# Petition for a Writ of Certiorari — Train v. City of New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 35

## Text

Opinions below_______-..-..-_.-------____-__-
Jurisdiction. -....--.-------- eae ease peas seme a -
Question ‘presented______________-2 2-2-2 __
Statute involved__________-__-__-__-___-_
Statement. ___-____-__-__-_----- 2
Reasons for granting the writ. ___._____________
Conclusion ..................-----2.--2----- ne

COOornnhd Nd =

CITATIONS
Cases:

Dugan v. Rank, 372 U.S. 609__-.__-----____- i)
City of Fresno v. California, 372 U.S. 627___- 9
Hawaii v. Gordon, 373 U.S. 57- 9
Land vy. Dollar, 330 U.S. 731 9
Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682___._---_-__--- ee. g
Mine Safety Appliances Corp. v. Forrestal, 326
i Ale WE Rc chit oe py armmiwininthiak aaeeeende ee aie 9
Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d
Ns ieee cpr tie semis enn mi etnoennse wes 8
Statute:

Federal Water Pollution Control Act Amend-
ments of 1972, 86 Stat. 816, (33 U.S.C.
(Supp. II) 1281 et seq.):

Section 205___._--_--__-__-__- 5:
Section 205(a)__-......-.-- 2 _ Le 2, 6,8
Section 207_.____-.______. sace ns sein geiwas 2, 4, 5, 6,8

Miscellaneous:
118 Cong. Ree. H9122 (daily ed., Oct. 4,

ev

05 OVATE OULD Nic VOB BOLD A Ft FEB

Gn the Supreme Court of the Bnited States

OcrosEeR TERM, 1973

No.
Russert E. Tratx, ADMINISTRATOR, UNITED STATES
ENVIRON MENTAL PROTECTION AGENCY, PETITIONER

Vv.

City or New York on Benwatr or Itsetr aNpD ALL
OTHER SIMILARLY SITUATED MUNICIPALITIES WITHIN
THE STaTE OF NEW YorRK, AND THE City oF DETROIT

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE DISTRICT OF COLUM-
BIA CIRCUIT

The Solicitor General, on behalf of the Administra-
tor of the Environmental Protection Agency, petitions
for a writ of certiorari to review the judgment of the
United States Court of Appeals for the District of
Columbia Cir -enit in this case.

OPINIONS BELOW

The opinien of the courts of appeals (App. A,
pp. 1A-34A)’ is not reported. The opinion of the
district court (App. E, pp. 59A-78A) is reported at
358 F. Supp. 669.

* Appendix references are to the combined appendix to the
petitions in this case and the companion case of Train vy. Cam-

paign Clean Water, Lne.
(1)

Drink >

2
JURISDICTION

The judgment of the Court of Appeals for the Dis-
trict of Columbia Circuit was entered on January 23,
1974 (App. C, pp. 55A-56A). The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the Administrator, acting at the direc-
tion of the President, has discretion under the grant
program of Title II of the Federal Water Pollution
Control Act Amendments of 1972 to control the rate
of spending by making allotments to the states under
Section 205(a) of less than the full amounts author-
ized ‘by Section 207. ry :

2. Whether an action to compel allotment is barred
by the doctrine of sovereign immunity.

STATUTES INVOLVED

The pertinent portions of the Federal Water Pol-
lutior. Control Act Amendments of 1972, 86 Stat. 816
(33 U.S.C. (Supp. IT) 1281 et seq.) provide:

See. 205. (a) Sums authorized to be appro-
priated pursuant to section 207 for each fiscal
vear beginning after June 30, 1972, shall be al-
lotted by the Administrator not later than the
January Ist immediately preceding the begin-
ning of the fiscal year for which authorized, ex-
cept that the allotment for fiseal year 1973 shall
be made not later than 30 days after the date of
enactment of the Federal Water Pollution Con-
trol Act Amendments of 1972. Such sums shall
be allotted among the States by the Administra-
tor in accordance with regulations promulgated
by him, in the ratio that the estimated cost of

I ARIS SEA A OE ASE II

3

constructing all needed publicly owned treat-
ment works in each State bears to the estimated
cost of construction of all needed publicly
owned treatment works in all of the States.
For the fiscal years ending June 30, 1973, and
Jwhe 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 Congress in accordance with
section 516(b) of this Act and only after such
revised cost estimate shall have been approved
by law specifically enacted hereafter.

(b)(1) Any sums allotted to a State under
subsection (a) shall be available for obligation
under section 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 authorized. Any amounts so
allotted which are not obligated by the end of
such one-year period shall be immediately re-
allotted by the Administrator, in accordance
with regulations promulgated by him, generally
on the basis of the ratio used in making the last
allotment of sums under this section. Such re-
allotted sums shall be added to the last allot-
ments made to tle 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 fiseal year.

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4

(2) Any sums which have been obligated
under section 203 and which are released by the
payment of the final voucher for the project
shall be immediately credited to the State to
which such sums were last allotted. Such re-
leased sums shall be added to the amounts last
allotted to such State and shall be immediately
available for obligation in the same manner and
to the same extent as such last allotment.

* * * * *

Sec. 207. There is authorized to be appropri-
ated to carry out this title, other than sections
208 and 209, for the fiscal year ending June 30,
1973, not to exceed $5,000,000,000, for the fiscal
vear ending June 30, 1974, not to exceed $6,-
000,000,000, and for the fiscal vear ending June
30, 1975, not to exceed $7,000,000,000.

STATEMENT

Title II of the Federal Water Pollution Control
Act Amendments of 1972 (“the Act”) creates a fed-
eral grant program by which the federal government
undertakes to pay seventy-five percent of the cost of
building approved sewage treatment plants. The grant-
ing of such funds takes place in several stages. First,
the Congress authorizes appropriations for such
erants. Then the Administrator makes allotments
from the authorized amounts to the states pursuant to
specified percentage formulas. The Administrator then
obligates for qualified projects within the state out of
each state’s allotment. Finally, as grantees make ex-
penditures on the approved projects, the sums due
under the obligations are appropriated by the Con-
gress and paid.

Sections 205 and 207 of the Act are directly in-
volved in this case. Section 207 authorizes appropria-
tions “not to exceed” $5 billion for fiscal year 1973,
$6 billion for fiscal year 1974 and $7 billion for fiscal
year 1975. Section 205 provides that the Adminis-
trator “shall allot’? the sums authorized by Section
207 to the states. The Administrator has construed
the statutes as empowering him to control the rate
of spending by making allotments of less than the
full amounts authorized by Section 207. |

On November 28, 1972, the Administrator, acting
pursuant to a direction of the President, allotted $2
billion for fiscal year 1973 and $3 billion for fiscal
year 1974 (App. A, p. 7A). These actions are chal-
lenged in this litigation. On January 15, 1974, the
Administrator, in an action not directly challenged
here, allotted $4 billion out of the $7 billion authorized
for fiscal vear 1975.

On December 12, 1972, the City of New York filed
a complaint in the United States District Court for
the District of Columbia alleging that under Section
305 of the Act the Administrator is required to allot
all sums authorized by Section 207—an additional
$3 billion for 1973 and 3 billion for 1974. Plaintiff
contended that the statutory phrase “shall allot” re-
quires an allotment of the full amount (App. F, p.
60A). The Administrator responded that the phrase,
when construed together with Section 207, means
“shall allot [an amount] not to exceed’? the amount
authorized (App. FE, p. 714).

The district court held that the Act imposed a
mandatory duty to allot (id. at 77A). The court of

ldots bi gS orth aah gat

6

appeals affirmed, holding that Section 205(a) imposes
a mandatory duty on the Administrator to allot all
sums authorized by Section 207 (App. A, p. 34A).’

REASONS FOR GRANTING THE WRIT

1. The holding of the court of appeals that the Ad-
ministrator has no discretion to allot to the States less
than the total amount authorized to be appropriated
under the Act presents an important question that this
Court should review. The Administrator has acted to
reserve nine of the eighteen billion dollars authorized
by the statute for future expenditure. The court of
appeals’ decision will require that the entire $18 bil-
lion be allotted immediately.

Although this case turns on an issue of statutory
construction, the issue has important ramifications
for the power of the Executive Branch to coordinate
and control the federal government’s spending process
in light of the need for economic stability and the
limitations on federal resources. This case is not one
in which the Executive asserts a power to control
the rate of expenditure in opposition to the wishes
of Congress; it is, rather, a case in which courts have
improperly cut into and endangered a discretion Con-
gress intended the President to have.

The same issue is pending in cases before the Fifth
Cireuit (State of Texas v. Train, Nos. 73-3965 and

73-4026, Administrator’s brief filed); the Seventh

Cireuit (Anthony R. Martin-Trigona v. Train, No. 73-
1794, case briefed, not argued) ; and the Eighth Cir-

2 The order of the court of appeals has been stayed by that
courtypéending disposition of this petition.
Pd
3°

7

cuit (State of Minnesota v. Train, No. 73-1446, argued
en bane on February 13, 1974).

2. Review by this Court at this time is appropriate
due to the possibility that allotments once made can-
not be withdrawn, even if the Administrator’s posi- ;
tion is ultimately sustained on the merits, because of
the reliance by the states on available allotments in
their planning process. The court of appeals explained
the extensive legislative history recognizing the Ad-
ministrator’s power to control the rate of spending as
control over the rate of spending at the obligation 7
stage of the program (App. A, pp. 19A-25A). The
court noted, however, that the nature and scope of/ |
any such discretion was not,it (App. A, p. 31A, n. 36): ean

If the order of the court of appeals becomes final,
allotments are made, and the power to control the rate
of spending at the obligation stage is asserted, further ;
litigation will follow. A court might then hold that
the power to control the rate of spending was in fact
at the allotment, not the obligation stage, contrary to
this decision of the court of appeals. This-would then
leave the Administrator (assuming that allotments
once made cannot be withdrawn) with no power to rE
control the rate of spending at all, even though that ~ &
other court would also have recognized that there was
once such a power.

3. The legislative history shows that Congress in-
tended to give the Administrator the withholding au-
thority he exercised in this case. Congress passed the
statute and repassed it over the President’s veto after
express assurances by those responsible for the legisla-
tion that the President would have power under the

EINE Bee

8

Statute to control the—‘rate of.spending’’ by ‘‘im-
poundment.’? The Conference Committee deleted the
word “all” before the word **Sums” from Section 205
(a) and added the phrase “not to exceed”’ in Section
207. Congressman Harsha, the House floor manager,
said: “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 em-
phasize the President’s flexibility to control the rate
of spending.” 118 Cong. Rec. H9122 (daily ed., Oct. 4,
1972). The opinion of the court of appeals makes
no effort to explain the import of these changes in the
hill made by the Conference Committee. Because of
these changes, the existence of this discretionary
power to control the rate of spending through reduced
allotment was coneeded by the plaintiffs and accepted
by the court of appeals in the companion case of
Campaign Clean Water, Inc., v. Train, CLA. 4, No. 73-
1745 (App. B).

4. Should the allotment of funds he considered to
limit the President's discretion over the rate of ex-
penditure, as there is a danger it might, then an action
to compel the allotment of authorized funds is barred

by the doctrine of sovereign immunity. The defense
of sovereign immunity was argued but not urged upon
the court of appeals because of the decision of that
court in Scanwell Laboratories, Ine v. Shaffer, 424 F.
2d 859 (C.A.D.C.) (App. A, p. 9A, n. 12).

Although this suit was nominally brought against
the Administrator, in reality it is a suit against the
sovereign because the requested relief will lead to the

oe al a LN IE Bee NRE RTE PN AE TEI TE EAB A

9

expenditure of government funds. This Court has re-
peatedly held that sovereign immunity is a bar to
actions where the relief sought involved the disposition
of the government’s own money or property. See, ¢.¢.,
Hawaii v. Gordon, 373 U.S. 57: City of Fresno vy.
California, 372 U.S. 627; Dugan v. Rank, 372 USS.
609; Larson v. Domestic & Forcign Commerce Corp.,
337 U.S. 682; Mine Safety Appliances Co. v. For-
restal, 326 U.S. 371.

Land vy. Dollar, 330 U.S. 731, held that where
the judgment sought **would expend itself on the pub-
lic treasury or domain, or interfere with the public
administration,” the suit is harr/d by sovereign im-
munity. Id. at 738. Although allotment does not di-
rectly require the expenditure of public funds, its ulti-
mate effect is their expenditure. The decision below
affects the ability of the Administrator to control the
rate of spending under the program and hence “inter-
fere[s] with the public administration.”

CONCLUSION

For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted.
Rosert H. Bork,
Solicitor General.
: IRVING JAFFE, ©
Acting Assistant Attorney General.
Epmunp W. Kirtcu,
Assistant to the Solicitor General.
Rosert E. Kopp,
Eorse E. Davies,

Attorneys.
Marcu 1974.

U.S. GOVERNMENT PRINTING OFFICE: 1976

INDEX

Page
OIE Bo tin cenies i cticsiclactsbniidecncsbetc meyers: ehno 1A
I Ti iescnccs ecin bc dens eshin tg lion ach onen onpiiatamnmees 390A
I ite shia cathe sloricelerinwlacaruonin inte wateies DIA
I sialic inde desinenieiacewsiikaheen ctahaea unc DTA
NN Ed cn ncetnprniewraisinandvacmemnammaie 59A
RE ARE ERE TE Deo RS OOD 79A

" , 533-923—F4——-§]

pi Satie 9

APPENDIX A

United States Court of Appeals

For the District of Columbia Circuit

No. 73-1705

si Crry of NEw York oN BEHALF OF ITSELF AND. ALL
OTHER SIMILARLY SITUATED MUNICIPALITIES WITHIN
THE STATE OF NEW York City or Detroit, (PARTY
PLAINTIFF )
v.

