Amicus Curiae Brief — Train v. City of New York
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IN THE
Supreme Court of the United St tes 5
MICHAEL RODAK,
October Term 1973
Nos. 73-1377, 73-1378 pekcoine hs
RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Petitioner,
vs.
CITY OF NEW YORK ON BEHALF OF ITSELF AND
ALL OTHER SIMILARLY SITUATED MUNICIPALITIES
WITHIN THE STATE OF NEW YORK;
CITY OF DETROIT, Party Plaintiff, Respondeiis. *
RUSSELL E. TRAIN, ADMiniSTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
Petitioner,
$ vs.
CAMPAIGN CLEAN WATER, INC., Respondent.
Brae Brief of the California Attorney General as Amicus
Curiae in Support of Respondents’ Position That
Petitioner Ilegally Reduced Allotments to States
as Required to Be Made by the Federal Water
Pollution Control Act Amendments of 1972 .
EVELLE J. YOUNGER,
ca pact Aa a ea
GO} Counsel
JAN E. CHATTEN.
Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622
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SUBJECT INDEX
Page
Introduction ooo... occ cece cece eeee evens 1
Statement of the Case 222.......cciocccec cece cece 4
The Tssue 22... ooo ce eee eeeeeeeeeeteceeeee 5
Statement of Interest 2002... 6
Summary of Position —.......0..2..2.000......eo cece 8
Argument _......022. eee peeepanneavcaceenasqecesemsssans 10
This Case Presenis a Justiciable Controversy
Which Is Not Barred by the Doctrine of Sov-
ereign [mmumity 22022... eee... cece cece cece 10
II
The Legislative History of Sections 205(a) and
207 of the Act Indicates Congressional Intent
That Al! Funds Be Allotted, Though Flexibility
Was Given the Administrator Concerning What
Is Actually Speni in Any One Year .............. 12
A. Action of Congress: A Sense of Commit-
11 =) b| Gen ee 13
B. The President's Veto: A Different Policy... 20
C. Final Judgment of Congress: To Override
the Veto 2.2.02... ccc cece ccc ccegeccececccceccenccncees 21
D. The Distinction Between Discretion in Al-
lotment and in Obligation ~.......0............. 24
Ill
The President Has Only Such Powers to Refuse
to Spend Funds Authorized by Congress as
May Be Found or linplied by Legislation ...... 31
il.
IV Page
The Position of Respondents in This Case Is Sup-
ported by the Recent Decision in Missouri v.
| 5 ee ene eee ee ee eee ore 39
Even Assuming Sections 205(a) and 207 Gave
the Administrator Discretion to Limit Allot-
ments, He Abused That Discretion by Allotting
Only $5 Billion of the $11 Billion Authorized
for Appropriation for 1972 and 1973 .............. 41.
VI
The Doctrine of Separation of Powers Prohibits
the Type of Executive Assumption of Con-
gressional Function Accomplished by Refusal
to Comply With the Allotment Procedures of
1s IN Gh 8 og OY. en ne nee 43
Conclusion . ...............- oe su aie ete oes appeyaeaneweneeenveuseeeenensen 47
iil.
TABLE OF AUTHORITIES CITED
Cases Page
Anthony R. Martin-Trigona v. William D. Ruck-
elshaus, .... F. Supp. .... (N.D. Ill. 1973), Civil
Action No. 72-CU3944, 5 ERC 1665, summary
judgment entered in favor of plaintiff finding act
of allotment ministerial -.................22222222..-.------ 4,
Baker v. Carr, 369 U.S. 186 (1962) ~......0000......
Campaign Clean Water, Inc. v. Ruckelshaus, 489
F.2d 492 (4th Cir. 1973), 361 F. Supp. 689
(E.D. Va. 1973), 5 ERC 1441 -............ 4, 41,
City of Burbank v. Lockheed Air Terminal, 411
U.S. 624 (1973) oociccee cocecccceeecceeeeceeecceeeceeeeceeees
City of New York v. Ruckelshaus, .... F.2d ....
(D.C. Cir.). 358 F. Supp. 669 (D. D.C.
1973), 3 ERG D005: cee 4, 26,
Dugan v. Rank, 372 U.S. 609 (1963) ..............
First Nat. Bank v. Walker Bank, 385 U.S. 252
BL [cc manne nner nnn nee een tn vee Pn NESE) tee neEnE NE SSPE
George E. Brown, Jr. v. Ruckelshaus, and City of
Los Angeles v. Ruckelshaus, 364 F. Supp. 258
(C.D. Cal. 1975). 5 ERC 1803 (1973) ..4,
Kendall v. United States, 37 U.S. 524 (1838) ......
Kilbourn v. Thenipson, 103 U.S. 168 (1880) ....
Local 2677, American Fed. of Gov. Emp. v. Phil-
lips, 398 F. Supp. G0 (2. DC. 1973) «2.2.2.
McCray v. United States, 195 U.S. 27 (1903) ....
National Ins. Co. v. Tidewater Co., 337 U.S. 582
COND ccc eser teen escent en teens
O'Donoghue v. United States, 289 U.S. 516 (1933)...
11
10
45
16
27
11
16
5, 10
FLARE MIM SMO ROT IIT EI AINE IP LAG 4
iv.
Page
i, .
Rescue Army v. Municipal Court, 331 U.S. 549
0 OZ 9 2 45
State Highway Commission of Missouri v. Volpe,
479 F.2d 1099 (8th Cir. 1973) 2.00 ..
ese hg dipteswesice seb aeuesimtantaesauazsppanssaencntenesees, 12, 38, 39, 41
State of Maine, et al. v. Robert W. Fri, et al.,
D. Maine, Civil: Action No. 14-51, the District
Court entered a preliminary injunction requiring
allotment of funds; the Court of Appeals for the
First Circuit affirmed, .... F.2d .....5 ERC 1991
OTF reese rete cemewennersenececenstaeencaveenrevsdcouaneunevadevede 5
State of Minnesota v. United States Environmental
Protection Agency, et al., D. Minn., No. 4-73
Civ. 133, 5 ERC 1586 (1973), plaintiffs mo-
tion for summary judgment granted; appeal pend-
DEN eee nn a cee nen ssp eee nee peste cee 5, 42
Congressional Record
116 Congressional Record S 159 (daily ed. Jan.
71 0a 0) Seer ne ee on ene 35
116 Congressional Record S 160 (daily ed. Jan.
p40 a: 910) eee er eee ee ene 36
118 Congressional Record H 9122 (daily ed. Oct.
7 Lame | 9 9” 2) San enn ante eee ee ECE ee 18
118 Congressional Record H 9130 (daily ed. Oct.
FT osc ee eee 20 |
118 Congressional Record H 10267-68 (daily ed.
Oct, 18,1972) acenccaspectstcpveewceeens esse Rieyeoeesteeepesess 24
118 Congressional Record H 10268 (daily ed. Oct.
Me RT eae eee 26
118 Congressional Record S 1013 ..........2.0020..222..... 20
v.
Page
118 Congressional Record § 16870 (daily ed. Oct.
CR OF Fp 17
118 Congressional Record S 16871 (daily ed. Oct.
— ne 6 2 eee mn eee Lis 22
118 Congressional Record S 16892-93 _................. 19
118 Congressional Record S 18546 (daily ed. Oct.
ae ot 5 eee ene ee 21
118 Congressional Record S 18548 (daily ed. Oct.
i ae |: 2 eer epee erent e Teen area 22
Miscellaneous
Hearings on Executive Impoundment of Appro-
priated Funds Before the Subcommittee on Sep-
aration of Powers of the Committee on the Judi-
ciary, 92nd Cong., Ist Sess. (1971), p. 80 ge 40
Hearings on House Report 5193 and Related Bills
Before the Subcomm. on Rules, 93rd Cong., 1st
Sess., pts. 1, 2 at 88. et seq.. L.C. 73-602108
SL 9 Meee ee eee deoeypeeyseecnere 32, 34
Hearings on Water Pollution Control Legislation,
U.S. Senate Committee on Public Works, 92nd
Cong., Ist Sess., pt. 1, at 521 (1971) o0.0002.... 15
House Report, p. 8480 20.........22..22eececeeeeeee cece eeeeee eee 32
Senate Bill 2770 2.0..0.....cccce ccc cc cece cece cee ecce ecco eee reese 16
2 United States Code Congressional and Admin-
istrative News, Pub. L. 92-500, pp. 3701, 3702
EL 2/3 een eg 16
Weekly Compilation of Presidential Documents,
Vol. 8, No. 43, pp. 1531-22 (Oct. 23, 1972)
baheeetoacdiaaaens Anke neannagenennnnrstoonenareeiads deneeanensanses 20, 21, 24
EPS GTN INE TE SPN IE IE 41
AaBy PRC
Vi.
