Petition — Bucks County Water v. Delaware River Basin Commission

Office -Supreme Court. US.

See GS Kk D

82-1515 | MAR 20 1983

IN THE ALEXANDER L. STEVAS,

SUPREME COURT OF THE UNITED-STATES ee

October Term 1982

DELAWARE RIVER BASIN COMMISSION, ET AL..,

Respondent

v.

BUCKS COUNTY WATER AND SEWER AUTHORITY,

Petitioner

ON WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT

COURT OF APPEALS

FOR THE THIRD CIRCUIT

(THIRD CIRCUIT COURT NO. 82-1233)

PETITION OF BUCKS COUNTY WATER

AND SEWER AUTHORITY FOR

WRIT OF CERTIORARI

VICTOR S. JACZUN, ESQUIRE

JACZUN, GRABOWSKI & LEONARD

One South Fifth Street

Perkasie, PA 18944

(215) 257-8066

Solicitors, Bucks County

Water and Sewer Authority

THE LEGAL INTELLIGENCER, 10th & SPRING GARDEN STREETS, PHILA. PA 19123 (215) 236-2000

I. STATEMENT OF THE QUESTIONS PRESENTED

FOR REVIEW:

A. SHOULD CERTIORARI BE GRANTED TO RE-

VIEW THE CIRCUIT COURT'S JUDGMENT

ORDER SINCE THE CONSTITUTIONALITY OF

THE COMPACT AND REGULATIONS PROVID-

ING FOR INTERSTATE AND FEDERAL MAN-

AGEMENT OF THE DELAWARE RIVER BASIN

ARE SIGNIFICANT AND VITAL TO THE WATER

RESOURCES OF THE REGION?

B. SHOULD CERTIORARI BE GRANTED TO RE-

VIEW THE CIRCUIT COURT'S JUDGMENT

ORDER, UPHOLDING THE CONSTITUTIONAL-

ITY OF THE PRESENT RATE STRUCTURE, BE-

CAUSE THE RESULTING CLASSIFICATION

LACKS A_ RATIONAL BASIS, THEREBY

CONFLICTING WITH APPLICABLE DECISIONS

OF THIS COURT?

II. LIST OF PARTIES TO PROCEEDING BEFORE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

APPELLANTS:

BUCKS COUNTY WATER AND SEWER

AUTHORITY

Counsel: Victor S. Jaczun, Esquire

One South Fifth Street

Perkasie, Pa. 18944

WESTERN BERKS WATER AUTHORITY

Counsel: Raymond C. Schlegel, Esquire

Mogel, Speidel and Roland

520 Walnut Street

Reading, Pa. 19601

APPELLEES:

DELAWARE RIVER BASIN COMMISSIONS

Counsel: David J. Goldberg, Esquire

Warren, Goldberg and Berman

112 Nassau Street, P.O. Box 645

Princeton, N.J. 08540

CITY OF PHILADELPHIA

Counsel: Albert J. Slap, Esquire

Frank M. Thomas, Jr., Esquire

City Solicitors

Rm. 1530 Municipal Svs. Bldg.

Philadelphia, Pa. 19107

INTERVENORS:

