected and savings to be made, but

there is no warrant or justification for the thwarting of a

major policy of Congress by the impounding of funds.

Even more persuasive is the Bureau of the Budget Examiner's

Handbook written in 1952, shortly after the 1950

amendments to the Anti-Deficiency Act, which stated:

"Quoted in Joint Hearings on $.373 Before the Ad Hox

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, 934 Cong., Ist Sess. 107 (1973) (emphasis added).

“H.R. Rep. No. 1797, Bist Cong., 2d Sess. 311 (1951).

**Reserves must not be used to nullify the intent of Congress

with respect to specific projects or level of programs.**'*

The decision of the Eighth Circuit in State Highway

Comm'n v. Volpe, 479 F.2d 1099, 1118 (1973), reaffirmed

these interpretations and considered the Anti- Deficiency Act

as no justification for ‘violating the purposes and objectives

of the particular appropriation statute.”

A withholding of the magnitude accomplished by the

Administrator in the instant case, if done by reserving,

would be an encroachment on congressional intent and

would be outside the purview of the Anti-Deficiency Act.

However, as previously stated, this question is not directly

before the Court since the refusal to allot was by the

Administrator and not the OMB. Consequently, all

references to legislative history which are argued as granting

impoundment authority regarding allotment either refer to

another phase of the Act (obligation) or to unexercised

OMB reserve authority.

B. EXPRESS GOALS AND OVERALL FUNDING

STRUCTURE OF THE ACT DEMONSTRATE THAT

ALLOTMENT OF AUTHORIZED SUMS IS MANDA-

TORY.

[The Act] has received more thorough consideration and

has engendered more productive discussion than any

other in which | have participated during my service in

the Senate.

118 CONG. REC. S16881 (daily ed. Oct. 4, 1972) (remarks of

Senator Cooper). Since a determination of the manditoriness of

~ “UTS Bureau OF THE BUDGET. EXAMINER'S HANDBOOK (1952)

(quoted by J.Williams, The Impounding of Funds by the Bureau of the

Budget (19SS) cited in Joint Hearings on §.373 Before the Ad Hoc Sub-

comm, 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, 94d Cong., Ist Sess. 844, 859 (1973)).

allotment affects the entire Act, it is necessary to examine

allotment in the context of the other relevant provisions of

the Act. The Act, as Senator Cooper points out above, was

carefully constructed. However, if allotment is considered

discretionary, this well-planned Act reaches illogical results.

Congressional enactments “should never be construed as

establishing statutory schemes which are illogical, unjust or

capricious.”’ Lee Fook Chuey v. Immigration & Naturali-

zation Serv., 439 F.2d 244, 249 (9th Cir. 1970).

The logic and goals of the entire Act are essential in inter-

preting the allotment provision. As the Court observed

in Richards v. United States, 369 U.S. 1, 11 (1962):

We believe it fundamental that a section of a statue should

not be read in isolation from the context of the whole Act,

and that in fulfilling our responsibility in interpreting

legislation, “we must not be guided by a single sentence

or member of a sentence, but [should] look to the provi-

sions of the whole law, and to its object and policy.’* (foot-

notes omitted).

Statutory construction and the legislative history of the Act

cannot exist independently or in a vacuum.

We are not only dealing with the language of the s‘atute,

but we must look as well to the logic of Congress and the

broad national policy which was evidenced by its enact-

ment.

Miller v. Amusement Enterprises, Inc., 394 F.2d 342, 353

(Sth Cir. 1968).

The Eighth Circuit reaffirmed this principle in State High-

way Comm'n v. Volpe, citing Richards and Lord Campbell's

statement of over a century ago that:

[ijt is the duty of the Courts of Justice to try to get

at the real intention of the Legislature by carefully attend-

ing to the whole scope of the statute to be construed.

Liverpool Borough Bank v. Turner, 45 Eng. Repr. 715, 718

(1860), aff'd 70 Eng. Repr. 703, as quoted in 479 F.2d 1099,

1112 (8th Cir, 1973) (the court's emphasis).

Thus, an examination of the goals of the Act as well as its

other provisions and internal logic is necessary in construing

the allotment provision.

1. GOALS OF THE ACT EXPRESS A NATIONAL COMMIT-

MENT OF FUNDS TO RESTORE THE WATERS OF THE

UNITED STATES.

Sec. 101 (a). The objective of this Act is to restore and

maintain the chemical, physical, and biological integrity

of the Nation's waters. |n order to achieve this objective,

it is hereby declared that, consistent with the provisions

of this Act -- (1) It is the national goal that the discharge

of pollutants ...be elimnated by 1985....

Sec. 201 (a). It is the purpose of this title to require and to

assist the development and implementation of waste treat-

ment management plans and practices which will achieve

the goals of this Act. (emphasis added).

In the debate prior to the override of the Veto, Senator

Muskie stressed that **[t]he whole intent of this bill is to make a

national commitment” of funds to solve our problems in water

pollution. 118 CONG. REC. $18547 (daily ed. Oct. 17, 1972).

Congressman Harsha in the House debate on the Conference

Report noted that ‘‘[t}he odjective of this legislation is to

restore and preserve for the future the integrity of our Nation's

waters.”’ 118 CONG. REC. H9117 (daily ed. Oct. 4, 1972). In his

1970 State of the Union message, President Nixon recognized

the immediate necessity of the national commitment *‘to put

modern municipal waste treatment plants in every place in

America where they are needed to make our waters clean

again... ."’ 116 CONG. REC. 740 (1970). Although the Act is

not the program proposed by the President, the goals of his

program were the same as those of the Act, except for the

amount and methods of funding. In his veto message, the Presi-

dent stressed, **My proposed legislation, as reflected in my

budget, provided sufficient funds to fulfill that same in-

tent....° 118 CONG. REC. $18534 (daily ed. Oct. 17, 1972)

(emphasis added).

Congress overrode that veto to implement the well-recog-

nized and undisputed goals of the Act. Moreover. if the

Administrator's action is upheld in the instant case, the effect

would be to legitimize. or constructively ‘legislate,’ the fund-

ing levels suggested by the President in his bill. These lower

levels were explicitly rejected by Congress upon its adoption of

the Act and its subsequent override of the President's veto.

It was clear that Congress wanted to compel the higher level of

funding.'®

There were other indications that Congress wanted to make

the full amount available to the states. Early in the considera-

tion of the Act, congressional proponents advocated avoiding

the normal method of funding which requires approval by the

appropriations committees.'® The argument advanced was

that funding levels had been continually reduced by the

'*" (T Jhe confereees are convinced that the level of investment that is

authorized is the minimum dose of medicine that will solve the problems we

face.’ 118 CONG. REC. 816871 (daily ed. October 4, 1972) (remarks of

Senator Muskie) (emphasis added). ** Contract authority is provided for up to

$5 billion in 1973, $6 billion in 1974, and $7 billion in 1975. This will be

allocated to the States on the basis of the Environmental Protection

Agency's annual assessment of needs established without regard to budget-

ary limitations and other nonwater quality factors.”’ 1d. at $1688) (remarks

of Senator Cooper) (emphasis added). °° The conferees spent hours and days

studying the problem of financing the cleanup effort required by this new

legislation, and specifically studying how much money would be necessary to

achieve the objective and goals of the act, as sec forth in section 101 (a)... .”’

118 CONG. REC. $18548 (daily ed. October 17, 1972) (remarks of Senator

Muskie).

See n.2 supra. and p. 2324 infra.

appropriations committees below the authorized level -- a

common occurrence.'? Thus, contract authority was utilized

to insure that full amounts authorized would be made availabie

for obligation,'* a purpose which would be frustrated by per-

missive allotments.

Provisions of a statute should not be interpreted to frustrate

the goals of Congress regarding funding levels. As expressed

by the lower court in the instant case:

We find that it was Congress’ intention that the full

$18 billion be spent to control water pollution... . [T}he

legislative history ...manifests an intent to create a pro-

cedure which would insure that the total authorized funds

would be made available to states. It is this goal which

must guide us in interpreting the funding mechanism, for

if discretion in allotment would make the achievement of

this goal more difficult, it must be assumed that Congress

intended no such authorization.

New York v. Train, 494 F.2d 1033, 1042(D.C. Cir. 1974). The

Act clearly contemplates full expenditure of funds to imple-

ment the goal of cleaning the nation’s waters.'®

'’ Under normal budgetary procedures, appropriations are often made at

a level lower than authorizations. See ADVISORY COMM’N ON

INTERGOVERNMENTAL RELATIONS. THE GAP BETWEEN FEDERAL AID

AUTHORIZATIONS AND APPROPRIATIONS. FISCAL YEARS 1966-1970

(1970).

'*“(L jet us put up the Federal share in a way, with language and aa

understanding, that makes it clear we are not backing off."’ 117 CONG. REC

$17446 (daily ed. Nov. 2, 1971) (remarks of Senator Muskie).

'* If the Administrator's argument were to be accepted, he could con-

ceivably ‘control’ allotment to $0; it is worth considering the fate of this

program at the Administrator's present rate of allotment. Senator Muskie

estimated that even with full allotment, it would take seven years to expend

the $18 billion. 118 CONG. Rec. $18547 (daily ed. Oct. 17, 1972). At the

Administrator's present 45% rate of allotment, the optimum time for

expenditure of the full $18 billion is approximately 1S years.

PERMISSIVE OR MULTIPLE ALLOTMENTS

WOULD FRUSTRATE THE INTENT OF THE ACT TO

ENCOURAGE LONG RANGE PLANNING.

The Administrator asserts authority to allot funds for any

given year at any time and that “‘there is no practical

difference in result between exercising such control at the allot-

ment or at the obligation stage.’’ Brief for Petitioner at 23.

Neither the contention for multiple allotments nor the asser-

tion that there is no practical difference is supportable.

Nowhere in the Act is there provision for multiple allot-

ments or disposition of funds authorized but not allotted. On

the other hand, section 205 (b) (1) of the Act deals extensively

with the reallotment of funds allotted but not obligated. The

inference is that incomplete obligation was anticipated by

Congress, but incomplete allotment was not.

The Administrator has adopted the position that funds not

allotted will be available for obligation indefinitely. Brief for

Petitioner at 25 ef seq. However, there is no support for such

a contention in the Act, and the idea that the Administrator

may absolutely control release of unallotted funds forever by

multiple allotments is plainly unreasonable.

One of the primary problems with the Federal Water Pollu-

tion Control Act of 1956 was that its yearly appropriation

scheme caused uncertainty because of its failure to give notice

to the states of future federal commitments. The appropriation

method was deemed neither practical nor economical. 117

CONG. REC. $17445-S2 (daily ed. Nov. 2, 1971).

Contract authority,*° the new method incorporated in sec-

tion 203 of the Water Pollution Control Act Amendments of

1972, was designed to allow flexibility in the planning stage

and give long range assurances to the states and local agencies

that the funds were available in the amount specified by

Congress. Representative Harsha stressed that:

It is essential that the States, the interstate agencies and

the cities have both the ability for and a basis for long-

range planning, construction scheduling and financing

waste treatment plants ....

118 CONG. REC. H2727 (daily ed. March 29, 1972); see 117

CONG. REC. S17451 (daily ed. Nov. 2, 1971) (remarks of

Senator Muskie). The District of Columbia Circuit Court stated

simply, **[t}he Act was passed to insure that ultimate grantees

could rely in advance on the amounts available."* New York v.

Train, 494 F.2d at 1036-37. In Texas v. Fri, No. A-73-C A-38,

Slip Op. at 5 (W.D. Tex., Oct. 2, 1973), the district court

saw the same issue to be one of logic:

The feeling was that without unequivocal federal financial

commitment state and local governments would have

difficulty entering into long term contracts and financing

long term bonds. /1 is illogical to think that Congress

would inject the same uncertainty back into the system it

had sought to avoid with the allotment procedure by giv-

ing the Administrator discretion to choose the amount to

be made available to the state and local governments.

(emphasis added).