Statutes Page
California Constitution, Art. V, Sec. 13 .............. 7
California Government Code, Sec. 12600(b) ........ 8
California Water Code, Sec. 13000 ...................... 8
Federal Water Pollution Control Act, Sec. 101(a)
AY apa gicaeec ve pow eases eeesecedemeeay ete es ne eeveeeaeeeeenaes 7
Federal Water Pollution Control Act, Sec. 202 .... 14
Federal Water Pollution Control Act, Sec. 203 ...... 14
Federal Water Pollution Control Act, Sec. 205(a)
vececeeeeeeeee 8, 12, 14, 24, 26, 28, 29, 39, 41, 43, 47
Federal Water Pollution Control Act, Sec. 205(b)
OD sean en genes eectsan a eetassetss eee ceracea gece seerececavenssereccenerss 14
Federal Water Pollution Control Act, Sec. 207 .. 8
eee 12, 16, 24, 26, 28, 29, 41, 43, 47
Federal Water Pollution Control Act, Sec. 207(b)
asp aisauu du buessawecnussusneaueucuseavakwseaterenaeesese=dupessaeen-oty--eee 16
Federal Water Pollution Control Act, Sec. 301(b)
OY arcsec teres enter a nnsceusoneetare ee euseeasterneess 6
Federal Water Pollution Control Act, Sec. 301(b)
OZR), sere ecstanczasnontnasecenetbnenseettesarnsseeeaenesecesenrgeaes 7
United States Constitution, Art. I, Sec. 1 -........... 44
United States Constitution, Art. I, Sec. 7 —.......... 47
United States Constitution, Art. I, Sec. 9 2.000000... 44
Textbooks
Impoundment of Funds, 86 Harvard Law Review,
ro, ame Oe eb] ¢). )°4, Se ee en 32, 38
Presidential Impounding of Funds: The Judicial
Response, 40 University of Chicago Law Review
(1973), pp. 328, 337-38 ........00.. 11, 38, 46
IN THE
Supreme Court of the United States |
October Term 1973
Nos. 73-1377, 73-1378
’ RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES 3
ENVIRONMENTAL PROTECTION AGENCY, &
Petitioner, 2
i vs. g
| THE CITY OF NEW YORK ON BEHALF OF ITSELF AND :
ALL OTHER SIMILARLY SITUATED MUNICIPALITIES E
WITHIN THE STATE OF NEW YORK; §
CITY OF DETROIT, Party Plaintiff, i
Respondents. z
RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES e
ENVIRONMENTAL PROTECTION AGENCY, é
Petitioner, é
CAMPAIGN CLEAN WATER, INC., ;
| Respondent. :
Brief of the California Attorney General as Amicus
Curiae in Support of Respondents’ Position That
Petitioner Illegally Reduced Allotments to States
as Required to Be Made by the Federal Water
Pollution Control Act Amendments of 1972
SPL Rae RAR
Introduction
“There presently exists a ‘wait and see’ mood
on the part of State and local governments. . . . =
This stagnant condition will be compounded by
the uncertainty that will be bred by a Presidential
direction of the Federal program. More important-
nada
—2—
ly, it will counter the President’s demand that we
‘not slacken our pace, but accelerate it.’
“We will be confronted by.the inequity of try-
ing to pursue, through enforcement means a con-
trol program against industrial dischargers, while
failing to fund municipal plants on the same
stream, and not controlling those industrial wastes
discharged through municipal plants. As the Pres-
ident stated, ‘A river cannot be polluted on its
left bank and clear on its right. In a given water-
way, abating some of the pollution is often little
better than doing nothing at all, and money spent
on such partial efforts is often largely wasted.’
[Footnote omitted. ] :
“Finally, we can anticipate many groups ques-
tioning the degree of Federal commitment and
interest, and the Federal Government’s ability to
provide stable and effective leadership. The
momentum of awareness and action will not be
sustained and the attainment of the President’s
goal of ‘true quality of life in America’ will be
hindered. . . . Program delay and indecision have
become common. As the President said, ‘as we
strive to expand our national effort, we must also
keep in mind the greater cost of not pressing
ahead.’ | Footnotes omitted. |
“EPA iSnOt unmindful of the limited resources
that the Federal Government can apply to -its
important programs. It is a constraint that fades
many hopes. .
_ “But : eounesevailing this concern are the con-
sequences of failure to meet our national need in
this area. More so than any other, water is our
yao
most important national resource. It sustains our
industry, our farms, our commerce, our enjoyment,
our lives. It is also most unforgiving if it is abused.
The effects linger and, if continued, multiply.
“It seems reasonable to me to spend less than
1% of the Federal budget and two tenths of 1%
of the Gross National Product over the next
several years to assure for future generations the
very survival of the Gross National Product.” Let-
ter from William Ruckelshaus to The Office of
Management and Budget, October 11, 1972, rec-
ommending Presidential Approval of the Federal
Water Pollution Control Act Amendments of
1972, “A Legislative History of the Water Pollu-
tion Control Act Amendments of 1972,” Public
Works Committee, 93rd Cong., Ist Sess., Serial
No. 93-1 (1973). (Emphasis added. )
Despite the strong and eloquent recommendation of
the President’s own appointee as Administrator of the
Environmental Protection Agency, the President vetoed
the Federal Water Pollution Control Act Amendments
of 1972 (hereinafter FWPCA). Congress, however,
expressing a strong sense of commitment to cleaning
the nation’s waters, overrode the President’s veto.
The decision to spend $18 billion for waste treat-
ment plants was not an easy one for Congress. It was
a carefully weighed decision, with much thought given
to the potential inflationary effect on the economy.
The cost of cleaning our waters is great. It was deter-
mined, however, that in terms of destroying all hope of
saving the quality of our waters, a weak commitment
—on_the part of the federal government would have even
a greater cost.
~-4$— \
Ultimately, our national priorities must be established
by the People, speaking through their legislative repre-
sentatives. Congress has spoken. It is now up to the
courts to effectuate that decision so that the task of
+ cleaning our nation’s waters may begin.
Statement of the Case
The facts out of which this case arises are aptly
summarized by District Court Judge Merhege in Cam-
paign Clean Water v. Ruckelshaus. (TT. Senn pp.
80A, 81A.)
It is significant to note that since the recuction of
allotments, five out of six District Court judges who
have ruled upon the issue of the amount of allotments
made under the FWPCA have ruled in favor of plain-
tiffs:
City of New York v. Ruckelshaus, .... F.2d .
(D.C. Cir.), 358 F. Supp. 669 (D. D.C.
1973), 5 ERC 1305;
Anthony R. Martin-Trigona v. William D.
Ruckelshaus, .... F. Supp. ..... (N.D. IIL.
1973), Civil Action No. 72-C03944, 5 ERC
1665, summary judgment entered in favor of
plaintiff finding act of allotment ministerial;
Campaign Clean Water, Inc. v. Ruckelshaus,
489 F.2d 492 (4th Cir. 1973), 361 F. Supp.
689 (E.D. Va. 1973), 5 ERC 1441, plain-
tiffs motion for summary judgment granted
finding discretion in making allotments’ but
holding discretion abused; Court of Appeals
remanded with directions to take evidence on
abuse of discretion;
FE A ST TT A cee eet
-
George E. Brown, Jr. v. Ruckelshaus, and City
of Los Angeles v. Ruckelshaus, 364 F. Supp.
es Pe
a ee
a in
258 (C.D. Cal. 1973), 5 ERC 1803 (1973),
motion to dismiss on standing issue granted
(Judge Hauk also addressed the merits and
sustained the “impoundment” );
State of Minnesota v. United States Environ-
mental Protection Agency, et al., D. Minn.,
No. 4-73 Civ. 133, 5 ERC 1586 (1973),
plaintiffs motion for summary judgment
granted; appeal pending;
State of Maine, et al. v. Robert W. Fri, et al.,
D. Maine, Civil Action No. 14-51, the Dis-
trict Court entered a preliminary injunction
requiring allotment of funds; the Court of
Appeals for the First Circuit affirmed (.... F
2d ...., 5 ERC 1991 [1973]).
The Issue
At the beginning it should be made clear that we do
not view the case before us as one involving an im-
poundment of funds. It is actually a far more serious
case.’ When funds are impounded they are retained
and may accumulate for later use. By not making the
initial allotments to the states the federal commitment
has been cut back and without additional legislation
those funds will never be made available to the states.
A complicated funding procedure was. set forth in
the FWPCA. The six-step procedure is aptly set forth
'The Court of Appeals for the District of Columbia Circuit,
while ruling as California urged as a friend of the court that the
allotment of funds was a purely ministerial act, refused to pur-
sue what it considered the “semantic argument” we presented
as to the distinction created 7 the unique funding mechanism.
