Amicus Curiae Brief — Train v. City of New York

INDEX OF AUTHORITIES ....... ah ein eee iil

TABLE OF CONTENTS

STATEMENT OF THE QUESTION INVOLVED...

INTERES? OF THE AMICUS 1.) 00. ic se cs tees

BtAtemern! OF THE CASE foes foc efi ccees ties

ee PG PION tS Sern skin cde ky Manns cheeses

PRINS cid aw a eos os eae hen

EXECUTIVE IMPOUNDMENT OF WATER

POLLUTION CONTROL FUNDS DESPITE A

MANDATORY CONGRESSIONAL APPROP-

RIATION IS WITHOUT STATUTORY OR

CONSTITUTIONAL AUTHORITY ...........

A. CONGRESS HAS MANDATED THAT SII

BILEION FOR THE FISCAL YEARS 1973

AND 1974 BE APPROPRIATED FOR THE

CONSTRUCTION OF WASTE WATER

TREATMENT FACILITIES TO ABATE

WATER POLLUTION (v-i-s52:5 ives cee renee

B. THERE JS A GROWING LIST OF LEGAL

PRECEDENTS DECLARING EXECUTIVE

IMPOUNDMENT OF A MANDATORY

CONGRESSIONAL APPROPRIATION TO

Be OUNLAWFUR 2) re es eee eee

C. EXECUTIVE IMPOUNDMENT OF WATER

POLLUTION FUNDS DESPITE A MAN-

DATORY CONGRESSIONAL APPROPRI-

ATION IS WITHOUT CONSTITUTIONAL

Fed a 8. 46 ee nurs rk or er ee

D. THE EXECUTIVE SHOULD FAITHFULLY

EXECUTE THE LAWS OF OUR COUNTRY

iz’

16

EB PRINS

Saas a

PTE POE LO RAT FA ITE OPER IT WR REO PT AVA RS I AS?

ee

8 meg MERTENS

— Page

Il. THE INTEGRITY OF CONGRESS AND OF

OUR SYSTEM OF GOVERNMENT STANDS

IN JEOPARDY AS A RESULT OF EXECU-

TIVE IMPOUNDMENT OF FEDERAL WATER

Pe PU UEITe POISED os co ods ecsisvciriccssys 17

A. THE EXECUTIVE SHOULD NOT BE AL-

LOWED ‘THE PRIVILEGE OF IGNORING

A MANDATED APPROPRIATION OF

CONGRESS FOR THE PROTECTION OF

THE PUBLIC HEALTH AND WELFARE . 17

B. EXECUTIVE IMPOUNDMENT ERODES

THE FOUNDATION OF REPRESENTA-

BES MSV UIST oc veeinc ics svbeeses e's 18

5 ee i ley 00 esse 0 oe Sete whee 20

—ii—

INDEX OF AUTHORITIES

Page

- CONSTITUTIONS

ee oo ik be dew icwns nace veg cecséiey 14

PUNE hy NT oon os icc bres tcc cc Pere ve 15

ee TT eee Tr ere eee 14. 15

OE ee Mee re erren 16

8 RS Se ae OTe 16

COURT CASES

Campaign Clean Water v Ruckelshaus, (OC ED Va. No

FE iis cer ik srg ave cnke ss Ns i3

Coe) pee, Soe. Oe FO LIDGE) on ists cece ns 14

See © Ree, ey 0 B00 CISCO) Fig cet e cecssess 14

Martin-Trigona v Ruckelshaus, (No 72C 3044, DC ND Il.

cn es BAP eg ese ine ie SERS ep rea ene re {2

Minnesota v EPA. DC 4th Div Minn. No 4-73 Civ 133.

a. Bo FS i> SO er Be Bee ce ees eee eeeees 14

New York City v Train, (CA DC Neo 73-1708, January 23.