COMMONWEALTH OF PENNSYLVANIA

Counsel: Douglas R. Blazey, Esquire

Cathleen Curran, Myers, Esquire

Dept.of Environmental Resources

505 Executive House, P.O. Box 2357

Harrisburg, Pa. 17120

STATE OF NEW YORK

Counsel: Cyril H. Moore, Jr., Esquire

Robert Abrams, Esquire

2 World Trade Center

New York, N.Y. 10047

STATE OF NEW JERSEY

Counsel: Irwin I. Kimmelman, Esquire

Attorney General of New Jersey

John M. Van Dalen, Esquire

Deputy Attorney General

36 West Siate Street

Trenton, N.J. 08625

BETHLEHEM STEEL CORPORATION

Counsel: Edith G. Laver, Esquire

Bethlehem Steel Corporation

Bethlehem, Pa. 18016

UNITED STATES STEEL COMPANY

Counsel: Wayne L. Emery, Esquire

Richard J. Munsch, Esquire

United States Steel Corporation

600 Grant Street, Room 1569

Pittsburgh, Pa. 15230

CITIZENS HOME WATER COMPANY

G & W NATURAL RESOURCES GROUP

PHILADELPHIA SUBURBAN WATER COMPANY

Counsel: Thomas B. Kenworthy, Esquire

2100 The Fidelity Building

123 South Broad Street

Philadelphia, Pa. 19109

Ill. TABLE OF CONTENTS

Page

I. QUESTIONS PRESENTED FOR RE-

UES SC ORG ga oare WR ah wg hs 88 ene i

II. LIST OF PARTIES TO THE PROCEED-

ING BEFORE THE UNITED STATES

COURT OF APPEALS FOR’ THE

EEN ERIE 6 65 66 Vere ac dace: ii

Il. TABLE OF CONTENTS ............ iv

IV. TABLE OF CITATIONS AND

pee ree ere ae Vv

V. REPORTS OF OPINIONS DELIVERED

ieee ek) yl BA) ee vii

VI. STATEMENT OF JURISDICTION ... viii

VI. CONSTITUTIONAL PROVISIONS,

COMPACTS, STATUTES, AND REGU-

Poyy t 8 i, 40 A) 4 | Se rae ix

VIII. STATEMENT OF THE CASE ........ |

ee es 8 oe Se 5

a oe ee eee Separate

Booklet

iv

IV. TABLE OF CITATIONS AND AUTHORITIES

A. Cases

Baldwin v. Fish and Commission of Montana, 435

U.S. 371, 98S. Ct. 1852, 56 L. Ed. 2d 354 (1978) 9

Borough of Morrisville v. Delaware River Basin

Commission, 399 F. Supp. 469 (1975) ........ 8

Delaware River Basin Commission v. Bucks County

Water and Sewer Authority, 641 F. 2d 1087 (3rd

te SE ee oa 3, 5

Lau Ow Bew v. United States, 144 U.S. 47, 12S. Ct.

517, 36 L. Ed. 340 (1892) .............0045. 6

Magnum Import Co. v. Coty, 262 U.S. 159, 43 S. Ct.

531, 67 L. Ed. 922 (1923) ......cceccccvves 6

Mathews v. Lucas, 427 U.S. 495, 96 S. Ct. 2760, 49

Bas Te. BEGG) CIGTS) nw ccc crc cccccvcccvns 7

McGinnis v. Royster, 410 U.S. 263, 93 S. Ct. 1055,

35 L. Ed. 2nd 282 (1973) ............. eee, 7

Memorial Hospital v. Maricopa County, 415 U.S.

250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974) .. 9

Merrill, Lynch, Pierce, Fenner & Smith, Inc. v.

Ware, 414 U.S. 117, 94 S. Ct. 383, 38 L. Ed. 2d

PINGS be Ce bbc ceeeeewcavenecenes 6

New Jersey v. New York, 283 U.S. 336, 51 S. Ct.

478, 75 L. Ed. 1104 (1031) on... ccc eevee 5

New Jersey v. New York, 347 U.S. 995, 74 S. Ct.

842, 96 L. Ed. 1127 (1954)... ccc ce eee 1,5

New Orleans v. Duke, 427 U.S. 297, 96 S. Ct. 2513,

WE, BG BE GET CABS). icc ccc ccc ccc cee. 11

United States Railroad Retirement Board v. Fritz,

449 U.S. 166, 101 S. Ct. 453, 66 L. Ed. 2d 268

eT a ata allie BRS we aNe b's oe @ 0'0 00 8 7,10

B. CONSTITUTIONAL PROVISIONS

C. Statutes

United States Constitution Amendment V_...... ix

United States Constitution Amendment XIV §1 .. ix

Act of June 25, 1948, c. 646, §1, 62 Stat. 928 (28

EE a ee viii

Act of June 25, 1948, c. 646, §1, 62 Stat. 928 (28

NS ete ES a's ce bk k's 6 oece ees 3

vi

V. REPORTS OF OPINIONS OF COURTS BELOW

A.