**With a “contract authority’’ method of funding. Congress authorizes

an amount to be committed by the Administrator according to conditions and

limitations specified by law. The actual appropriation of funds by Congress is

pro forma and takes place after obligation of funds by the Administrator. See

117 CONG. REC. $17445-S2 (daily ed. Nov. 2, 1971); U. S. OFFICE OF

MANAGEMENT & BUDGET. CIRCULAR NO. A-34, INSTRUCTIONS ON

BUDGET EXECUTION §21.1, at 6 (1971).

%§

Exercise of discretion at the allotment phase clearly pre-

cludes effective long range planning by states and localities --

a primary goal of the Act. Exercise at the obligation phase

would pot hinder planning but would control the pate of

expenditure to qualified applicants. Consequently, the

Administrator’ s contention that there is no practical difference

in exercise of discretion at obligation or allotmen is fallacious.

Exercise of discretion through multiple alloufent frustrates

one of the primary goals of the Act -- long range planning

by states.

Moreover, the Administrator argues tor discretion at both

the allotment and obligation phases. Brief for Petitioner at 23.

This would result in almost total uncertainty about the level of

funding, and render long range pinning impossible.

3. THE INTERNAL LOGIC OF THE ACT READ WITH

THE REALLOTMENT PROVISION, SECTION 205 (b),

INDICATES ALLOTMENT TO BE MANDATORY.

Under section 205 (b), budget authority allotted but unobli-

gated after an initial thirtysmonth period is redistributed by re-

allotments to the states and continues to be available for obliga-

tion. Reallotment of unobligated funds thus permits a constant

level of funding to continue to beavailable to he states in order

to facilitate the accomplishment of the goals of the Act. If un-

allotted, however, the funds are never available for reallot-

ment or obligation and therefore are permanently lost to the

states.*' See New York v. Train, 494 F.2d at 1049.

21 The Act requires the Administrator to make allotments by a fixed date

under section 205 (a). Once properly allotted, section 205 (b) (1) requires:

Any sums allotted to a State .. .shall be available for obligation . . .in

such State for a period of one year after the close of the fiscal year for

which such sums are authorized.

Thus, since subsection (b) (1) is the exclusive provision for obligational

availability and since it specifies a definite obligational period, see 31 U.S.C.

§701 (b), any amounts unallotted by the statutory date are never ava‘lable for

obligation and consequently lapse. See 31 U.S.C. §701 (a) (2). Further, these

same unallotted sums can not be reallotted since only those amounts allotted

by the statutory date may be reallotted under section 205 (b) (1).

The reallotment procedure, read together with a mandatory

allotment provision, supports the policy of the Act to encour-

age planning. It is well established that separate provisions of

a single act should be interpreted so as to reach the ** ‘most

harmonious, comprehensive meaning possible’ in light of

the legislative policy and purpose.’* Weinberger v. Hynson,

Westcott & Dunning, Inc., 412 U.S. 609, 631-32 (1973). Find-

ing allotment permissive would clearly frustrate the overall

purpose of the Act.

4. SECTION 206 (f) (1), WHICH PROVIDES FOR AD-

VANCE OBLIGATION OF FUNDS AUTHORIZED

FOR FUTURE ALLOTMENTS, IS MEANINGLESS UN-

LESS ALLOTMENT IS MANDATORY.

Section 206 (f) (1) allows the Administrator to obligate

funds in advance for a state’s particular project, even if the

funds allotted for that fiscal year have been fully obligated.

This is possible only if the authorization for the subsequent

fiscal year will ensure payment of the obligation incurred.

If a state may not be sure of the level of future allotments, as

would be the situation with permissive allotment, this provi-

sion is meaningless.

The proposition is well established that a statute must be

construed, if at all possible, to give effect to all its pro-

visions. United States v. Menasche, 348 U.S. 528, 538-539

(1955). As the D.C. Circuit has observed:

Section 206 (f) (1) would have scant operative effect if

the “‘state’s expected allotment’ could not be known

because the Administrator had discretion to allot only a

portion of such authorization. This is further evidence of

a legislative purpose to make allotment mandatory.

New York v. Train, 494 F.2d at 1049-50.

Mandatory allotment allows the Administrator to use his

discretion as to individual projects and to exercise control over

the obligation and rate of expenditure of funds without jeop-

ardizing the level of funding available. The reallotment pro-

vision was provided by Congress to allow the Administrator

to use discretion at the vbligation phase without raising the

danger that states would have insufficient time to obligate

deferred projects. Cf. State Highway Comm'n vy. Volpe, 479

F.2d 1099, 1114-15 (1973).

The Administrator argues that funds currently unallotted

will not be lest to the states because section 205 is not a once-

a-year action. Section 205 states:

the allotment for fiscal year 1973 shall be made not later

than .... (emphasis added).

This provision obviously contemplates only an annual allot-

ment. A system allowing more than one allotment would wreak

havoc with state planning. States must plan to accomplish

the maximum within the amounts allotted. The January allot-

ment for a fiscal year and the carryover to the next fiscal year

gives the states time to plan how best to attain their goals.

These proposed mid-way aliotments do not give the states

adequate notice or time to plan the efficient use of funds. In

many cases, it would be impossible for a state to expand a pro-

gram after it is started. Plans or specifications would have to be

redrawn, and the program would have to be resubmitted to

the Administrator. If approved, bids would have to be relet.

This system is not only inefficient but clearly contrary to the

intent of Congress.

The District of Columbia Circuit Court reached the same

conclusion and observed, “the Act nowhere mentions any

type of later augmentation procedure’ for additional allot-

ments. New York v. Train, 494 F.2d at 1049. Therefore, the

loss of funds resulting from the reallotment procedure when

allotment is read to be permissive cannot be cured by

secondary allotments not permitted by the Act.

8. THE OBLIGATION PROVISION AS WRITTEN INDI-

CATES THAT THE OBLIGATIONAL PHASE RATHER

THAN THE ALLOTMENT PHASE IS DISCRE-

TIONARY.

Section 203 sets the general scheme for contract authority

and requires applicants to submit plans and specifications after

allotment. Approval is based upon satisfying the grant condi-

tions specified in section 204. Only if discretion is present at

the obligation phase rather than at the allotment phase

can the Administrator intelligently exercise his discretion.

At this point, after allotment and the submission of plans,

the Administrator has at his disposal the information necessary

to evaluate specific projects and the needs of states -- informa-

tion not available at the allotment phase. Therefore, the

Administrator can better decide upon reductions or delays

which least damage the goals of the Act.

Discretionary allotment would hamper effective operation

of the obligation phase by precluding the exercise of informed

discretion. If a statute is susceptible to either of two opposed

interpretations (in the instant case either mandatory or dis-

cretionary allotments), the statute must be read **in the manner

which effectuates rather than frustrates the major purpose of

the legislative draftsmen.’’ Shapiro v. United States, 335

U.S.1, 31(1948). Consequently, the allotment provision should

be read as mandatory to promote the purpose of advance plan-

ning and informed exercise of discretion.

C. ALLOTMENT [{S A BUDGETARY MECHANISM

WHICH IS BOTH GENERALLY MANDATORY AND

SPECIFICALLY MANDATORY IN THE CONTEXT

OF THE ACT.

Petitioner's argument that allotment is discretionary fails to

take cognizance of the characteristics of allotment as a budget-

ary tool. Allotment in the Act is a technical process in the

implementation of contract authority. The amount each state

2”

is allotted is determined by the “ratio that the estimated cost

of constructing all needed publicly owned treatment works in

each State bears to the estimated cost of construction of all

needed publicly owned treatment works in all of the States.”’

Section 205 of Pub. L. No. 92-500, 86 Stat. 816. See also 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, 88 (1973). The Adminis-

trator then determines, through the obligation phase, the

extent of the actual needs of the states. Allotment provides

a ceiling within which the Administrator may exercise inform-

ed discretion by evaluating proposals from the states.

Allotment has been found ministerial in other spending

enactments. In Udall v. Wisconsin, an action involving alloca-

tion of wildlife restoration funds to states, the court found the

Secretary of the Interior was “‘given no discretion in the

initial apportionment.’ 306 F.2d 790, 793 (D.C. Cir. 1962).

cert. denied, 371 U.S. 969 (1963). Apportionment in Udall is the

same as allotment in the instant case. The Udall court also

recognized that there was discretion later in the funding

process: “‘approval or disapproval of a conservation project

submitted by a state ...involves an administrative judgement

..++ 306 F.2d at 793 n.15.The same discretionary role is play-

ed by obligation in the instant case.

Also indicative of the nature of allotment in the instant case

is the practice of “‘apportionment™ in the Federal- Aid High-

way Act, 23 U.S.C. §§ 101 et seg. (1970). The Conference

Report accompanying the Water Pollution Control Act specifi-

cally refers questions on the interpretation of the mechanics of

contract authority funding to the Sederal- Aid Highway Act.

H.R. REP. NO. 1465, 92d Cong., 2d Sess. 111 (1972). Further,

the Administrator, in his brief, recognized congressional

references to the procedures of the Highway Act. Within

the meaning of the Highway Act, apportionment is a ministe-

rial function -- the Secretary of Transportation has no discre-

tion. ‘Apportionment’ by the Secretary among the states

according to a set formula is exactly the same as allotment.

As the Eighth Circuit Court of Appeals observed:

[T}he Secretary is required to apportion among the

several states certain sums authorized to be appropriated

for expenditure.

State Highway Comm'n v. Volpe, 479 F.2d 1099, 1107

(8th Cir. 1973). As authority for the above statement, the

Eighth Circuit cited former Federal Highway Administrator

F. C. Turner, who observed that:

There is absolutely no discretion of any kind in our office

with respect to how much any State gets in any of these

categories of funds [pursuant to the formula]. The appor-

tionment is specified in the law and we distribute it right to

the dollar.

Hearings on Executive lmpoundment of Appropriated Funds

Before the Subcomm. on Separation of Powers of the Senate

Comm. on the Judiciary, 92d Cong., Ist Sess. 80 (1971), as

quoted in State Highway Comm'n v. Volpe, 479 F.2d at

1107 n.8. The District of Columbia Circuit Court directly con-

curred in the conclusion of the Volpe court that “‘allotment”’

under the Highway Act is mandatory.

**{1)mpoundment”™’ under the Federal- Aid Highways Act

is achieved only by the limiting of contracts awarded (/.¢.

obligation). There is no possibility under that Act to re-

duce at the ‘‘allotment”’ stage.

New York v. Train, 494 F.2d at 1046-47 (emphasis added).

The conferees’ reference to the mechanics of the Highway Act

is strong indication that they expected allotment to be manda-

tory.

31 .

At least four federal district courts and the District of

Columbia Circuit Court of Appeals have held that allotment

in the Water Pollution Control Act is a non-discretionary,

administrative procedure.*?

221 n the lower federal court which tried the instant case, the district court

held:

[t}he language of the pertinent sections of the Act,.read in the light of

their legislative history, clearly indicates the intent of Congress to

require the Administrator to allot, at the appropriate times, the full

sums authorized to be appropriated by §207.

358 F. Supp. at 679(D. D.C. 1973). This opinion was affirmed by the District

of Columbia Circuit: :

[BJelieving as we do that there is a clear distinction under the Act

between allotment and obligation and that there can be no discretion as

to the former, we find it unnecessary to consider whether an allotment

could be “augmented” in a later fiscal year; full allotment must be

made in each fiscal year.

New York v. Train, 494 F.2d at 1049. In Texas v. Fri, the district court

found:

in light of the high priority placed by Congress on the Act, the language

of the Act, and the legislative history of the Act, this Court concludes

that the Administrator has a mandatory duty to allot to the Plaintiffs the

sums authorized by Congress in §207 of the Act in accordance with

§205 (a).

No. A-73-C A-38, Slip Op. at 5-6(W.D. Tex., Oct. 2, 1973), appeal argued,

' NO. 73-3965, Sth Cir., April 29, 1974. In Minnesota v. USEPA, it was held:

In failing to allot all of the money authorized in this matter, the Ad-

ministrator is acting in express violation of the purposes of the Act

itself as well as in violation of the purposes of the Act as set forth by

Congress.