DFE AP ahs CP ne 8 spas os oe LUM he WEEMS es o's ws 13

Pens © Pb, FOF US 331 C1055) oo vicvcd ccc cess: 14

Texas v Fri, (DC WD Tex. No A-73-CA-38, October 2

PETAR Givi dake kee Nene Pretec ceca cer eeneeecencees 13

Youngstown Sheet and Tube Co. v Sawyer. 343 US S79

Smee ee ek cs Sd eas oe i ns Ce nese wads 14

STATUTES

ee :

Federal Water Pollution Control Act Amendments of 1972

OR DEAT Bech ti iit ess ate 3

La ad ee ee rye. 0

Brees ae AINE NEN ORE I Fy

cant mee

MISCELLANEOUS

Periodicals

The Detroit News, November 36. 1972, p l-c .... 17

Other

T. S. Ehot. “The Waste Land” 2.2. 0..00.00.0....... 18

Mr. Justice Oliver Wendell Holmes, Collected kegal

| | ee 11

LAW REVIEWS

Mr. Justice Felix Frankfurter, 47 Col L. Rev 527, 543

CRED cee fo oo re kee es oaks nes es senseneies 11

S2 lowa L Rev. p i888 ...... heh asap haw aes bo 6

¥

STATEMENT OF THE QUESTION INVOLVED

WHETHER THRE ENECUTINVE BRANCH -OF GOV-

ERNMENT MAY REEUSEF TO SPEND SIL BILLION

FOR WATER TREATMENT FACILELIES DESPLEE A

CONGRESSIONAL MANDATE TO) SPEND THIS

AMOUNT. DESPIFE LEGAL AUTHORITY REQUIR-

ING EXPENDITURE OF THIS AMOUNT. AND DE-

SPITE COMPELLING PUBLIC POLICY ARGUMENTS

TO SPEND THIS AMOUNT?

The People of the State of “Michigan say “No.”

a pee

INTEREST OF THE AMICUS

The People of the State of Michigan comprise more than

8.875.000 residents as of the 1970 census. The area ‘of the State

of Michigan includes more than 96.720 square miles.

The People of the State of Michigan are vitally concerned

furthermore. with matters of environmental quality affecting

their air, land. and water, and in this regard have enacted

comprehensive legislation.

Because of this commitment to a better environment. the

People of the State of Michigan believe that they: will need to

spend approximately $1.8 billion in the 1970°s to build water

treatment facilities. Under the Federal’Water Pollution Control

Act Amendments. Congress mandated $980 million for water

treatment facilities to the State of Michigan. On November 28,

1972. the Administrator ofthe F deral Environmental Protection

Agency announced hat/Mfichigan will only receive $481 million.

This cutback in federal funds means:

Possible five to ten year delays in) water treatment

construction programs in| Michigan.

Possible delays in-eliminating phosphorous discharges

which are blamed for deterioration of the Great Lakes.

Untenable delays for small) communities who need

funding to build long-delayed water treaiment facilities:

Severe setbacks for metropolitan areas seeking to

improve their water treatment. facilities.

In short. the impounding of federal funds severely impairs the

ability of Michigan to abate water pollution.

2

The People of the State of Michigan view the outcome of this

Ntgation, therefore. with profound concern. We are convinced

that a ruling of this Court permitting the executive branch of the

federal government to impound funds mandated by Congress for

Water pollution centrol would have a deleterious effect on the

citizens of Michigan and on the water resources of Michigan. —

The State of Michigan, consequently, respectfully files this

brief as amicus curiae pursuant to Rule 42 of the rules of this

Court.

oe, wen

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

CONSOLIDATED CASES: No. 73-:377 and No. 73-1378

RUSSELL TRAIN, Administrator of the

Environmental Protection Agency,

Defendant-Appellant,

vs.

CITY OF NEW YORK, et al...

Plaintiffs- Appellees.