Russet, E. TRAIN, 4S ADMINISTRATOR OF THE UNITED
States ENviroNMENTAL PROTECTION AGENCY,
APPELLANT

Appeal from the United States District Court for the
District of Columbia

Decided January 23, 1974

Before: Tamm, Ropixnson and WILkey, Circuit
Judges.

Opinion for the Court filed by Circuit Judge TamMo.

Tamm, Circuit Judge: This suit was. bronght as a
class action by the City of New York (hereafter,
‘‘City’’) on behalf of itself and all other similarly
situated municipalities within the State of New York.

14

.

2A

The defendant below was Mr. Russell E. Train, Ad-
ministrator of the Environmental Protection Agency *
(hereafter, ‘‘The Administrator’’). The City of
Detroit, Michigan, was granted leave to intervene as
party plaintiff. On May 8, 1973, the United States
District Court for the District of Columbia granted
City’s motions for summary judgment and to main-
tain this lawsuit as a class action, concurrently deny-
ing the Administrator’s motion to dismiss. The Ad-
ministrator brings this appeal from the trial court’s
ruling, and, for the reasons stated infra, we affirm.

I. BackGRounpD

This is but one of a number of cases’ presently
pending across the country concerning alloeation of
—

Russell E. Train, Administrator of the Environmental
Provection Agency has been substituted for William Ruckels-
haus, the Administrator of the EPA at the time this action
was commenced. Rule 43(c) (1). Fev. R. App. Proc.

? We provide a list of cases filed as of December 12, 1973:

“Anthony R. Martin-Trigona vy. William D. Ruckelshaus,
N.D.IIL, Civil Action No. 72-3944;

“Campaign Clean Water, Inc. v. Ruckelshaus. E.D. Va..
Civil Action No. 18-73-R, reversed and remanded, Campaign
Clean Water, Inc. v. Train, No. 73-1745 (4th Cir. December 10,
1973);

“George E. Brown, Jr. v. Ruckelshaus, C.D. Calif., Civil
Action No. 73-154-AAH:

“Herbert C. Klein, et al. v. Ruckelshaus, D.D.C., Civil
Action No. 151-75:

“State of Minnesota y. United States Environmental Pro-
tection Agency, et al.. D. Minn., Civil Action No. 4-73 Civ. 133:

“Mayor Morton Salkind, et al. v. Ruckelshaus, D. N.J., Civil

. Action No. 2027-72;

“City of Los Angeles v. Ruckelshaus, C.D. Calif,, Civil
Action No. 73-736-J WC:

“State of Texas v. Fri, W.D. Texas, Civil Action No. A-73-
CA-38;

3A

funds under the Federal Water Pollution Act Amend-
ments of 1972* (hereafter, ‘“‘Act’’). In order to place

“State of Maine, et al. v. Robert W. Fri, et al., D. Maine,
Civil Action No. 14-51;”
Letter from National .Association of Attorneys General to
Impoundment Mailing List, December 12, 1973; See also
Appellant’s Br. at 2-3.

3 Pub. Law 92-500, 86 Stat. 816, 33 U.S.C. ch. 26 §§ 1251
et seq.

Title I of the act provides in pertinent part:
“TITLE I—RESEARCH AND RELATED PROGRAMS
“DECLARATION OF GOALS AND POLICY

“Sec. 101. (a) The objective of this Act is to restore
and maintain the chemical, physical, and biological integrity
of the Nation’s waters. In 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
‘nto the navigable waters be eliminated by 1985; .

“(2) it is the national goal that wherever attainable, an
interim goal of water quality which provides for the protection
and propagation of fish, shellfish, and wildlife and provides
for recréation in and on the water be achieved by July 1, 1983;

“(3) it is the national policy that the discharge of toxic
pollutants in toxic amounts be prohibited; »

“(4) it is the national policy that Federal financial assistance
be provided to construct publicly owned waste treatment
works; A

“(5) it is the national policy that area-wide waste treatment
management planning processes be developed and implemented
to assure adequate control of sources of pollutants in each
State;

“ek * *”

Title II of the Act ($$ 201-212) entitled “Grants for Con-
struction of Treatment Works” provides in pertinent: part:

“Allotment.
“Sec. 205. (a) 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 Janu-

crete 8 Be eT eS OMS Ne ae

WI SRR a 6 A

Re ay se ea

Bs Bah tiene 0 ed tan R TR

py

4a

the instant dispute in its proper context it is necessary
to understand the legislative history of the Act. The
Act revised the procedures for funding federal aid to
local governments for the purpose of the construction
of sewage treatment plants. Prior to the Act’s passage,

ary 1st immeciately preceding the beginning of the fiscal year
for which authorized, except that the allotment for fiscal
vear 1973 shall be made not later than 30 days after the date
of. enactment cf the Federal Water Pollution Control Act
Amendments 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 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. 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
fiseal 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 Congress in accordance with
section 516(b) of this Act and only after such revised cost
estimate shall have been approved by law specifically enacted
hereafter.

“(b)(1) Any sums allotted to a State uncier subsection (a) shall
be available for obligation under section 203 on and after the date
of such allotment. Such sums shall continue available for obliga-
tion in such State for a period of one year after the close of the
fiseal year for which such sums are authorized. Any amounts so
allotted which are not obligated by the end of such one-year period
shall be immediately reallotted by the Administrator, in accord-
ance with regulations promulgated by him, generally on the hasis
of the ratio used in making the last allotment of sums under this
section. Such reallotted sums shall be added to the last allotments
made to the States. Any sum made available to a State by reallot-
ment under this subsection shall he in addition to any funds other-
wise 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 of the final voucher for the

5A

these expenditures were first authorized and then spe-
cifically funded by the normal Congressional appro-
priation process. Due to the nature of this process,
local governmental recipients could not ascertain the
exact amount they would receive until after the formal
appropriation. As a result, local governments were

project shall be immediately 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 shall be immeditaely avail-
able for obligation in the same manner and to the same extent as
such last allotment.

“Reimbursement and Advanced Construction
“Sec. 206.

we * €

“(£)(1) In any case where all funds allotted to a State under
this title have been obligated under Section 203 of this Act, and
there is construction of any treatment works project without the
aid of Federal funds and in accordance with all procedures and
all requirements applicable to treatment works projects, except
those procedures and requirements which limit construction of
projects to those constructed with the aid of previously allotted
Federal funds, the Administrator, upon his approval of an appli-
cation made ‘under this subsection therefor, is authorized to pay
the Federal share of the cost of construction of such project when
additional funds are allotted to the State under this title if prior
to the construction of the project the Administrator approves
plans, specifications, and estimates therefor in the same manner as
other treatment works projects. The Administrator may not
approve an application under this subsection unless an authoriza-
tion is in effect for the future fiscal year for which the application
requests payment, which authorization will insure such payment
without exceeding the State's expected allotment from such
authorization. ;

“(2) In determining the allotment for any fiscal year under this
title, any treatment works project constructed in accordance with
this section and without the aid of Federal funds shall not be con-
sidered completed until an application under the provisions of this
subsection with respect to such project has been approved by the

" Pe eee ees nosmnann —
IPA 1 HLL NASI SLES weseicis .

hesistant to enter construction contracts with only a
hope that federal monies would be ultimately passed
to them.*

The Act was passed to insure that ultimate grantees
could rely in advance on the amounts available. Sec-
tion 101(a) declares that to clean the nation’s waters
“it is the national policy that Federal financial
assistance be provided to construct publicly owned
waste treatment works.” To this end, the Act created
a funding mechanism known as ‘‘contract authority”.’
The technical operation of the sections of the Act
relating to this ‘contract authority” spending is at
the heart of this dispute and a thorough understand-
: ing of the mechanism is, therefore, imperative.

: There are six distinct steps involved in funding
under the Act. (1) Authorization by Congress to

Dadra eran vite SOM ae

Administrator, or the availability of funds from which this project
is eligible for reimbursement has expired, whichever first occurs.

s “Authorization

“Sec. 207. There is authorized to be appropriated to carry out
this title, other than sections 208 and 209, for the fiscal year ending

i June 30, 1973, not to exceed $5,000,000.000, for the fiscal year end-
E ing 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.”

‘It appears that there was a substantial gap between the
3 amounts authorized and the amounts appropriated. The Senate
3 Committee on Public Works, in its report on its version of the Act,
observed that :
: “The lack of adequate funding of grants to assist States and
localities in constructing sewage treatment plants is causing critical
problems.

“Of the $3.4 billion authorized for this purpose by the 1966
legislation, only $2.2 billion was appropriated. The backlog of
projects eligible for Federal payments has reached a total of nearly
$2 billion.”

4 S. Rep. No. 92-414, 92nd Cong., 1st Sess. 5 (1971).
° See S. Rep. No. 92-414: supra at 35.

Deas eS rei Reet FE).

5 EE EARP DAE OL LOE ACL ALLER ELDER LP AEA PEAR DD M8

7A

appropriate funds (§ 207) ; (2) “allotment” of these
authorized sums among the various states, pursuant
to formula (§ 205); (3) review by the Administrator
of project proposals submitted by a particular munic-
ipality (§§ 203, 201(g) (2) and 204) ; (4) “obligation”’
by the Administrator of the federal share of an
approved project (§§ 203 and 201(g)(1)); (5) appro-
priation by Congress of funds to pay obligated con-
tracts as_they fall due; and (6) disbursement of the
funds (§ 203 (b). and (c)).

After the Act was enacted into law, over presiden-
tial veto,° the President wrote to the Administrator,
directing him to allot “$2 billion of the amount au-
thorized for the fiseal year 1973, and no more than $3
billion of the amount authorized for the fiscal year
1974.”" The Administrator followed orders and allo-
cated a total of $5 billion* for both fiscal years. It is
this final action by the Administrator. which has been
labeled ‘‘Presidential impoundment” ® and which was
suecessfully challenged in the trial court by plaintiff-
appellee City.

® Nee Presidential Veto Message of October 17, 1972, 18 Cone.
Rec. S 18534 (daily ed. October 17, 1972).

7Letter from the President to Mr. William Ruckelshaus,
— dated November 22, 1972, J.A. at Lda.

®37 Fed. Reg. 26282 (December 8, 1972).

° Not all commentators have agreed on a precise definition of
“impounding”. Compare Boggs, Executive Impoundment of
Congressionally Appropriated Funds, 24 U. Fra. L. Rev. 221,
922 (1972) with Note, Jmpoundment of Funds, 86 Harv. L. Rev.
1505 n.1 (1973) and Fisher, Funds Impounded by the Presi-
dent: The Constitutional Issue, 38 Gro. Wasn. L. Rev. 124
(1969). It is true that we are concerned here with the mecha-
nism of contract. authorization rather than direct appropriation.
We today only decide whether the Act permits withholding of
funds at the allotment stage. We will not, therefore, pursue the
sematic argument that because of the different funding mecha-
nism that is not an “impoundment of funds” but rather a “far

SA
II, THe Triat Covrr’s Rvuiine

Plaintiff-appellee City " basically argued below that
§§ 205(a) and 207 of the Act, read together, required
the Administrator to allot among the states the sums
of $5 billion and $6 billion in fiseal years 1973 and
1974 respectively. Once allotted, these amounts would
then be available for obligation under the Act. By the
allotment of only $5 billion total for fiscal year 1973
and 1974, it is argued that the Administrator violated
the statute.

The Administrator, defendant-appellant, made sev-
eral arguments in the trial court. He argued that (1)

more serious case.” See Brief of California Attorney General as
Amicus Curiae at 6. The wisest course to leave the search for
the proper definition of “Impoundment™ to the legal commen-
tators. :

On the sabject of impoundment generally. especially the
constitutional problems, sce also Note. The Likely Law of
E-vecutive Impoundment. 59 Towa TL. Rev. 50 (1973): Com-
ruent, Presidential Impounding of Funds: The Judicial Re-
sponse. 40 EF. Cun. L. Rev. 328 (1973): Note, Protecting
the Fise: Ewvecutire Impoundment and Congressional Porer,
8 Yarr L.J. 1636 (1973): Miller, Presidential Power to Im-
pound Appropriated Funds: An Ewercise in ‘oustitutional
Decision-Making, 43° NCA Rev. 502) (1965) Chureh, /m-
poundment of A ppropriated Funds: The Lecline of Congres-
sional Control Over E.vrecutive Discretion, 22. Svax 1. Rev.
1240 (1970): Fisher, Presidential Spending Discretion and
Congressional Controls, 37 Lx»aw & Coxremr. Pros. 135 (Win-
ter. 1972): Stassen, Separation of Powers and the Uncommon
Defense: The Case A qainst Impounding of Weapons System
Appropriations, 57 Gro. L.J. 1159 (1969). =

The legal literature contains no detailed analysis of the
precise problem sh judice. See Note, supra, 82 Yaw LJ. at
1652: Note, svpra. 59 Towa L. Rev. at 55 n42; Note, supra,
86 Harv. L. Rev. at 1526 n.116.

