Petition for Writ of Certiorari — Texas v. Train

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JUN 19

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MICHAEL RODAK, J

no. @3-1895

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, i973

STATE OF TEXAS, STATE OF MISSOURI, STATE OF WISCONSIN, ~

STATE OF OKLAHOMA, and STATE OF KANSAS, Petitioners

Vv.

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES ENVIRON- ©

MENTAL PROTECTION AGENCY, Respondent :

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant Attorney General of Texas

PHILIP K. MAXWELL

Assistant Attorney General of Texas

ROBERT W. WARREN LARRY DERRYBERRY

Attorney General of Wisconsin Attorney General of Oklahoma

Theodore L. Priebe Paul C. Duncan

Assistant Attorney General Assistant Attorney General

JOHN C. DANFORTH VERN MILLER

Attorney General of Missouri Attorney General of Kansas 3

Robert M. Lindholm Curt T. Schneider =

Assistant Attorney General Assistant Attorney General 4

Attorneys for Petitioners

Page

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Reasons for granting the WTit ..................::ccssssesseeseeeeeeeeees 9

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CITATIONS

Cases:

Brown v. Board of Education of Topeka,

2 GRATES Ra ae eee 10

State of Texas v. Train, No. A 74 CA 004

(W.D. Tex., filed Jan. 14, 1974) .0... eee. ceeeeeeeeeseeeeees 8

Taylor v. McElroy,

ac iiaen einhesiinntia 10

Train v. Campaign Clean Water,

oe ene 2,9, 10, 11

Train v. City of New York,

ee eG sone 2,9, 10, 11

Turner v. City of Memphis,

gt Linc Re rere ena 10

Statute:

Federal Water Pollution Control Act Amendments

of 1972, 86 Stat. 816, 33 U.S.C. 1281,

ee Ree ee eee 2, 3,4

aac crceccncecnknconctactepecninsiinaoweien 2,8

I II aicstainetecttieccsdsincsiececctinnentvenisinanensnchanieine 3

I saa oo ieeaninibaliggionnios 2,8

Book:

C. Wright, Federal Courts § 106 (1970) .........000000... 10

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MRED

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

STATE OF TEXAS, STATE OF MISSOURI, STATE OF

WISCONSIN, STATE OF OKLAHOMA, and STATE OF

KANSAS, Petitioners

Vv.

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, Respondent

£

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT:

The States of Texas, Missouri, Wisconsin, Oklahoma

and Kansas petition for a writ of certiorari to review the

decision of the United States District Court for the

Western District of Texas. Said decision has been ap-

pealed by the Respondent Administrator to the United

States Court of Appeals for the Fifth Circuit and is now

pending on the docket of that court. Written briefs and

oral argument have been presented to the court of ap-

peals, but that court has decided to withhold judgment

on the merits pending this Court’s decision in Train v.

City of New York (No. 73-1377) and Train v. Campaign

Clean Water (No. 73-1378), certiorari granted April 29,

1974.

OPINIONS BELOW

The opinion of the district court (App. A) was entered

on October 2, 1973, and is unreported. The court of

appeals has not rendered judgment in this case.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

QUESTION PRESENTED

Whether the Administrator, acting under the direc-

tion of the President, has discretion under the grant

program of Title II of the Federal Water Pollution Con-

trol Act Amendments of 1972 to allot to the States

under Section 205(a) less than the full amounts au-

thorized by Section 207.