No. 4-73 Civ. 133, Slip Op. at 13-14 (D. Minn., June 25, 1973), appeal

argued, Civil No. 73-1446, 8th Cir., Feb. 13, 1974. Also. in Florida v. Train.

the district court stated:

In view of the legislative history behind the Act and the goals sought to

be achieved by the Act it is illogical to believe that Congress accorded

the Administrator discretion at the allotment stage.

No. 73-156, Slip Op. at 6(N.D. Fla., Feb. 25, 1974), appeal argued, Civil

No. 73-3965, Sth Cir., Apr. 29, 1974.

As these cases have recognized, the function of allotment is

merely to parcel out the authorization and is not tantamount to

expenditure by the Federal Government. The general utiliza-

tion of allotment as a ministerial procedure to divide funds

among the states rebuts the Administrator's contention that

allotment is discretionary.

D. EVENIF DISCRETION IS FOUND, THE ADMINISTRA.-

TOR’S ACTION IN WITHHOLDING FIFTY-FIVE

PERCENT OF AUTHORIZED FUNDS WAS AN ABUSE

OF DISCRETION IN LIGHT OF THE EXPRESSED

GOALS OF THE ACT.

The district court in Campaign Clean Water, Inc. v. Ruckel-

shaus,361 F. Supp. 689 (E.D. Va. 1973), determined that the

allotment phase of the Act confers discretion on the Adminis-

trator. On appeal to the Fourth Circuit, neither party sought

review of the district court's finding of discretionary allotment.

In fact, the Fourth Circuit made emphatic declarations that the

issue of whether allotments were mandatory was not before

them. Campaign Clean Water, Inc. v. Train, 489 F.2d 492, 497

(4th Cir. 1973). Most courts have found allotment manda-

tory.** However, even if the Court held allotment discretion-

ary, the actions of the Administrator constitute a per se abuse

of discretion and are reviewable by the Court. If allotment

is held to be non-mandatory, then the issue is whether the

Administrator's decision to allot only 45% of the authorized

amount constituted a per se abuse of discretion.

The standards as contained within the Act show that 45%

allotment is aper se abuse of any arguable discretion since the

goals of the Act cannot be accomplished at this rate of allot-

ment. The purpose of establishing contract authority as the

method of funding was to facilitate state planning. A cut of 55%

in the amount of the funds allotted inhibits the ability of the

*"See id.

states to plan and thus frustrates the intent of Congress. As a

result of the Administrator's actions the states are unable to

make long range plans, with the result that the cities are unable

to determine the amount of funding they will receive from the

state. See p.24-25 supra.

As previously stated, the amount allotted was deemed by

Congress to be the *‘minimum amount needed" to attain the

goals of the Act. See 118 CONG. REC. $16870-71 (daily ed. Oct.

4, 1972) (remarks of Senator Muskie). Therefore, a cut of

more than half the funds, before the Administrator has eval-

uated any state plans or surveys, cannot be made without com-

pletely frustrating the goals of the Act; and frustrating the goals

of the Act is not a power within the discretion of any adminis-

trator.** In order for the goals of the program to be accomplish-

ed by 1985 it is essential that the states know how much money

is available for which they can attempt to qualify.

In reviewing the Administrator's actions the Court must

consider *‘whether the decision was based on a consideration

of the relevant factors... .°’ Citizens to Preserve Overton Park

v. Volpe, 401 U.S. 402, 416 (1971). On November 22, 1972.

President Nixon announced that the amounts allocated under

the Act would be considerably reduced from the amounts

authorized. This announcement was made prior to any admin-

istrative examination of proposed state plans or surveys and

therefore apparently was not based on relevant water quality

factors. In fact, the expressed justification was not based on

water quality factors:

These amounts will provide for improving water quality

and yet give proper recognition to competing national

priorities for our tax dollars, the resources now available

24Even if discretion is available, allotting 48% of the authorization is a

per se vbuse of discretion since the 1973 ** Needs Survey” indicates that the

states presently need at least 60 billion dollars to implement their plans.

USEPA, Report to the Congress: Costs of Construction of Publicly-Owned

Wastewater Treatment Works A-2, B-1 (1973).

for this program and the projected condition of the Fed-

eral treasury under existing tax laws and the statutory

limit on the national debt.

Letter from President Nixon to William D. Ruckleshaus, EPA

Administrator, November 22, 1972, reproduced in Hearings

on Federal Budget for 1974 Before the House Comm. on

Appropriations, 93d Cong., Ist Sess. 194-95 (1973); see Brief

for Petitioner at 44. Further, the Administrator directly states

in his brief that he may exercise allotment discretion ‘‘in the

interest of overall government fiscal policies that are not re-

lated to the particular program involved."’ Brief for Petitioner

at 10.

Fiscal considerations are the same rationale used by Presi-

dent Nixon in vetoing the water bill. While an acceptable rea-

son for veto, fiscal considerations are un ‘elated to the imple-

mentation of the Act itself. Suchextrinsic considerations were

attacked in State Highway Comm'n vy. Volpe, 479 F.2d 1009,

1114-15 (8th Cir. 1973):

We find nothing within these provisions of the [High-

way] Act which explicitly or impliedly allows the Secre-

tary to withhold approval .. .for reasons remote and un-

related to the Act.

When the provisions of the Federal- Aid Highway Act

are considered as a whole, it is apparent that the Secretary

does not have the authority to withhold funds for anti-

inflationary purposes.

The statute in the instant case does not contain provisions for

withholding for the purpose of controlling inflation. The court

in State Highway Comm'n v. Volpe, 479 F.2d at 1114, stated

that:

It is impossible to find from these specific grants of

authority discretion in the Secretary to withhold approval

on projects Congress has specifically directed because of

a system of priorities the Executive chooses to impose on

all expenditures.

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It is clear that the decision not to allot 55% of the funds

authorized is an abuse cf discretion, since it cannot be shown

that the President's decision was based on a consideration of

factors relevant to implementation of the program. In sum, the

withholding in the instant case would be a per se abuse of any

available discretica for two reasons. First, the 55% withhold-

ing totally frustrates the purpuses of the program and secondly

the reasons for impounding were irrelevant considerations.

Il. REFUSAL TO ALLOT FIFTY-FIVE PERCENT OF

THE AUTHORIZED FUNDS IS OUTSIDE THE CON.-

STITUTIONAL AUTHORITY OF THE EXECUTIVE

BRANCH.

A finding on constitutional authority is not imperative to

render a decision in the instant case since an order could be

issued to the Administrator to follow mandatory provisions of

the Act and, given compliance, there would be no necessity

to hold on a constitutional basis.?> However, impoundment is

a pervasive issue which has given rise to extensive litigation.

Further, the President®* as well as his spokesmen*’ have

directly asserted the constitutional authority to impound. An

opinion from the Court on the constitutional framework for

impoundment would therefore prove valuable as a guideline

to lower courts. However, it should be noted that the newly

enacted Budget and Impoundment Control Act of 1974 may

have a profound effect on the impoundment issue and asser-

tions of constitutional authority .?*

** However. the Administrator does allude to the constitutional author-

ity of the President to control expenditures. Brief for Petitioner wt 12.

**See note 39 infra.

2d.

"See note 71 infra.

A. THE “FAITHFULLY EXECUTE” CLAUSE OF THE

CONSTITUTION DOES NOT ACCORD DISCRETION

TO REFUSE TO IMPLEMENT CONGRESSIONAL

ENACTMENTS.

The Executive argues that the *‘faithfully execute’ clause

confers the right to selectively enforce or ** harmonize’ alleg-

edly conflicting statutes involving federal spending. The

Administrator states:

{the President] has the responsibility to evaluate the com-

peting needs of this program and other claims on the !imit-

ed total federal financial resources from which all expend-

itures are made.

Brief for Petitioner at 12. This argument implicitly interprets

‘faithfully execute’ as a grant of discretion and authority. In

fact, the faithfully execute clause represents a duty to perform

rather than a grant of discretion. The Executive must attempt

to execute the laws in good faith -- not circumvent the intent of

Congress.

Conflict purportedly results when Congress appropriates

more funds than are allowed to be spent under limited revenues

and a debt limit. However, this conflict, when and if it exists,

need not be resolved by unilateral executive impoundment.

Even assuming arguendo that such a conflict was presented

in this case, Congress has specified procedures for the Exec-

utive to follow in such an event. In the Budget and Account-

ing Act of 1921, section 202, 31 U.S.C. §13 (a) (1970), the Con-

gress provided that if estimated revenues for the fiscal year

plus estimated Treasury surplus carried over into that year are

less than projected expenditures, then “‘the President in the

Budget shall make recommendations to Congress for new

taxes, loans, or other appropriate action to meet the estimated

deficiency.’’ (emphasis added). The legislative history of this

section clearly indicates that the word “‘shall"’ was inserted

to mandate the Executive to return to the Congress and not to

take unilateral action. Significantly, in the precursor of this

section the language wes permissive and not mandatory.2”

Notably, the Executive has often requested Congress to

increase the debt ceiling to meet excess expenditures. In fact,

from March 15, 1972 to date, Congress has adjusted the ceiling

five times.*” These legislative responses indicate Congress

generally favors increased spending over maintenance of the

existing public debt and does not wish substantive programs

to be sacrificed to maintain that ceiling. See Note, /mpound-

ment of Funds 86 HARV. L. REV. 1505, 1522 (1973).

Further, as a temporary expedient, the Executive could

draw upon the Treasury's cash reserve of $6 billion and margin

for contingencies of $3 billion to avoid exceeding the debt limit.

Congress has acknowledged that this $9 billion could be drawn

upon to pay obligations without extending the debt limit. S. REP.

No. 1292, 92d Cone 7d Sess. 5-6(1972); see S. REP. NO. 249,

93d Cong.. Ist Sess. 10(1973). Therefore, before there is even a

remote possibility of a conflict with the debt ceiling, the Execu-

tive could draw upon the $9 billion cushion for a considerable

The predecessor to 31 U.S.C.§13 (a), the “Smith Amendment,” 35

. Stat. 1027, March 4, 1909. read as follows:

{To }the end that [the President ] muy .. . advise the Congress how in

his judgment the estimated appropriations could with least injury

to the public service be reduced so as to bring the appropnations with-

in the estimated revenues. or. if such reduction be not in his judgment

practicable without undue injury to the public service. that he may

recommend to Congress such loans or new taxes as may be necessary

to cover the deficiency. (emphasis added).

The essence of the “Smith Amendment” was later incorporated into the

Budget and Accounting Act of 1921, 31 U.S.C. §13. The principal difference

between the original language and the amended language ts that “may recom-

mend” was changed to “shall recommend.”

Pub. L. No. 93-173 Dec. |, 1973), 87 Stat. 691; Pub. L. No. 93-S3UJuly

1, 1973), 87 Stat. 134; Pub. L. No. 92-899( Oct. 27, 1972), 86 Stat. 1324; Pub.

L.. No. 92-33% uly 1, 1972), 86 Stat. 406; Pub. L. No. 92-550 (March 15,

1972). 86 Stat. 63, 31 U.S.C.A. §757 (b), note (Supp. 1974).

period of time without first having to return to Congress with

new recommendations.*!

Significantly, the statutory procedure required by 31 U.S.C.

§13 (a) and the other alternative modes of solution to the alleg-

ed debt ceiling conflict present a strikingly similar parallel to

the situation facing President Truman during the **Steel Sei-

zure Crisis."" The Court in Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 587 (1952), struck down the Pres-

ident’s attempted seizure of the steel mills, holding that the

seizure could not be justified under his constitutional powers.

In 1947, Congress, in rejecting an amendment granting power

to seize private industries in emergencies ,*? expressed its view

that it would prefer to deal with such problems itself on an ad

hoc basis pv: suant to presidential recommendations. 343 U.S.

at 599-600 (Frankfurter, J., concurring’; see 93 CONG. REC.

3637-45 (1947).