New York v. Train, Combined Appendix pp. 7A, 8A. The dis-
Ea ee “4
~ HHCTION “between tiexibitity—a1t--the-obligation —stage—and2_refusal __ as = Saev
to make full allotments is not, however, a semantic distinction
but has a substantive effect.
aw ae
by the Court of Appeals for the District of Columbia
in New York v. Train. (Appendix p. 6A.) The first
step is really a bookkeeping procedure. The Adminis-
trator, according to standards of a state’s need as set
forth in the Act. each year allots} amongst the states
the amount of money which will jeventually be made
available to them. Though no money changes hands
at this stage, the states then can} rely on eventually
obtaining a fixed share of the federal funds for the
program. |
The issue, then, before this C Jurt is whether the
allotment to the states of the funds authorized to be
appropriated is a ministerial act. This has been treated
as the central issue in every case involving the re-
duction of allotment except Campaign Clean Water,
Inc. v. Train. The failure of plaintiffs in the Cam:
paign Clean Water case to fully address this issue ren-
ders the opinions in that case of little value. The cru-
cial error made by plaintiffs in Campaign Clean Water
was in incorrectly conceding that Congress intended to
give the executive certain discretion in making allot-
ments. It is that concession with which we do not con-
cur and which skews the result in the Fourth Cir-
cuit’s decision.
Statement of Interest
Imposed upon the states by the FWPCA are certain
specific duties in regard to waste treatment. Section
301(b)(1)(B) requires publicly owned treatment
plants within certain time periods to meet effluent limi-
tations based on secondary treatment. By July 1, 1983,
—71—
all publicly owned treatment plants are required by
section 301(b)(2)(B) to provide for the “best prac-
ticable” waste treatment technology. A tremendous
amount of money will have to be expended by Calli-
fornia to comply with these congressional mandates. —
One of the four national policies stated in the Act
is the “national policy that federal financial assistance
be provided to construct publicly owned waste treat-
ment works.” § 101(a)(4). It was the intent of Con-
gress in enacting Title II of the FWPCA to assist states
in development of the waste treatment management
plants necessary to achieve the water quality goals of
the Act. That was why $18 billion was authorized by
Congress to be appropriated as grants for construction
of waste treatment plants.
By the Administrator’s refusal to allot the full
amount of funds authorized to be appropriated, Cali-
fornia stands to lose a total of $948,300,000 in con-
struction grants for 1973, 1974 and 1975, California’s
share of the federal allotment being 9.8176%. 37 Fed.
Reg. 6282 (Dec. 8, 1972); 38 Fed. Reg. 5331 (Feb.
28, 1973); 39 Fed. Reg. 5257 (Feb. 11, 1974). With-
out those funds the citizens of California, in order
to meet the standards established by the Act, will have
to bear a substantial economic burden which Congress
intended the federal government to share.
The Attorney General is the chief law officer of
the State of California. (Cal. Const. art. ¥, § 13.) He
has been delegated by the California Legislature the
PO Yes
RUNES OS
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CS CELLI EGE LLL IO ELEY DEES Is GEMS
«i
—g—
responsibility of providing the people of the State of
California with an adequate remedy to protect the nat-
ural resources of the State of California from pollu-
tion, impairment or destruction. (Cal. Gov. Code
§ 12600(b).)
To protect the waters of the State of California and
insure compliance with the FWPCA and our own State
Water Quality Act (Cal. Wat. Code § 13000 et seq.),
it is in the best interest of the public for the California
Attorney General to support the position of the City
. of New York in order to secure allotment of the full
amount of funds auhgriees by Congress in the
FWPCA. -
Summary of Position
It is the position of the State of California that:
1. These cases present a justiciable contro-
versy which is not barred by the doctrine of sov-
ereign immunity;
2. The President only has such powers to re-
fuse to allot or spend funds as is express or im-
plied in the authorizing legislation;
3. Section 205(a) of the FWPCA states that
sums authorized to be appropriated shall be al-
lotted. The history of sections 205(a) and 207 of
the FWPCA demonstrates the congressional intent
that all funds authorized for appropriation for
waste treatment plants be allotted to \the , states.
Allotment of funds, according to a formula based
on need for waste treatment plants, is a minis-
terial act;
—9
4. Under the funding procedure established
by the FWPCA it is at the subsequent obligation
stage that the Administrator has some discretion
as to when funds will be spent. Once funds have
been allotted, however, they will eventually be
spent as they are carried over from year to year;
5. If it is concluded that the Administrator
does in fact have some discretion as to the amount
allotted, he has abused that discretion in allotting
only some 55% of the funds authorized for ap-
propriation in 1972 and 1973;
6. To allow the reduction of the allotment to
stand would frustrate the will of Congress and
violate the constitutional doctrine of separation of
powers.
Sec Rapp nen Rios
SIRORSONRDN Teer sty
—|; on
ARGUMENT
I
This Case Presents a Justiciable Controversy Which Is
Not Barred by the Doctrine of Sovereign Immunity
In all of the litigation arising out of the reduction
of allotments under the Federal Water Pollution Con-
trol Act, the Administrator has con:ended that the facts
fail to present a justiciable case or controversy and
involves a non-justiciable political question. Further-
more the Administrator contended, as he now con-
tends, that this case is barred by the doctrine of sov-
ereign immunity. Several of the judges in the cases be
low have treated the contentions of the Administrator
on this point at length and concluded that this case
presents a justiciable controversy which is not barred
by the doctrine of sovereign immunity. Even Judge
Hauk, the only District Court judge who ruled in favor
of the Administrator, held that although this may be
a political case it is not a political question and there-
fore is justiciable. Brown v. Ruckelshaus, 364 F.
Supp. 258, 262-63 (C.D. Cal. 1973), 5 ERC 1803,
1805. This certainly is no more of a political case than
the first major impoundment case, Kendall v. United
States, 37 U.S. 524 (1838). As stated in Baker v.
Carr, 369 U.S. 186, 211 (1962);
“Deciding whether a matter has in any measure
been committed by the Constitution to another
branch of government, or whether the action of
that branch exceeds whatever authority has been
committed, is itself a delicate exercise in consti-
tutional interpretation, and is a responsibility of
this Court as ultimate interpreter of the Constitu-
tion... .”
—l1—
Just such a matter is presented in this case. For a good
summary of the role played by the judiciary in the ques-
tion of impoundment of funds see Presidential Impound- —
ing of Funds: The Judicial Response, 40 U. Chi. L.
Rev. 328 (1973).
Petitioner contends that this suit is barred by the
doctrine of sovereign immunity because the requested
relief will lead to the expenditure of government funds.
Petitioner relies upon Dugan. v. Rank, 372 U.S. 609
(1963). What petitioner fails to realize is this case is
within the exception to the general rule stated in Dugan
v. Rank. In that case the Court indicated that a suit
could be brought against a United States officer when
the action challenged allegedly exceeded the officer’s
statutory authority, or if within the scope of authority
was premised upon a power which is unconstitutional.
Dugan v. Rank, supra, at 621.
Furthermore as stated in Martin-Trigona v. Ruckels-
haus, .... F. Supp. .... (N.D. Ill. 1973), 5 ERC 1665,
1666:
“It should be noted at the outset that the relief
sought by the plaintiff does not require the ex-
penditure of unappropriated public funds nor does
it require the obligation of appropriated funds.
The plaintiff is not seeking a determination of
whether or not the Administrator is required to
spend a given amount of money for his sewage
treatment. Rather plaintiff is seeking a judicial
declaration that would require the Administrator
to perform what plaintiff alleges to be a purely
ministerial duty under the Act. (Viz. that of allot-
ting—and thus making available for obligation—
Paaee't 3
LEARNS ROLF
er
—12—
the sums authorized to be appropriated by Sec.
207 of the Act.)” (Emphasis in original. )
Also» supporting the decision that this claim is not
barred by the doctrine of sovereign immunity is a very
important impoundment case: State Highway Commis-
sion of Missouri v. Volpe, 479 F.2d 1099 (8th Cir.
1973).
It is clear that this case presents a justiciable con-
troversy which is not barred by the doctrine of sovereign
immunity. We, therefore, proceed to examine the merits
of the proposition that the Administrator does not have
the discretion to reduce allotments of funds authorized
to be appropriated for construction of waste treatment
plants.
II
The Legislative History of Sections 205(a) and 207
of the Act Indicates Congressional Intent That
All Funds Be Allotted, Though Flexibility Was
Given the Administrator Concerning What Is Ac-
tually Spent in Any One Year
Section 207 of the FWPCA established the maximum
funds authorized to be appropriated for 1973, 1974,
and 1975.