- BRIEF OF THE STATE OF MICHIGAN AS AMICUS

CURIAE IN SUPPORT OF THE CITY OF NEW YORK

AND OF CAMPAIGN CLEAN WATER INC.

STATEMENT OF THE CASE

The Federal Water Pollution Control Act Amendments of -

1972. Pub Lo No 92-500, 86 Stat 816. were enacted into law when

both ehouses of Congress overrode a presidential vote. The

Senate vote was S2-12: the House vote was 247-33, 14

One month later. the President instructed the administrators

of the Environmental Protection Agency to withhold irom the

States more than half of the allotment of funds for wastewater

treatment facilities enumerated in the amendments to the Act.

Instead of following the statutory ceilings of $S billion for 1973

and $6 billion for fiscal 1974. the President established the

{1]

TIX Con Ree H 10. 226-73 (daily ed Oct PS. 1972). TIS Con Ree S 18. $46-84

(daily ed Oct 17. 1972)

—f—

allotments for those years at) $2. billion and $3 billion

. ,’ :

respecttully . !7!

The impoundment of these funds by the executive is the basic

issue of this litigation.

The brief of the State of Michigan in opposition to executive

impoundment of water control funds now follows.

[2]

Letter to Wilham Ruckelshaus, FPA Administrator, from President) Richard

Nixon, Nov 22, 1972. in Hearings on Federal Budget for 1974 before the House

Committee on Appropriauions., 93rd Cong. Ist Sess. 194-98 (1973)

|

"

|

INTRODUCTION

“The frog does not

Drink up

The pond in which

He lives.”

—-American Indian Proverb.

The possibilities of losing our water supply by

depletion or pollution evoke fears almost as old as

western civilization. To destroy sweet) water is to

threaten life. The effects of such a loss are so awesome

that the power to accomplish it was ascribed early in our

experience only to the deity who apportioned the power

among a select few. So Moses threatened Pharoah:

Behold. | will smite with the rod that is in my hand

upon the waters which are in the river. and they

shall be turned. And the fish that are in the river

shall die. and the river shall become foul...”

[Exodus 7:17-18.]

But. 4000 years later. the “select few’ have multiplied

several million-fold. and today foul rivers and dead fish are

commonplace. To appreciate the magnitude of the problem. it

Is Necessary to understand the extent of our need for water.

In 1963. experts estimated that the maximum amount of

fresh water available for all uses in the United States was

approximately 680 billion gallons per day.!3! It was estimated

that the total fresh water usage eight years ago was 360 billion

3] .

Report of the Staff ofthe Senate Committee on Public Works. 88th Cong..

Sess.. A Study of Pollution — Water 3 (Comm. Print 1963). cited in Hines. “Nor

Any Drop to Dink) Public Regulation of Water Quality Part [2 State Pollution

Control Programs.” $2 lowa Lo Rev 186 at P87. fn. 2

>

—o—

4) the projection for the year 2000 was 1000

re 6 - os un a taae )

billion gallons per day 4! Since this is 350 billion gallons more

*

gallons per day \

Jthan we have available. if the experts are within a 306) margin

of error, we can better understand Pharoah’s predicament.

Two feasible solutions have been suggested. One is to

refine the process for making sea, water potable, !®! and the

other is to re-use our present water several times: to re-cvele

water as we do aluminum, glass. and paper. !7! But in any

case. it Is necessary to safeguard the quality of even that

Water we intend to re-use. As Professor Hines observed in

Part | of his lowa Law Review trilogy on this general

“problem. S2 lowa L Rev at p 188:

“Re-use of water requires that certain water quality

levels be maintained. however. and here is “here

water pollution is a critical obstacle to the assurance

of adequate water supplies for the forseeable future.

x * **

Two conclusions are reached from Professor Hines’ trilogy

and from a review of commentators he cites.!8! First. the

water crisis will worsen. not abate. without strenuous efforts

[4]

Hines. p ISS. fn. 3

{6}

Cur, Death of the Sweet Waters. 211-213 (1966)

7)

See. Bryan. “Water Supply and Poltution Control Aspects of Urbanization.” 30

Law & Contemp. Prob. 174 (1968)

{8]

EF. Graham. Disaster by Default: Politics and Water Pollution (1966). Wright.