*'In some circumstances the Government might even be able to extend

payments of contracts by afew weeks, so that outlays would occur in the next

fiscal year. Note, Impoundment of Funds, 8 Harv. L. REV. 1505. 1522

(1973). In fact, this Administration has on one occasion delayed payment of

general revenue sharing disbursements so as to be accounted for in the

succeeding fiscal year. THE BUDGET OF THE UNITED STATES

GOVERNMENT, 1974 -- APPENDIX 764 (1973); see Pub. L. No. 92-512, §102.

86 Stat. 919, 31 U.S.C.A. §1221 (Supp. 1974).

**Notably, the prior congressional rejection of the power exercised by

President Truman is directly analogous to the case at bar. In recent action on

the public debt, Congress increased the borrowing power of the Government

while rejecting a limit on fiscal 1973 expenditures. Pub. L. No. 92-599 (Oct.

27, 1972). $201, 86 Stat. 1324, reprinted in 1972 U. S. Cope CONG. & ADM.

News 1542. Congress specifically voted on and rejected two amendments

which would have given the Executive the discretionary power to impound

appropriated funds. 118 CONG. REC. H10282-84 (daily ed. Oct. 18, 1972): id.

at H10224-34, $18506, $18S08, S185 10, $18512-30 (daily ed. Oct. 17, 1972):

id. at H9363-401 (daily ed. Oct. 10, 1972). Compare H. R. REP. NO. 1614, 92d

Cong.. 2d Sess. 3-4 (1972), reprinted in 1972 U. S. Cope CONG. & ADM.

NEWS, 4976-77, with H. R. REP. NO. 1606, 92d Cong., 2d Sess. 3-4(1972). re-

printed in 1972 U. S. Cope CONG. & ADM. News 4972-73: see S. REP. No

1292, 92d Cong.. 2d Sess. 1-2. 7-9 (1972), reprinted in 1972 U.S. Cove

ADM. NEWS 4948-49. 4954-56.

That is precisely the policy expressed in 31 U.S.C. §13 (a):

The President cannot unilaterally do that which he can only

recommend. As Justice Clark stated: “*[W]here Congress has

laid down specific procedures to deal with the type of crisis

confronting the President, he must follow those procedures

in meeting the crisis... .°' 343 U. S. at 662. Thus, given the

several alternatives available to the Executive to deal with the

alleged conflict between the debt ceiling and appropriations.

the executive branch should choose one of them rather than

circumvent th. intent of a congressional enactment, as it has

done in the instant case by reducing allotments.*’

Therefore. the debt ceiling conflict cannot serve as a iegal

justification for the unilateral termination of a congressionally

authorized program. The Administrator has alleged only a po-

tential conflict. Even if such conflict were real, statutory pro-

cedures are available to resolve the conflict, procedures which

the Executive has failed to follow. Moreover, as Youngstown

has determined, when a subject is within the purview of con-

gressional power, and Congress has acted, the President may

not act in contravention of the stated legislative policy. 343 U.S.

at 586-89.

Further, the Executive has urged the responsibility to man-

age the economy under the 1946 Employment Act. 15 U.S.C.

§§1021-25 (1970), as conflicting with expenditure statutes."'

33 Whatever the merit of Administrator's reliance on the debt ceiling. it 1s

clearly a reason collateral to and remote from the purposes of the water

pollution control program. Therefore. it falls within the prohibition estab-

lished by State Highway Comm'n v. Volpe, 479 F.2d 1099, 1114 (8th Cir,

1973), where the court held that the Secretary of Transportation could not

withhold funds from state highway programs for reasons remote from and

unrelated to those which Congress had established. See Guadamuz v. Ash.

368 F. Supp. 1233, 1241 ¢D.D.C. 1973).

“OMB Report Under Impoundment & Information Act, 99 Fed. Reg

7707, 7708 (1974), reprinted in 126 CONG. REC. $4616, S4617 (daily ed. Mar

28. 1974); Hearines on Executive impoundment of Appropriated Funds

Before the Subcomm. on Separation of Powers of the Senate Comm. on the

Judiciary, 924 Cong., Ist Sess. 97 (1971) (testimony of Caspar Weinberger)

The Employment Act was designed to institutionalize the bud-

get as an economic tool. S. BAILEY, CONGRESS MAKES ALAw:

THE STORY BEHIND THE EMPLOYMENT ACT OF 1946, at

11-12 (1950). The Employment Act itself gives no particular

power to the President. In fact, it limits him to an advisory role

and places enactment power in Congress. There is no refer-

ence to inflation in the Act, and the timing of its passage im-

mediately after World War I1 confirms that the main concern

was promoting an economy able to provide jobs for the return-

ing veterans, rather than fighting inflation.*® In its original form

the bill was titled Full Employment Act and was dedicated to

that goal. S. BAILEY, supra; see 15 U.S.C. §1021 (1970). A log-

ical construction of the Employment Act indicates that it con-

templates final policy determinations being made by Congress.

Although recommendations from the President are envision-

ed, the provisions for a congressional committee indicate the

intent for ultimate legislative input. See 15 U.S.C. §§1022-24

(1970). The Act would, therefore, not justify impoundment

without review or approval by Congress.** See Massachusetts

v. Weinberger, Civil No. 1308-73 (D.D.C., July 26, 1973), re-

printed in 119 CONG. REC. $15044, $15045 (daily ed. July 30,

1973). See also Louisiana v. Weinberger, 369 F. Supp. 856,

864 (E.D. La. 1973).

“Economic studies have raised questions as to the efficacy of im-

poundment as a fiscal tool. The studies indicate that current impoundments

have caused some unemployment and have failed to significantly reduce

inflation. Levinson & Mills, Budget Reform and Impoundment Control, 27

VAND.L. REV. 615, 620-21 (1974); Findings of McIntosh Foundation Execu-

tive Impoundmeni Project, 119 CONG. REC.S21120, $21124 (daily ed. Nov.

27, 1973).

“The Administration has also cited the Economic Stabilization Act

Amendments of 1971, 12 U.S.C. §1094 (Supp. II 1972), as a broad grant of

power to the President to impound for economic reasons. OMB Report

Under Federal Impoundment & Information Act, 38 Fed. Reg. 19,582

(1973). However, amendments enacted in 1973 contain a direct prohibition of

impoundments under the Act. Pub. L. No. 93-28 ( Apr. 30, 1973), §4, 87 Stat.

27, 12 U.S.C.A. §1904, note (Supp. 1974).

Thus, when juxtaposed with the statutory mandate of the

Water Pollution Control Act for full allotment and the policy

that the waters of America be restored by 1985, neither the

debt ceiling nor the 1946 Employment Act present the Execu-

tive with conflicting statutory responsibilities so as to justify

unilateral reduction of allotment under the ‘faithfully exe-

cute’’ clause. Reason and precedent dictate that the direction

to ‘faithfully execute” is not a carte blanche to arbitrarily cur-

tail some programs and execute others. See National Council

of Community Mental Health Centers, Inc. v. Weinberger, 361

F. Supp. 897, 901 (D. D.C. 1973). See also National Treasury

Employees Union v. Nixon, 492 F.2d 587, 604 (1974). In a

memo regarding impoundment written while an Assistant

Attorney General, Justice William Rehnquist reasoned: **[I]t

seems an anomalous proposition that because the Executive

branch is bound to execute the laws, it is free to decline to

execute them.’’*? Further. the Court has stated:

To contend that the obligation imposed on the President

to see the laws faithfully executed, implies a power to for-

bid their execution, is a novel construction of the consti-

tution, and entirely inadmissable.

Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524,

613 (1838).

The Executive's failure to faithfully execute the Water Pol-

lution Control Act, by refusing to allot, amounts to legislation,

a power clearly prohibited to the Executive. See Local 2677,

AFGE vy. Phillips, 358 F. Supp. 60, 76-77 (D. D.C. 1973). See

also Guadamuz v. Ash, 368 F. Supp. 1233, 1241-42 (D.D.C.

1973). Inthe Federal Convention of 1787, the States unanimous-

ly rejected a motion *‘that the National Executive have a power

**Memo from William Rehnquist reproduced 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, 934 Cong.. Ist Sess. 390, 394

(1973).

to suspend any Legislative act....°'** As the Court stated in

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587

(1952), “*the President's power to see that the laws are faith-

fully executed refutes the idea that he is to be a lawmaker.”’

Clearly. the faithfully execute clause does not authorize the

Executive's actions in the instant case. In fact, the clause pro-

hibits and condemns the failure to fulfill the mandate of the

Water Pollution Control Act.

B. THE EXECUTIVE DOES NOT HAVE INHERENT

AUTHORITY TO REFUSE TO CARRY OUT THE PUR-

POSES AN D PROVISIONS OF CONGRESSIONAL PRO-

GRAMS DULY ENACTED INTO LAW.

The President asserts that he has the inherent power to im-

pound,** on the basis of the constitutional provision that

**[t}he executive Power shall be vested in a President of the

United States of America.’* U. S. CONST. art. II, §1. In deter-

mining the extent of power inherent in the presidency, there are

generally three criteria: (1) the lack of an express constitutional

commitment of power to a coordinate branch or of an express

prohibition of its exercise by the President; (2) the historical

and customary exercise of a power by the Executive over a

“H.R. Doc. No. 398, 69th Cong., Ist Sess. 152 (1927) (Documents Il-

lustrative of the Union of American States): see id. at 753.

* At a news conference held in January, 1973, the President stated:

The constitutional right for the President of the United States to im-

pound funds and that is not to spend money, when the spending of

money would mean either increasing prices or increasing taxes for all

the people. that right is absolutely clear.

9 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS II (1973). See

also Joint Hearings on §. 373, supra note 37, at 270 (statement of OMB

Director Roy Ash); id. at 369( statement of Deputy Attorney Generai Joseph

Sneed); id. at 836-37 (Dep't of Justice Answers to Questions Concerning

Impounding of Appropriated Funds Posed by Sen. Ervin in his letter of Feb.

14, 1973, to the Dep. Att'y Gen.).

long period of time, coupled with tacit or express congression-

al approval; and (3) the existence of a situation that necessi-

tates executive action for the public interest. See Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-89 (1952); Fong

Yue Ting v. United States, 149 U.S. 698, 711 (1893); Legal

Tender Cases, 79 U.S. (12 Wall.) 457, 534-35 (1871).

No provision of the Constitution clearly commits the *‘im-

poundment”™’ power to a coordinate branch or explicitly pro-

hibits its exercise by the President. The grant of the appropria-

tion power to Congress does not, on its face, give Congress

power over the manner in which appropriations are executed,

although this extension may be reasonably implied as a neces-

sary adjunct. However, other constitutional provisions bear

directly on the issue and provide a textually demonstrable

commitment of the power to make policy as distinguished from

merely spending. Article | of the Constitution vests the legisla-

tive power in the Congress. This implies that Congress alone

shall determine national policy except: (1) when a veto is sus-

tained, (2) when a statute is declared unconstitutional, or (3)

when the Constitution commits certain policymaking power to

another branch.*® One of the principal methods by which Con-

gress can determine national policy is by enacting authoriza-

tion or appropriation bills. Thus, if the Executive impounds

funds or terminates programs and thereby frustrates the con-

gressional policy v vderlying the authorization or appropria-

tion, he usurps the policymaking power, which article I vests in

Congress. Therefore, as to impoundments that affect legisla-

tive policy, a textually demonstrable commitment is present

~~ Levinson & Mills, Impoundment: A Search for Legal Principles, 26 U.

Fia.L. Rev. 191, 193 (1974).

which precludes exercise of inherent presidential authority."

Where the text is unclear, the standard is whether the prac-

tice is one of long standing and whether action or inaction of

Congress has added a gloss to presidential powers. In United

States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936),

the Court ruled that the President was the nation’s representa-

tive in foreign affairs and cited prior congressional acts which

took cognizance of that fact. In United States v. Midwest Oil

Co., 236 U. S. 459 (1915), the Court found that even congres-

sional silence could acknowledge the existence of an executive

power. The Court emphasized, however, that the holding did

not *‘mean that the Executive [could] by his course of action

create a power.’ /d. at 474. Thus, even though an act may con-

tinually occur, it may still be unconstitutional.