“There is authorized to be appropriated to carry
out this title . . . for the fiscal year ending June
30, 1973, not to exceed $5,000,000,000, for the
fiscal year ending June 30, 1974, not to exceed
$6,000,000,000, and for the fiscal year ending
June 30, 1975, not to exceed $7,000,000,000.”
(Emphasis added. )
Section 205(a) of the Act mandates that funds au-
thorized to be appropriated under section 207 be
a |
allotted among the states by the Administrator. prior to
January 1, immediately preceding the fiscal year in
which it is to be appropriated.
“Sums authorized to be appropriated pursuant
to section 207 for each fiscal year beginning after
June 30, 1972, shall be allotted by the Administra-
tor not later than the January Ist immediately
‘preceding the beginning of the fiscal year... .”
(Emphasis added. )
By letter dated November 22, 1972, President Nixon
informed Administrator Ruckelshaus: _
“I direct that you not allk@t among the States the
maximum amounts provided by section 207 of the
Federal Water Pollution Control Act Amend-
ments of 1972. No 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... .”
(Emphasis added.) (See App. Br., Ct. of Ap-
peals, New York v. Fri, Appendix pp. 15A-16A.)
The issue before this Court is whether the Administra-
tor exceeded his authority in not allotting the funds
authorized to be appropriated.
A. Action of Congress: A Sense of Commitment
Analysis of the legislative history of Title II of the
FWPCA leads to the conclusion that Congress man-
dated the Administrator to allot among the states $5
billion for 1973 fiscal year, $6 billion for 1974 fiscal
year, and $7 billion for 1975 fiscal year. The Ad-
ministrator has some discretion at a later stage as to
what is actually obligated, which in turn determines -
what would be appropriated, but not as to what part
of the authorized funds may actually be allotted.
PLEO Tage Mais | OMIT
AOS BITE
IRE Roe
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STE PRN © RUS RENENN
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ES EL BERTI ee BE oto
NPN SR, a
—14—
The report finally accepted by the Conference Com-
mittee and passed by Congress over the Presidential veto
as previously discussed provides for a complicated fund-
ing procedure. Congress committed itself to providing
75% of the cost of constructing certain needed waste
treatment management works. (§ 202.) The sums au-
thorized to be appropriated are allotted amongst the
states on the basis of need. (§ 205(a).) When the al-
lotments are made the Administrator cannot possibly
know how much or when the funds will later be ap-
propriated. When the Administrator approves construc-
tion plans, a contractual obligation is created (§ 203),
though the monies are expected to actually be spent
over a seven-year period. Appropriations are then an-
nually made by the Appropriations Committee based
on the contractual obligations incurred by the Ad-
ministrator. It is these appropriations which are not to
exceed certain dollar amounts. The Administrator may
decline to incur obligations on all the monies allotted
to the states. Those funds which are not obligated with-
in a year after the fiscal year in which they were al-
lotted “shall be immediately reallotted by the Adminis-
trator”. (§ 205(b)(1).) There is, therefore an impor-
tant distinction between the procedures for fiscal flexi-
bility provided for by Congress and the allotment reduc-
tion procedures directed by the President. Under the
President’s directive no funds will be carried over as
allotted but not obligated. The President has cut off
funds prior to the allotment stage, and thus substituted
his judgment for that of Congress on what should be
spent to clean our nation’s waters over the next seven
years.
In passing the FWPCA Congress was responding to
an important problem discussed in the 1971 Subcom-
—j]5—
mittee Hearings on Water Pollution where there was
much concern about the inadequacies of existing legis-
lation:
“At a bare minimum the credibility of the
existing federal commitment must be reestablished
by backing words of authorization with monies of
appropriation. Whenever the nation seeks to en-
courage cities to plan and construct improvements
which require many years to complete, the Con-
gress 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 commitment is vital but is not
the only change that can and should be made in
the federal legislative and (regulatory approach to
water pollution abatement.’ rings on Water
Pollution Control Legislation, U.S. Senate Cum-
mittee on Public Works, 92nd Cong., Ist Sess.,
pt. 1, at 521 (1971).
The general consensus during the first session of the
92nd Congress seemed to be that if the federal govern-
ment was going to mandate state action to clean the
nation’s water, the federal government would have to
bear part of the financial burden of accomplishing that
task. States and local governments had strongly pro-
tested against the congressional imposition upon them
of rigorous air quality standards under the Clean Air
Act and Amendments of 1970 because the federal
government did not at the same time provide funding to
help the states and local governments meet those stand-
ards. ;
“If Congress places upon State and communi-
tices the burden of carrying out this program, it
should bind itself to pay the Federal share of the
LEEPER ELOY ET aE EEE NOTE RN EN feet SER
2 ROPE CHE IR AEE
IRL
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pan
—16—
project costs. The authority for obligation will
not bar the Committee on Appropriations from
reviewing the manner in which the program is be-
ing carried forward.” 2 U.S. Code Congressional
and Administrative News, Pub. L. 92-500, p.
3702 (1972).
Discussing section 207 of the FWPCA (erroneously
referred to below as subsection (b)), the Subcommittee
on Air and Water Pollution ultimately concluded:
“The language of subsection (b) [sic] of Sec-
tion 207 provides that funds authorized for fiscal
_years 1973, 1974, and 1975, shall be available
for obligation by contract upon their allocation to
the States. The importance of assured Federal
financial support to the achievement of the objec-
tives of this title and to our national purpose of
cleaning up polluted waterways cannot be over-
stated. The task is a massive one in terms of the
work to be done and the funds to be expended.”
2 U.S. Code Congressional and Administrative
News, Pub. L. 92-500, p. 3701 (1972).
The subcommittee consistently voted against reduc-
ing the amount of the authorizations. The degree of
the commitment to full funding felt by Congress is
expressed in both Senate Reports and House Reports.
In determining the intent of Congress in enacting a
bill, it is particularly important to consider the views
of the sponsors of the legislation. First Nat. Bank v.
Walker Bank, 385 U.S. 252, 271 (1966); City of
Burbank v. Lockheed Air Terminal, 411 U.S. 624,
637 (1973). Senator Muskie* in his report stated:
*Chairman, Senate Subcommittee on Air and Water reporting
S 2770, floor manager for that bill and member of the Confer-
ence Committee.
a
a |, a
“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 municipalities during fiscal
years 1972-75. 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. . . .”
118 Cong. Rec. S 16870 (daily ed. Oct. 4, 1972).
(Emphasis added. )
“Mr. President, to achieve the deadlines we are
talking about in this bill we are going to need the
strongest kind of evidence of the Federal Govern-
ment’s commitment to pick up its share of the
load. We cannot back down, with any credibility,
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 invest-
ment that is authorized is the minimum dose of
medicine that will solve the problems we face.”
118 Cong. Rec. S 16871 (daily ed. Oct. 4, 1972).
Though the financial commitment was great, it is im-
portant to remember that actual cash outlay in the
three years for which appropriations were authorized
would be relatively slight because of the lag time be-
tween approval of a project and — expenditure for
construction.
According to Congressman Harsha:
“(T]he first major impact of obligations from the
$5 billion authorizations for the fiscal year ending
June 30, 1973, is in fiscal year 1975. During that
year the appropriations required for payment for. 4
obligations authorized by this legislation would
Ra ein ner pe
a] §
only be $2,450,000,000. The appropriations will
be spread out over the period of construction of
these waste treatment projects and would not be
felt in any appreciable sum until fiscal year
1975, some 2. or 3 years hence.
“As a matter of fact, for fiscal year 1973 if all
the money were obligated and placed under con-
tract, there would only be $20 million needed to
meet the obligations and in fiscal year 1974 there
would only be the necessity of appropriating
$250 million. Obviously there is not a severe im-
pact on the economy for the next 3 years under
this legislation.” 118 Cong. Rec. H 9122 (daily
ed. Oct. 4, 1972).
Congress was concerned about the inflationary ef-
fect, but concluded that the dangers of such an effect
were outweighed by the interest in cleaning up our
_ waters.
The “sense of Congress” (a term used in the Federal-
Aid Highway Act) was expressed by Senator Bayh
when he Stated:
“The conferees agreed to accept the House
passed authorizations for grants to the States for
the construction of waste treatment plants, in--
cluding sewage collection systems. This is con-
struction which is absolutely essential if we are
to make any meaningful progress toward the na-
tional goals established in the bill. The total au-
thorization for this purpose is $18 billion over the
3 fiscal 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
fam
LADLE ALONG DIOL LOOM
on
allocated for grants for construction of treatment
works will be distributed to the States on the
basis of need, with the Federal share of construc-
tion costs being 75 percent. ” Supra at
S 16892-93.