Delaware River Basin Commission v. Bucks

County Water and Sewer Authority, 474 F.

Supp. 1249 (E.D. Pa. 1979)

Delaware River Basin Commission v. Bucks

County Water and Sewer Authority, 641 F. 2d

1087 (3rd Cir. 1981)

Delaware River Basin Commission v. Bucks

County Water and Sewer Authority, 545 F.

Supp. 138 (E.D. Pa.1982)

Delaware River Basin Commission v. Bucks

County Water and Sewer Authority, No. 82-

1233 (3rd Cir. 1983) Judgment Order

vii

VI. STATEMENT OF SUPREME COURT JURISDIC-

TION

A. A Judgment Order against Bucks County Water

and Sewer Authority was issued on January 6,

1983 by the United States Court of Appeals for

the Third Circuit.

B. Bucks County Water and Sewer Authority filed a

Petition for Rehearing which was denied by Or-

der on January 31, 1983. On February 10, 1983,

the Court of Appeals issued a thirty (30) day Stay

of Mandate pending filing of Petition for Writ of

Certiorari.

C. The United States is given jurisdiction to review

this matter by the Act of June 25, 1948, c. 646,

§1, 62 Stat. 928 (28 USCS 1254).

viii

VII. CONSTITUTIONAL PROVISIONS, COMPACTS,

STATUTES AND REGULATIONS INVOLVED

A. CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the Militia,

when in actual service in time of War or public dan-

ger; nor shall any person be subject for the same of-

fense to be twice put in jeopardy of life or limb, nor

shall be compelled in any criminal case to be a wit-

ness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall

private property be taken for public use, without

just compensation.

United States Constitution Amendment XIV §1

All persons born or naturalized ir the United States

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States, nor shall any State de-

prive any

B. COMPACT PROVISIONS

The following are provisions of the Delaware River

Basin Compact which are of major significance to this

case. The Compact is set forth in the Appendix in its

entirety.

1.3 Purpose and Findings. The legislative bodies of

the respective signatory parties hereby find and declare:

(a) The water resources of the basin are af-

fected with a local, state, regional and national in-

terest and their planning, conservation, utilization,

development, management and control, under ap-

ix

propriate arrangements for intergovernmental coop-

eration, are public purposes of the respective signa-

tory parties.

(b) The water resources of the basin are subject

to the sovereign right and responsibility of the sig-

natory parties, and it is the purpose of this compact

to provide for a joint exercise of such powers of

sovereignty in the common interests of the people of

the region.

(c) The water resources of the basin are func-

tionally interrelated, and the uses of these resources

are interdependent. A single administrative agency

is therefore essential for effective and economical

direction, supervision and coordination of efforts

and programs of federal, state and local govern-

ments and of private enterprise.

(d) The water resources of the Delaware River

Basin, if properly planned and utilized, are ample to

meet all presently projected demands, including ex-

isting and added diversions in future years and ever

increasing economies and efficiencies in the use

and reuse of water resources can be brought about

by comprehensive planning, programming and

management.

(e) In general, the purposes of this compact are

to promote interstate comity; to remove causes of

present and future controversy; to make secure and

protect present developments within the states; to

encourage and provide for the planning, conserva-

tion, utilization, development, management and

control of the water resources of the basin; to pro-

vide for cooperative planning and action by the sig-

natory parties with respect to such water resources;

and to apply the principal of equal and uniform

treatment to all water users who are similarly situ-

ated and to all users of related facilities, without re-

gard to established political boundaries.

3.7 Rates and Charges. The commission may from

time to time after public notice and hearing fix, alter and

revise rates, rentals, charges and tolls and classifications

thereof, for the use of facilities which it may own or oper-

ate and for products and services rendered thereby,

without regulation or control by any department, office

or agency of any signatory party.