The President is currently relying heavily on long standing

congressional inaction in the face of ongoing impoundment.*?

However, the historical argument as applied to the instant case

and other contemporary impoundments is without support

since President Nixon's impoundments are significantly dif-

ferent from those of past administrations.** Before Franklin

"See Louisiana V. Weinberger, 369 F. Supp. 856, 864-65 (E.D. La.

1973); Guadamuz v. Ash, 368 F. Supp. 1233, 1241, 1243-44(.D. D.C. 1973):

Community Action Programs Executive Directors Ass'n of New

Jersey, Inc. v. Ash, 365 F. Supp. 1358, 1360-6) (D. N.J. 1973);

National Council of Community Mental Health Centers, Inc. v. Weinberger.

361 F. Supp. 897, 901(D. D.C. 1973); Oklahoma v. Weinberger, 360 F. Supp.

724, 728(W.D. Okla. 1973); Local 2677, AFGE v. Phillips, 358 F. Supp. 60,

76-78 (D. D.C. 1973); American Ass‘n of Colleges of Podiatric Medicine v.

Ash, Civil No. 1139-73, Slip Op. at 3(D.D.C., Oct. 26, 1973); Massachusetts

v. Weinberger, Civil No. 1308-73 (D.D.C., July 26, 1973) reprinted in 119

CONG. Rec. $15044, $15045 (daily ed. July 30, 1973); National League for

Nursing v. Ash, Civil No. 1316-73, Slip Op. at 4(D.D.C., July 10, 1973).

"See Joint Hearings on §.373, supra note 37, at 389 (remarks of Dep.

Atty Gen. Sneed).

“Levinson & Mills, Impoundment: A Search for Legal Principles,

supra note 40, at 198-99 (1974); see Fisher, impoundment of Funds:

Uses and Abuses, 23 BUFFALO L. REV. 141, 143-70 (1973); Miller,

impoundment: The New Constitutional Crisis, THE PROGRESSIVE, March

1973, at 1S.

D. Roosevelt there were but isolated instances of impound-

ment.‘ President Roosevelt impounded only public works and

military appropriations.*» The administrations of Presidents

Truman, Eisenhower, and Kennedy reveal no pattern of im-

pounding domestic non-military appropriations.** Further,

two Presidents specifically stated they felt they did not have

the power to affect statutory policy by controlling spending. *’

Not until the Johnson Administration have amounts been im-

pounded from domestic programs for fiscal reasons. How-

ever, the Johnson precedent, less than ten years old, provides

no support for similar action by his successors. The Nixon

impoundments, while similar in the aggregate amounts involv-

ed, are qualitatively different. The Johnson impoundments had

relatively minor impact upon most programs.** In contrast,

President Nixon has deliberately and frankly imposed his own

See Stanton, The Presidency and the Purse: lmpoundment 1803-1973,

45 U. CoLo. L. Rev. 25, 26-28 (1973).

“Williams, The Impounding of Funds by the Bureau of the Budget,

reprinted in Joint Hearings on §.373, supra note 37, at 844.

See Fisher. Presidential Spending Discretion and Congressional Con-

: trols, 37 LAW & CONTEMP. Pros. 135. 162 (1972).

“With regard to his own exercise of spending discretion, President

Franklin D. Roosevelt, a proponent of a strong presidency, stated: “‘[ojur

statutory system of fund apportionment is not a substitute for item or blanket

veto power and should not be used to set aside or nulify the expressed will of

Congress....°' Letter from President Roosevelt reproduced in part in

Hearings on H.R. 3598 Before a Subcomm. of the Senate Comm. on Appro-

priations, 78th Cong., Ist Sess. 739 (1944). President Kennedy also rejected

a broad power to impound with regard to federal funds to be given to segre-

gated schools. Although he believed such funding violated the equal protec-

tion and due process clauses as interpreted by the Court, he stated: ‘I don't

have the power to cut off the aid in a general way .. .and | think it would

probably be unwise to give the President of the United States that kind of

power.’ N. Y. Times, April 20, 1973, at 11, col. S.

“Note, /mpoundment of Funds, 8 Harv. L. Rev. 1505, 1512 (1973):

Findings of McIntosh Foundation Executive Impoundment Project. 119

CONG. Rec. $21120, $21125 (daily ed. Nov. 27, 1973).

priorities,** and has thereby frustrated the intent of Congress

with regard to numerous domestic programs.*” This policy-

oriented series of impoundments is unsupported by tradition®!

and, therefore, can not justify reliance upon inherent authority

as a predicate for terminating congressionally authorized pro-

grams.

The public interest factor, the third criterion for recognition

of inherent executive power, applies only to short-term reac-

tions to emergency situations, In re Neagle, 135 U.S. | (1890),

where legislative ratification is expected. United States v. Mid-

west Oil Co., 236 U.S. 459 (1915). In the instant case no such

emergency has even been alleged by the Administrator.

Further, even a purported *‘national emergency"’ is not always

sufficient to sustain a claim of inherent power. In Youngstown

Sheet & Tube Co. v. Sawyer, 343 U. §. 579 (1952), the Court

ruled that the President was not empowered to seize the steel

mills in order to maintain production for the war effort.

Moreover, even if a “national emergency’’ of a magnitude to

justify 55% allotment reduction was in existence, there is no

expectation of legislative ratification. United States v. Mid-

west Oil Co., 236 U.S. 459 (1915). To the contrary, congres-

sional response to this kind of behavior by the Executive has

been severe.°?

"It is difficult to deny that President Nixon himself felt that allotment of

authorized funds was mandated by the Act, precisely because he vetoed it on

the grownds that it was too expensive. There was no point in the veto if the

unfettered discretion the President now asserts had existed. In effect. the

President has reinstated the veto which Congress overrode by merely read-

ing the statute as he chose.

Fisher, impoundment of Funds: Uses and Abuses, supra note 43, at

169-88; Levinson & Mills, Budget Reform and Impoundment Control, 27

VAND L. REV. 615, 618, 620 (1974); Levinson & Mills, Jmpoundment: A

Search for Legal Principles, supra note 40, at 199.

“Id; Joint Hearings on §. 373, supra note 37, passim; Hearings on

Executive Impoundment, supra note 34, passim.

“The new Congressional Budget and Impoundment Control Act of 1974

has restricted authority to accomplish withholding such as that accomplished

in the instant case. See note 71 infra.

Another limitation to inherent power, which is particularly

related to President Nixon's impoundments, was stressed in

Curtiss-Wright, 299 U.S. 304(1936), where the Court recogniz-

ed a distinction between inherent power in the realms of for-

eign policy and domestic affairs. The Court stated that inherent

powers were much more restricted in the domestic arena, id.

at 320, in which most of President Nixon's impoundments have

occurred, including the instant case. See OMB Report Under

Federal Impoundment & Information Act, 38 Fed. Reg.

19,581 (1973). Thus, the impounding of domestic pro-

grams can derive little authority from the President's foreign

affairs powers. See Guadamuz v. Ash, 368 F. Supp. 1233, 1243-

44 (D.D.C 1973); National Council of Community Mental

Health Centers, Inc. v. Weinberger, 361 F. Supp. 897, 901

(D. D.C. 1973). To conclude otherwise would justify domestic

executive action on a foreign policy basis for almost any act

imaginable. The distinction between the President's domestic

and ioreign affairs powers is meaningful only upon the assump-

tion that some activities are regarded, for these purposes, as

being too remote from foreign affairs. Impoundment of domes-

tic program funds has only an indirect connection with foreign

affairs, and does not invoke the foreign affairs power in the

way indicated by Curtiss-Wright.

No constitutional authority in the Executive, inherent or

otherwise, grants the power to usurp prerogatives of another

branch or ignore duly enacted laws. The Constitution recog-

nizes specifically the Executive's role regarding the enactment

of laws. The concept of inherent authority cannot be used as a

means of appending an unconstitutional veto power to the legi-

timate executive duty to implement legislative policy. The

President must not be allowed to accomplish through im-

poundment that which he could not accomplish through veto of

the Water Pollution Control Act.

C. THE EXECUTIVE'S REFUSAL TO IMPLEMENT THE

WATER POLLUTION CONTROL ACT, EVEN AFTER

PASSAGE OVER AN EXECUTIVE VETO, REPRE-

SENTS AN UNCONSTITUTIONAL EXPANSION OF

THE VETO POWER.

The President's role in legislation is made clear in the veto

provision of the Constitution. Art. 1, §7. When Congress pass-

es a bill, the President has the power to veto it, after which it

returns to Congress and may be overridden. Discussions of the

veto power in the Constitutional Convention show that a veto

without override was considered (termed **absolute negative’’)

but was rejected unanimously as placing too much authority in

the hands of a single man.** In the case at bar, the unilateral

refusal to implement a duly enacted statute deprived Congress

of its constitutional opportunity to override President Nixon's

‘veto’ accomplished by means of impoundment. If the Presi-

dent frustrates the will of Congress by impounding, with no

opportunity for congressional override, he achieves the equiv-

alent of an absolute veto. In the instant case, the use of the con-

stitutional veto had already been overriden and the impound-

ment operated as a second and absolute veto.

Moreover, the Executive in the instant case has exercised an

unconstitutional item veto by failing to allot §8% of authorized

funds, while allotting the balance. The Constitution makes no

provision for an item veto and the numerous proposals to intro-

duce this feature into the Constitution have been rejected.>*

“S J. E_tior, DeBpates ON THE ADOPTION OF THE FEDERAL

CONSTITUTION 151-54, 536-38 (ed. 1941).

“E. CORWIN, THE PRESIDENT. OFFICE AND POWERS 280 (4th ed.

1951); R. WALLACE, CONGRESSIONAL CONTROL OF FEDERAL SPENDING

141-42 (1960); see Note, The Item Veto in the American Constitutional

System, 25 Geko. L. J. 106 (1936); Joint Hearings on § 373. supra note 37, at

110-14 (Attachment to Statement of Comp. Gen. Elmer Staats).

Congress overrode the presidential veto of the Act by a sub-

stantial margin and it should have her ceforth been implement-

ed consistent with the expressed will of the Act. Refusal to

carry out the Act amounted to a circumvention and an addition

to the constitutional process of veto.

Ill. THESOVEREIGN IMMUNITY DOCTRINE IS NOBAR

WHEN THE ADMINISTRATOR FAILS TO PERFORM

A STATUTORY DUTY OR EXCEEDS HIS DISCRE-

TION.

The assertion of sovereign immunity has been almost uni-

formly rejected in impoundment cases** and does not present

a bar to justiciability in the instant case. Rejection of sovereign

immunity is supported by the reasoning that the doctrine is not

intended to protect actions outside the law. The doctrine of

sovereign immunity has been continually eroded both through

specific waivers®* and a general narrowing of the doctrine’

although it is still routinely raised by the Government.”

New York v. Train, 494 F.2d 1033, 1038-39 (D.C. Cir. 1974); Cam-

paign Clean Water, Inc. v. Train, 489 F.2d 492, 495 (4th Cir. 1973): State

Highway Comm'n v. Volpe, 479 F.2d 1099, 1123 (8th Cir, 1973), Louriana v

Weinberger, 369 F. Supp. 856, 861-62 (E.D. La. 1973); Guadamuz v. Ash.

* 368 F. Supp. 1233, 12.0. D. D.C. 1973); Brown v. Ruckelshaus, 364 F. Supp.

258. 261 (C.D. Cal. 1973); National Council of Community Mental Health

Centers. Inc. v. Weinberger. 361 F. Supp. 897. 900 ¢D. D.C. 1973); Local

2677. AFPGE v. Phillips, 358 F. Supp. 60, 68-69 ¢D.D.C. 1973). Bur vex

Housing Authority of San Francisco v. HU D, 340 F. Supp. 654, 656. ND

Cal. 1972); San Francisco Redevelopment Agency +. Nixon, 329 F. Supp

672 (N.D. Cal. 1971).