The Coming Water Famine (1966); Rodale. Our Potsoned Earth and Shy (1964).

Carson, The Silent: Spring (1962), Stein, “Problems and’ Progress ino Water

Pollution.” 2 Natural Resources J 388 (1962)

a,

to conserve our present supply. Second. even with such’

strenuous efforts. developments ino processes for re-cycling

and for desalinization are necessary if We are to survive as a

emilization.

Michigan. furthermore, has a deep concern with this crisis

over pollution of our water resources. Michigan abounds with

Water resources. For instance. the State of Michigan has 3.177

miles of shoreline, more than ary other state in the nation,

except Alaska. Additionally. Michigan covers 38.575 square

miles of the Great Lakes. Within the state. there are 11.037

inland lakes. The length of the courses of majo rivers in

Michigan is 5.499 miles: in addition. there are an estimated

30.000 miles of tributaries.!9! Therefore. Michigan acutely

feels the pain of the loss of federal water pollution control

funds.

With the concern of its vast and valuable resource at stake.

the People of the State of Michigan, amicus curiae herein,

vigorously challenge the authority of: the executive to reduce

the allotment of funds authorized by Congress for water

polluton control.

“Indeed. the People of the State of Michigan hear and

respond now to the ominous threat which Moses once made

to the Pharoah.

{9]

See. Enevclopedia Americana, Nol NAN. po 18 (1960) and Michigan Man «al.

1971-72. pd.

—_g-

ARGUMENT

.

EXECUTIVE IMPOUNDMENT OF WATER POLLUTION

CONTROL FUNDS DESPITE A MANDATORY CONGRES-

SIONAL APPROPRIATION IS WITHOUT STATUTORY OR

CONSTITUTIONAL AUTHORITY. .

A. CONGRESS HAS MANDATED THAT SII BIL-

LION FOR THE FISCAL YEARS 1973 AND 1974

BE APPROPRIATED FOR THE CONSTRUC-

TION OF WASTE WATER) TREATMENT

FACILITIES TO ABATE WATER POLLUTION.

“The whole effort [of pollution abatement] is

lagging now for a number of reasons. ‘one of

which is that the Federal government hasn't put

money on the line.”

— Stewart Udall. 1969) quoted in Water

Wasteland, by David Zwick and Marcy Bens-

tock. (Bantam Books. 1972). p 305.

Enthusiasm fer water pollution abatement is often tempered

by the notion that large expenditures of public funds are

necessary to restcre ecological sanity. Thus. the history of

water pollution abstement is one where financial commitments

have failed io match up with rhetorical pledges.

For instance. even though President .Lyndon B. Johnson

boldly announced in 1966 ihat “the promise is clean rivers.

tall forests, and clean air — a sane environment for man," *!!4

[19]

US Congress. House of Representatives. Congressional Record. beb. 23.1966, 9

-

366

— g

and even though President Richard Mi. Nixon declared in 1970

that “the 1970°s absolutely must be the vears when America

pays its debt to the past by reclaiming the purity of tts air. its

Waters and our living environment.“ lthe hard facts tell a

different story: with respect to water pollution control.

\

\

In fact. the executive branch has @ long history of spending

no more than # absolutely has to for water treatment facilities.