The intent of the House to make an $18 billion
commitment was just as clear as it was in the Senate.
Congressman Harsha,’ in his report to the House, re-
minded his colleagues: .
“You may recall that the bill that passed this body
last March called for authorizing a little more
than $24.6 billion, the Senate bill authorized $20
billion, and the administration requested $6 bil-
lion. The conferees have agreed on essentially the
same figures as in the House bill, $24.6 billion
for the period through fiscal 1975. A total of
$18 billion of this sum is for construction grants,
and breaks down not to-exceed $5 billion for fis-
cal 1973, $6 billion for fiscal 1974, and $7 bil-
lion for fiscal 1975.
“Naturally, the large difference in what the
administration asked, and what the conference
bill provides, raises the question of why the sub-
stantial discrepancy?
“There is only one answer to that and it is that
if we set out to do this job there is no way we can
accomplish it without paying the price. If we wanf
clean water, we have to pay for clean water. If we
want the States and cities to move aggressively
ahead in building waste treatment plants they
*Ranking minority member of House Committee on Public
Works, which reported House version, floor manager for that
bill and member of Conference Committee.
—20—
must have Federal aid, and they must have con-
_ fidence that Washington will continue to live up
to its commitments.” 118 Cong. Rec. H 9130
(daily ed. Oct. 4, 1972).
B. The President’s Veto: A Different Policy
After unanimous passage by the Senate and with
only 11 dissents in the House, the FWPCA went to
the President. The legislation, with its appropriations
which had been subject to such close scrutiny by the
Congress, was rejected by the President as inflationary.
In his veto message to Congress on October 17, the
President said:
“IT am compelled to withhold my approval from
S, 2770, the Federal Water Pollution Control Act
Amendments of 1972—a bill whose laudable in-
tent is outweighed by its unconscionable $24 bil-
lion price tag. My proposed legislation, as re-
flected in my budget, provided sufficient funds to
fulfill that same intent in a fiscally responsible
manner. Unfortunately the Congress ignored other
vital national concerns and broke the budget with
this legislation.”* Weekly Compilation of Presi-
‘It is interesting to note that according to former Administra-
tor Ruckelshaus the difference between the amount which would
have been authorized for appropriation in the Administration’s
bill submitted in 1971 (S 1013 by Senator Cooper) and that
of the bill eventually passed, was not that substantial. In a
letter by Ruckelshaus to President Nixon, urging the President
to sign the bill, Ruckelshaus stated:
“The total value of construction initiated in the near-
term under the enrolled bill [S. 2770] is expected to cor-
respond closely to the total value of construction that would
have been initiated under the Administration bill. Under
the Administration’s proposal, communities were free to
continue to initiate reimbursable projects, were not constrict-
ed by the $6 billion authorization, and could have sub-
stantially increased this amount. Reimbursable projects are
—~-21—
dential Documents, Vol. 8, No. 43, pp. 1531-32
(Oct. 23, 1972).
_ By exercising his constitutional prerogative of veto, the
President fully expressed his disapproval of the con-
gressional statement of policy as to how much money
was needed to clean our waters.
C. Final Judgment of Congress: To Override the Veto
To the President’s message both the House ard the
Senate, on October 17 and 18, responded by exercising
their constitutional prerogative and overwhelmingly
overriding his veto. In the discussion of the veto, Con-
gress again expressed its conviction that the $18 bil-
lion was needed for allotment among the states to do
the job. Senator Muskie said in response to Senator
Scott’s support of the President’s concern about the
budget
“. . + But may I say to the Senator, when we
pass a piece of legislation like this, with its re-
quirements imposed on industry, with its require-
ments imposed on the States, with its require-
ments imposed on the local governments, the ques-
tion that faces us then is, as we impose this com-
mitment on them, what commitment are we pre-
pared to accept on the part of the Federal Gov-
ernment?
“This point was well debated in the Senate
when we took up this bill. I made it clear, the
precluded under the enrolled bill and the $18 billion con-
tract grant authority represents a ceiling, while the Ad-
ministration’s $6 billion proposal represented a floor. With
the projected close correspondence in total near-term value
of construction starts, the potential inflationary impact upon
the entire construction sector would be minimized.” 118
Cong. Rec. § 18546 (daily ed. Oct. 17, 1972).
FO IE DEITY
POLE LEME L ELS AEE LOCI PN ARLEL SG AREY
REPELS PEELE LE ILRI PELE LS LEN IIE II
“992
committee made it clear, that what we are asking
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 ago, in his
state of the Union message, said he had preempted
the environmental issue and that he was making a
commitment.
“. . . The conferees spent hours and days study-
ing the problem of financing the cleanup effort
required by this new legislation, and specifically
studying how much money would be necessary to
achieve the objective and goals of the act, as set
forth in section 101(a).” 118 Cong. Rec. S 18548
(daily ed. Oct. 17, 1972).
Congressman Harsha likewise responded to the Pres-
ident’s veto:
“To those who say that we cannot afford to
start now on the restoration of our waters, on
the scale that Congress believes is essential, I say
that we dare not postpone this undertaking. Every
day of inaction most certainly will add to the
ultimate cost; another year of inaction may well
destroy all hope of saving our environment.
“Mr. Speaker, there is another point which I
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 re-
scurces. But, we dare not measure the cost of
this water bill merely in terms of dollars alone.
We cannot measure the wealth of our great nat-
ural resources in dollars alone—and if we wait
RAL at SA ee a ee
too long, all the dollars on earth won’t buy back
what we’ve lost. Under these circumstances, I am
firmly convinced that the price of killing this wa-
ter bill—of sustaining this Presidential veto—is
far, far too costly.
“Furthermore, the President maintained that a
vote to override the veto of the Water Pollution
Control Act Amendments of 1972 was a vote to
increase 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.
“This is not ‘extreme and needless overspend-
ing’—to use Mr. Nixon’s language. The moneys
authorized are based on estimates made by his
own administration. Furthermore, the bill sets up
a new system of user charges, by which industrial
users would return their share of operating and
maintenance costs of waste treatment plants—an
estimated $4.5 billion—to the Federal Treasury.
“Our economy can, and must, absorb the costs
of pollution control. A March 1972 report of the
President’s Council on Environmental Quality on
‘The Economic Impact of Pollution Control’ notes
that no real attempt has yet been made to quantify
the benefits of a cleaner environment and that
studies tend consequently to overstate the net costs
to society.
“Mr. Speaker, this is perhaps the most impor-
tant environmental legislation the Congress has yet
enacted. The question is not, ‘Can we afford to
spend $18 billion over the next 3 years for
sath
SSR RGR I ONES HONE RIS Ne
PR RE URE ANE
AES eo
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—24—
waste treatment plants? but ‘Can we afford not
to?’ . . .” 118 Cong. Rec. H 10267-68 (daily ed.
Oct. 18, 1972).
The statements of Congressmen quoted above are
but some of the plentiful language expressing Congress’
intention that the full $18 billion be spent for water
pollution control.
D. The Distinction Between Discretion in Allotment and
in Obligation
Even more important in a suit on reduction of allot-
ments than the general intent that the funds be spent
is the evidence that both Congress and the President
understood that sections 205(a) and 207 built in flexi-
bility in the contractual obligation stage which effects
‘ when the money is spent, but not in the allotment
stage, which determines whether the funds ultimately
are spent. That the President was aware of some flexi-
bility in spending is expressed in his veto message of
October 17:
“Even if this bill is rammed into law over the
better judgment of the Executive—even if the
Congress defaults its obligation to the taxpayers—
I shall not default mine. Certain provisions of S.
2770 confer a measure of spending discretion and
flexibility upon the President, and if forced to
administer this legislation I mean to use those pro-
visions to put the brakes on budget-wrecking ex-
penditures as much as possible.” Weekly Compila-
tion of Presidential Documents, Vol. 8 No. 43,
p. 1532 (Oct. 23, 1972).
In his report to the Senate on the conference bill,
Senator Muskie explained the purpose behind the lan-
guage of sections 205(a) and 207:
—25—
“In our last conference, the able and distinguished
ranking minority member of the House Committee
on Public Works offered two amendments which
he indicated would reduce opposition to the bill
from the White House and the Office of Manage-
ment and Budget. These two amendments were
accepted by your conferees and by other House
conferees in order to remove the question of a
veto on the basis of the money authorized by the
legislation.
“Under the amendments proposed by Congress-
man WILLIAM HARSHA and others, the au-
thorizations for obligational 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 provisions were suggested to give the
administration some flexibility concerning the ob-
ligation of construction grant funds.