15.1 Reservations. In the exercise of the powers re-

served to the Congress, pursuant to Section 1.4 of the

Compact, the consent to and participation in the Com-

pact by the United States is subject to the following con-

ditions and reservations:

(b) No provisions of Section 3.7 of the Compact

shall be deemed to authorize the commission to im-

pose any charge for water withdrawals or diversions

which could lawfully have been made without

charge on the effective date of the Compact; or to

impose any charges with respect to commercial

navigation within the Basin, jurisdiction over which

is reserved to the Federal Government; Provided,

That this paragraph shall be applicable to the extent

not inconsistent with Section 1.4 of this Compact.

C. DELAWARE RIVER BASIN COMMISSION RESO-

LUTIONS

The following is the section of DRBC Resolution

74-6 which is of major significance to this case. The en-

tire Resolution is set forth in the Appendix.

Resolution 74-6 §15-1.3

1. “Legal entitlement” means quantity of volume of

water expressed in million gallons per month deter-

mined by the lesser of the following conditions:

(a) A valid and subsisting permit, issued under

the Authority of one of the signatory parties, if such

permit was required as of October 27, 1961, or

thereafter;

xi

(b) Physical capability as required for such tak-

ing;

(c) The total allocable flow without augmenta-

tion by the Commission using a seven day, ten year,

low-flow criterian mesh at the point of withdrawal

or diversion.

xii

VIII. STATEMENT OF THE CASE

This Court has retained jurisdiction in a separate

water case, pinpointing its realization that issues over

the use of the Delaware will long remain. See New Jer-

sey v. New York, 347 U.S. 995, 74 S. Ct. 842, 98 L. Ed.

1127 (1954).

Water from the Delaware River is shared for drink-

ing purposes pursuant to this Court’s opinion among

Pennsylvania, New York, and New Jersey.

Anticipating the need for an even more reasoned

sharing basis, in 1961, after years of discord and negotia-

tion, these states, along with Delaware, enacted legisla-

tion, the Delaware River Basin Compact, to regulate and

allocate the scarce resources of the Delaware River Ba-

sin. Th« United States of America ratified the Compact

pursuant to Article I, Section 10, of the United States

Constitution. The Compact stated (at § 1.3) its purpose

to be the “planning, conservation, utilization, develop-

ment, management and control of the water resources of

the Basin”.

The Compact established a Commission to manage

the Basin, composed of member state governors and a

representative of the President.

Prior to ratification, Congress added Section 15. 1(b)

which, along with original Section 3.7, is the root of the

present controversy:

3.7 Rates and Charges. The commission may from

time to time after public notice and hearing fix, alter and

revise rates, rentals, charges and tolls and classifications

thereof, for the use of facilities which it may own or oper-

ate and for products and gervices rendered thereby,

without regulation or control by any department, office

or agency of any signatory party.

15.1 Reservations. In the exercise of the powers re-

served to the Congress, pursuant to Section 1.4 of the

Compact, the consent to and participation in the Com-

pact by the United States is subject to the following con-

ditions and reservations:

1

2

(b) No provisions of Section 3.7 of the Com-

pact shall be deemed to authorize the commission to

impose any charge for water withdrawals or diver-

sions which could lawfully have been made without

charge on the effective date of the Compact; or to

impose any charges with respect to commercial

navigation within the Basin, jurisdiction over which

is reserved to the Federal Government: Provided,

That this paragraph shall be applicable to the extent

not inconsistent with Section 1.4 of this Compact.

Section 15.1(b) prohibits charges for water which

could have been lawfully withdrawn in October, 1961,

when the Compact was enacted.

More than ten years later, the Commission adopted

Resolution 74-6 which implemented a system of rates

for withdrawals. Resolution 74-6 exempted pre-1961 us-

ers up to the amount of their legal entitlement:

In compliance with this provision, there shall

be no charge for water withdrawn or diverted in

quantities not exceeding the legal entitlement of the

user, determined as of October 27, 1961.