The following chart outlining the large backlog of unapproved

grant applications for four states and one territory as of June

30. 1970. suggests the real problem:

Applications pending 4 Kiscal Estapiate of backlog’

June 30, 1970 gue ; 1970 (applications pend-

state agencies and allo- ing munus fiscal

FWOa4 regional offices cation 1970 allocation)

tall figures ino milhons ef dollars)

New York 8892.3 $69.9 $$22.4

Michigan 114.9 33.0 . 81.9

District of

Columbia. 49.9 3.8 , 46.1

Indiana “89.5 - 20.0 39.8

Maryland ae] 13.6 38.5

[It is important to remember that thése figures do not measure

the total extent of need. sincé it has been found that many

cities do not bother to apply for grants when funding levels are

low, 1421

Quoted. in Congressional Record Nolume 116. page 16.096. Sept. 21. 1970 (daily

edition).

[12] .

Zwick and Benstock. Wares Wasteland, (Bantam Books. 1972) p 318. Viewing the

entire problem from a different perspective. the executive only spent $262 million of

the S800 million appropriated in 1970 for water pollution control and S4°S millon of

the $1 bilhon appropriation in b97h See. Green. Fallows and Zwick. Who Auns

Congress’ (Bantam Grossman Book. 1972) pp 114-118

—10—

In short. the history is evident — pledges are conveniently {

ignored when the practical work of disbursing money for water

pollution treatment is actually undertaken.

Faced with this history. Congress passed a water pollution

measure on October 4. 1972 entitled the Federal Water Pollution

Control Act Amendments of 1972. IS USCA 1251 et seq. which

authorized appropriations in the amount of $'1 billion for the

fiscal vears 1973 and 1974 to be used for water waste treatment

construction grants. Although the bill was vetoed by the

President. the veto was promptly overturned by Congress.

Turning to” the Federal Water Pollution Control Act

Amendments of 1972. two specific sections stand out in their

IMportanee to this litigation. Section 207. reads as follows:

There is authorized to be appropriated to carry out

this title, other than section 208 and 209. for the fiscal

year ending June 30, 1973. not to exceed

$S5.000.000,000, for the fiscal year ending June’ 30,

1974. not to-exceed $6.000.000,000 22. 27

a ae. Section 205 provides:

(a) Sums authorized to be appropriated pursuant to

Section 207 for each fiscal year beginning after June

30. 1973. shall be allotted by the Administrator not

later than the January Ist immediately preceding the

beginning of the fiscal year for which authorized,

except that the allotment for the fiscal 1973 shall be

made not later than 30 days after the date of

enactment of 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 . ;

{emphasis ours.]

We firmly support the view that the language of the Water

Pollution) Control Act) Amendments of 1972) imposes a

mandatory duty on the executive branch of government to allot

exactly the sums stated inthe Act. There is no discretion in the

allotment: stage: the use of the word “shall” is) mandatory

language,

The plain language of the Federal Water Pollution Control

Act) should. indeed. govern this” litigation. Two) extremely

eminent members of the Supreme Court have commented upon

the controlling nature of the language of a statute as follows:

“We do not inquire what the legislature meant: we

only ask what the statute means.”

[Mr. Justice Oliver Wendell Holmes. Collected Legal

Papers. 207.]

and

Spurious use of legislative history must not swallow

the legislation so as to give point to the quip that only

when the legislative history is doubtful do you go to

the statute.”

[Mr. Justice Felix, Frankfurter. quoted in 47 Col L

Rev S27. 543 (1947).]

We submit the language of the Federal Water Pollution Control

Act) Amendments of 1972) is) without) equivocation. the

Administrator of the Environmental Protection Agercy must

allot the STL bilhon authorized tor water treatment: facilities.

|

B. THERE IS A GROWING LIST OF LEGAL

PRECEDENTS DECLARING EXECUTIVE IM-

POUNDMENT OF A MANDATORY CONGRES-

SIONAL APPROPRIATION TO BE UNLAWFUL.

“With respect to the suggestion that the President

has a constitutional power to decline to spend

appropriated funds. we must conclude that the

existence of such a broad power is supported by

neither reason nor precedent.”

— Memorandum from then Assistant Attorney

General William H. Rehnquist to Edward L.