“The conferees do not expect these provisions
to be used as an excuse in not making the com-
mitments necessary to achieve, the goals set forth
in the act. At the same time, there may be in-
stances in which the obligation of funds to a
particular project in a particular State may be
contrary to other public policies such as the Na-
tional Environmental Policy Act. In these cases the
conferees would, of course, expect the administra-
tion to refuse to enter into contracts for construc-
tion.” (Emphasis added.) 118 Cong. Rec.
S 16871 (daily ed. Oct. 4, 1972).
‘Allocated rather than allotted was the term which had been
used in the Senate version of the bill.
DERM ASEM WE SA GR TAS PREG? BRACES, 4
—26—
Congressman Harsha made the same point to the
House when they voted to override the President's
veto: ,
“Furthermore, Mr. Speaker, we have empha-
sized over and over again that if ‘‘ederal spending
must be curtailed, and if such spending cuts must
affect water pollution control authorizations, the
administration can impound the money.
“I want to point out that the elimination of the
word ‘all’ beforé the word ‘sums’ in section 205
(a) and insertion of the phrase ‘not to exceed’ in
section 207 was intended to emphasize the Presi-
dent’s flexibility to control the rate of spending.
“
.
“Second, I would like to point out that the
Administrator of the Environmental Protection
Agency must approve plans, specifications, and
estimates. This is the pacing item in the expendi-
tures of funds. It is clearly the understanding of
the managers that under these circumstances the
Executive can control the rate expenditures.” (Em-
phasis added.) 118 Cong. Rec. H 10268 (daily
ed. Oct. 18, 1972).
The legislative history of sections 205(a) and
207 clearly indicates an intent to allow discretion in
the rate of spending: making allotments of funds to the
states, however, is solely a ministerial act.
The importance of the distinction between flexibility
in the obligation stage and in the allotment stage was
properly noted by Judge Gasch in City of New York
v. Ruckelshaus:
—27—
“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 author-
ized.’ If 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 allot-
ment for the next fiscal year. Any sums author-
ized 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 author-
ized, the Administrator controls the absolute
amount (as opposed to the rate) of spending with-
out regard to the standards set forth in, e.g.,
§ 204, for determining whether sums should be
obligated.” New York City v. Ruckelshaus, Ap-
pendix p. 62A.
Congress gave the administration flexibility in spending
but did not intend to allow the Act to be gutted by
making less than the allotments provided for by the
Act. To accept the argument of petitioner, the Ad-
ministrator would allow the President to substitute his
judgment for that of Congress.
District Court Judge Merhege in Campaign Clean
Water came to the conclusion that the Administrator
had discretion to reduce allotment of funds but had
ERIN AUER LAREN ee
Ta ie |
Ry hay iat
eehe bh
—28—
abused that discretion.° In coming to the conclusion
on the discretionary aspect of the funding pro-
cedure, Judge Merhige relied on much the same lan-
guage of legislative history by Congressman Harsha
and Senator Muskie concerning deletion of the word
“all” before the word “sums” in section 205(a) and
insertion of the phrase “not to exceed” in section 207,
which we contend were designed to give flexibility in
the obligation but not the allotment stage.
Judge Merhege stated:
“Judge Gasch in City of New York concluded
from this language and other by-play that, in ac-
cordance with Senator Muskie’s views, the discre-
tionary elements incorporated into the Act and
referred to by the various legislators were meant
to apply to executive control over the ‘rate of
spending,’ but that the rate of spending was to be
monitored only at the obligation stage and not by
the withholding of allotments.
“This Court respectfully declines to adopt this
interpretation, primarily because it appears to de-
emphasize the syntactical history of Section 205
which shows the purposeful removal of the word
‘all’ from § 205. While the legislative debates lend
strength to Judge Gasch’s conclusion, the Court,
the plaintiff, and, to a limited extent, the defend-
ant, are in agreement that legislative history is in
®On appeal the Court of Appeals noted that plaintiff “concedes
that Congress intended to give the executive certain discretion in
making allotments under Section 205.” (Appendix p. 39A.)
Plaintiff apparently made much the same concession in the trial
court. (Appendix p. 96A.) It is that concession which is
erroneous and which led that court astray. No such concession
was made in Train v. New York, supra, enabling the court in
that case properly to decide the issue.
—29—
the main unclear, politically charged, and in the
Court’s view, to some degree based upon suspect
constitutional interpretation of the powers of the
President. In this context the syntactical history
must be given great weight. See generally Gilbert
v. General Electric, 347 F. Supp. 1058 (E.D. Va.
1972). The Court accordingly concludes that the
Congress did intend for the executive branch to
exercise some discretion with respect to allotments.
Plaintiff, in fact, does not seriously dispute this
conclusion, but contends that ‘the Congress could
not have intended to give the Administrator the
discretion to gut the Act.’ This latter contention
merits close scrutiny.” Appendix at 95A-96A
(footnote omitted ).
As previously noted, part of the problem in relying
upor Campaign Clean Water is the acquiescences of
plaintiff in the core concept that reduction of allot-
ments was discretionary. Nonetheless, deletion of the
word “all” from section 205(a) does raise some ques-
tion as to the meaning of section 205(a) when read
with section 207. The Court of Appeals for the District
of Columbia Circuit in City of New York v. Train
more properly dealt with the meaning of those amend-
ments.
“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 contract-grant mechanism. Appel-
lant-Administrator argues, primarily from the Har-
sha Amendments, that the Act permits discretion
at the allotment phase. Appellee-City counters that
while the Administrator might control the timing
LSPA AROSE RIN WARM HET LPI RRO 2S HOY ONG TY EN RAY ERICA
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of future spending through delay of obligation, he
must fully allot. We agree with Appellee because,
after careful consideration of the relevant history,
we find it clear that the Congressional intent, both
before and after the Harsha Amendments, was to
make allotment mandatory.
“Section 205(a), by its terms, supports the Ap-
pellee. It is mandatory in tone: ‘Sums authorized
to be appropriated pursuant to section 207 for
each fiscal year... shall be allotted by the Ad-
ministrator. . . .. (Emphasis added. )
“The Appellant argues that the Harsha Amend-
ments, by adding ‘not to exceed’ in § 207, manifest
an intent to make the allotment (under § 205)~--—-———-
discretionary. However, the imposition of a ceiling
on authorized appropriations is not inconsistent
with the Appellees’ position concerning mandatory
allotment. Logically, it could be interpeted to
mean that the amount obligated (later appropri-
ated and expended) in any fiscal year may be less
than the maximum amount authorized. We con-
cede that the elimination of the word ‘all’ from
§ 205(a) is a source of confusion. At least one
court’® has chosen to rely entirely upon this syn-
tactical change, although there is no precise expla-
nation of its meaning. We consider it more useful
to examine the statements of sponsors purporting to
explain the intended effect of the Harsha Amend-
ments: we find that allotment remained manda-
tory.” City of New York v. Train, Combined Ap-
pendix pp. 19A-20A (emphasis by the court).
“I8Campaign Clean Water v. Ruckelshaus, Civil No.
18-73-R (E.D. Va. filed June 5, 1973) slip op. at 14.
{Court’s footnote. ]
Ba te te Tc POE EIE LEADS I, BRS Sa
oe
Ill ;
' The President Has Only Such Powers to Refuse to
Spend Funds Authorized by Congress as May Be
Found or Implied by Legislation
In the many congressional hearings on impoundment
of funds by the President, Congressmen have referred
to the refusal to allot funds under the FWPCA as an
impoundment issue. As previously discussed (supra pp. 4
25-33), we see a very important distinction. Refusal to :
allot funds authorized to be appropriated has the ef-
fect of cutting off a federal financial commitment which * :
‘
Congress’ has made, while impoundment may simply
Discussions of impoundment nonetheless may be help- |
ful in resolving this issue. Whatever might be said of
the impropriety of impoundment should be amplified for
the facts before this Court. If the President lacks au-
thority to delay expenditure of funds ‘appropriated by
Congress, how much more surely must he lack the
power to completely block use of funds.
Though Presidents have been impounding funds since
Jefferson, the practice has never been so extensively em-
ployed as by President Nixon. Historically, the power
to impound has been treated as a limited one. Tradi-
tionally, impoundments have fallen into one of three
categories:
“(1) [F]unds were impounded solely because
they were no longer necessary for or appropriate
to the achievement of the ends for which they
had been made available; (2) the impoundment
was arguably justifiable as an exercise of the
President’s authority as Commander in Chief of
the Armed Forces, either because the funds with- _
Rorreneeneseseee | RESO PREY oR SR Ae conNnih en eRe ee NRONRE
—32—
held ‘had been made available: for defense, pro-
grams or because spending of the funds would
hinder a war effort; or (3) Congress had author-
ized the President to impound if necessary as a
means of reducing government spending.” Im-
poundment of Funds, 86 Harv. L. Rev. 1505,
1508.