STATUTES INVOLVED

The pertinent portions of the Federal Water Pollu-

tion Control Act Amendments of 1972, 86 Stat. 816, 33

U.S.C. 1281, et seg. (1973 Supp.) provide:

Sec. 205. (a) Sums authorized to be appropriated

pursuant to section 207 for each fiscal year begin-

ning aiter June 30, 1972, shall be allotted by the

Administrator not later than the January 1st im-

mediately ecg the beginning of the fiscal

year for which authorized, except that the allot-

ment for fiscal year 1973 shall be made not later

than 30 days after the date of enactment of the

~

Federal Water Pollution Control Act Amenuments

of 1972. Such sums shall be allotted among the

States by the Administrator in accordance with

regulations promulgated by him, in the ratio that

the estimated cost of constructing all needed pub-

licly owned treatment works in each State bears to

the estimated cost of construction of all needed

—t owned treatment works in all of the

tates. For the fiscal years ending June 30, 1973,

and June 30, 1974, such ratio shall be determined

on the basis of table III of House Public Works

Committee Print No. 92-50. Allotments for fiscal

years which begin after the fiscal year ending June

30, 1974, shall be made only in accordance with a

revised cost estimate made and submitted to Con-

gress in accordance with section 516(b) of this Act

and only after such revised cost estimate shali have

been approved by law specifically enacted hereaf-

ter.

(b)(1) Any sums allotted to a State under subsec-

tion (a) shall be available for obligation under sec-

tion 203 on and after the date of such allotment.

Such sums shall continue available for obligation

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

of the fiscal year for which such sums are au-

thorized. Any amounts so allotted which are not

obligated by the end of such one-year period shall

be immediately reallotted by the Administrator, in

accordance with regulations promulgated by him,

generally on the basis of the ratio used in makin

the last allotment of sums under this section. Suc

reallotted sums shall be added to the last allot-

ments made to the States. Any sum made available

to a State by reallotment under this subsection

shall be in addition to any funds otherwise allotted

to such State for grants under this title during any

fiscal year.

(2) Any sums which have been obligated under

section 203 and which are released by the payment

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Bicctix rR ie erty

of the final voucher for the project shall be im-

mediately credited to the State to which such sums

were last allotted. Such released sums shall be

added to the amounts last allotted to such State and

shali be immediately available for obligation in the

same manner and to the same extent as such last

allotment.

* ee K *

Sec. 207. There is authorized to be appropriated to

_carry out this ‘itle, other than sections 208 and 209,

for the fisca! year ending June 30, 1973, not to

exceed $5,000,000,000, for the fiscal year “om

June 30, 1974, not to exceed $6,000,000,000, an

for the fiscal year ending June 30, 1975, not to

exceed $7,000,000,000.

STATEMENT

In October 1972, after more than two years of delib-

eration, 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 construc-

tion of sewage treatment plants. The Administration

had opposed the bill because of the large sums of federal

spending called for and because of the funding

mechanism employed in the bill to ensure the availabil-

ity of these sums. Consistent with that position, the

President vetoed the bill, citing its inflationary nature.

‘ The bill, S.2770, 92d Cong., 2d Sess., was enacted as the Fed-

eral Water Pollution Control Act of 1972, P.L. 92-500, 86 Stat. 816,

33 U.S.C. §§ 1251 et seg. (Supp. 1973) (hereinafter referred to as the

“Act”).

a

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 overrid-

den by decisive margins.

A month later, the President ordered the Adminis-

trator of the Environmental Protection Agency’ to allot

to the States only $5 billion of the $11 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. Sina t

The dramatic difference between the sums Petition-

ers received under the reduced allotment ordered by the

President and the sums they wou!d have received had

full allotment been permitted is demonstrated in the

following tables.

2 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.

The present Administrator is Russell E. Train, the Respondent

herein.

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

the Executive that prevents the allotment, obligation, or expendi-

ture of funds authorized or appropriated by Congress.

= En

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

Share a 1973 1974 1973 1974

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

1.6556%

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

.4608%

Kansas

.3742%

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

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

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 $3 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 re-

~ es

ceived for 1973 alone. In short, the States were effec-

tively denied their fiscal 1974 allotment.

Petitioner State of Texas, joined by Petitioners Wis-

consin, Missouri, Oklahoma and Kansas, filed suit in

the United States District Court for the Western Dis-

trict of Texas, Austin Division, seeking judgment that

the Administrator’s $2 billion and $3 billion allotmeat

for fiscal years 1973 and 1974 violated ihe Act, and an

order compelling the Administrator to allot the full $5

billion and $6 billion authorized by the Act for those

years.