Morgan. Deputy Counsel to the’ President,

Decenijer 1. 1969 at 8. Quoted in 22 Stan L Rev

1240, 1250 (1970).

The announcement by the President that federal water

pollution control funds would be impounded triggered a series

of law suits by citizens, municipalities and states. The

culmination of this extensive litigation is the consideration of

the issue by this Court. Although various lower federal court

decisions have split on the issue of executive impoundment.

we submit that the better view as enunciated in lower federal

court decisions sets out a compelling legal argument against

executive impoundment of water pollution control funds.

The. principal argument ir opposition to executive im-

poundment rests on a careful reading of the statute and the

legislative history which in turn spells out the notion that the

allotment of $11 billion in water pollution control funds is a

mandatory duty imposed on the Administrator of the federal

Environmental Protection Agency. For instance. in

Martin-Trigona v Ruckelshaus, (No 72C 3044, DC ND Hl.

July 9, 1973) [S ERC 1665S, 1669]. the Court announced this

view in clear terms: **. . . the Act provides for mandatory

allotment of all funds.” The US Court of Appeals for the

=i

District of Columbia reached the same conclusion when it

said in New York City. Train, (CA DC No 73-1708, January

23. 1974) [6 ERC 1177. 1188}:

“Our reading of the relevant statutory language and

careful analysis of the pertinent: legislative history

compels us to hold that Section 205(a) of the Act

requires the Administrator to allot) the full) sums

authorized to be appropriated in Section 207 .

We submit. therefore. that the better view requires allotment by

the executive of the full sums for water pollution control — $5

billion for fiscal year 1973 and $6 billion for fiscal year 1974.

The rationale for the mandatory view of the allotment of water

pollution control is further explained in Texas v Fri, (DC WD

Tex. No A-73-CA-38. October 2, 1973) [S ERC 2021. 2023).

When the Court found that:

“Evaluation of the Act as a whole and its legislative

history evinces an unmistakable congressional intent

to marshall the requisite federal funds to achieve the

Water quality goals set forth in the Act.”

This spirit and intent of the Federal Water Pollution Control Act

has further resulted in several courts declaring the executive

impoundment to be an ahuse of discretion. For instance, in

Campaign Clear Water vo Ruckelshaus, (DC ED Va. No

18-73-R. June §. 1973) [S FRC 1441. 1447]. the Court declared

that it:

.. IS Well-satisfied that the challenged impoundment

policy. by which SS of the allocated funds will be

withheld, is a violation of the spirit, intent and letter of

the Act. and a flagrant abuse of execttive discretion.”

—14—

In Minnesota vy EPA, (DC 4th Div Minn. No 4-73 Civ 133. June

25, 1973) [S ERC 1587, 1592]. the Court similarly responded to

the government's argument that impoundment was based on

matters of the national economy as follows:

“Nothing in the Act gives the Administrator the

authority to consider matters outside the corners of

the Act itself. In failing to allot all of the money

authorized in this matter, the Administrator is acting

So in’express violation of the Act itself as well as in

violation of the purposes of the Act as set forth by

Congress." .

Finally, we offer a line of decisions of this Court which negate

the proposition of executive impoundment: Kent v Dulles, 357

US 116 (1958): Cole v Young, 351 US $36 (1956): Peters ¥

Hobby, 349 US 331 (1988): and Youngstown Sheet and Tube Co

v Sawver, 343 US 579 (1982).

We submit. therefore. that as a matter of legal precedent. both

recent and past. executive .impoundment of a= mandatory

Congressional Appropriation should be rejected.

C. EXECUTIVE IMPOUNDMENT OF WATER

POLLUTION FUNDS DESPITE A MANDAT-

ORY CONGRESSIONAL APPROPRIATION IS

WITHOUT CONSTITUTIONAL AUTHORITY.

“No Money shall be drawn from the Treasury.

but in Consequence of Appropriations made by

Law. . .-

— US Const. Art 1. Sec. 9.