“Two major examples of gener, | waive.» of emmunity are the Ticker

Act. 28 U.S.C. $1491 (1970), and the Tort Claims Act of 1946, 28 U.S.C

§ 1.346 (b) (1970); specific statutes also allow suit against individual agencies.

vee, .@.. Housing Act of 1937, 42 U.S.C. §§1401-35 (1970).

“E.e¢.. Land v. Dollar, 380 U.S. 731 (1947).

“See Hearings on “Sovereign lmmunity” Before the Subcomm. on

Administrative Practice and Procedure of the Senate Comm. on the

Judiciary, Vist Cong., 24 Sess 28-30, 64-75 (1970).

A. THE ADMINISTRATOR'S ACTIONS ARE IN VIOLA-

TION OF HIS LEGAL DUTIES UNDER THE ACT AND

CONSEQUENTLY SUIT MAY BE BROUGHT

THROUGH AN “OFFICER SUIT,” A WELL ESTAB-

LISHED EXCEPTION TO SOVEREIGN IMMUNITY.

Judicial review has been made available when the officer or

federal agency has acted in excess of its statutory authority.

acted in an unconstitutional manner, or acted pursuant to an

unconstitutional grant of authority. Dugan v. Rank, 372 U.S.

609, 621-22 (1963); Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682, 689-91 (1949). In addition, Rockbridge v.

Lincoln, 449 F.2d 567, 572-73 (9th Cir. 1971), established that

the exception applies when an official fails to perform a statu-

tory duty. An action, within the exception to the doctrine.

against an official or agency is commonly known as an *‘officer

suit.” The philosophy behind the exception to the sovereign

immunity doctrine is expressed in The Floyd Acceptances, 74

U. S. 666, 676-77 (1868):

We have no officers in this government, from the Presi-

dent down to the most subordinate agent. who does not

hold office under the law, with prescribed duties and limit-

ed authority.

It is explicitly alleged in the instant case that the Administra-

tor not only acted beyond his statutory authority in failing to

comply with the mandatory aliotment, but he also acted in an

unconstitutional manner. All courts which have ruled on the

Water Pollution Control Act impoundments have found that

sovereign immunity presents no bar to judicial review when

there is an allegation and subsequent finding of violation of

statutory or constitutional duty.** .

Of the over sixty impoundment cases decided to date*® in

“Judge Merhige. in Campaign Clean Water, Inc. v. Ruckelshaus, 1

F. Supp. 689, 694-95 (E.D. Va.) remanded with directions suh nom. C am-

paign Clean Water, Inc. v. Train, 489 F.2d 492 (4th Cir. 1973). held:

the instant matter squarely falls .. .within a well-settled exception to

the sovereign immunity doctrine ... .suit may be brought against an

officer of the United States to challenge an action which allegedly ex-

ceeds statutory authority or, if within the scope of authority. is pre-

mised upon a power which is unconstitutional... . The complaint

alleges that the defendant has exceeded his statutory authority in

impounding funds. If sustained on the merits, plaintiff will come with-

in the above recited exception to the doctrine. (emphasis added).

In New York v. Ruckelshaus, 358 F. Supp. 669. 673(D. D.C. 1973). aff'd sub

nom New York v. Train, 494 F.2d 1033(D.C. Cir. 1974), Judge Gasch held:

plaintiffs action falls squarely within the exception covering suits

challenging actions by federal officers which go beyond the scope of

their statutory powers.

The court in Brown v. Ruckelshaus noted:

Both complaints alle ge that the E PA has exceeded its statutory author-

ity in impounding the authorized funds. If sustained on the merits.

Congressman Brown and Los Angeles would fall within the

exception ....

364 F. Supp. 258, 261 (C.D. Cal. 1973) (emphasis added). See New York v.

Train, 494 F.2d 1033, 1038(D.C. Cir. 1974); Campaign Clean Water. Inc. v.

Train. 489 F.2d 492, 495 (4th Cir. 1973). Further, other courts considering

impoundment cases have consistently ruled that allegations of breach of

statutory duty defeat any claim of sovereign immunity. In Lowisiana v.

W cinherger, 369 F. Supp. 886, 861-62 (E. D. La. 1973), the court maintained:

It has now been held in several cases that the sovereign immunity

doctrine does not bar impoundment suits which are based on the

allegation that defendants’ actions are beyond the scope of their

statutory au’>ority and are. therefore. unconstitutional. (emphasis

added).

federal courts is L. FisHer. CourRT Cases ON IMPOUNDMENT OF FUNDS

4 Pustic Poticy ANALYSIS (Congressional Research Service. | ibrary of

Congress, multilith. March 15, 1974).

which sovereign immunity has been raised, only one has ac-

cepted the defense of sovereign immunity .*' Housing Author-

ity of San Francisco v. HUD, 340 F. Supp. 654, 656(N.D. Cal.

1972). In this case, the district court interpreted the statute

involved to be discretionary. Sovereign immunity applied since

the Administrator, in the court’s understanding, acted within

the discretionary language. Given this conclusion. the holding

is consistent with the doctrine of Larson.

An additional restriction to waiver of sovereign immunity

exists where a judgement *‘would expend itself on the public

treasury or domain or interfere with the public administra-

tion.’ Land v. Dollar, 330 U. S. 731, 738 (1947). This was fur-

ther detailed by the Court in Larson to allow sovereign immu-

nity to prevent a suit where judgement “will require affirmative

action by the sovereign or che disposition of unquestionably

sovereign property."* Larson v. Domestic & Foreign Finance

Corp., 337 U.S. 682, at 691 n.11 (1949). The Ninth Circuit

interpreted Larson as applying where “‘relief sought would

work an intolerable burden on governmental functions, out-

weighing any consideration of private harm.”’ Washington v.

Udall, 417 F.2d 1310, 1318 (9th Cir. 1969).

The instant case involves no expenditure on the treasury

or interference with public administration. If anything, the

action in the case at bar promotes compliance with public ad-

ministration according to the law. Further, there is no expend-

iture from the treasury for two reasons. First, ordering the

*'In another case, San Francisco Redevelopment Agency v. Nixon, 329

F. Supp. 672(N. D. Cal.1971). the district court avoided consideration of the

exception to sovereign immunity by simply holding that mandamus would

not lie to fo.22 President Nixon to allot funds. The court believed it could not

direct a mandate toward the person of the President. This view, however. has

been overruled. E.¢., National Treasury Employees Union v. Nixon, 492

F.2d 587. 616 (D.C. Cir. 1974).

§3

Administrator to allot results only in funds being made avail-

able for obligation and does not result in expeaditure .** Second,

the funds are already authorized to be expended by law; «sere

is no unconsented drain on the treasury -- “the sovereign”’ has

already consented to expenditure by making a law allowing

expenditure.**? The Ninth Circuit in Rockbridge similarly

reasoned:

*2In New York v. Ruckelshaus, 358 F. Supp. 669, 673 (D.D.C. 1973),

Judge Gasch held:

Defendant is not aided by the general rule set forth in Land v.

Dollar ... for .. the relief sought by plaintiff in this action does not

a. require the expenditure of unappropriated public funds (or indeed of

any public funds at all), nor will it interfere with the lawful exercise of

defendant's discretionary powers under the Act... . Plaintiff is de-

manding only that funds be allotted as, in its view, Congress required.

Similarly, it was held in Brown v. Ruckelshaus, 364 F. Supp. 258, 261 (C.D.

Cal. 1973):

Here the suit is . . .requesting relief that does not require the expendi-

ture of any unappropriated funds. They only ask for the allotment of

the funds, and the EPA retains the discretion not to incur any obliga-

tion to expend them. There is no interference with the lawful exercise

of Defendant's discretionary powers under the Act.

The district court in Texas v. Fri held:

the relief would not cause the expenditure of any unappropnated funds

but only the allotment to the States of such funds ....While these

funds would become available for obligation. they would not thereby

become obligated until Defendant approves a specific grant.

No. A-73, CA-38, Slip Op. at 3(W.D. Tex., Oct. 2, 1973), appeal argued,

No. 73-3965, Sth Cir., Apr. 29, 1974.

“3 Lower courts have consistently held that sovereign immunity ts not a

bar if the funds to be expended have already been authorized or appropriated

by Congress. In National Council of Community Mental Health Centers,

Inc. v. Weinberger, %61 F. Supp. 897, 900 (D. D.C. 1973), the court held:

{ AJny affirmative order of this Court would be premised on a determi-

nation that official action by the defendants in refusing to spend is

beyond their statutory or constitutional powers. This would go no

further than to require the spending of funds already appropriated by

Congress to achieve the declared purposes of the Act. Accordingly .

there can be no effective assertion of sovereign immunity and the

defendants’ actions are reviewable by the courts.

(cont'd)

Appellants are not seeking money damages from the

government, nor are they seeking to assert some right

against it or to block a government project. The relief

they seek does not in any way affect the sovereign power

of the United States. The government is not asked to give

up a right, to grant a concession, to dispose of property

or to relinquish authority. Appellants merely seek a court

order directing certain government officials to perform

acts which Congress has already directed those officials

to perform....

449 F.2d 567, 573 (9th Cir. 1971).

Judgement in the case at bar is not an “intolerable burden”

bui merely an enforcement of a duty. The action does not seek

the actual expenditure of funds, but is only seeking perform-

ance of a ministerial act. The Executive may not rely on the

doctrine of sovereign immunity to frustrate the will of the sov-

ereign. The Constitution vests control over the government's

property and grants the power to appropriate and legislate to

Congress. When Congress enacts a law to expend, as with the

Water Pollution Control Act, enacted over presidential veto,

(cont'd)

The district court in Local 2677, AFGE v. Phillips, 358 F. Supp. 60, “8-69

(D. D.C. 1973), held:

the relief which the Plaintiffs seek would not be a drain on the public

purse. No injunction to spend unappropriated funds is sought...

{[Ajny order of this Court requiring the defendant to act in accordance

with the mandate of Congress would draw upon funds appropriated

for that purpose.

In State Highway Comm'n v. Volpe, 479 F.2d 1099, 1123 (8th Cir. 1973). the

Eighth Circuit Court of Appeals maintained:

we do not consider the court's decree . .as being affirmative in nature.

It requires only that the defendent officers cease unauthorized ac-

tion. ...The resultant release of funds is onlyto the extent that Con-

gress has already authorized them to be appropriated and expended.

&§

the sovereign has expressed its will.°* The Administrator

alleges ** plaintiff is seeking to compel a government official to

furnish him with greate: government funds than the official be-

lieves is appropriate... .°’ Brief for Petitioner at 37-38. The

observation 1s exactly true and demonstrates precisely why

states and municipalities must seek to compel the “‘official”’ to

perform his duty according to statutory intent as interpreted by

the Court rather than according to what the official ‘believes

is appropriate.”

B. THE ADMINISTRATIVE PROCEDURE ACT OPER-

ATES AS A WAIVER OF SOVEREIGN IMMUNITY

AND PERMITS REVIEW OF THE ADMINI-

STRATOR’S REFUSAL TO ALLOT.

While sovereign immunity can be avoided by the “officer

suit,” it is also waived by the APA, which would likewise

allow review in the instant case. The provision which supports

waiver is section 10. 5 U.S.C. §702. Whether section 10 con-

stitutes a basis for waiver of sovereign immunity has been a

much debated issue. The Administrator summarily alleges the

APA is nota waiver of sovereign immunity, citing Blackmar v.

Guerre, 342 U.S. §12, 515-16 (1952), in which the statement

was made: “Still less is the Act to be deemed an implied

waiver of all governmental immunity from suit.”

Of course the argument in the instant case is not that there

is a general waiver of all immunity but that the APA, in in-

stances where an administrator exceeds his authority, grants

the right to review to ** [a] person...adversely affected or

aggrieved by agency action. ...° 5 U.S.C. §702 (1970).

"*In effect. the enactment of legislation to dispose of property is a waiver

of sovereign immunity. See Comment, Presidential Impounding of Funds:

The Judicial Response, 40 U. Cui L. REV... 328, 349 (1973). Waiver ts

undisturbed by later administrative actions contrary to congressional policy.

Clakamas County v. McKay, 219 F.2d 479, 493(D.C. Cir. 1954), vacated as

moot, 349 U. §. 909 (1955).