Petitioners moved for summary judgment and the

Administrator moved to dismiss, relying on the doc-

trines of “ripeness”, sovereign immunity, and political

question, and on the ground that Petitioners had failed

to state a claim upon which relief could be granted.

On October 2, 1973, the district court entered its

Memorandum and Order. In a thorough discussion of

the issues, the court first disposed of the preliminary

defenses raised by the Administrator, holding that the

case was clearly ripe for judicial determination,‘ and

that the doctrines of sovereign immunity and political

question were inapplicable.* After careful analysis of

the merits, the court declared that “.. . in light of the

high priority placed by Congress on the Act, the lan-

guage of the Act, and the legislative history of the Act,

* App. A at 18-19.

5 App. A at 19-21.

—

'

ALENT S RMI STG LST ORL ONE SME EN EY NINETY SITE KPA, IN olaede »

eM 9

this Court concludes that the Administrator has a

mandatory duty to allot to the Plaintiffs the sums au-

thorized by Congress in § 207 of the Act in accordance

with § 205(a)”.®

Accordingly, judgments were entered as to each of the

Plaintiff States’ which (a) denied the Administrator’s

motion to dismiss; (b) granted Plaintiffs’ motion for

summary judgment; (c) declared the $2 billion and $3

billion allotments unlawful under the Act; and (d) or-

dered the Administrator to allot to each of the Plaintiffs

its share of the $5 billion and $6 billion required to be

allotted for fiscal years 1973 and 1974.*

The Administrator appealed to the United States

Court of Appeals for the Fifth Circuit and the case was

docketed in that Court on January 9, 1974. On motion of

the Administrator, the court of appeals granted a stay

of the district court’s order on January 28, 1974. Subse-

quently, briefs were submitted by the parties and oral

argument was held before a panel of the court of appeals

on April 29, 1974, the date upon which this Court

* App. A at 24.

* Vexas (App. B); Oklahoma (App. C); Wisconsin (App. D); Mis-

souri (App. E); Kansas (App. F).

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

disallowing the impoundment of 1973 and 1974 funds, the Ad-

ministrator, 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. State of Texas v. Train, No. A 74 CA

004 (W.D. Tex., filed Jan. 14, 1974).

- oS

granted petitions for writ of certiorari in Train v. City of

New York (73-1377) and Train v. Campaign Clean Water

(73-1378).

During oral argument, the court of appeals indicated

that it would stay the rendition of final judgment in the

instant case until this Court rules in the City of New

York and Campaign Clean Water cases. After oral ar-

gument, Petitioners moved for expedited judgment on

the merits and to vacate the stay of the district court’s

order. On May 21, 1974, the court of appeals denied the

motion for expedited judgment, but granted, effective

June 5, 1974, the motion to vacate the stay. (App. G).°

On May 28, 1974, the court of appeals informed counsel

that “. .. the disposition of [the instant case] is being

withheld pending decision of the Supreme Court in the

cases Train v. City of New York, (73-1377), Train v.

Campaign Clean Water (73-1378), certiorari granted

April 29, 1974.” (App. H)

REASONS FOR GRANTING THE WRIT

1. The issues in this case are essentially the same as

those raised in the petitions for certiorari in Train v.

* The court of appeals had expressed concern during oral argu-

ment over the issue of whether the Administrator is authorized by

the Act to allot at a later time the funds he is presently withhold-

ing. Specifically, the court’s concern was that if it continued its

stay of the district court’s order and the Act did not authorize such

later allotments, then the $3 billion the Administrator has refused

to allot for fiscal year 1973 will be lost irretrievably at the close of

the initial statutory period of availability, i.e., June 30, 1974.

Respondent has sought a renewal of the stay from this Court.

(A-11-75) For the reasons stated in Petitioners response to that

application for stay, Petitioners unequivocally oppose a further

stay of the district court’s order.

ilies

PINAL A WOR BERRIEN IN OL NOLO ROS PRR TEN mance

DALI IY Ney UNM ws ama:

City of New York and Train v. Campaign Clean Water.