The Resolution proceeds to define “legal entitle-

ment” as follows:

1. Legal entitlement means quantity of volume of

water expressed in million gallons per month deter-

mined by the lesser of the following conditions:

(a) A valid and subsisting permit, issued un-

der the authority of one of the signatory parties, if

such permit was required as of October 27, 1961, or

thereafter;

(b) Physical capability as required for such

taking;

(c) The total allocable flow without augmen-

tation by the Commission using a seven day, ten

year, low-flow criterian mesh at the point of with-

drawal or diversion.

3

In 1966 the City of Philadelphia and Bucks County

Water and Sewer Authority entered into an agreement

under which Philadelphia was to supply Bucks with

thirty-five million gallons of water per day. Philadel-

phia’s defined “legal entitlement” was such that the City

could withdraw the additional water within the limit set

by the Resolution. The Bucks Authority requested

DRBC to review the contract but were informed by the

Commission that the Agreement would not have to be

reviewed as it had no “substantic ' effect on the resources

of the Basin”. (See Compact Section 3.8)

In 1976, the Commission insisted that Bucks

County Water and Sewer Authority be charged for with-

drawals made by Philadelphia and subsequently

forwarded to Bucks. The Authority refused to make pay-

ment, claiming the withdrawal was made under Phila-

delphia’s legal entitlement. DRBC brought suit in Fed-

eral Court alleging as its basis of jurisdiction the Act of

June 25, 1948, C. 646, §1, 62 Stat. 928 (28 USC 1331).

The District Court granted DRBC’s motion for Sum-

mary Judgment, and BCWSA appealed to the Court of

Appeals for the Third Circuit, arguing that the exemp-

tion violates the Constitutional principles of equal pro-

tection. In a 1981 Opinion a panel of that Court ex-

pressed grave doubts as to the Constitutionality of

Section 15.1(b) and Resolution 74-6, but remanded the

case to District Court, directing the Commission and

perspective intervenors to “proffer some purpose that

the Court may reasonably presume to have motivated

the Congress that added Section 15.1(b) to the Compact

[so] there will be a standard against which to test the

rationality of Resolution 74-6”. DRBC v. BCWSA, 641

F. 2d 1087, 1113 (3rd Cir. 1981)

On remand, the Commonwealth of Pennsylvania,

Bethlehem Steel Company, and the United States Steel

Company intervened on behalf of DRBC and the City of

Philadelphia.

4

Intervening on the side of BCWSA was Western

Berks Water Authority.

On remand, DRBC, the City of Philadelphia, and

several of the intervenors produced voluminous docu-

mentation of the proceedings which it was hoped would

provide data as to why this section of the Compact was

adopted by Congress. The documents included tran-

scripts from state hearings on the Compact, press re-

leases, and correspondence between the framers and in-

terested parties. Many were interesting, however, the

only writings regarding Congressional ratification are a

statement in the Congressional Record that Section

15.1(b) will clarify Section 3.7 and correspondence from

Secretary of the Interior Udall which left us with no idea

as to the purpose for Section 15.1(b).

Nevertheless, the District Court again granted

Summary Judgment against BCWSA and, on Appeal to

the Third Circuit Court of Appeais, Judgment was af-

firmed.

As a result of the Third Circuit's Judgment Order

dated January 6, 1983, Bucks County Water and Sewer

Authority filed this Petition for Writ of Certiorari.

IX. ARGUMENT

A. CERTIORARI SHOULD BE GRANTED TO REVIEW

THE CIRCUIT COURT'S JUDGMENT ORDER

SINCE THE CONSTITUTIONALITY OF THE

COMPACT AND REGULATIONS PROVIDING FOR

INTERSTATE AND FEDERAL MANAGEMENT OF

THE DELAWARE RIVER BASIN ARE SIGNIFI-

CANT AND VITAL TO THE WATER RESOURCES

OF THE REGION,

This is not the first case involving management of

the Delaware River Basin which has come before this

Court. You have historically recognized the importance

of the River to the mid-Atlantic water supply, and have

on several occasions, heard cases involving disputes over

these waters. In 1931, New Jersey vs. New York, 283

U.S. 336, 51S. Ct. 478, 75 L. Ed. 1104 (1931) involved a

dispute about the water between those states. In State of

New Jersey vs. State of New York, 347 U.S. 995, 74 S.C.