Sovereign immunity has been increasingly abrogated by find-

ings that the APA is an implied waiver.** Three circuits now

adopt this position.** Although a majority of circuits have not

accepted the proposition that the APA is an implied waiver,

the better conclusion is that an act which shows as one of its

goals reviewability of agency action would contemplate a

waiver of sovereign immunity to allow that review.®’ As the

D.C. Circuit has reasoned: **It seems axiomatic to us that one

must imply. from a statement by the Congress that judicial

review of agency action will be granted, an intention on the part

of Congress to waive the right of sovereign immunity; any

other construction would make the review provisions. illu-

sory.”’ Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 874

(D.C. Cir. 1970).

C. SOVEREIGN IMMUNITY IS SPECIFICALLY

WAIVED BY SECTION 505 OF THE WATER POL-

LUTION CONTROL ACT.

One method of removing sovereign immunity is by specific

waiver. The Act contains such provisions under which a

citizen is given jurisdiction to sue an administrator for alleged

failure to perform an act which is not discretionary under the

statute. Respondents in the instant case fall within the purview

of the statutory waiver:

"See Student Project, Federal Administrative Law Developments: -

1971, 1972 Duke L. Rev. 11S, 244.

’Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 873 (D.C. Cir. 1970);

Kletschka v. Driver, 411 F.2d 436, 445 (2d Cir. 1969); Estrada v. Ahrens, 296

F. 2d 690(Sth Cir. 1961); See Warner v. Cox, 487 F.2d 1301, 1394-05 (Sth Cir.

1974) (APA constitutes general waiver except in actions ex contractu for

money damages).

*'4ccord, Constructores Civiles de Centroamerica, S.A. v. Hannah,

489 F.2d 1183, 1191¢D.C. Cir. 1972); Local 2677, AFGE v. Phillips, 358 F.

Supp 60. 69(D.D.C. 1973).

CITIZEN SUITS

Sec. 505 (a) Except as provided in subsection (b) of this

section, any citizen may commence a civil action on his

own behalf --

(2) against the Administrator where there is

alleged a failure of the Administrator to perform any

act or duty under this Act which is not discretionary

with the Administrator.

The district courts shall have jurisdiction, without regard

to the amount in controversy or the citizenship of the

parties, to enforce such an effluent standard or limitation,

or such an order, or to order the Administrator to perform

such act or duty, as the case may be, and to apply any

appropriate civil penalties under section 309 (d) of this

Act. [emphasis added ]}

(g) For the purposes of this section the term

‘citizen’ means a person or persons having an interest

which is or may be adversely affected.

GENERAL DEFINITIONS

Sec. 502. Except as otherwise specifically provided,

when used in this Act:

(S) The term ‘person’ means an individual.

corporation, partnership, association, State, municipal-

ity, commission, or political subdivision of a State, or

any interstate body.

The foregoing provisions eliminate the need for the Court to

consider jurisdiction over the subject matter and parties to this

suit. These provisions require only an allegation that the

Administrator has failed to perform a non-discretionary act to

acquire jurisdiction. That is the allegation in the instant case

with regard to allotment.

It is noteworthy that for the first time, before this Court, the

Administrator alleges as a defense Respondents’ failure to

comply with the sixty-day statutory time limit in section 505(b).

It is not appropriate for the Administrator to plead prior igno-

rance of this provision, for it would then be difficult to argue

that Respondents should be held to know what the Administra-

tor did not. Even so, the Administrator could not convincingly

plead ignorance, for in Brown v. Ruckelshaus, the court noted

the temporal defect challenged here, stating that it might be

grounds for dismissal. 364 F. Supp. 258, 265 n.10 (C.D. Cal.

1973). Notably, the court in Brown relegated this point to a

footnote und proceeded to hear the case on its merits. Since

Brown was decided a month before the Fourth Circuit heard

Respondent's case, the Administrator should have known

about the defense. Thus, by failing to object and pleading the

instant case on the merits, the Administrator waived any pro-

cedural irregularity arising out of the failure to give notice in

exactly the manner prescribed by the statute. Cf. Arp v.

United States, 244 F.2d 571, 574 (10th Cir.), cert. denied, 355

U.S. 826 (1957).

The Administrator has argued that Respondents have access

to the district court only under the provisions of section 505S(a)

i2), even though Respondent did not invoke it. Brief for Peti-

tioner at 40-41. However, section 50S(e) specifically states

that:

Nothing in this section shall restrict any right which any

person (or class of persons) may have under any statute

or common law to seek enforcement of any effluent

standard or limitation or to seek any other relief includ-

ing relief against the Administrator or a state agency).

(emphasis added). .

This language is expressly contrary to the Administrator’ s con-

tention that section S05 is the exclusive method for waiver of

sovereign immunity. Having alleged that the Administrator

has failed to perform a ministerial duty owed to it by the

Administrator, Respondent stands on its invocation of juris-

diction under 28 U.S.C. §1331 and §1361 -- which, according to

section 505 (e), it has the privilege of doing.

It is pertinent that section 304 (a) (2) of the Clean Air Act of

1970, 42 U.S.C. §1857 h-2 (b) (2), is substantially the same as

section 505 (b) (2) of the Water Pollution Control Act in requir-

ing sixty days notice to the Administrator prior to filing suit.

See S. REP. NO. 414, 92d Cong., Ist Sess. 79(1971). Failure to

comply with the sixty-day limit in the Clean Air Act was the

subject of Riverside v. Ruckelshaus, 4 ERC 1728 (C. D. Cal.

1972), in which the plaintiffs admittedly failed to give the

Administrator sixty days notice before filing the action. How-

ever, the court found **substantial compliance by plaintiffs

within the sixty-day notice provision’ because:

1) The plaintiffs filed their complaint on September 6, 1972.

Personal service of the complaint on the Administrator

constituted actual notice of the plaintiffs’ demand for

action by the Administrator.

2) Sixty days elapsed between the filing date and the date that

hearing on plaintiffs’ request for injunction was complete

and the court rendered its judgment.

3) During that sixty-day period, the Administrator had all

the beneficial effect of the sixty-day notice provision, so

that the purposes of the provision were fulfilled.

4) During the sixty-day period in which the action was pend-

ing, the Administrator not only failed to comply with

plaintiffs’ request, he reiterated publicly his intention not

to do so.

Id. at 1730-31. All of these elements are also present in the

instant case.

Even more to the point is the conclusion of the court in

Riverside that the complaint itself can consitute notice so long

as “diligent prosecution” of the complaint does not commence

until sixty days has elapsed. See 4 ERC at 1731. Cf. United

States v. Spreckels, 50 F. Supp. 789, 790 (N.D. Cal. 1943).

60)

Another case, Montgomery Environmental Coalition v. Fri,

366 F. Supp. 261 (D. D.C. 1973), which considered the effect of

the sixty-day limitation under section 505 (a) (2), reached a re-

sult comparable to that in Riverside under different facts. The

Montgomery court was considering an *‘amended complaint”

which was, in effect, a supplemental pleading subject to the

sixty-day limit. /d. at 265. The court felt that since the viola-

tions alleged in the supplemental pleading did not create sur-

prise or prejudice the rights of the defendants, nor frustrate

the congressional purpose of the provision -- which was “‘to

zive the ‘State and Federal governments’ sufficient time to

‘develop fully, and execute the authority contained’ in section

1342,’ there was justification for waiving the provisions for

sixty-day notice. /d. at 266.

It is clear that the purpose of section 505 (a) (2) is to enlarge

citizens’ access to the courts to enforce the provisions of the

Act. Its function is not, as one court has stated regarding the

Clean Air Act, a mechanism whereby failure to precisely

comply causes plaintiffs to forfeit their statutory right to be in

district court. Highland Park v. Train, 374 F. Supp. 758, 768

(N.D. Ill. 1974). Where a statute provides judicial review of

an administrative action, it should not be prohibited absent

clear and convincing evidence that such denial was the legisla-

tive intent. Cf. City-wide Coalition v. Philadelphia Housing

Auth. 356 F. Supp. 123 (E.D. Penn. 1973).

In Riverside, the plaintiffs had the benefit of the regulations

promulgated by the Administrator in December 1971 regarding

the Clean Air Act. See 40 C.F.R. §54.3 (a) (1972). These regu-

lations specified the clements required for giving notice of

alleged failure of the Administrator to perform a ministerial

act. The requirements are: (1) identification of the provision

of the Act allegedly requiring an act by the Administrator; (2

description with reasonable specificity of the Act claimed not

done by the Administrator; and (3) name and address of the

person giving notice. As the court found, all of these elements

car, e

were included in the Riverside complaint which constituted

compliance with the notice requirements under the regulation.

Significantly, all of these elements were also present in Re-

spondents’ complaints in the instant case.

In the instant case, however, the Respondents had no

benefit of guidelines regarding notice requirements under the

1972 Water Pollution Control Act Amendments. These regula-

tions, 40 C.F.R. §135.3 (b) (1973), were not promulgated

until June 1, 1973, some six months after filing of Respondents’

complaints. See Montgomery Environmental Coalition v. Fri,

366 F. Supp. 261, 266 (1973). Thus, Respondents had no

regulation regarding notice with which to comply, and as the

court in Riverside concluded, it is not unreasonable to consider

the filing of a complaint as notice. This statement seems espe-

cially apt when the requirements for notice are not yet in exist-

ence. Moreover, the complaint complied with all the require-

ments for adquate notice as subsequently defined by the

Administrator. 40 C.F.R. §135.3 (b) (1973). Notably, these

regulations were virtually identical to those promulgated

pursuant to the notice provisions of the Clean Air Act.

Compare 40 C.F.R. §135.3 (b) with id. §54.3 (a).

Petitioner errs in its conception of the application of the

sixty-day time limitation. The Administrator reasons that since

only forty-eight days elapsed from the Administrator's an-

nouncement of abbreviated allotments until filing of Re-

spondent Campaign Clean Water's complaint on January 15,

the statute could not have been complied with. Brief for

Petitioner at 41. First, this conception ignores the possibility of

giving notice under the provision of the Act before the

public announcement. Even more important, however, if the

complaint itself was notice, as stated in Riverside v. Ruckel-

shaus, 4 ERC at 1731, it ignores that the suit was not truly

“commenced” until well beyond the sixty days, in the sense

that it was not argued until more than sixty days after filing the

complaint. Further, the sixty-day notice deadline should not be

applied rigidly when the Administrator can be presumed to

have constructive notice of the omission of which Respondent

has complained.

Section 207 itself requires that allotment occur not later than

thirty days after October 18, 1972. Thus, November 17 was

the statutory deadline. If the Administrator is held to notice

of what the statute says, the failure to allot fully by November

17 was a violation and the Administrator had notice of his

violation under the Act. Thus, filing by Respondent on January

15, 1973, was just hours short of the required sixty-day delay.

The notice provision is meant to give the Administrator fair

warning of his omission. In the instant case, the Administrator

had not only fair warning of the objection to his action in re-

ducing allotment, he was acutely aware of it. There is no

persuasive reason for the sixty-day requirement when the

Administrator makes clear his intention to behave in a given

way according to his own interpretation of the Act. The ques-

tion then becomes one of law rather than of fact, and no

amount of fact-finding by the Administrator will cure the con-

troversy -- only immediate recourse to the courts. As well,

the Administrator has not alleged that he received no notice

from Respondents. In the absence of promulgated regulations,

it would seem only equitable that any communicxtion from

Respondent would comply, expecially if it contained at least

those elements specified by the Administrator pursuant to the

Clean Air Act. Since the Administrator failed to timely pro-

mulgate regulations defining notice as explicitly required by

section 505 (b) (2), he can hardly be heard to complain if a

court's view of “‘notice’’ is not his own.

1V. DETERMINING THE ADMINSTRATOR’S AUTHOR-

ITY TO ALLOT LESS THAN AUTHORIZED A-

MOUNTS IS JUSTICIABLE AND NOT BARRED

FROM REVIEW BY THE POLITICAL QUESTION

DOCTRINE OR THE ADMINISTRATIVE PROCE-

DURE ACT.