The arguments of plaintiff-interventor, City of Detroit.
were found by the trial court to be “substantially the same”

e

va

wo ae RN NN SI I OBTAIN

EN

the trial court lacked jurisdiction, the suit being
barred by the doctrine of Sov ereign Immunity; and
(2) that the clan failed to present a justiciable case
or controversy because (a) it was “hypothetical and
premature” and (b) it stated a “political question”
thus beyond the jurisdiction of the eourt. The trial
court found against the Administrator on all these
arguments,’ but appellant brings before this court
only two issues: (1) whether Sovereign Immunity
bars this suit; (2) whether §§ 205(a) and 207 of
the Act confer discretion on the Administrator to de-,
termine the sum to be alloted under the Act.

ITI. Severeign IMMUNITY

It is our opinion that the trial court was correct in
holding that City’s suit is not barred by the principle
of sovereign immunity, Counsel for the Administrator
conceded at-oral argunent that the law of this circuit,
Seanwell Laboratories, Inc. Vv. Shaffer, 424 F.2d 899,
873 (D.C. Cir. 1970) ; Coustractores Civiles de Centro-
america v. Hannah, 459 F.2d 1183, 1191 (D.C. Cir.
1972), permits the maintenance of this suit with the
Administrator as defendant.” In view of this conces-
as those of plaintiff City, and so all arguments were treated
together. City of New York v. Ruekleshaus, Civil Action No.
2466-72 (D.D.C. filed May 8, 1973) JA. at 53a n.3. We agree
and will not differentiate between plaintiff and plaintiff-
intervenor.

"City of New York, svpra note 10, JA. at S6a-63a.

2 Tape of oral argument November 2, 1973, contains the
following colloquy :

“Judge Wilkey: Would you like to elaborate upon the ques-
tion of sovereign immunty ?

“Counsel: As I understand the doctrine of sovereign immu-
nity. as developing a close relationship between the merits. and
the doctrine. The exception to the doctrine which is claimed to
be applicable by the plaintiff here is that the Administrator

ee Se tr,

snnpiianaaetnn ies:

Bi wie

PBitevioncriescsietirnastens cniminnrioantiniinoniins as

10a

sion, we need do no more than state that we hold the
suit is not barred. We agree with the reasoning of the

was essentially acting in violation of the statute, acting outside

the scope of his authority, and therefore not acting on behalf

of the sovereign but simply as an individual in excess acting
outside the law who should be ordered to act within the law.

Our contention is that he was acting within the statute, prop-

erly exercising his authority, therefore acting on behalf of the

sovereign and if we are persuasive on the merits, then we
should also win on the doctrine of sovereign immunity. The—

Now it may be andI...

“Judge: [Inaudible] appreciate any idea of sovereign im-
munity does it? If you go on that theory the sovereign is no
hetter off than any other citizen.

“Counsel: I think we are getting close to that. There may
survive a zone of plausibly legal activities where the government
has a kind of special position—a certain deference that a court
will find a kind of protection of sovereign immunity reaches
somewhat beyond the very strictest construction of the statute.
I find the present state of the law in somewhat of a turmoil
and I think this circuit has developed a number of new doc-
trines which throw much of recent Jaye into question, particu-
larly the Scanoell case and T “on't Hie the Supreme Court
has. had the time to sort out the wisdom of that and the impact
of that, and I—

“Judge: Are you reserving the sovereign immunity argument
for the Supreme Court ?

“Counsel: We are reserving the argument for the Supreme
Court and we would be delighted, just delighted to prevail
on it here.

“Judge: That doesn’t leave you much choice in that regard
does it ?

“Counsel: You mean to reserve it or to—

“Judge: Yes. to reserve it.

“Counsel : Obviously the problem of the position of sovereign
immunity is one that impacts not just on this case but many,
many cases for the government and we are in a position where
we do not win frequently at the moment on the issue of sov-
ereign immunity, but where it is not yet responsible for us not
to urge it and hopefully there will be some more authorita-

ee ee kybtsads ee en

11a

trial court and here adopt the opinion below on the ex-
tent that it treats the Sovereign Immunity question.”

IV. Toe MEANING OF §§ 205(a) anv 207

We now turn to the analysis which is central to res-
olution of the matter sub judice, i.e. the meaning of
§§ 205(a) and 207 of the Act which are reproduced in
the margin supra. Appellee-City relies upon the phrase
‘‘shall be allotted’ in § 205(a), arguing that by the
use of ‘‘shall’’, rather than a word plainly conferring
greater discretion (e.g. ‘“‘may’’), Congress intended
that allotment under the Act be mandatory. The Ad-
ministrator, on the other hand, asserts that changes in
these sections of the Act, prior to its enactment, show
a legislative intent to confer discretion upon the Ad- -
ministrator. H.R. 11896, the bill from which §§ 205
and 207 ultimately were derived, was amended in con-
ference. The phrase ‘‘not to exceed’’ was inserted be-
fore each specified sum § 207 and the word “‘all’’ was
deleted from before the phrase ‘‘sums authorized to
be appropriated”’ in § 205(a). Appellant argues that
these changes indicate that Congress intended to give
the Administrator absolute discretion over whether
and how much to allot under the Act.

A. The Overall Intent of the Act

Initially, it is to be noted that a “plain meaning”’
analysis will not suffice here. As the Administrator
admits ‘‘there is no happy marriage between the pro-
visions of the statute... .’’** We agree for we can
find no way to harmonize the term ‘‘shal] allot’? and
the language concerning sums ‘“‘not to exceed.’’ Ac-

tive pronouncements from the Supreme Court within a few
years that will clarify where we stand.”

18 City of New York. supra note 10, J.A. at 56a-57a.

144A ppellant’s Reply Brief at 2.

QA dees

12a

cordingly, we turn to an analysis of relevant legisla-

tive history to ascertain whether the legislature in-
tended any discretion at the ‘‘allotment’’ stage of the
funding pe gpeomige The Wilderness Socicty v. Mor-
ton, Nos. 72-1796, 1797, 1798 (D.C. —_ February 9,
1973 slip op. at 22).

The legislative history is extensive, ilies some
1700 pages.” Of particular importance are the views
expressed by Congressman William Harsha and Sen-
ator Edmund Muskie, sponsors of the legislation.”
The amendments upon which the Administrator relies
were authored and sponsored by Congressman Harsha,
and are commonly referred to as the ** Harsha Amend-
Mhents.”’ ;

m4 Legislative History of the Water Pollution Control
Act Amendments of 1972,° Conunittee Print, Committee on
Public Works. 93rd Cong.. Ist) Sess.. January 1973. Senator
Muskie commented on the magnitude of the legislative task :

“IT have been a Member of the Senate for 13 years, and [
have never before participated in a conference which has con-
sumed so many hours, been so arduous in its deliberations. or
demanded so much attention to detail from the members. The
difficulty in reaching agreement on this legislation has been
matched only by the gravity of the problems with which it
seeks to cope.”

118 Coxe. Rec. S 16869 (daily ed. October 4. 1972)-

1% See. e.g. First National Bank of Logan. Utah v. Walker
Bank and Trust Co.. 385 T.S, 252. 261 (1966): Schwegmann
Bros. v. Calvert Distillers Corp.. 341 U.S. 384. 394-95 (1951).

Congressman Harsha is the ranking minority member of
the House Committee on Publie Works which reported TLR.
11806. He was the bill's floor manager and also a inember of
the conference conmittee which developed the final language
of the Act. :

Senator Muskie is chairman of the ‘Senate Subcommittee
on Air and Water Pollution which reported S. 2770, the Senate
version of the Act. He was floor manager for that bill and
a member of the conference committee.

| | Aggies eae re “ 5A A) PROP RIESE a MLB AL» A AB SOB RE "Rn 18 ob URN
13a

After a careful reading of the relevant legislative
materials, we believe that throughout the lengthy leg-
islative process, Congress manifested an intent to spe-
cifically commit federal funds. It did so in recognition
of the necessity of assuring the states that federal aid
would be available. The need was recognized in 1971
by the Senate subcommittee considering water

pollution: :

At a bare minimum the credibility of the ex-
isting federal commitment must be re-estab-
lished by backing words of authorization with
monies of appropriation, Whenever the nation
seeks to encourage cities to plan and construct
improvements which require many years to
complete, the, Congress must build reliability
into its federal grant incentives. Major facilities
cannot be stopped in midstream. A change in
federal grant policy to establish a reliable com-
mitment is vital but is not the only change that
can and sheuld be made ‘in the federal legisla-
tive and regulatory approach to water pollution
abatement. ~

U.S. Senate Committee on Public Works, Water Pel-
lution Conttol Legislation Hearings, pt. 1, at 521
(1971). a je -

This commitment continued and the subcommittee
on Air and Water Pollution concluded in. 1972:

{

The language of subsection (b) [s/c] of Sec-
tion 207 provides that funds authorized ‘for
fiscal vears 1973, 1974, and 1975, shall be avail-
able for obligation by contract upon their allo-
‘ation to the States. The importance of assured
Federal financial support to the achievement of
the objectives of this title and*to our national
purpose of cleaning up polluted waterways ¢an-
not be overstated. The task is a massive one in
terms of the work to be done and the funds to
be expended. .

ae

ret.

a

2

’ “ Won + ¥ ar oan

14a

S. Rep. No. 92-414, 92nd Cong., Ist Sess, 35 (1971).
The two principal sponsors of the Act both clearly

_ articulated their belief that federal money must be

spent, and, in fact, strongly indicated their recognition
that the full $18 billion would be allotted. Senator
Muskie stated:

The conferees spent hours and days studying
the problem of financing the cleanup effort -re-
quired by this new legislation. The members
agreed in the end that a total of $18 billion had

to be committed by the Federal Government in._

75 percent grants to muni¢ipalities during fiscal
years 1973-75. That is a great deal of money;
but that is how much it will cost to begin to
achieve the requirements set forth in the
‘legislation. ...

Mr. President, to achieve the deadlines were

| ih talking about in this bill we are going to need

the strongest kind of evidence of the Federal
-Government’s commitment to pick up its share
of the load. We cannot back down, with any
redibility, from the kind of investment in
waste treatment facilities that is called for by
_this bill. And the conferees 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. S 16870-71 (daily ed, October 4, 1972)
(emphasis added).

It is evident that Congress was concerned with pos-
sible inflationary effects. However, itis just as evident
that Congress. believed that the full $18 billion ex-
penditure was necessary, Senator Cooper ™ stated:

I believe that’ the funding levels fur these and
other provisions of the bill, which total over $24

17 Senator Cooper was the ranking minority member of the
Senate Committee on Public Works and a floor manager of the
bill. :

»

15a

billion—subject to the usual presidential respon-
sibility for evaluating these needs in relation
to Other national priorities—are responsible,
are consonant with the magnitude of our Na-
tion’s water quality problems, and will not have
an inflationary effect upon our economy. * * *
*n

Contract authority is provided for up to #5 bil-
lion in 1973, $6 billion in 1974, and $7 billion t
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 budgetary limitations and other nor
water quality factors.

Id. at S 16881 (emphasis added), Senator Bayh also
emphasized the necessity of a full Federal commit-
ment: -*

The conferees agreed to accept the House
passed authorizations for grants to the States
for the construction of waste treatment plants,
including sewage collection systems, This is con-
struction which is absolutely essential if we are
‘to make any meaningful progress toward the

. national goals established in the bill. The total
‘authorization for this purpose is $18 billion over
the 3 fiseal years ending in 1975. There is no
doubt that this money is needed, for without |
substantial authorizations he [sic] bill would be
little more than a series of empty promises.
The amounts allocated for grants for construc-
tion of treatment works will be distributed to
the States.on the basis of need, with the Féderal
share of construction costs being 75 percent».

Td. at S 16892-93 (emphasis added). Congressman
Johnson made clear the intent of the House to spend
$18 billion to meet the water pollution problem. In his
report to the House, he stated:
You may recall that the bill that passed this °
hody last March called for authorizing a little
more than #24.6 billion, the Senate bill author-
33-925—-74-—-2

Lo
we

aia

ized $20 billion, and tle administration re-
quested 6 billion. The conferees have agreed on
essentially the same figures as in the House bill,
$24.6 billion for the peried through fiseal 1975.
A total of 318 billion of this sum is for con-
struction grants, and breaks down not to exceed
*5) Dilhon for fiscal 1973, $6 billion for fiseal
1974, and $7 billion for fiscal 1975.

Naturally, the large difference in what the
administratiofY asked, and what the conference
hill provides, raises the question of why the
substantial diserepaney ?

There is only one answer to that and it is
that if we set ont to do this job there is no may
we can accomplish tt without paying the price,
Tf we wafit, clean water. we have to pav for
clean water. Tf we want the States and cities to
move agetessively ahead in building waste treat-
ment plants they must have Federal aid, and
they must have confidence that Washington
will continue to live up to its commitments.

Id. at Hi 9130 (emphasis added).

The President, in his veto message to Congress on
October 17, shared this view that the Act would
require vitimate exvenditure of $18 billion for sewage
treatment: under ‘207 of the Act:

Tam compelled te withhold mv approval from
S. 2770, the Federal Water Pollution Control
~*~ Aet Amendments of 1972—a bill whose landable
intent is outweighed by -its unconscionable $24
hillion price tag. My proposed legislation, as
reflected in my budget, provided sufficient funds
to fulfill that same intent in a fiscally respon-
sible manner. Unfortunately the Congress ig-
nored other vital national concerns and broke

the budget with this legislation.
Tis Cow. Ree S 18554 (daily ed. October 17, 1972).
In the discussion of the Act prior to its being en-
acted over the veto, Congress again clearly expressed

~ . : A r > bd
is Bia = aceiaaie Sata g SEERA sa PAN TFT SR NE lg DON RS

17a

its intention to provide the full $18 billion, Senator
Muskie spoke of the President’s concerns:

But may T say to [Senator Scott], when we
pass a piece of legislation like this, with its
requirements imposed on industry, with its re-
quirements imposed on the States, with its re-
quirements imposed on the local governments,
the question that faces us then is, as we imposed
this commitment-on them, what commitment are
we prepared to accept on the part of the Fed-
eral’ Government ?