—1[s—

Under the federal Constitution, exclusive authority over

federal spending is vested in Congress. See. US Const, Art I,

Sec. 9. It is Congress that has a final say over what becomes

‘law and a veto, not impoundment, is the only way the

President can express his displeasure with an appropriation

measure. This argument is buttressed by Article 1, Section 7

of the US Constitution which gives Congress the right to

override presidential vetoes of legislation.

The President has no power to veto legislation absolutely.

No item veto is granted to the President under the

Constitution. Indeed, if the executive branch of government is

permitted, at will, to refuse to spend funds after a statute has

been enacted into law. then the executive branch will exercise

an absolute authority which is not authorized by the

Constitution and which directly contravenes the right of

Congress to override a presidential veto under the Constitu-

tion.

The above analysis is quite significant in the instant

Situation since the President initially vetoed the appropriation

for water pollution control. Congress. however. by two thirds

vote overturned the President's veto. Yet. the executive now

seeks to ignore and circumvent the Congressional mandate

that it is in the interests of public policy to spend $11 billion

for water pollution abatement by a program of executive

impoundment.

We submit. furthermore. that Congressional control over

the purse is not merely a negative power to establish a limit on

spending but rather is a full and positive authority to compel

the expenditures of funds. By freezing vast sums of

appropriated funds, the executive challenges without authority

the most basic and sacred right the Constitution has vested

with Congress — the power of the purse.

—16—

D. THE EXECUTIVE SHOULD FAITHFULLY

EXECUTE THE LAWS OF OUR COUNTRY.

[The President] shall take Care that the Laws be

faithfully executed .

— US Constitution, Art Il. Section 3.

The executive branch has no choice but to abide

appropriations statutes. Before he may enter service of his

office, the President must take the following Oath: “I do

solemnly swear that | will faithfully execute the Office of

President of the United States. and will to the best of my

ability. preserve, protect and defend the Ya of the

United States.” US Const. Art Il. See. 1. Included among

the duties of the President is the duty to Sana evecule the

laws of the land. US Const. Art II. See. 3.

Indeed. our history is predicated on the fact that we are a

nation of laws. This is not to say that the executive branch ts

without authority or discretion. The executive has discretion,

but that discretion must be exercised within the four corners

of the Federal Water Pollution Control Act Amendments of

1972 vhich provides for a mandatory allotment of STL billion in

water pollution control funds.

Placing all of the arguments and authorities acknowledged

in this litigation in perspective. we submit that the faithful

execution of the laws of our country should receive the

highest of priorities.

=

Il.

THE INTEGRITY OF CONGRESS AND OF OUR SYSTEM

OF GOVERNMENT STANDS IN JEOPARDY AS A RESULT

OF EXECUTIVE IMPOUNDMENT OF- FEDERAL WATER

POLLUTION FUNDS.

A. THE EXECUTIVE SHOULD NOT BE AL-

LOWED THE PRIVILEGE OF IGNORING A

MANDATED APPROPRIATION OF CONGRESS

FOR THE PROTECTION OF THE PUBLIC

HEALTH AND WELFARE.

“There is a natural inclination in mankind to

Kingly Government.”

— Warning of Benjamin Franklin in 1787 to: the

delegates to the Constitutional Convention, 1M.

Farrand. Records of the Federal Convention of

1787, at 83 (1966).

At stake in this litigation is whether the government will

institute adequate financing for measures to restore the purity

of our nation’s waters. The executive branch has seriously

limited the federal government s commitment in this area by

impounding SS billion of an $11 billion appropriation by

Congress for water pollution treatment facilities. As Governor

William G. Milliken of the State of Michigan has commented

on this executive impoundment:

“This action represents a serious blow to our efforts

aimed at achieving clean-water goals in) Michigan

and throughout the Great Lakes region in_ this

decade.” [The Detroit News, November 30. 1972. p

I-c.]