A. REVIEW OF THE ADMINISTRATOR'S FAILURE TO

COMPLY WITH THE ALLOTMENT PROVISION OF

THE WATER POLLUTION CONTROL ACT IS JUST-

ICIABLE AND NOT A “POLITICAL QUESTION.”

The Administrator has urged that the issue before the Court

in the instant case is a non-justiciable political question. Brief

for Petitioner at 45, 47-48. Considering the same argument, the

court in National Council of Community Mental Health

Centers, Inc. v. Weinberger, 361 F. Supp. 897. 900 (D.D.C.

1973), stated: *‘When Congress directs that money be spent

and the President, as Chief Executive. declines to permit the

spending, the resulting conflict is not political.”’ The court con-

tinued: **To say that the Constitution forecloses judicial

scrutiny in these circumstances is to urge that the Executive

_ alone can decide what is best and what the law requires.”* /d.

at 900-01. The role of the courts in the American system pre-

cludes an interpretation which would result in unilateral inter-

pretation of laws by the Executive.**

In Baker v. Carr, 369 U.S. 186, 217 (1962), the court enu-

merated six conditions that would preclude the hearing of a

case under the political question doctrine: (1) a textually de-

monstrable constitutional commitment of the issue to a coordi-

nate political department, (2) a lack of judicially discoverable

or manageable standards for resolving the issue, (3) the impos-

sibility of deciding the issue without an initial policy determina-

tion of a kind clearly for nonjudicial discretion, (4) the impossi-

bility of a court’s undertaking independent resolution without

"It is emphatically the province and duty of the judicial department to

say what the law is."’ Marbury v. Madison, § U.S. (1 Cranch) 137. 177 (1803)

expressing lack of the respect due coordinate branches of

government, (5) an unusual need for unquestioning adherence

to a political decision already made, and (6) the potentiality

of embarrassment from multifarious pronouncements by vari-

ous departments on one question.

The Administrator in the instant case has specifically argued

that the issue before the Court is committed to the “political

departments’’ and that there are no judicially manageable

standards for resolving it. Brief for Petitioner at 45, 47.

As to commitment to a coordinate branch, it is clear that

the issue before the Court can be determined only by the

judicial branch and is not committed to the other “political

departments.’ The issue before the Court is whether the Envi-

ronmental Protection Agency has exceeded its authority in

refusing to allot. The issue is one of statutory interpretation

of the Administrator's discretion under the Act. It is axiomatic

that “*[a]n agency may not finally decide the limits of its statu-

tory power. That is a judicial function.” See Highway

Comm'n v. Volpe, 479 F.2d 1099, 1124 (8th Cir. 1973).

Additionally , judicially manageable standards for resolving

the issue sub judice are readily available. The issue is not

‘an unstructured managerial issue.’’ Brief for Petitioner at 48.

The mandate for full allotment is expressed in the statute.

The interpreiation of the statutory duty of an agency is clearly

judicially manageable and is a basic function of the judiciary .**

Baker v. Carr, 369 U. S. at 211; National Treasury Employees Union

v. Nixon, 492 F.2d at 605; State Highway Comm'n v. Volpe, 479 F.2d 1099,

1106-07 (8th Cir. 1973); Louisiana v. Weinberger, 369 F. Supp. 85%. 862

(E.D. La. 1973); Guadamuz v. Ash, 368 F. Supp. 1233, 1238(D.D.C. 1973);

Brown v. Ruckelshaus. 364 F. Supp. 258. 261-62 (C.D. Cal 1973); Seafarers

Int'l. Union of N. America v. Weinberger. 363 F. Supp. 1053, 1059(D. D.C.

1973); National Council of Community Mental Health Centers v. Wein-

berger. 361 F. Supp. 897, 900-01 (D. D.C. 1973); Campaign Clean Water.

Inc. v. Ruckelshaus, 361 F. Supp. 689, 696 (E.D. Va.). remanded with

directions sub nom. Campaign Clean Water. Inc. v. Train, 489 F.2d 492 (4th

Civ. 1973); New York v. Ruckelshaus, 358 F. Supp. 669, 675-76 (D. D.C.

1973). aff'd sub nom. New York v. Train, 494 F. 2d 1033( 1974); Local 2677.

AFGE v. Phillips, 358 F. Supp. 60, 67-68 (D. D.C. 1973); Massachusetts v.

Weinberger. Civil No. 1308-73 (D.D.C. July 26, 1973). reprinted in 119

CONG. REC $15044, $15045 (daily ed. July 30, 1973).

The instant case moreover does not require the judiciary to

supervise agency action.’” Only in a totally discretionary stat-

ute imposing no duty upon an administrator would a lack of

manageable standards exist.

While the political question doctrine may continue to be

raised as a bar to impoundment litigation,”' there is no basis

for non-justiciability. The issue presented in the instant case

does not fit into the formulations set forth in Baker v. Carr,

369 U.S. at 217, relied upon by the Administrator. The Court

must merely apply judicial standards of statutory construction

to determine whether the Administrator has the discretion to

refuse to fully allot authorized sums. The resolution of that

issue Clearly does not involve a nonjusticiable political ques-

tion. .

See National Treasury Employees Union v. Nixon, 492 F.2d at 605;

Campaign Clean Water, Inc. v. Train. 489 F.2d 492, 498-99 (4th Cir. 1973).

cert. granted 94 8. Ct. 1991 (1974); Seafarers Int'l Union of N. America v

Weinberger. 363 F. Supp. 1053, 1059( D. D.C. 1973); Pealo v. Farmers Home

Administration, 361 F. Supp. 1320, 1324 (1973); Note. Protecting the Fisc:

Executive Impoundment and Congressional Power, 82 Y ace L. J. 1636.

1651 (1972).

*'On July 12, 1974, the President signed the Congressional Budget and

Impoundment Control Act of 1974, providing inter alia for impoundment

resolution by the political departments. Pub. L. No. 93-344, 120 CONG. REC

D839 (daily ed. July 1S, 1974). The Act may have an effect on future

impoundment litigation and perhaps the future disposition of the case vib

judice, since the Administrator has alluded to the possible use of obligational!

controls in the event of an adverse holding. Bricf for Petitioner at 14. lt

should be recognized that the Act's procedures for impoundment coniro!

could raise the political question issue in the context of a designation to a

coordinate branch since Congress is granted the authority to override an

impoundment.

Nevertheless impoundment should remain a justiciable issue. The Act

explicitly does not ratify or approve “any impoundment heretofore _..

executed or approved by the President or any other Federal officer or em-

ployees...... H. R. Rep No. 1101, 93d Cong.. 2d Sess. 40, at §1001 (2)

(1974). Further the Act does not affect ‘in any way the claims . . .of any party

(cont'd)

B. THE ADMINISTRATIVE PROCEDURE ACT DOES

NOT BAR REVIEW AS A MATTER COMMITTED TO

AGENCY DISCRETION.

The Administrator contends the APA precludes judicial

review of his refusal to allot since the agency action at issue

is a matter committed to agency discretion. Brief for Petitioner

at 41-43. The Court in Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402 (1971), clarified the provision for preclu-

sion of judicial review expressed in 5 U.S.C. §701 (a). This

section was characterized as**very narrow’’ and limited in

application to “those rare instances where ‘statutes are drawn

in such broad terms that in a given case there is no law to

apply.” “ 401 U.S. at 410. In determining whether agency

actions were reviewable, the Court in Overton Park looked to

the statute to see if it contained definite standards for the

agency head. The Court found reviewable the statute allowing

the Secretary to approve a project utilizing public parklands

( cont’ d)

to litigation cone. ‘ning any impoundment... .”° /d $1001 (3). Additionally.

the Act in no way supercedes any mandatory budgetary provisions. id. § 1001

(4). and consequently federal courts clearly continue to have jurisdiction to

enforce such ministerial actions.

Senator Ervin pointed out the import of the Act on impoundment

litigation on the day of Senate passage:

The Comptroller General will be granted authority to sue in the Fd-

eval [sic] District Court for the District of Columbia to enforce the

provisions of the title... . This authority is not intended to infringe upon

the right of any other party to initiate litigation... .

A disclaimer section directs that nothing in the impoundment ttle

should be construed as ratifying or approving any past or present

impoundment, affecting the claims or defenses of any party to litigation

concerning any impoundment, or asserting or conceding the constitu-

tional powers or limitations of either the Congress or the President.

The disclaimer also disavows any intention by Congress to supercede

any law which requires the mandatory obligation of budget authority.

since several such statutes have been enacted in response to the

wholesale impoundment of funds appropriated for specific programs.

120 CONG. REC. $11222 (daily ed. June 21, 1974).

ca ea tal

only if there was no *‘feasible and prudent alternative.” 401

U.S. at 411. The standards in the Water Pollution Control! Act

allotment provision are far more explicit regarding allotmeit

than the statute in the Overton case. The mandatory nature of

the Water Pollution Control Act needs no further description

here. The duty of the Administrator in allotment was clearly

ministerial. The overall logic. specific language. and legislative

history of the Act admits of no other interpretation than that

allotment is a mandatory duty.

The Administrator alleges that the allotment phase of the

Water Pollution Control Act ‘does not announce any specific

precepts that are to guide the President in determining allott-

ments [sic }.’* Brief for Petitioner at 43. However, in fact, the

Act announces a very specific standard -- mandatory allot-

ment. There are no detailed standards since allotment is minis-

terial. Detailed standards regarding approval appear at the

obligation phase since that is where discretion is exercised and

explicit standards are necessary.

The Water Pollution Control Act contains an explicit

directive to allot. There is no latitude for what Petitioner

describes as questions of judgement requiring close analysis

and delicate choices. Brief for Petitioner at 42-43. Allotment is

not an act committed to agency discretion. Consequently. the

APA presents no bar to reviewability.

CONCLUSION

The Administrator failed to comply with a statutory require-

ment of the Water Pollution Control Act by failing to allot

six billion dollars authorized by Congress. Plain meaning, leg-

islative history and the overall structure of the Act demon-

strate the allotment of full sums is mandatory. Moreover, the

issue before the Court is justiciable and not barred by the

doctrines of sovereign immunity or political question.

For the reasons stated herein, the Center for Governmental

Responsibility urges this Court to affirm the judgement of the

Court of Appeals for the District of Columbia and reverse

the decision of the Fourth Circuit Court of Appeals.

Respectfully submitted,

FLETCHER N. BALDWIN, JR.

JON L. MILLS

Attorneys for Center for Governmental

Responsibility

Counsel gratefully acknowledge the research assistance pro-

vided in this case by the following law students at the Univer-

sity of Florida: Albert J. Hadeed, Anne Conway, Jacqueline

Griffin, Edmond T. Henry, III and Janet Studley.

APPENDIX

METHOD OF EXPENDITURE IN THE WATER POLLUTION CONTROL ACT

LEGEND

oe Actual level of funding

| th Proper level of authorized funding

SESE (before impoundment)

Appropriation

Obligation

Allotment

Authorization

ACTION TAKEN

1au8 Ceiling of authorized obligation

after mandatory allotment

maw Ceiling of authorized obligation

after improper exercise of discre

OF BUDGET

LEVEL

\UTHORITY

tion at allotment

billions of §

, - rm

LEGISLATION §207 §205 § §203, 204 Art. 1, §9

CONTROLLING ‘not to exceed Sums authorized Framework of con- U. S. Constitution

[specified amounts]” “shall be allotted” tract authority. Pro forma proce-

Limitations and dure liquidating

conditions. appropriation.

DISCRETION Congress sets NONE Administrator’ s NONE

\V AIL ABLE ceiling for rest Sets ceiling for upproval or dis- Payment of con-

of process. Ac- obligation approval or grant tracts made

cords discretion upon conditions

exercised in re- specified.

maining steps.

REFERENCES TO I L

6 - 12 6 - 16, 18 - 19, 22 - 32 10 - 12, 14 - 16, 18, 6 n. 2, 24 n. 20

22 o 29, 32 - 34

DISCUSSION IN

BRIEF

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