This point was well debated in the Senate
when we took up this bill. T made it clear, the
committee made it clear, that what we were ask-
ine of the Congress was a commitment that
these people in other levels of government and
the private sector could rely upon. Of course
there is a commitment. The President 3 years
neo, in his state of the Union message, said he
had preempted: the environmental issue and
that he was making a commitment.

* * bet

The conferees spent hours and days studying
the problem of financing the cleanup effort re-
auired by this new legislation, and specifically
studying how much money would’ be necessary
to achieve the objective and goals of the act, as
set forth in section 101(a).

118 Cong. Ree. S 18548 (daily ed. Octoher 17, 1972).
Congressman Harsha responded in a like vein:

Mr. Speaker, there is another point which T
must raise. We have known all along that it
would take a massive amount of money and
time to reclaim and to protect our precious
water resources. But, we dare net measure the
eést of this water bill merely in terms of dollars
alone. We cannot measure the wealth of our
great natural resources in dollars alone—and if
we wait too long, all the dollars on earth won't

184

buy back what we’ve lost. Under these cireum-
stances, I am firmly convinced that the price of
killing this water bill—of sustaining this Presi-
dential veto—is far, far too costly.

* & &
.

Furthermore, the President maintained that
a vote to override the veto of the Water Pol-
Iution Control Act Amendments of 1972 was
a vote to inerease the likelihood of higher
taxes. So be it, the public is prepared to pay
for it. To say we can’t afford this sum of
money is to say we can’t afford to support life

on earth.
* *

Mr. Speaker, this is perhaps the most im-
portant environmental legislation the Congress
has yet enacted. The question is not, “Can we
afford to spend $18 billion over the next 3 years
for waste treatment plants?” but ‘Can we
afford not to?”

118 Cong. Rec. H 10268-69 (daily ed. October 18,
1972) (emphasis added).

The cardinal principle of interpretation is ‘‘to
give effect to the intent of Congress.’’ United States
v. American Trucking Assn’s, 310 U.S. 534, 542
(1940). We have included these extensive excerpts at
this point because we find them in a clear expression
of legislative will. We find that it was Congress’ in-
tention that the full $18 billion be spent to control
water pollution. Had the statute been clearly drawn,
this would end our inquiry, if in fact one need ever
have begun. Unfortunately, we must still confront
the problem of the Administrator’s arguable discre-
tion to allot or not allot. We do so in the belief that
the legislative history, as quoted above, manifests an
intent to create a procedure which would insure that
the total authorized funds would be made available to
the states. It is this goal which must guide us in in-

19a

ter*preting the funding mechanism, for if discretion
in allotment would make the achievement of this goal
more difficult, it must be assumed that Congress in-

temded no such authorization. See, ¢.9., United States
v. (Congress of Industrial Organizations, 335 U.S. 106,

112 (1948) ; Vermilya-Brown Co., Ine. v. Connell, 335
TAS. 377, 388 (1948).

B. THE MEANING OF THE HARSHA AMENDMENTS

We now turn to the analysis of §§ 205(a) and 207,
particularly with regard to the effect of the Harsha
Amendments. As we indicated earlier, it is important
to. keep in mind the distinct stages involved in the
coyntract-grant mechanism. Appellant-Administrator
arrgues, primarily from the Harsha Amendments, that
thee Act permits discretion at the allotment phase. Ap-
pellee-City counters that while the Administrator
miight control the timing of future spending through
dealay of obligation, he must fully allot. We agree with
Ayppellee because, after eareful consideration of the
reslevant history, we find it clear that the Congres-
siconal intent, both before and after the Harsha amend-
ments, was to make allotment mandatory.

Section 205(a), by its terms, supports the Appellee.
Ttt is mandatory in tone: ‘Sums authorized to be -ap-
plropriated pursuant to section 207 for each fiscal
yeear .. . shall be allotted by the Administrator. . . .”
(tEmphasis added.)

The Appellant argues that the Harsha Amend-
ments, by adding “not to exceed” in § 207, manifest an
imtent to make the allotment (under § 205) discre-
tigonary. However, the imposition of a ceiling on auth-
orrized appropriations is not inconsistent with the Ap-
poellees’ position) eoncerning mandatory allotinent.
Liogieally, it could be interpreted to mean that the

ET Ne re ie

Sef Ia A ER OT

20a

amount obligated (later appropriated and expended)

in any fiscal year may be less than the maximum ,

aniount authorized. We concede that the elimination
of the word “all” from §205(a) is a source of con-
fusion. At least one court“ has chosen to rely en-
tirely upon this svntatical change, although there is
no precise explanation of its meaning. We consider
it more useful to examine the statements of sponsors
purporting to explain the intended effect of the
Harsia Amendments; we find that allotment remained
mandatory.

Perhaps the clearest statement in the Congressional
history is that of Senator Muskie in explaining the
purpose behind the Harsha Amendments:

In our last conference, the able and = distin-
guished ranking minority member of the House
Committee on Public Works offered two amend-
ments which he indicated would reduce opposi-
tion to the bill from the White House and the
Office of Management and Budget. These two
amendments were accepted by your conferees
and by other House conferees in order to re-
move the question of a veto on the basis of the
money authorized by the legislation.

Under the atmendments proposed by Con-
gressman WILLIAM HARSHA and _ others,
the authorizations for obligational authority are
“not to exceed” $18 billion over the next 3
years. Also, “all sums authorized to be obli-
gated need not be committed, though they must
be allocated, These two previsions were sug-
gested to give the administration some flexibil-
itv concerning the obligation of construction
grant funds.

The conferees do not expect these provisions
to be used as an excuse in not making the com-
‘Campaign Glean Water vy. Ruckleshaus, Civil No. 18-73-R
(F.1D. Va. filed June 5. 1973) slip op. at 14.

Lp the YEO EA AD AR EGO GATS LE ALT ORIEL IAL AOI ELE EE

Qla

mitments necessary to achieve the goals set
forth in the act. At the same time, there may be
instances in which the obligation of funds to a
particular project in a particular State may be
contrary to other public policies such as the
National. Environmental Policy Act. In these
cases the conferees would, of course, expect the
administration to refuse to enter into contracts
for construction. ,
118 Cong. Ree. S 16871 (daily ed. October 4, 1972
(emphasis added). Senator Muskie stated clearly that
allotment ” under the Act is to be mandatory,
Congressman Harsha, im explaining the ineaning of
his amendments, stressed that flexibility with regard to
obligation was their purpose:
Furthermore, L want to point out that the elimi-
nation of the word “all” before the word
sums” in section 205(a) and the insertion of
the phrase “not to exceed” in section 207 was
intended by the managers of the bill to em pha-
size the President’s flexibility to control the
rate of spending.
Td. at H 9122 (emphasis added). It is our belief that
Congressman Harsha, by emphasizing that the Presi-
dent could “control the rate of spending,” was clearly
referring to control at the obligation stage. Had the
amendments been designed to confer discretion at the
allotment stage, Congressman Harsha could have so
stated; furthermore the Congressman had clearly in-
tended to obligate the entire $18 billion to meet the
pollution problem“ and his Views as to the amend-

! Senator Muskie’s use of the term “allocate” vice the term
“allot” is of no import. The Senate version of the bill had used
the term “allocate.” Appellants concede this point. Nee Brief
for Appellant at 14. ‘

“Nee Congressman Harsha’s remarks at 118 Cone. Rre.
H10268- 69 appearing sapra at 1S.

CRE Te

NPs bing lny

- 22a

ments must be read in light of his expressions of the
total legislative intent.

The Harsha Amendments were further analyzed in
a discussion among Congressmen Ford, Harsha, and
Jones.”

MR. GERALD R. FORD. Mr. Speaker . . .
I think it is vitally important that the intent
and purpose of section 207 is spelled out in the
legislativé history here in the discussion on this
conference report.

As I understand the comments of the gentle-
man 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 require-
ment that in 1 year ending June 30, 1973, there
would be $5 billion and the next year ending
June 30, 1974, $6 billion and a third year end-
ing June 30, 1975, $7 billion obligation or
expenditure ?

Mr. HARSHA. I do not see how reasonable
minds could come to any other conclusion that
the language means we can obligate or expend
up to that sum—anything up to that sum but
not to exceed that amount. * * *

MR. GERALD R. FORD. Mr. Speaker, I
would like to ask the distinguished chairman of
the subcommittee and the chairman of the
House conferees whether he agrees with the
gentleman from Ohio (Mr. Harsha).

MR. JONES of Alabama. ... My answer is
“ves.” Not only do I agree with him, but the
gentleman from Ohio offered this amendment
which we have now under discussion in the com-
mittee of conference, so there is no doubt in
anybody's mind of the intent of the language.
Tt is reflected in the language just explained by
the gentleman from Ohio (Mr. Harsha).

21 Congressman Jones was Chairman of the House conferees
and a floor manager for the bill.

-

‘ aiemmanees peers AP A id SEIN TREAD 6} RG AEE PIPE DG EPA

234A |

MR. GERALD R. FORD. Mr. Speaker, this
clarifies and certainly ought to wipe away any
doubts anyone has. The language is not a man-
datory requirement for full obligation and ex-
penditure up to the authorization figure in each
of the 3 fiscal years.

Id. at H 9123 (emphases added).

From these statements, we draw the conclusion that
the amendments were intended to grant the execu-
tive diseretion in the obligation phase, not in the allot-
ment phase. The President evinced a similar under-
standing in his veto message:
Certain provisions of [the bill] confer a meas-
ure 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 fund-
ing under this bill’ would be so intense that
funds approaching the marimum authorized
‘amount could ultimately be claimed and paid
out, no matter what technical controls the bill
appears to grant the Executive.

118 Cong. Rec. at S 1853435 (daily ed. October 17,

1972) (emphases added). It is true that the Presi-.

dent’s statements concerning the Act are not to be
given the weight accorded to statements by member of
Congress. Nevertheless, it appears to have been the
President’s understanding that § 205 and § 207 con-
ferred upon the Administrator only “spending dis-
cretion and flexibility.’’ He evidently felt that since
the sums had to be allotted and made available for
obligation, publie pressure could force him to obligate
the funds.

4
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24a

. After the veto, both Senator Muskie and Congress-
man Harsha again explained the effect of the amend-
ments upon the allotment phase. Senator Muskie re-
peated his position that the Administrator must allot
the sums authorized.” Congressman Harsha reiterated
his explanation of the amendments to the House, stat-

ing: :
118 Cone. Rec. S 18547 (daily ed. October 17, 1972).

Furthermore, Mr. Speaker, we have empha-
‘sized over and over again that if Federal spend-
ing must be curtailed, and if such spending euts
must affect water pollution control authoriza-
tions, the administration can impound the
money.

* See 118 Cone. Rec. at S 18546, S 18549 (daily ed. Oc-
tober 17, 1972). Senator Muskie illustrated his specific under-
standing that all funds would be alloted by introducing a
table of proposed expenditures premised entirely on fu// allot-
ment. His remarks:

“With respect to the budget impact, let me give the Senate
just one more factor to be included in the Record, a table
showing the expenditures projected under this bill. I ask
unanimous consent that it be included in the Record at this
point.

“There being no objection, the table was ordered to be
printed in the Record, as follows:

. 2 “Rate of expenditures by fiscal year* under authorizations of S. 27708

“{In billions]

Fiscal year—
1973 1974 1975 Total
\ Fiscal vear:
Bob ekc tc sikadeactnasiedeadtcsatuniss cas u ue I bettie te Pina ben we hire $0.25
1074. igi Oe OO is ciesiccaw 1.30
BO setdcde ond cae eds ee tee 1.50 1.20 $0.35 3.05
|g, RRR ER aR CSTE AE BRLEGH 2 inpSave rhe Maas pag ae tne OH LN 2.00 1.80 1.0 5.20
\ So . "5 = 240s 2 10 4.75
1078 pineweneaee .30 2.80 3.10
179. si ick naksnabinwewociic .35 35
gE RD RCA Man ae SPAN Ri sear ORE are coe ee - 5.00 6.00 7.00 18.00

%
“@ Ist year, 5 percent of authorization; 24 year, 20 percent of authorization: 3d year, 30 percent
of authorization; 4th year, 40 percent of authorization: 5th year, 5 percent of authorization.
“* Fiseal year 1973, $5,000,000,000; fiseal year 1974, $6,000,000,000, fiseal year 1975, $7,000,000,000.

wits ———_ ‘

25A

T want to point out that the elimination of
the word “all’’ before the word “sums” in sec-
tion 205(a) and insertion of the phrase “not to
exceed” in section 207 was intended to empha-
size the President’s flexibility to control the

rate of spending.
* *

Second, I would like to point ov‘ that the Ad-
ministrator of the Environmental Protection
Agency must approve plans, specifications, and
estimates. This is the pacing item in the expend-
itures of funds. It is clearly the understanding
of the managers that under these circumstances
the Executive can control the rate of expendi-
tures.