842, 98 L. Ed. 1127 (1954) this Court was again called

on to decide a conflict over allocation of River Basin wa-

ters. There, the Court took special note of the important

and unique qualities of problems involving allocation of

Basin water. In the Decree, the Court specifically re-

tained jurisdiction of this dispute which also involved

Pennsylvania, Delaware, and New York City.

DRBC vs. BCWSA, is another case of particular Fed-

eral importance and significant public interest. Peti-

tioner challenges, on equal protection grounds, a rate

structure which permits the Commission's annual rev-

enue of $500,000 to be levied on twenty-four users while

over two hundred users pay nothing. Of the paying us-

ers, only five consume more than one hundred million

gallons of water per month. Comparatively, of the

exempted users, over seventy-five consume more than

one hundred million gallons per month.

A rate structure so unevenly applied is in no rational

way related to the Compact, which lists, as a specific

6

purpose of the Compact, the Goal to treat similarly situ-

ated users equally. (Compact Section 1.3(e))

The rate structure affects hardest certain segments

of the public, and is, therefore, of great public interest.

Public utilities and municipal water authorities contrib-

uted 94% of the 1981 revenue of DRBC. Expenses of

these entities are passed on directly to the individual

users.

The situation shows no sign of change. In fact,

DRBC Resolution 74-6 allows pre-1961 users to take

Basin water in amounts much greater than they were

taking when the Compact was enacted. Most pre-1961

users will never reach the limit of the “legal entitlement”

as defined by Resolution 74-6, and accordingly will not

contribute to expensive projects which improve the

Basin for the benefit of all users.

The revenue collected by the user charges is being

used to finance dams and reservoirs (Beltsville Dam and

Blue Marsh Reservoir). Blue Marsh, for example, is of

extreme importance to the water supply of Philadelphia.

In times of shortage, water is released to prevent the salt

line from rising, thereby avoiding an infiltration of salt

into the Philadelphia water system. Philadelphia contrib-

utes nothing to this project, while others who do not

benefit, pay dearly for it.

Unless this Court grants certiorari, Philadelphia, in

all probability will never pay user charges. The City cur-

rently withdraws an estimated 11.7 billion gallons of

water a month from the Basin, but has a “legal entitle-

ment” to approximately 18.6 billion gallons per month.

This Court has, in cases of public and political im-

portance, exercised its power to grant certiorari. Mag-

num Import Co. vs. Coty, 262 S. 159, 43 S. Ct. 531, 67 L.

Ed. 922 (1923). Lau Ow Bew vs. United States, 144 U.S.

47, 12 S. Ct. 517, 36 L. Ed. 340 (1892). Merrill Lynch,

Pierce, Fenner & Smith, Inc. vs. Ware, 414 U.S. 117, 94

S. Ct. 383, 38 L. Ed. 2d 348 (1973). The issue of the

mangement of the Delaware River Basin is of the utmost

7

importance to the many Basin users, and a final decision

by the Supreme Court is necessary.

B. CERTIORARI SHOULD BE GRANTED TO REVIEW

THE CIRCUIT COURT'S JUDGMENT ORDER UP-

HOLDING THE CONSTITUTIONALITY OF THE

PRESENT RATE STRUCTURE BECAUSE THE RE-

SULTING CLASSIFICATION LACKS A RATIONAL

BASIS, THEREBY CONFLICTING WITH APPLICA-

BLE DECISIONS OF THIS COURT.

1. Introduction

Petitioner Challenges Section 15.1(b) of the Dela-

ware River Basin Compact and Resolution 74-6 as estab-

lishing a rate structure which violates Equal Protection

guarantees of the Fifth and Fourteenth Amendments of

the United States Constitution. The Third Circuit Court

of Appeals, in their 1981 decision, examined the legisla-

tion to determine if the rate structure bore a rational re-

lation to a legitimate purpose of the Compact. The Cir-

cuit court found no legitimate purpose for the exemption

of pre-1961 users, but remanded the case to District

Court in order to provide DRBC with an opportunity to

offer an explanation for the exemption consistent with

the purposes of the Compact.