The Governor's comments can certainly be a,plied to all

hom

=

DIS LAUR NY LATEST a MT

—18—

concerned state and local officials who hope to take effective

steps towards abating pollution of our nation’s waters.

Certainly, the executive is entitled to its opinion that certain

expenditures will unacceptably inflate the economy. But.

Congress is constitutionally entitled and in many fields ts able.

to make its own judgment on such matters. to decide national

priorities by its own wisdom and to legislate accordingly. And

so, In the case of waste water treatment plants, Congress has

directed the authorized amount of $11 billion to be fully

allocated among the states. In short. Congress has decided

what the national priorities should be and the executive must

accept this decision.

To allow the executive to ignore the judgment of Congress

would be to completely negate the Congressional veto power

and to completely ignore the desirability of abating water

pollution. We submit that Congress adopted legislation

towards building an environment other than depicted by T. S.

Eliot in ““The Waste Land” where “the dry stone [knows] no

sound of water.”

B. EXECUTIVE IMPOUNDMENT ERODES THE

FOUNDATION OF REPRESENTATIVE GOV-

ERNMENT.

The growing practice of impoundment. whereby

the executive branch fails to expend funds

according to the intent of Congress, looms as yet

another force eroding the foundation of represen-

tative government.”

— United States Senator Frank Church of Idaho.

2? Stan L Rev 1240. 1241 (1970).

Once it is widely recognized that a program affecting the

public health and welfare which is enacted into law. by

|)

Congress can be effectively obstructed and buried by the

execulive branch. the American people will sense the futility

of working with their elected representatives. Yet. a crucial

element of our democratic form of government is the right

afforded to diverse political interests to appeal in a meaningful

Way to members of Congress.

Our government is based on three separate. but co-equal

branches of government. The executive branch is not the only

important forum for policymaking. Each branch of govern-

ment, additionally, operates as a check and a balance on the

other branches. Tite executive branch does not operate as the

sole or the final check on matters of public concern.

The ability. of Congress to act with authority on

appropriations reflects on the operation of our three branches

of government. The struggle is monumental but the solution

must be directed to maintaining public confidence and reliance

on our representative bodies and on our system of separation

of powers.

PTR TORE EE

g

we

us

j

ig

‘

td,

»

b

i

erat

be ie

—20—

CONCLUSION

“The founding fathers, in establishing our na-

tional government. reflected clearly the lessons

they had absorbed concerning the history of

man’s struggle to be free from tyranny. They

knew that those entrusted with governmental

powers are susceptible to the disease of tyrants —

\ to what George Washington described in his

Farewell Address as‘ the ‘love of power and

proneness to abuse it.” They realized that the

powers of public officers should be defined by

laws which they. as well as the people, are

obliged to obey, and that liberty demands control

by constant and uniformly enforced laws rather

than by the arbitrary and inconstant whims of

willful men.”

— United States Senator Sam J. Ervin Jr., from

North Carolina, 35 Law and Contemporary Prob-

blems 108, 121 (1970).

The PEOPLE OF THE STATE OF MICHIGAN believe

that our country should strive towards restoring the purity of

our waters, that our government is a government of laws, that

executive impoundment represents a threat to representative

government and that executive impoundment is without

statutory, case or constitutional authority.

In light of these concerns, the PEOPLE OF THE STATE

OF MICHIGAN URGE THIS COURT TO OVERTURN

THE EXECUTIVE IMPOUNDMENT OF WATER

POLLUTION CONTROL FUNDS.

ti

Respectfully submitted.

FRANK J. KELLEY

Attorney General

State of Michigan

Robert A. Derengoski

Solicitor General

Stewart H. Freeman _

Assistant Attorney General

Charles Alpert

Assistant Attorney General

Address:

Suite 630

525 West Ottawa

Lansing. Michigan 48913

Telephone: .

(S17) 373-1130 —

Dated: June 14, 1974