118 Cong. Rec. H 10268 (daily ed. October 18, 1972)
(emphases added). Congressman Harsha then ex-
plained the impact of the Act in future fiscal years:
[Tlhe first maior impact of obligations from
the $5 billion authorizations for the fiscal year
ending June 30, 1973, is in fiscal year 1975.
*

As a matter of fact, for fiseal year 1973 if
all the money were obligated and placed under
contract, there would only be $20 million needed
to meet the obligations. .. .

Td. (emphases added). It seems clear that Congress-
man Harsha’s hypothetical concerning the obligation
of the entire $5 billion requires an underlying assump-
tion dhat all such sums must be allotted and thus

available for obligation.
C. THE ADMINISTRATOR'S ARGUMENTS

At this point we turn to an analysis of the Adminis-
trator’s arguments. We note that basically the Admin-
istrator argues an uncontested point, i.e. that the Ad-

RES IEMA LE EEL OO NSIT GEREN, OT NR ea

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26a

ministrator has control over the “rate of ‘spending.’’”
Indeed, as’ we have observed supra, the appellee
agrees and there is much legislative history to support
this view.‘ The Administrator then argues that such
conceded control over the “rate of spending’’ must
mean control at the allotment stage. We disagree. In
view of, the seriousness of the question, we shall set
forth the Administrator’s various arguments fully.

First, the Administrator argues, Congressman Har-
sha, after explaining that the effect of the amend-
ments would be to “emphasize the President’s flexibil-
ity to control the rate of spending’’,” went on to state
his belief that.the President could “control expendi-
tures” under the Act by the “same means” (commonly
called ‘‘impoundment’’) as he controlled expenditures
under the Federal-Aid Highways Act,” 23 U.S.C.
§§ 101 et seg. (1970). By this, the Administrator ar-
gues, Congressman Harsha meant that “impound-
ment” includes a reduction in “allotments,” as well as

‘“‘obligation.’’ Therefore, it is argued, he intended
to indicate that discretion would be available at the

23 We note, for example, that the caption of the Administra-
tor’s discussion of legislative history reads:

“C. The Legislative History of Sections 205 and 207 Makes
it Clear that Congress Understood that they were Designed
to Confer Control Over the Rate of Spending on the
Administrator.”

Appellant's Br. at 11.

*4 Nee, e.g.. remarks of Congressman Harsha at 118 Cone.
Ree. H 9122 (daily ed. October 4, 1972) reproduced fully
supra,

8 Jd.

*“Furthermore, let me point out, the Committee on Public
Works is acutely aware that moneys from the highway trust
fund have been impounded by the Executive. Expenditures
from the highway trust fund are made in accordance with
similar contract autherity provisions to those in this bill. Ob-

274

allotment stage. (Appellant’s Brief at 11-12). We
cannot agree. As the Administrator concedes, the
statement reproduced in the margin supra at note 26
“present[s] some difficulty in interpretation” (Ap-
pellant’s Br. at 12) because “impoundment” under
the Federal-Aid Highways Act is achieved only by
the limiting of contracts awarded (i.e. obligation).
There is no possibility under that Act to reduce at the
“allotment stage.” Whatever Congressman Harsha in-
tended to explain, the two acts operate differently,
and we believe that he could not have been arguing by
analogy to discretion not conferred by the Highway
Act. Congressman Harsha was referring to the ob-
ligation stage and not to allotment.”

viously expenditures and appropriations in the water pollu-
tion control bill could also be controlled. However, there is even
more flexibility in this water pollution control bill because we
have added ‘not to exceed’ in section 207, as I indicated before.
“Surely, if the ‘administration can impound moneys from
the highway trust fund which does not have the flexibility
of the language of the water pollution control bill, it can just
as rightly control eapenditures from the» contract authority
produced in (t)his legislation by that same means.”
118 Cone. Rec. H 9122 (daily ed. Octob:r 17, 1972) (emphases
added). See also 118 Cone. Rec. H 1026 (daily ed. October 18,
1972). ‘: |
27 Called “apportionment” in the Highway Act. See 2
U.S.C. § 104 (1970).
- 28 We note that it is wnclear,whether Congressman Harsha
was aware of the district court decision in State Highway
Commission of Missouri v. Volpe, 347.F. Supp. 950 (W.D. Mo.
1972), aff'd, 479 F. 2d 1099 (8th Cir. 1973). If he had an
understanding of that decision which did not allow impound-
ing at the obligation stage, he would have known that the
Highway Act, with its different mechanisms, could not be an
analog to the Act here. We point this out only to say that
while we endeavor to read his words as he spoke them, there
was, in fact, a court decision then in existence which had fully
and carefully analyzed the Highway Act. .

-_= ORM DOT Pepi LDP AA el AIOE a Fa.

284

Next the Administrator attempts to explain the
seemingly clear remarks of Senator Muskie that the
Administrator must allot the full amounts authorized
in section 207. The Administrator argues that the
Senator’s statement ‘‘‘must be allocated’ . . . seems
to contradict the changes in sections 205(a) and 207,
which relate only, to allotment.” (Appellant’s Br. at
14.) We find this statement, appearing without
explanation, meaningless, Senator Muskie was, by
his own words, explaining to the Senate what the
amendments meant. His words do not contradict
anything at all; rather they seem’ to be a straight-

forward explanation of those amendments.

Next, ‘the Administrator argues that Senator
Muskie’s remarks giving examples of instances where
obligation may be controlled* amount to a ‘‘non-
example”. (Appellant’s Br. 14.) We do not compre-
hend this argument. Senator Muskie gave as an exam-
ple the situation where the obligation of funds for a
particular project may be contrary to “other public

_ policies such as the National Environmental Policy

Act,” and thus monies would be properly withheld. .
The Administrator apparently feels that, since there
exists elsewhere in the Act a power” in the Adminis-
trator to disapprove projects which do not comply
with NEPA, Senator Muskie could not have been

20“The conferees do not expect these provisions to be used
as an excuse in not making the commitments necessary to
achieve the goals set forth in the Act. At the same time, there
may be instances in which the obligation of funds to a par-

ticular project in a particular State may be contrary to other

public policies such as the National Environmental Policy
‘Act. In these cases the conferees would. of course. expect the
Administration to refuse to enter into contracts for construc-
tion.” ;

30 See $203 of the Act.

Pec ae A MOS ELPA LE BO ME

29a

speaking of control of rate of spending. To the con-
trary, we consider this a proper illustration of the
stage at which Congress intended executive control,
i.e. at the obligation stage. The Senator’s example sup-
ports this, and we understand it as such.
118 Conc. Rec. § 16871 (daily ed. October 4, 1972).
The Administrator alleges that Senator Muskie
made a “serious error” in a colloquy with Senator
Dominick during post-veto discussion of the Act.” The
appellant claims that the Senator’s statement that
“there is plenty of flexibility in this bill for... the
Congress to control spending” is at odds witi: the fact

be

a “Mr, Dominick. Is my understanding correct that the
amount authorized here is still subject to the appropriation
process?

“Mr, Muskie. Funds are made available through contract
authority which is subject to the control of the President and
also the Committee on Appropriations. Yes. As a matter of
fact, may I say to the Senator that the conferees adopted an
amendment proposed by Congressman Harsha to indicate clearly
the intent of Congress with respect to that point.

“Mr. Dominick. And so the Committee on Appropriations
could by its action determine what contract authority the Presi-
dent would have. Is that correct ?

“Mr. Muskie. Under the amendments proposed by Congress-
nan William.Harsha and others, the authorizations for obliga-
tional authority are ‘not to exceed’ $18 billion over the next

3 years. Also, ‘all’ sums authorized to. be obligated need not

be committed, though they must be allocated.. These two pro-
visions were submitted to give the administration some flexi-
bility concerning the obligation of construction grant funds.

“Mr. Cooper. Mr. President. will the Senator yield briefly?
I would like to be sure we are clear on this matter.

“Mr. Muskie. I. yield.

“Mr. Cooper. Did I understand the question of the Senator
from Colorado to be whether the Appropriations Committee
could set a limit-on the amount to be obligated ¢ :

“Mr. Dominicky That is the question I asked. I understood
from the Senator from Maine that the answer was in the

304

not contested, that the statute does not permit “the
Committee on Appropriations itself to set a limit on
the amount committed under the statute.” * Appellant
argues, sub silentio, that Senator Muskie’s basie un-
derstanding ef the funding mechanism is apparently
not to be trusted, and therefore, his numerous state-
ments as to mandatory allotment are not to be ered-
ited. We find no such “serious error.” In stating that
the Appropriations Committee may “anticipate” the
amount of contract authority under the Act, we agree
with appellee that Senator Muskie was apparently
doing ‘no more than stating that the Appropriations
Committee could report out a particular appropria-
tions bill which would operate prospectively to limit
the Administrator’s authority to obligate amounts
less than previously allotted. Such a mechanism has
been recognized by the Senate Appropriations Com-
mittee in at least one context.” Tn any event, we are
satisfied that Senator Muskie knew what he meant

affirmative: that the Appropriations Committee could set. that
limit.

“Mr. Cooper. T thank the Senator. Out of this $24 billion
86 billion is not subject. to contract obligation. Is that. correct?

“Mr. Muskie. The Senator is correct. Mr. President, may
T say in addition to the Senator from Colorado the amount
of contract authority ‘may be anticipated by the Appropria-
tions Committee. That is, years in the future up to 1975 the
Committee on Appropriations. may set amounts which the ad-
ministration may obligate in advance. So there is plenty of
flexibility in this bill for the President and the Congress to
control spending.

“Mr. Dominick. I thank the Senator for clarifying the
record,” °
118.Cona. Rec. S 18546 (daily ed. October 17, 1972).

* Appellee’s Br. at 28: Appellant’s Br. at 17.

“See Senate Committe on Appropriations, Department of
Transportation and Related Agencies Appropriations, S. Rep.
No, 92-271, 92nd Cong... Ist Sess. 25-6 (1971).

.

Sla

when, in the same dialogue with Senator Dominick,
he reiterated his understanding that “ ‘all’ sums au-
thorized to be obligated need not be committed, though
they must be allocated.”

The Administrator next contends that the trial
court’s finding that Congress intended control over the
rate of ‘‘obligation and expenditure” and net over
allotments “* must be erroneous “because he asserts,
‘in terms of the papact on potential recipients con-
trol over allotments [ste] and control over obligations
would have the same effect.”” (Appellant’s Br. at 21.)
We disagree emphatically. Discretion over allotments
necessarily confers discretion over the amount availa-
ble to be spent_and thus grants the executive the
power to contravene the oft-stated legislative purpose
to make federal money available. Could the Adminis-
trator allot $0? Happily, this is not the case, but the
Administrator suggests no limit on his alleged discre-
tion not to allot. Such authority would be greater than
the power to control the rate of expenditures to which
the sponsors repeatedly referred. Further, disere-
tionary allotment would not be consonant with the
overall econeern, clearly expressed,” of providing a
total of $18 billion to combat water pollution. We find
that discretion in obligation is distinctly different than
discretion in allotment, and that it was only the
former which this legislation was intended to confer.”

“City of New York v. Ruckleshaus, supra n.10. JwA. at. 66a.

85 Nee, e.g. text at 12-19 supra.

% Of courses it could be argued that distin. at any stage
could contravene the basic purpose of the Act, 7.¢. to provide
$18 billion to meet the pollution problem. We express no
opinion as to whother or what extent the Administrator could
legally withhold funds at the obligation stage; that. question
must await future resolution. Compare Georgia vy. Nixon.
No. 63, Original, motion denied, 42 U.S.LW. 3198 (U.S. Octo-
ber 9. 1973). See n.389 én fra.

SRE AOS NONE RIEMIE TH &

S2A

Finally, the Administrator makes an argument to
this court not made to the trial court. He does so ap-
parently in response to the trial court’s findings and _
reasoning With regard to 6 205(b)(1) of the Act, the
*reallotment’? provisions. The trial court’s statement
of the perceived effect of § 205(b)(1) 1s reproduced

_ in the margin. The Administrator contends that the

trial court erred in its assumptien that reduced allet-
menta-have the effect of irrevocably denying state au-
thorization while reduced obligation does not because,
it is contended, allotments can be *taugmented”’. (Ap-
pellant’s Br. at 21.) We think that this is but another
vehicle for a now familiar argument, @.e. that ‘tallot-
ment” control is identical with ‘obligation’? control.
Therefore, appellant concludes, a construction such as
ours, Which considers them separately must be erro-
neous.

We need not and do not reach the merits of this
contention concerning “augmentation”. The trial

“7 Another feature of the Act which is of some importance
in the resolution of issues before the Court is the reallotment
provision in § 205(b)(1} of the Act. Once allotted to a State,
sums are available for obligation for approved projects there
‘for a period of one year after the close of the fiscal year for
which such sums are authorized. Tf for any reason the sums
allotted are not fully obligated within that period, they are to .
be reallotted ‘generally on the basis of the ratio used in making
the last allotment of sums under this section.” Such reallotment
sums remain available for obligation and are added to the State's
allotment. for the next fiscal year. .Any sums authorized but-
not allotted at the appropriate time are lost to the State under
the provisions of this Act. Thus, by refusing to allot the full
sums authorized, the Administrator controls the absolute amount
(as opposed to the rate) of spending without regard to the
standards get forth in, e.g. $204, for determining whether sums
should be obligated. ,

New York City v. Ruckleshaus, supra n. 10, JA. at dda,

834

court’s reasoning appears to us to be correct.” As to
the contention of the Administrator, we further ob-
serve that the Act nowhere mentions any type of later
augmentation procedure, and rather states In section
205(a) that “the allotment for fiscal vear 1973) shall
he made not later than... 2° (Emphasis added.)
However, believing as we do that there is a clear dis-
tinction under the Act between allotment and obliga-
tiow and that there can be no discretion as to the
former, we find it unnecessary to consider whether
anvallotment could be ‘faugmented™ in a later fiscal
years; full allotment must be made in each fiseal Fear.