The District and Circuit Courts upheld the constitu-

tionality of a classification between pre and post 1961

users. Petitioner contends there is no rational basis for

the classification. The lower courts’ rulings are contra to

previous decisions of this Court which have held that

economic classifications must bear a rational relation to

a legitimate purpose. United States Railroad Retirement

Board v. Fritz, 449 U.S. 166, 101 S. Ct. 453, 66 L. Ed.

2d 268 (1980). McGinnis v. Royster, 410 U.S, 263, 93 S.

Ct. 1055, 35 L. Ed. 2d 282 (1973). In Mathews vs. Lu-

cas, 427 U.S. 495 at 510, 96 S. Ct. 2760 at 2764, 49 L.

Ed. 2d 651 at 658, (1976), this Court warned that the

rationality standard is not “toothless”. The lower courts’

8

misapplication of the rational basis standard has resulted

in a hardship to the many citizens who must pay higher

water rates because they are served by municipal

authorities which did not withdraw water until after

1961.

In applying the rational relation standard, we find

the purpose of the Delaware River Basin Compact is no

mystery. Compact Section 1.3 sets forth articulated pur-

poses. These include long term and emergency planning

for maintenance, conservation and allocation of Basin

resources,

The purpose of the user charges is equally clear. In

Borough of Morrisville v. Delaware River Basin Com-

mission, 399 F. Supp 469 (1975), the Third Circuit

quoting from a Notice to Interested Parties, Water Sup-

ply Price Hearing Issues, Part II, P. 4-7 explained the

“pooled water” theory. The Basin should be viewed as a

single pool of water, the enlargement of which benefits

all. As the DRBC Notice specifically stated.

All users benefit from a regulated pool of waiter. In

this case, the pool is defined as the Delaware River

Basin System. As water seeks its level over its entire

surface, benefits tend to diffuse to users of water re-

sources throughout the entire pool service area. So

long as a reservoir, regardless of its location, con-

tributes to the entire pool, at a justified cost, and so

long as users are dependent upon the pool for their

supply, benefits accrue to users at least to the extent

of their alternative cost of providing the service they

enjoy from the pool.

The exemption of pre-1961 users does not rationally

advance this purpose, but is directly contra to it. The in-

quiry should properly end here. The reviewing Court is

fortunate to have a stated purposes for the Compact and

the user charges. Applying the proper standard, it is

clear no legitimate purpose is furthered by the exemp-

tion.

9

However, on remand, the District Court suggested

several purposes which are advanced by the exemption.

The purposes are not documented in the legislative his-

tory. Petitioner addresses these purposes below, con-

tending still that when a legislature has articulated pur-

poses for enacting a statutory scheme, fabrication of

purposes is inappropriate,

2. Political support as a legitimate purposes.

Of the purposes attributed to the framers of the Dis-

trict Court, the record shows only one to have even the

slightest basis in fact. The Lower Court Opinion refers to

the engendering of cooperation of existing users. Pre-

1961 users admit the difficulty of gaining sufficient sup-

port from both the public and private sectors to form the

Compact in 1961. The framers held numerous hearings

in Pennsylvania at which major industrial users epecifi-

cally Bethlehem and U.S. Steel, often appeared to state

opposition to withdrawal charges.

On certiorari, this Court will be presented with the

important issue of whether gaining political support for

passage of a piece of legislation is a legitimate purpose

for the adoption of an invidious classification.

The political support issue has been before this

Court previously, Baldwin v. Fish and Game Commis-

sion of Montana, 435 U.S. 371, 98 S. Ct. 1852, 56 L. Ed.