Although arguably impoundment at the obligation
stage may fall into the third category, a reduction of
allotment does not fall into any category and has no
historical support. An excellent summary of the past
use of the impoundment power may be found in the
Hearings on H.R. 5193 and Related Bills Before the
Subcomm. on Rules, 93rd Cong., Ist Sess., pts. 1, 2
at 88, et seg., L.C. 73-602108 (1973).
The exercise of the power of impoundment by Presi-
dent Nixon has gone far beyond the practice accepted in
the past. The result is a “constitutional crisis” which
ultimately must be resolved in the courts, Congress’ own
short-term response, after much debate, has been to
pass an anti-impoundment bill, HR 8480 (which re-
quires the President to report all impoundments). The
harm has already been done however to the FWPCA
and can only be rectified by judicial decision.
In the Hearings on Impoundment,’ Congressman
Evans of Colorado expressed a sentiment which was
shared by many of his colleagues:
“The current situation is intolerable. The Presi-
dent impounds with impunity and we in Congress
search for ways to force the President to carry
7Hearings on H.R. 5193 and Related Bills Before the Sub-
comm. on Rules, 93rd Cong., Ist Sess. (1973).
LEIA ALRITE M8
a, oe
out his constitutional duties to execute the laws
of the United States. ...
“An appropriation bill, if passed and signed by
the President, is a law. The Constitution states that
‘All legislative powers herein granted shall be
vested in a Congress of the United States, which
shall consist of a Senate and House of Representa-
tives.’ (Art. I, sec. 1.) The Constitution further
states that, ‘No money shall be drawn from the
Treasury, but in consequence of appropriations
made by law.’ (Art. I, sec. 9; emphasis added).
“Consequently, the starting point of any dis-
cussion is that the power to spend money—and
surely, by any stretch of logic, the authority not to
spend money—is vested originally in the Congress.
Any delegation of that authority must come from
the Congress itself... .
“Second, the powers of the President, while
vast, are not inherently broad in themselves.
Congress has delegated an enormous amount of
authority to the President over the years. But the
theory expressed so many times by the Nixon ad-
ministration, that somehow the President has
broad ‘inherent’ authority in many different areas,
surely is wrong. In Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579 (1952), the Supreme
Court emphatically ruled that President Truman
lacked the ‘inherent’ constitutional authority to
seize the steel industry... .
“In other words, the President, as well as the
Congress, must be guided by the fundamental
constitutional principle that the Federal Govern-
ment is a government of limited, enumerated
powers.
FSR ATS eS
lie Oo Aa i at Ba
AIT
AYP
TRE ROT OR
‘iii
“Now, of course, the Anti-Deficiency Act al-
lows the President to impound funds under very
specific circumstances, ‘to provide for contingen-
cies, or to effect savings whenever savings are
made possible by or through changes in require-
ments, greater efficiency of operations, or other
developments subsequent to the date on which
such appropriation was made available.’ (31
U.S.C. 665(c)(2).) However, these are carefully
circumscribed circumstances which do not spell
out abroad, inherent authority to impound. This
is the opinion of the Comptroller General of the
United States, the Honorable Elmer B. Staats, as
stated in recent testimony before Senator Ervin’s
subcommittee. In addition, of course, when Jus-
tice Rehnquist was Assistant Attorney General in
1969, he wrote a memorandum to a White House
official that the President lacked the inherent con-
stitutional authority to impound. Now, the Nixon
Administration states that Mr. Rehnquist was
wrong. The question is up to the Supreme Court
to decide, but surely it should not be the Con-
gress, on its considered reaction, which concedes
an iota of such authority.” Hearings on H.R.
5193 and Related Bills Before the Subcommit-
tee on Rules, House of Representatives, 93rd
Cong., Ist Sess. (1973).
Congressmen -have recognized that the question of
impoundment is one properly to be decided by the
Supreme Court. This case presents Your Honors with
. an opportunity to resolve an important issue.
We turn to the opinion by Justice Rehnquist
mentioned by Congressman Evans. That opinion on
‘
: —35—
the question of the President’s authority to impound
funds was written as an opinion memorandum in
1969 by then Assistant Attorney General William
Rehnquist. 116 Cong. Rec. S 158 (daily ed. Jan. 20,
1970). The legislation with which the opinion dealt
appropriated funds for assistance to federally impacted
schools, but the rationale would appear to be equally
applicable to the FWPCA. The opinion emphasized
the fact that the impoundment would result in:
“ | | permanent loss to recipient school districts
of the funds in question and defeat of the Con-
gressional intent that the operations of these dis-
tricts be funded at a particular level for the fisca}
year.” 116 Cong. Rec. S 159 (daily ed. Jan. 20,
1970). >
A similar loss of funds will result if the reduction of
allotments is not rejected under the FWPCA.
Some of the same arguments raised in support of
President Nixon’s actions were disposed of by William
Rehnquist:
“It has been suggested that the President’s duty
to ‘take care that the laws be faithfully executed’
might justify his refusal to spend, in the interest :
of preserving the fiscal integrity of the Government
or the stability of the economy. This argument :
carries weight in a situation in which the Presi-
dent is faced with conflicting statutory demands,
as, for example, where to comply with a direction
to spend might result in exceeding the debt limit
or a limit imposed on total obligations or expendi- :
OEE! REEL ROE
tures. See, e.g., P.L. 91-47, title IV. But it ap-
pears to us that the conflict must be real and im- :
minent for this argument to have validity; it would :
eR a salad ps
a ee
not be enough that the President disagreed with
spending priorities established by Congress. . . .”
116 Cong. Rec. S 160 (daily ed. Jan. 20, 1970).
In the case of reduction of allotments under FWPCA,
President Nixon has let“it be well known that he dis-
agrees with Congress’ spending priorities, but there
are no conflicting statutory demands to justify his di-
rective to the Administrator to impound funds prior
to allotment.
An unpublished opinion letter of May 27, 1937,
by Attorney General Cummings to the President is cited
by the Rehnquist opinion. The Cummings opinion held
that the President could not legally require the heads
of departments and agencies to withhold expenditures
from congressional appropriations.
William Rehnquist also cites the United States Su-
preme Court case of Kendall v. United States, 37 US.
524 (1838). That case dealt with an Act of Congress
directing the Treasury to settle an account under a
contract for mail service. When the Postmaster Gen-
eral refused to credit part»of the funds, a writ of man-
date was held proper to compel the expenditure. It is
considered prominent among the cases rejecting the
constitutionality of impoundment by the President with-
out authorization from Congress.
Congressman Evans, in addition to referring to the
Rehnquist opinion, mentioned the Anti-Deficiency Act
as providing for Presidential impoundment of funds
“under very specific circumstances.”
In concluding that the Anti-Deficiency Act would
not allow the Secretary of Transportation to withhold
the authority to obligate apportioned funds under the
2 PN eM RODIN hin ATS ona RU
Federal-Aid Highway Act, the Eighth Circuit provided
a good summary of the role of the Anti-Deficiency Act.
“Although the applicability of the Anti-Defi-
ciency Act, 34 Stat. 49, as amended, 64 Stat. 765,
31 U.S.C. § 665(c), was not argued on this
appeal, the conclusion we reach is not at variance
with the provisions of that Act. Section 665(c)
(2) allows the Bureau of the Budget (now OMB),
when apportioning appropriation funds, to set up
reserves (i.e., withhold the funds) in order ‘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 date on which such appropriation was made
available.” However, the Act goes on to point
out that the reserves may oniy be established
when the funds ‘will not be required to carry out
the purposes of the appropriation concerned... .
(Emphasis ours.) The legislative history is em-
phatic in noting that this power to withhold funds
cannot be used if it would jeopardize the policy q
of the statute.
“Tt is perfectly justifiable and proper for
all possible economies to be effected and sav- :
ings to be made, but there is no warrant or
justification for the thwarting of a major policy :
of Congress by the impounding of funds. If
this principle of thwarting the will of Congress
by the impounding of funds should be ac-
cepted as correct, then Congress would be total-
ly incapable of carrying out its constitutional
mandate of providing for the defense of the
SPEYER ENN Late ER ETS BOOM
an |
Nation.” (Emphasis ours.) H.R.Rep. No.
1797, 81st Cong., 2d Sess. 311 (1950).
It is thus apparent that any withholding in order
to ‘effect savings’ or due to ‘subsequent events,’
etc., must be considered in context of not violating
the purposes and objectives of the particular ap-
propriation statute. Such purposes and objectives
are necessarily violated when one charged with
implementing the statute acts beyond his delegated
authority.” State Highway Commission of Mis-
souri v. Volpe, 479 F.2d 1099, 1118 (8th Cir.
1973).