D. SECTION 206(1)11)

Having considered the contentions of the Admin-
istrator as to the proper meaning of sections 205 and
207, we turn to yet another consideration which we
find strongly supportive of bur decision. It is elemen-
tary that a statute must be construed, if it is possible,
to give effect to all of the provisions. F.g., United
States v. Menasche, 348 U.S. 528, 538-89 (1955).
Section 206(f)(1) of the Act allows the Adminis-
trator to obligate funds for a particular state’s proj-
ect even if the funds allotted to that state have been
fully obligated. This is possible provided that ‘‘an
authorization is in effect for the future fiscal year for
which the application requests payment, which au-
thorization will insure such payment without exceed-
ing the State’s expected allotment: from such author-
lation.” (Emphasis added.) Section 206(f) (1) would
have secant operative effect if the ‘‘state’s expected

8 Accord, Campaign Clean Water v. Ruckleshaus, Civil No.
18-73-R (E.D. Va. filed June 5, 1973) slip op. at 8, reversed
on other grounds, Campaign Clean Water v. Ruckleshaus,
F.2d . No. 738-1745 (4th Cir. December 10, 1973).

34A

allotment” could not be known because the Adminis-
trator had diseretion to allot only a portion of such
authorization. This is further evidence of a legisla-
tive purpose to make allotment mandatory. In keep-
ing with the basic principal of statutory construction
represented in Menasche, we can see no other way to
preserve the force of §206(f)(1), save mandatory
allotment.
V. CONCLUSION

The only question * before this court is whether the
Administrator must make full allotments under the
Act. Our reading of the revelant statutory language
and careful analysis of the pertinent legislative his-
tory compells us to hold that §205(a) of the Act
requires the Administrator to allot the full sums
authorized to be appropriated in § 207;* therefore,
the decision of the trial court is

Affirmed.

°° There is no constitutional question in this case. Both sides
have agreed that if this court determines that the Act. re-
quires full allotment there remains no constitutional power
in the executive to limit the allotments because, in the words of
appellant, “Allotment ... is not an act that of itself commits
the government to any obligation.” (Appellant’s Reply Br. to
Supplemental Br. of Appellee at 2.) See also Supplemental Br.
of Appellee at 3-6. Compare Georgia y. Nixon, et al., No. 63,
Original, motion denied, 42 US.L.W. 3193 (U.S. October 9,
1973) which attempted to raise the question of the constitu-
tionality of refusal to od/igate.
*° $5 billion for fiscal year 1973 and $6 billion for fiscal year
1974.

APPENDIN B

Uxirep States Court o- APPEALS FOR THE
Fourtriu Circuir
No. 73-1745
CaMPaIGN CLEAN WATER, INC... APPELLEE
U.

Russet. FE. Traix, ApMINistTRATOR, ENVIRON MENTAL
PROTECTION AGENCY, APPELLANT

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond,
Robert R. Merhige, Jr., District Judge

~

(Argued October 2, 1973—Decided December 10, 1973

Before Haynswortu, Chief Judge, Russkii. and
FiEvp, Circuit Judges.

Rtssei., Circuit Judge:
Like a number of other pending actions,’ this suit,
brought by an environmental group concerned with

Nee. City of New York v. Ruckelshauas (D.C. N.Y. 1973)
3598 F. Supp. 669: Brown ve Ruckclshaus and City of Los
eAngeles ve Ruckelshaus (D.C.CD. Cal. 1973) F. Supp.

A

7

ER OTe

SEE GONE ARETE I OE A NS LES § OTE NG

364A

water quality in’ Virginia, involves the discretionary
power, if any, of the defendant Administrator, Fn-
vironmental Protection Agency, to allot appropriation
authority for fiscal 1973 and 1974, particularly as
those allotments relate to Virgina, under the provi-
sions of Section 205 of the Federal Water Poilution
Control Act Amendments of 1972.2 The Act sets forth
a comprehensive legislative program for controlling
and abating water pollution. In Subchapter IT of
that Act, provision is made for federal financial assist-
ance to states and localities in planning and construct-
ing sewage treatment plants, designed to assist in
assuring the prompt attainment of specified standards
of water quality... Under Section 207 of that Sub-
chapter, grant authorizations © are made **for the fis-
eal vear ending June 30, 1973, not to exceed $5,000,-
000,000, for the fiscal year ending June 30, 1974, not
to exceed $6,000,000,000, * * *.°° The grant authoriza-
tions in Seetion 207 are supplemented by Seetion 205
which provides for the allotment by the Administrator
of such authorizations as approved among the States

— (decided 8 ‘17 73): Martin-Trigona vy. Ruckelshaus
(D.C.N.D. TIL 1973 F. Supp (decided June 28,
1973): Winnesota ve USEPA (1D. Minn, 1973) F. Supp.
——— . (decided June 25, 1973).

7 Section 1285.33 U.S.C.

* Section 1251, ef seg. 33 U.S.C. The legislative history is
set forth in U.S. Code Cong. & Adm. News, 92d Cong.. 2d Sess.,
pp. d66S8, ef seq.

‘Section 1281, ef seg. 35 USC.

* Section 1287, 33 U.S.C.

*The statutes involved in this action coneern not direct
appropriations but what has often been described as “obliga-
tional authority”. The Office of Management and Budget, in
its listing of appropriated funds withheld from disbursement,
omitted those represented by “obligational authority”. Née. Veo

STA

ono a statutorily stated formula ‘net later than the
January Ist immediately preceding the beginning of
the fiscal vear for which authorized, except that the
allotment for fiscal vear 1973 shall be made not later
than 30 days after October 18, 1972."

On November 22. 1972, the President wrote the
Administrator directing the latter not to “allot among
the States the maximum amounts provided by section
207"; specifically, he directed that, "[N]o more than
#2 billion of the amount authorized for the fiscal
year 1973, and no more than $3 billion of the amount
authorized for the fiscal year 1974 should be allotted.”
In directing such action, the President referred to the
fact that the Act “permits a significant increase over

our programs to fund the construction of wastewater
treatment facilities’’ and stated that budget requests
for funding such construction under the earlier pro-
grams in fiseal 1973 amounted to “#2 billion’’. Tn fix-
ing the allotments to be made under Section 205, the
President observed that, “[T]hese amounts will pro-

York Times, Feb. 6, 1973, at 1. col. 1 (city ed.). In principle,
however, the difference between the two is unimportant. so far
as the issues in this proceeding are concerned. As one com-
mentator has aptly remarked, “Appropriations are passed in
various forms, and permit actual expenditures as well as the
incurring of obligations. However, there is another species of
financial authority, the contract authorization [also termed obli-

gational authority], which empowers the governmental unit.

only to incur obligations. Under such contract authority power,
the egency will have to later request an appropriation to liqui-
date the obligations it has incurred.” Note, Zhe Likely Law of
Ewecutive Impoundment, 59 Towa LL. Rev, 50. 54 (1973). There
is thus no reason to treat the two forms of authorizations other
than as appropristions and to adjudge the right of the execu-
tive to withhold the same in both instances. Nee, Note, Zm-
poundmeit of Funds, 86 Hare. Le Ree. 1605, 1506, n. 2 (1975).

e

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vide for improving water quality and yet give proper
recognition to competing national priorities for our
tax dollars, the resourees now available for this pro-
gram and the projected condition of the Federal
treasury under existing tax’laws and the {tatutory
limit on the national debt.”

The plaintiff brought this action for both declara-
tory and injunctive relief in connection with the ad-
ministration of the Act. By way of declaratory
relief, it asked judgment—that ‘*(a) the. defendant
[Administrator] lacks the-discretion to refuse to allott
~ among the states the full sums authorized by Congress ;
org alternatively, (b) the defendant abused whatever
limited discretion he possesses by withholding a great-
er amount of funds than contemplated by the Congress
under the Act.” It, also, requested injunctive relief,
“directing the defendant to allot among the states the
full sums of $5 billion and $6 billion authorized to be
appropriated by section 207 of the Act for fiscal years
1973 and 1974." Without answering, the defendant
Administrator moved to dismiss on the grounds ‘‘that
the Court lacks jurisdiction over the subject matter
of this suit and that the Complaint fails to state a
claim upon which relief can be granted.” At the same
time, the plaintiff moved for summary judgment “on
the grounds that there is no genuine Issue as to any
material fact and that, * * * plaintiff is entitled to
judgment as a matter of law.” After a hearing, the
District Court denied the motion of the defendant to
dismiss and granted in part the motion of the plain-
tiff for summary judgment.’ From that decision, the
defendant Administrator appeals. We remand for fur-
ther proceedings.

* The decision of the District Court is reported in 561 F.
Supp. 689.

304
i.

The defendant Administrator at the outset raised a
number of procedural barriers to the snaintenance of
this action. It put in issue the standing of the plain-
tiff to maintain this action, the justiciability of the
issues, the prematureness of the proceedings, and
finally, the bar of sovereign immunity. These claims
were carefully considered in the thoughtful opinion
of the District Court and were found meritless. For
the reasons assigned by the District Court and for the
reasons hereafter developed, we agree.

IT.

Turning to the substantive controversy: The plain-
tiff concedes the Congress intended to give the execu-
tive certain discretion in making allotments under
Section 205; the defendant Administrator asserts the
existence of such diseretion: and the District Court
found that there was such discretion.’ The existence

‘Thus the plaintiff in its brief, states the issues on appeal
to be “whether. in passing the Federal Water Pollution Con-
trol Act Amendments of 1972, Congress intended to give the
President boundless discretion to withhold funding under the
Act, or whether, as plaintiffs contend and the district court
held, the discretion granted the Executive is limited and was
grossly exceeded.”

While a number of courts have found a want of discretion in
the Administrator in fixing the authorized allotments, the com-
mentators on the Act are not as definite in their opinions. Nec.
for instance. Note. The Likely Law of Impoundment, 59 Towa

I. Rev. DO. 55, n. 42 (1973) and Note, Jinpoundment. 86 Tlarv.%

L. Rev, 1005, 1526. n. 116; but cf.. Note, Protecting the Fise:
Evecutire Impoundment and Congressional Power, 82° Yale
L. J. 1636, 1952. The issue of discretion. it is conceded by one of
the commentators is plainly “arguable”, something that cannot
be said, it suggests, with reference to the appropriation made in

PELE TALEO ae

AUN,

of discretion, therefore, is net in issue on this appeal.
The point of controversy is the extent of that discre-
tion and the power of the Court to review. The plain-
tiff, in the District Court. contended that the disere-
tion “ranted by Congress to the Administrator was
not “unbridled”; that specifically it was not broad
enough “to give the Administrater the discretion to
gut the Act.” -

In developing this contention, it emphasized the pur-
poses and goals of the Act and argued that the Ad-
Ininistrator’s discretion may not be exercised in a man-

support of the Federal Aid Highway Act, Section 101-44, 25
U.S.C... involved in’ State Wighiray Commission xv, Volpe (Sth
Cir. 1973) 479 F.2d 1099, 50 Jowa L. Ree. at p. 55. Ta faet, Con-
gress made it as plain as it could in gdje Highway Act that it
intended to confer no right of impoundmehf on the executive.
(See Page 1111, 479 F.2d.)

Ralph Nader. in his testimony before the Senate Ad Hoe
Committee on “‘Tmpoundments (hereafter referred to as Ymn-
poundment Heakiugs) ranged himself with those who found dis-
eretion in the executive in executing Section 205, He testified
in this connection: a

“Granted, the legislative history/of these 1972. amendments
suggests that Congress may have intended to grant the Presi-
dent limited discretion in controlling the level of obligations.
Hiowever, the decisive overriding of the veto indicated a clear
congressional mandate to have sufficient funds immediately
available for obligation to meet the timetable for water quality
goals which the act established.” (at Sty

For a thoughtful statement of reasons for discretionary
spending authority in the executive, sce Fisher, Presidential
Spending Diseretion and ,Congressional Controls, appearing in
the Winter, 1972, issue of Law and Contemporary Problems
and quofed in Jmpoundment Hearings, at 719:

“The reform advocate is therefore advised to regard exeeu-
tive spending discretion as an essential, ineradiceble feature
of the budget provess. Expenditures deviate from appropri-
ations for a number of reasons. Appropriations are made
“many months, and sometimes years. in advance of expenditures.

%

41a

ner and to an extent that the purposes of the Act are
frustrated and nullified and that Courts have both the
power and the duty to prevent such mullification. The
defendant, on the other hand, took the position that,
While the Administrator hadenot by his limited allot-
ments frustrated the legislative purposes reflected in
the Act, he has absolute discretion in making such
allotments, and that his exercise of discretion is im-
mune from judicial review. In resolving these con-
flicting positions, the District Court found that, on its
face, an “impoundment policy,” by which 55% of the

——_~ -
Congress acts with imperfect knowledge in trying to legislate
in fields that are highly technical and constantly undergoing
change.