354 (1978), involved a non-resident’s right to hunt big

game in Montana. This Court, is upholding the classifi-

cation as an effort to protect the wildlife of the state,

noted “that the need or desire to engender political sup-

port cannot by itself justify an otherwise invidious classi-

fication.” Baldwin, footnote 24, citing Memorial Hospi-

tal v. Maricopa County, 415 U.S. 250, 266, 94 S. Ct.

1076, 39 L. Ed. 2d 306 (1974).

In the present case, the purpose of engendering po-

litical support is the only one which we can reasonably

impute to the legislature for unilateral inclusion of the

exemption. Legislative schemes made for the purpose of

10

gaining political support cannot withstand an equal pro-

tection challenge. If they could, any classification, no

matter how invalid on other grounds, could be sustained

by a determination that the discrimination is necessary

to gain political support for passage.

Perhaps the most important function of this Court is

to prevent exploitation of the politically weak by the po-

litically powerful. Without Supreme Court clarification

of this issue, judicial review of economic and social legis-

lation would become a farce.

3. Other purposes proposed by District Court were

illegitimate.

The District Court speculated to another purpose

for the classification with a statement that the section in

controversy may have been enacted to limit the

ratemaking authority of the DRBC.

The argument begs the question. As Justices

Brennan, Marshall and Stevens agreed in Fritz, the ra-

tional basis test requires more than “a mere tautological

recognition of the fact that Congress did what it in-

tended to do.” Fritz, 449 U.S. at 180, 101 S. Ct. at 462,

(1980).

The “power-limiting” argument cannot survive an

examination of whether Congress and DCBC “achieved

its purpose in an patently arbitrary or irrational way.”

Fritz, 449 U.S. at 176, 101 S. Ct. at 460, (1980), There is

nothing rational about a limitation of power which oper-

ates to levy on only 10% of users water charges for

projects that benefit two hundred and sixty-four of the

Basin’s users.

Another thought proferred by the District Court is a

reliance interest by pre-Compact users on a supply of

free water. This purpose is not legitimate. Reliance is not

the purpose, but the benefit of an illegal classification.

Reliance on the benefits of a classification could be ar-

gued as the purpose of every piece of legislation re-

viewed under this equal protection standard. It is impos-

sible to conceive of a classification wherein it could not

be said that the benefitted class had relied on the classi-

fication. This is the end result of, and not a legitimate

purpose for, an illegal classification, In holding other-

wise, the Courts below failed to properly apply the ra-

tional relation standard, thereby departing from prior de-

cisions of this Court. For these and other reasons,

Petitioner requests certiorari be granted.

This Court has on many occasions held that a reli-

ance interest in the benefit of economic legislation (or

the lack thereof) is not justified. Fritz, New Orleans v,

Duke, 427 U.S, 297, 96 S. Ct. 2513, 49 L Ed 511 (1976),

Duke involved Plaintiffs who had been financially in-

jured by a change in the legislative scheme.

Duke is somewhat similar to the case at bar in that a

grandfather clause is supposed to be involved in each

case, New Orleans street vendors who had been in busi-

ness less than eight years were prohibited from continu-

ing their trade by city ordinance. The ordinance was

challenged on the basis that the classification was arbi-

trary. This Court held grandfather clauses permissible in

an attempt to remedy a problem on a step by step basis.

The classification here is not a step by step ap-

proach, and probably not a standard Grandfather

Clause, but a permanent exemption of pre-1961 users.

While the District Court found that the classification

here not permanent, such a holding is fatuous. Pre-1961

users, in virtually all instances are not individuals as Mr.

Duke, but political subdivisions and corporate entities.

Never, barring global disaster, will the Commonwealth

of Pennsylvania or the City of Philadelphia cease to exist,

nor most of the corporate users or major utilities.

The Resolution 74-6 definition of legal entitlement

insures that the exempted users will never pay a with-

drawal charges if they expand at the expected rates.

Without laboring on statistical detail, suffice it to

say that in the more than twenty years since the forma-

tion of the Compact, less than 5% (13 users) of the two

hundred thirty nine existing uses have surpassed their

legal entitlement.