In City of New York, the Administrator challenges the

District of Columbia Circuit’s holdings that the Act

requires allotment of full amounts authorized by Con-

gress to be appropriated, and that the case is not barred

by the doctrine of sovereign immunity. In Campaign

Clean Water, the Administrator raises, in addition to

the sovereign immunity issue, the question of whether

the Administrator’s impoundment action is subject to

judicial review. Similarly, in the instant case, the Ad-

ministrator raised the sovereign immunity and “jus-

ticiability” issues in the district court; and in the court

of appeals, the Administrator, while dropping the

sovereign immunity argument, still insists that the

case is not subject to judicial review. Under these cir-

cumstances, granting of certiorari prior to the judg-

ment of the court of appeals would be entirely consis-

tent with the past practice of this Court. 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 Topeka, 344 U.S. 1 (1952); C. Wright,

Federal Courts § 106, pp. 477-78 (1970).

2. Further, this case involves a question of “impera-

tive public importance” within the meaning of Rule 20

of this Court. Respondent, at the insistence of the Presi-

dent, has, by the action complained of here, enviscer-

ated the Act, frustrated the will of Congress, and per-

petuated the defilement of the nation’s waters by raw or

inadequately treated municipal waste. And the legality

of this sweeping action cannot be determined in a court

—- we

of law, Respondent contends, because such conduct by

the Executive Branch is not governed by legally defina-

ble standards. The manifest importance of these issues

to the public and to this nation’s constitutional fabric

does not require lengthy explanation.

3. Granting a writ of certiorari in the instant case

would allow it to be joined with the City of New York

and Campaign Clean Water cases for this Court’s con-

sideration. This, in turn, would greatly serve the in-

terests of judicial economy, since the rights of the

Petitioners could be finally resolved before this Court

without the need for further proceedings in the court of

appeals.

4. Moreover, the record in the instant case contains

evidence on the impact of the Administrator’s im-

poundment action on the States,’° the political entities

to which the duty of allotment is actually owed under

the Act. This factual record would be of assistance to the

Court in judging the important legal issues raised in

this controversy.

1° Petitioners Texas, Wisconsin, and Missouri submitted sworn

affidavits in support of their motions for summary judgment that

showed that their waste treatment construction needs far exceed

the paltry allotment made to them for fiscal years 1973 and 1974;

that because of the reduced allotment presently identified, waste

treatment projects will not receive the Administrator’s considera-

tion; and that the result is delay and postponement of needed

pollution control facilities, continued deterioration of the States’

waters, and a clear probability that the goals of the Act will not be

achieved. These affidavits, undisputed by the Administrator, are

reproduced in the printed appendix in the court of appeals at 23-35

(Texas); 61-70 (Wisconsin); and 86-89 (Missouri).

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5. Finally, granting of certiorari would allow

Petitioners to appear as parties before this Court and to

secure, should the Court rule against the Adminis-

trator, a final and binding judgment enforceable

against the Administrator. Otherwise, even if this

Court should so rule, Petitioners face additional pro-

ceedings in the court of appeals and the possibility of an

appeal to this Court, with the unnecessary cost and

delay attendant thereto.

PRAYER

For the foregoing reasons, Petitioners respectfully

pray that their petition for writ of certiorari be granted

and that any further stay of the district court’s order be

denied.

—,

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant Attorney General

V/,

AXWE]L

: a neral of Texas

ROBERT W. WARREN JOHN C. DANFORTH

Attorney General of Wisconsin Attorney General of Misso

Theodore L. Priebe Robert M. Lindholm ;

Assistant Attorney General Assistant Attorney General :

LARRY DERRYBERRY VERN MILLER

Attorney General of Oklahoma Attorney General of Kansas

Paul C. Duncan Curt T. Schneider E

Assistant Attorney General Assistant Attorney General .

Attorneys for Petitioners ;

SEA ER RENT ae ee

RENE TEE A

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