“New circumstances will develop to make obsolete and
mistaken the decisions reached by Congress at the appropria-
tion stage. It is not practicable for Congress to adjust to
these new developments by passing large numbers of sup-
~plemental appropriation bills. Were Congress to control eX-
penditures by confining administrators to narrow. statutory
details it would perhaps protect its power of the purse but
it would not protect the purse itself. Discretion is needed for
the sound management of public funds.”

But, ¢f.. the comment of the editor in 82 Yule 1.7. 1656, at
p. 1640. n. 26° . ‘

“It is important to note that this argument at its strongest
only establishes a limited kind of impoundment power’ for
the Executive. the power to impound when conditions intrinsic
te the program indicate that further spending would be waste-
ful. There’ is no principle that would indicate that the Presi-
dent must necessarily have all impouadment powers or none
at-all.” ;

*The term “impoundment” has provoked some disagreement.
The editor in one recent Note would define it “as the execn-
tive practice of withholding appropriated funds or obligational
authority. beyond the bounds of any statutorily conferred dis-
cretion.” Note, 59 Jowa L. Rer. 50, 56 (1973). Similarly, Pro-
fessor Miller defines it as “deliberate attempts to scuttle proj-
ects authorized by Congress, but disliked by the Executive.”

BP treet eer re stent err RR EIEN LSP ONES RUT

—
alter ee ters:

PROT

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fitab

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Pee ey

42a

allocated funds will be withheld, is a violation of the
*spirit, intent and letter of the Act and a flagrant
abuse of executive discretion.” *° It found authority to
declare judgment “that that policy is null and
void”. Though it thus found the allotments AS fixed
by the Administrator invalid, it denied injunctive re-
lief on the ground the Court was not equipped to
“supervise the Administrator in the administration of
the Act”, partially because of “the expert discretion
designed for the appropriations stage.” ** And, finally,
it limited the application of its judgment “to those in-
terests in Virginia represented by the plaintiff or-
ganization.” ™
As we have already stated, the right of the defend-
ant to exercise discretion in making the allotment
under Section 205 is not challenged by this appeal:
that right is conceded. We are not concerned with the

Tmpoundment Hearings, at 752. This would limit the applica-
tion of the term to those acts of the Executive which represent
an illegal withhalding of appropriated funds. Other authorities
use the term to identify any executive withholding of appro-
priated funds and make no effort to engage in the “semantic”
game. Thus, in the Note, Zmpoundment of Funds, 86 Harv.
LL. Rev. 1505, n. 1, impoundment is defined as a “refusal by
the executive, for whatever reason, to spend funds made avail-
able by Congress.” Another writer uses similar language. stat-
a © that, “In its broadest context, impoundment occurs when-
ever the President spends less than Congress appropriates for
a given period.” Fisher, Funds Impounded by the President:
The Constitutional Tssue, 38 Geo. Wash. L. Rev. 124 (1969).
This would seem the more sensible definition. Under this
definition, any withholding would be an impoundment and
whether such impoundment was permissible would depend
on the legislative intent.
361 F.Supp. at. TO00.
361 F.Supp. at 700.
2361 F. Supp. at 700,
8361 F. Supp. at TOL.

43a

question whether an appropriation, either by its very
nature “ or under the terms of the Antideficiency Act,”
even in the absence of any expressed grant of execu-
tive discretion in its use, involves some element of
discretion in the executive. We are dealing here with
a legislative provision which it has been held (and
from this holding there is no appeal) does vest the
executive with discretion. In short, the issues on this
appeal are whether, accepting the holding that there
was discretion in this case, its exercise 1s judicially
reviewable, and, if reviewable, what standards or cri-
teria are to be used in assessing the validity of its
exercise. Those are the only issues posed by the appeal.

It is the defendant’s position that, by conceding
executive discretion in the fixing of the allotments
under Section 205, the plaintiff has admitted a want
of judicial power to review his exercise of that dis-

Tt has been sometimes stated that an appropriation is “per-
missive rather than mandatory”, by which the author states “it
is meant that the “xecutive Branch is authorized but not re-
quired to spend funds up to a given amount for designated
purposes.” (Italics in text.) Miller, Presidential Power to Im-
pound Appropriated Funds: An Fvercise in Constitutional De-
cision-Making, 42 N.C. I. Rev. 502, 511 (1965). In somewhat
similar vein, Professor Corwin summed the matter up with the
statement that the Constitution “assumes any expenditure is pri-
marily an executive function, and conversely that the partici-
pation of the legislative branch is essentially for the purpose
simply of setting bounds to executive discretion—a theory
confirmed by early practice under the Constitution.” Corwin,
The President: Office and Powers, 127-8 (4 ed. 1957). .

See, also, McKay v. Central Electric Power Cooperative
(D.C. Cir. 1955) 223 F.2d 623, 625.

© Section 665, 31 U.S.C. This section authorizes the executive
to withhold funds “to provide for contingencies, or to effect
savings whenever savings are made possible by or through«
changes in requirements, greater efficiency of operations, or
other developments subsequent to the daie on which such appro-

BN GRO ATE AMT?

GAD ILL NI

44a

cretion. He rests this argument upon Section 10 of the
Administrative Procedure Act,’* which provides that
administrative action, the exercise of which is **¢om-
mitted to ageney discretion” is net judicially review-
able. Cf., Davis, Administrative Taw Treatise, 1970
Supp., 9 28.16, p. 964. What the defendant urges is .
similar to the administrator’s argument in Overseas
Media Corporation v. McNamara (D.C. Cir. 1967)
385 F.2d 308, 316, n. 14, @.c., that we should ‘‘adopt
the view that the [legislative] act of committing a
matter to an agency’s discretion forecloses court con-
sideration of an alleged abuse of that discretion”

priation was made available” (Italics added, 665(c) (2).) Two
constructions of the terms “savings” and “other developments”
have been advanced. Under a narrow view, these terms relate
to “developments within the individual programs involved, and
that impoundment. is only permissible to the extent that it does
not oi with achieving the underlying purposes of the
prograff® involved.” Note, Zimpoundment, 86 Harv. L. Rev. at p.
1517 (1973). “According to a more expansive view, however,
‘other developments’ should refer to any subsequent. develop-
ment, whether or not uniquely program related, which would,
in the administrator's mind, call for the making of savings
through reduced program expenditure. A determination that a
subsequent situation of inflation justified program reduction
or termination in order to cut government spending would fit
into this category.” Note, Zhe Likely Law of Ewecutive Im-,
poundment, 59 Towa L. Rev. 50, 67 (1975). Most. commentators,
however, Jean to the narrow view. See 86 Harv. LZ. Rev. 1517;
09 Jowa L. Ren. 67; 82 Yale L. J. 1642.

Mr. Fisher in an article quoted in the Zmpoundment Hear-
ings, p.“399, takes this narrow view of the application of the
Act. In support he quotes from the language of House Appro-
priations Committee in reporting the Act:

“It is perfectly justifiable and proper for all possible econ-
omies 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.”

6 Section 701, 5 U.S.C.

~S

454A

under any circumstances. To that argument, the
Court in Overseas replied firmly, **The Legislative
history of the Administrative Procedure Act. belies
this position.” ? And this conclusion in Overseas was
confirmed in Citizens to Preserve Overton Park v.
Volpe (1971) 401 U.S. 402, 410, where, speaking of
this exception, the Court characterized it as “a very
narrow exception’, whose application, according to
“[T]he legislative history of the Administrative: Pro-
cedure Act’? is limited to “those rare instances where
‘statutes are drawn in such broad terms that in a
given case there is no law to apply.’ ’’ In resolving
whether the matter falls within that “rare’’ instance
in which the executive action is non-reviewable, the
problem is “that of determining when the agency
action is ‘committed to agency discretion” within the
meaning of section 10 of the Administrative Procedure
Act, and when it merely ‘involves’ discretion which is
nevertheless reviewable.” Ferry ve. Udall (9th Cir.
1964) 336 F.2d 706, 711, cert. denied 381 U.S. 904.
Unquestionably, whether an agency, in exercising its .
asserted discretionary power under a legislative au-
thorization, is acting im 2 manner consistent with the
legislative purpose and with proper regard for the
constitutional principle of separation of powers be-
tween the executive and legislative is an issue that
Section 10 did not intend to make non-reviewable ; it
patently is not an issue ‘committed to ageney discre-
tion’. See, Note, Protecting the Fise: Exceutive Im-
poundment and Congressional Power, 82 Yale lL. J.
1636, at p. 1647: DeVito rv. Shalit (D.C. Cir. 1969)
300 EF. Supp. 381, 385: Hamel ve Nelson (D.C. Cal.
1963) 226 FL Supp. 96, 98. The power to spend rests

M385 F.2d at 316, 317. n. 14.

464

primarily with Congress uncer the Constitution :” the
executive, on the other hand, has the constitutional
duty to execute the law in accordance with the legis-
lative purpose so expressed.”” When the executive
exercises its responsibility under appropriation legis-
‘ation in such a manner as to frustrate the Congres-
sional purpose, either by absolute refusal to spend or
by a withholding of so substantial an amount of the
appropriation as to make impossible the attainment
of the legislative goals,” the executive trespasses
beyond the range of its legal discretion and presents

* Article T, Section 9, Clause 7. Constitution.

® Article IT, Section 3. Constitution.

See, also, Spaulding v. Douglas Aircraft Co. (D.C. Cal. 1945)
60 F. Supp. 985, 988, aff. 154 F. 2d 419:

“The purpose of the appropriations, the terms and conditions
under which said appropriations were made, is a matter sclely
in the hands of Congress and it is the plain and explicit duty
of the executive branch of the government to comply with the
same.”

20 See statement of then Assistant Attorney General Reln-
quist, quoted in the Impoundment Hearings, at 609:

“‘Tt is in our view extremely difficult to formulate a constitu-
tional theory to justify a refusal by the President to comply
with a Congressional directive to spend. It may be argued that
the spending of money is inherently an executive function, but
the execution of any law is, by definition, an executive function,
and it seems an anomalous proposition that because the Execu-
tive Branch is bound to execute the laws, it is free to decline to
execute them.’ Memorandum Re Presidential Authority to Im-
pound Funds Appropriated for Assistance to Federally Im-
pacted Schools (Dee. 1, 1969), reprinte@in Jmpoundnient Hear-
ings at 279, 283.”

It may be said, too, that, by absolutely refusing to spend or
obligate funds appropriated by Congress, the executive is for
all practical purposes exercising an “item veto”, terminating
or delaying a particular program, thereby avoiding the
embarrassment of a public veto message with the risk of a
Congressional overriding.

474A

an issue of constitutional dimensions which is obvi-
ously open to judicial review. /.nd it was this issue
and this issue alone to which the District Court care-
fully restricted itself in this case. It specifically
denied any power on its part to review or supervise
the defendant’s discretion so far as it was exercised
in a manner that was not so arbitrary or drastic as
to represent a nullification of legislative purpose.** We
agree generally with this construction of its power by
the District Court.”

Our only difficulty with the decision of the Dis-
trict Court relates to its conclusion on the issue of
arbitrary frustration of legislative policy by the
executive action taken. The District Court found that
an allotment under Section 205 in the amount of

VCP. Housing Auth. San Francisco +. United States Dept.
WUD. (D.C. Cal. 1972) 340 F. Supp. 654, 656; Chureh, Zhe
Impoundment of Appropriated Funds: The Decline of Con-
gressional Control Over Executive Discretion, 22 Stan. L. Rev.
1240, 1252 (1970); Boggs. Ewecutire Impoundment of Con-
gressionally Appropriated Funds, 24 U. of Fla. L. Rev. 221.
228 (1972); and Stassen, Separation of Powers and the Uncom-
mon Defense: The Case Against Impounding of Weapons Sys-
tem Appropriations, 57 Geo, L.J, 1159, 1201 (1969) ; and Miller,
Presidential Power to Impound Appropriated Funds: An
Exercise in Constitutional Decision-Making, 43° N.C.LORer.
502. 536 (1965).

The court’s power is well stated in 82 Yale Z./J. at p. 1651:

“The court need not seek to derive some lower figure but
need simply test the contested impoundment against the
legislative intent as expressed in the act. to determine whether
the impoundment was an abuse of discretion. It will derive
its own construction of the statute then test the administrative
action to see whether it could rationally be a carrying out of
the Act’s mandate.”

22 Of course, in the exercise of his discretion, the Adminis-
trator may not consider factors that are irrelevant to the legis-
lative intent. Overton Park. supra (401 U.S. at 416).

633-925-—741-——-4

PASAT REET IATA PII I AE

eaperogs

48a

55% of the authorization under Section 207, estab-
lished such a drastic and arbitrary administrative
reduction in the contract authorization as, on its
face, without any other evidentiary support, to require
a finding of executive nyllification of the purposes of
the Act. With this factual finding, we are unable to
agree. The statement of the President must be read
in conjunction with the explanation given by the
Administrator both in his presentation to this Court
and in his Congressional appearances, for his allot-
ments as made. In his presentation to this Court, the
Administrator has disclaimed -any purpose of evad-
ing the responsibilities given him under the Act. In
his appearance before the Senate ad hoe Subcommit-
tee on Impoundment of Funds on February 6, 1975,”
where he defended the allotments made for the years
in question here, he forcefully expressed his commit-
ment to the goals intended by the Act * and affirmed
that the reduetions in the contract authorizations, as
represented by the allotments made by him under
Section 205 for fiseal years 1973 and 1974, were
arrived at on the basis of an administrative judgment
that greater authorizations could not be spent “in a
wise or expeditious manner’’* in achieving such goals
during those vears.

This judgment was based, in turn, he testified, on a
conclusion that “there was not sufficient technical ca-
pacity, technieal eapability, I think it was, or econ-
tractual capacity” to carry out a greater or more
extensive program.” In reaching that conclusion, he
had taken note, aceording to his testimony, that there

**7mpoundment Hearings, at 408, et seq.
* Thid, p. 405.
2 [hid, p. 413.
25 Tbhid. p. 416.

494

were already available other contract authorizations
for the same purposes as that authorized under the
Act, which, when added to the authorizations actually
allotted by the Administrator, meant that ‘there was
$7.25 billion released on the 27th of November [1973 ]
to be spent over the next 18 months” in meeting the
goals of the program.’ He argued that to attempt a
more rapid rate of spending would inordinately inflate
the cost of the program without appreciably accel-
erating the attainment of its goals. He pointed out in
partial confirmation of this opinion that “the con-
struction industry has inflated the cost of the building
of the project at the rate of 120 percent”, while at the
same time “the cost of living has gone up at the rate
of 40 percent.” *

*7 Tbid. p. 416.

* Tbid, pp. 416-417.

Tn connection with this latter statement of the Administrator,
it may be observed that one of the disputed issues in some of the
controversies over executive impoundments concerns whether
there is legislative warrant under the particular legislation for
the executive to consider the need to thwart general inflation-
ary tendencies in the economy in determining a withholding of
appropriations. The claimed basis for the exercise of such power
is stated by the Department of Justice in its reply to certain
questions propounded by the Chairman in the Jmpowndment
Hearings. pp. 837-8. It is not clear whether this issue is present
here. Jt is possible to interpret the testimony of the Admuinis-
trator as indicating that it was the unique, inflationary forces
prevalent at the moment in that part of the construction in-
dustry involved in sewage plant development which were con-
sidered by him. Actually, however, the general objection to im-
poundment on the part of the Congress seems to be directed at
the re-ordering of priorities as a result of impoundment. Thus,
the Chairman of the Subcommittee at the Jpoundment ITear-
ings, Senator Erwin, after quoting from Mr. Fisher to the effect
that, “Impoundment is not being used to avoid deficiencies, or
to effect savings, or even to fight inflation, but rather to shift the

2
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Te POEL ENE ER RG TEP ARTE Sagat

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Tat Ry,

350A

The Administrator, also, asserted in his brief, with-
out contradiction by the plaintiff, that as ef August
31, 1973, all of the States had utilized but 75 percent
of their 1973 allotments and 8 percent of their 1974
allotments. There is no way for us at this juncture
to venture an opinion whether the Administrator had
been “dragging his feet” in approving projects or
whether these figures indicate that the allotments made
represented reasonable goals for the two fiscal vears
in controversy. The experience in the use of the
allotments so far in fiseal 1973 and 1974 is, though, a
matter that might well be considered in determining
whether the Administrator, in exercising his discretion
under Section 205, acted so arbitrarily as to frustrate
the attainment of the legislative goals.

Moreover, it must not be overlooked that the Admin-
istrator claims the power to increase allotments during
a fiscal year and has declared in this Court that,
-should it appear that the allotments made for fiscal
vears 1973 and 1974 are not sufficient to support the
applications made and qualifying under the standards
established, he will give consideration to making addi-
tional allotments out of the maximum authorizations
provided by Section 207.”

The Act itself grants contract authorizations for the
fiseal vears 1973— 1974- 1975 in the overall amount of
$18 billion. It provides for reallotment of unused
allotments. The defendant asserts that, considered as
a whole, the Act gives the defendant the power to add
to allotments for any fiscal year, within, of course, the

scale of priorities from one Administrator to the next, prior to
Congressional action.” said, “That is our complaint.” 7 mpound-
ment Hearings, p. 207.

7° This procedure, if followed, it could be argued, would carry
out the Congressional intent.

51a

legislative maximums, as the need demonstrates. Be-
cause he claims there has been no denial of any quali-
fied project in either fiscal year 1973 or fiscal year
1974, there is no demonstrable need for an increase in
the allotments heretofore made. Moreover, he avers
without eontradiction by the plaintiff that no qualified
project for the Commonwealth of Virginia has been
denied contract authorization during fiseal 1973 or
1974. He goes further and asserts that if there are
qualifying projects from Virginia in the fiseal years in
question that exceed the allotments already made, the
plaintiff has suffered no prejudice or injury unless he
[the Administrator] refuses to make additional allot-
nients to cover qualifying projects in Virginia in the
two fiscal years in question.

It is true, as the plaintiff argues, that Section 205
declares that allotments are to be made no “later than
the January Ist immediately preceding the beginning
of the fiseal vear for which authorized” but the defend-
ant presses the point that this provision simply estab-
lishes a date for initial allotments and was not in-
tended and does not represent a restriction on the de-
fendant’s right, if.the need develops, to add to or to
increase the allotments as initially made.*° Whether
this construction is sound—and we are strongly per-
suaded that it is—it would seem unlikely that any
party would have standing successfully to challenge
any Increase made by the Administrator in the initial
allotment. In any event, this is an issue that should
be given consideration in determining whether the
action of the Administrator was arbitrary.

These observations do not éstablish that the District
Court’s conelusion was incorrect; they do indicate,
though, that the issue in controversy here is not one

“ Nee. ITmpoundment Hearings, pp. S40-1.

F
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52 \
52a \

to be resolved by any per se rule but is one that re-
quires inquiry into the basis for the Administrator’s
action. After all, there is a presumption of legality
that attaches ordinarily to an administrator's action
and the burden of establishing impropriety rests on
him who challenges. Even if the District Court had
concluded, as some other courts have, that the Admin-
istrator was without discretion in making allotments
under Seetion 205, he would still have been empes od
under the terms of the Antideficteney Ace wo. ue
hold funds for reasons of efficiency and economy”’;
and, if the plaintiff wished to challenge an impound-
ing of funds made under the authorization of the Anti-
deficieney Act, it would have had the burden of
showing ‘‘that the impoundment was in fact not war-
ranted by efficiencies or other new developments’,
and pari passu, it would seem to follow that “a plain=
tiff challenging an™assertion that the executive has
discretion to impound under a particular spending
bill must show that the discretion granted was less
than that claimed”. Note, Jimpoundment of Funds, 86
Harv. L. Rev. 1505, 1529 (1973).

Beyond the bare assumption that an expenditure of
approximately half the authorized appropriation es-
tablishes a frustration of. legislative purpose the plain-
tiff has done nothing to satisfy its burden. Such an
assumption, in the face of other circumstances to
which we have adverted, and recognizing that the Dis-
trict Court has found at least some discretion in the
Administrator to fix the allotment, is insufficient to
support the conclusion reached by the Distriet Court
that the allotments made were ‘ta violation of the
spiit, intent and letter of the Act and a flagrant abuse

"53a

of executive discretion’’, or involved a use of irrele-
rant factors in arriving at his action. That issue should
not have been resolved on the pleadings but a record
should have been made that would support the con-
clusion reached by the District Court.” We accord-
ingly remand to the District Court for further pro-
ceeding in order to determine, on the basis of such
evidence as may be submitted by the parties, whether
as a fact the amount of allotments made by the Ad-
ministrator under Section 205 were “a violation of the
spirit, intent and letter of the Act and a flagrant
abuse of executive discretion’, or involved irrelevant
or improper standards in fixing such amount. In con-
nection with that inquiry, it will be appropriate for
the District Court to consider whether the factors used
by the defendant in fixing the allotments were the ones
that were “relevant” under a proper construction of
the discretionary power found to exist in the execu-
tive.”
REMANDED WITH DIRECTIONS

Ch, State of Minnesota v. United States Environmental
Protection Agency (D.C. Minn. 1973) — F. Supp. — (decided
June 25, 1973). in which the plaintiff, complaining, as the plain-
tiff does here, that the allotments were improper as they applied
to it. offered in affidavit form, proof that projects in its state
had qualified for grant but were being denied approval because
of the paucity of the allotment. .

*? See, Citizens to Preserve Overton Park v. Volpe, supra, at
420 (401 U.S.)

See

EE TTL NERA RENE ED

APPENDIX ©

Unirep Srares Count oF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT

No. 73-1705
SEPTEMBER TERM, 1973—CIVIL ACTION 2466-72

THe Ciry or New York oN BEHALF oF ITSELF AND
ALL OTHER SIMILARLY SITUATED MUNICIPALITIES
WITHIN THE Strate oF New York City or De-
TROIT, (PARTY PLAINTIFF ) ,

: r,

Russet, E. Train, as ApMINISTRATOR OF THE UNITED
STATES ENVIRONMENTAL PROTECTION AGENCY,
APPELLANT ;

Appeal from the United States District Court for
the District of Columbia

Before: Tama, Ropinson and Wiikey, Circuit
Judye s,

y

DOA

:
§
'

Be Ue

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JUDGMENT

This causé came on to be heard on the record on ap-
peal from the United States District Court for the
District of Columbia, and was argued by counsel.

On consideration thereof It is ordered and adjudged
by this Court that the judgment ~------------- of the
District Court appealed from in this cause is hereby
affirmed, in accordance with the opinion of this Court
filed herein this date.

Per Curiam—For the Court:

HvGu FE. Kuixr,
Clerk.
Date: January 23, 1974.
Opinion for the Court filed by Circuit Judge TamoM.

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\ APPENDIN D

QD’

United States Court of Appeals for the Fourth
Circuit

No. 73-1745
Campaign CLEAN Water, INC., APPELLEE
ve
Russet, E. Train, ADMINISTRATOR, ENVIRONMENTAL
PROTECTION AGENCY, APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT COURT: FOR
THE EASTERN DISTRICT OF VIRGINIA.

JUDGEMENT

This cause came on to be heard on the record from
the United States District Court for the Eastern
District of Virginia, and was argued by counsel.

On consideration whereof, It is now here ordered
and adjudged by this Court that the case is remanded
to the United States District Court for the Eastern
District. of Virginia, at Richmond for further pro-

STA

Section 202(a) sets the federal share of the cost of con-
struction of projects, as approved by the Administrator, at 75
percent. Section 203 of the Act. specifies that the Administra-
tor’s approval creates contractual obligations on the part of
the United States.

SRE MP Ta SB

O3A

Having set forth the framework of the Act within
which the dispute now before the Court has arisen, the
Court will proceed to the issues. First to be dealt with
ave jurisdictional issues raised ino the defendant’s
motion to dismiss and his opposition to plaimtiff’s
motion for stmmary judgment. Defendant contends
that this Court lacks the requisite jurisdiction because
the doctrine of sovereign immunity bars the suit and
because the action fails to present a justiciable case or
controversy. The Court does not agree with these con-
tentions and will deal with them only briefly.

Two well-settled common law exceptions to the doe-
trine of sovereign immunity are set forth in two cases
cited by defendant, Dugan v. Rank, 372 U.S. 609,
621-622, 83 S.Ct. 999, 10 L.ked.2d 15 (1963), and
Larson v. Domestic & Foreign Commerce Corpora-
tion, 3387 U.S. 682, 689-690, 69 S.Ct. 1457, 93 L.Ed.
1628 (1949): and plaintiffs action falls squarely
within the exception covering suits challenging actions
by federal officers which go beyond the scope of their
statutory powers. Defendant is not aided by the gen-
eral rule set forth in Land vy. Dollar, 330 U.S. 731,
738, 67 S.Ct. 1009, 1012, OL Led. 1209 (1947), to the
effect that where the judgment sought ‘*would expend

itself on the publie treasury or domain, or interfere
with 'the public administration,” the suit is in reality
brought against the sovereign; for as subsequent dis-

®It should be noted that these same contentions were made
recently in. motions to dismiss by the defendant in three con-
solidated civil actions before Judge Jones of this Court. Local
2677, American Federation of Government Employees vy. Phil-
lips, 358 F.Supp. 60° (D.D.C.. 1973). In those suits, as in the
instant case, plaintiffs were challenging the actions of a federal
officer on the ground that they were in violation of his statutory
authority: Judge Jones rejected the defendant's contentions
and proceeded to the merits of the case.

533-925—T4——-5

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cussion will reveal, the relief sought by plaintiff in
this action does not require the expenditure of un-
appropriated public funds (or indeed of any publie
funds at all), nor will it interfere with the lawful ex-
ercise of defendant's discretionary powers under the
Act.

A second reason for rejecting the severeign ii-
munity defense as a bar to this action is the fact that
plaintiff is seeking review in part on the basis of
the Administrative Procedure Act, 5 U.S.C. $8 701-
706; the rule in this Cireuit is that the A.P.A. eon-
stitutes a waiver of sovereign immunity in actions to
which it applies. Scanwell Laboratories, Ine. v. Shat-
fer, 137 U.S.App.D.C. 371, 385, 424 F.2d 859, 873
(1970) ; Constructores Civiles de Centroameriea, S.A.
v. Hannah, 148 U.S.App.D.C. 159, 459) F.2d 1183
(1972). Defendant has sought to distinguish Scanwell
by contending that there was no question there of any
“disposition” of government

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0368%3A02. Public record. Not legal advice.