The Eighth Circuit’s reading of the Anti-Deficiency
Act is perfectly consistent with that found in Jmpound-
ment of Funds, 86 Harv. L. Rev. 1505, at 1528:
“The Antideficiency Act of 1950 was passed
partly in order to limit executive impoundments
to those undertaken only to further the purposes
of the particular program involved. . . .” (Foot-
notes omitted. )
Further support for this reading of the Anti-Defi-
ciency Act is found in Presidential Impounding of
Funds: The Judicial Response, 40 U. Chi. L. Rev.
328, 337-38:
“The Anti-Deficiency Act cannot, therefore, be
taken as granting a general power to impound.
On the contrary, it limits the power to impound
to the achievement of efficiency and economy in
carrying out the spending programs Congress has
authorized, without in any way impairing the
achievement of the programs’ goals. Indeed, the
Supreme Court’s decision in the Steel Seizure
se, Sin
Case suggests that, since Congress has defined
the purposes for which impounding is permissible,
any impounding not authorized by the Act or by a
specific appropriations statute is illegal.” (Foot-
notes omitted.) |
The requirements of the Anti-Deficiency Act should
not be used as an excuse for allowing the President
to circumvent the clear congressional policy found in
the FWPCA.
IV ;
The Position of Respondents in This Case Is Supported
by the Recent Decision in Missouri v. Volpe
Since the reduction of allotments under the
FWPCA, a significant decision concerning the legality
of impoundment has been decided by the Eighth Cir-
cuit Court of Appeals. On April 2, 1973 in State High-
way Commission of Missouri v. Volpe, 479 F.2d 1099
(8th Cir. 1973), Judges Lay and Heaney concluded
that the Federal-Aid Highway Act does not expressly
or implicitly authorize the Secretary of Transportation
to withhold the authority to obligate apportioned funds
because of the status of the economy and the need to
control inflation.
The funding procedures under the FWPCA are
largely patterned after the Federal-Aid Highway Act,
except that greater flexibility in the obligation phase
was built into the FWPCA by use of the “not to exceed”
language in section 205(a). Although the action
challenged in Missouri v. Volpe was at the obligating
3
if
ry
&
ae
stage rather than- the allotment stage,* the opinion
has substantial value here as a rejection of the proposi-
tion that the President has inherent power to reduce
expenditure of funds authorized by Congress.
One argument presented by the government was that
the states had no vested rights in the funds until the
Secretary approved a specific project. To that the court
replied that, assuming, arguendo, there was ,no vested
right until approval, that does not mean the Secretary
has discretion to withhold approval for reasons not
contemplated in the Act.
Another argument made by the ciel which
the court found unavailing was the contention that ap-
propriation Acts are permissive in nature and do not
provide specific mandate that funds authorized to be
appropriated must be expended. The court responded:
“. . . For although a general appropriation act
may be viewed as not providing a specific man-
date to expend all of the funds appropriated, this
does not a fortiori endow the Secretary with the
authority to use unfettered discretion as to when~
and how the monies may be used. The Act cir-
cumscribes that discretion and only an analysis of
of the statute itself can dictate the latitude of the
questioned discretion. Civil Aeronautics Board v.
Delta Air Lines, Inc., 367 U.S. 316, 2.
SAs for the reduced allotments, former Federal Hi®hway
Administrator, F. C. Turner, had observed: “There is absolutely
no discretion of any kind in our office with respect to how much
any State gets in any of these categories of funds [pursuant to
the formula]. The apportionment is specified in the law and we
distribute it right to the dollar.” Testimony reported in Hearings
on Executive Impoundment of Appropriated Funds Before the
Subcommittee on Separation of Powers of the Committee on
the Judiciary, 92nd Cong., Ist Sess. at 80 (1971).
TA
‘~e
A
pra \ Pie
(1961); Federal Trade Commission v. National
Lead Co., 352 U.S. 419, 428 —. . (1957); Stark v.
Wickard, 321 U.S. 288, 309 . . . (1944); Pen-
theny, Ltd. v. Government of the Virgin Islands,
360 F.2d 786, 790 (3 Cir. 1966).” State High-
way Commission of Missouri v. Volpe, supra,
479 F.2d at 1109 (emphasis by the court).
Vv
Even Assuming Sections 205(a) and 207 Gave the
Administrator Discretion to Limit Allotments, He
Abused That Discretion by Allotting Only $5
Billion of the $11 Billion Authorized for Appro-
priation for 1972 and 1973
It is our contention that there is no discretion dele-
gated as to the allotment stage though there is flexibili-
ty as to.the rate of spending. The United States District
Court, Eastern District of Virginia concluded that the
Administrator has discretion to reduce allotments (as
conceded by plaintiffs in that case) under sections 205
(a) and 207 but that the allotment of only $5 billion
constitutes a flagrant abuse of that discretion and
violates the Act. Campaign Clean Water v. Ruckels-
haus. (Joint Appendix F.) When the matter was ap-
pealed, the Fourth Circuit concurred with the District
Court that whatever discretion the executive might
have was limited and the exercise of that discretion
was reviewable, but concluded the reduction of allot-
ment did not, on its face and without any other evi-
dentiary support, require a finding of executive nullifi-
cation of the purposes of the Act. In arriving at its
decision to remand with directions to consider evidence
on whether the reduction was violative of the spirit,
intent, and letter of the Act, the Fourth Circuit con-
ESRI OE LSA IER LTE LIE SPINE REL LEAE SEE ALE IEG ITE EL EG OEM TIRE
ERO
Persea Es ene
weir,
sidered a number of factors. One of the factors was
the Administrator’s contention before the Senate ad
hoc Subcommittee on Impoundment of Funds on Feb-
ruary 6, 1973,- that the allotments were arrived at on
the basis of an administrative judgment that greater
authorizations could not be spent in a wise or expedi-
tious way. Not only does this decision conflict with the
congressional judgment as to how much money was
needed to accomplish the goals of the Act, but such a
statement completely overlooks the mechanism for car-
rying over allotted but unused funds. This latter con-
sideration is equally applicable to the argument ac-
cepted by the court that no qualified project in Virginia
had been denied contract authorization. It is impossible
to foresee what contracts might be supported in the
future by allotments which are carried over. We has-
ten to add that if the United States Supreme Court
evaluates the question whether there was an abuse
of discretion, the fate of more states than Virginia is in-
volved. As the Fourth Circuit itself J, other states
have proven projects have qualified for grants but have
been denied construction approval because of the pau-
city of funds allotted, cf. State of Minnesota v. EPA,
supra.
Finally, the Fourth Circuit emphasized that the Ad-
ministrator claims the power to increase allotments dur-
ing a fiscal year and has indicated he would give
consideration to doing so if the 1973 and 1974 aiiot-
ments were inadequate. Though in the abstract the Ad-
ministrator may have such a power, realistically it is the
President who has ordered reduction of allotments, so
the Administrator’s state of mind is of little consequence.
Furthermore, an increase in allotments was never made
ALPE RIEDEL DAIS BI OE
= ae
in 1973, so unless this Court rules in favor of requir-
ing full allotments, that money is forever lost.
Although we contend that the allotments are manda-
tory rather than discretionary, if this Court should hold
them discretionary, we believe that the Administra-
tor’s allotment of only 55% of the funds is per se an
abuse of discretion.
Both courts in the decisions before Your Honors
examined the legislative history of the provisions for
grants for waste treatment plants and found a strong
congressiona! financial commitment to construction of
waste treatment plants. That commitment would be ;
contravened and the purpose of the legislation frustrated
by a reduction of 45% of the allotment funds. The
President should not be allowed to do by extraconstitu-
tional means what he failed to accomplish when he
vetoed the FWPCA and was overruled by Congress.
If this Court should conclude that the allotments are not
mandatory under sections 205(a) and 207, the action
of the Administrator should still be held null and void
as an abuse of discretion.
CAEP INES
ee
VI
The Doctrine of Separation of Powers Prohibits the
Type of Executive Assumption of Congressiona!
Function Accomplished by Refusal to Comply
With the Allotment Procedures of the FWPCA
Rarely during this country’s history has the concern
over assumption of congressional power by the Presi-
dent been as great as it is today. Many Congressmen
feel that the doctrine of separation of powers will not
remain viable unless the impoundment powers of the
President are checked. Twenty-nine Congressmen sub-
CPLA RR HRS Bath ats Wy] et Cee Sh oat hal Lek
Prete Poh Avs ea
Sind t= We
till cate
mitted an “amicus curiae brief” opposing the Secre-
tary of Transportation’s policy of reducing expenditures
in the case of Missouri v. Volpe.® That brief stated that
the Administrator’s impoundment practices are “con-
temptuous of the role of Congress in our tripartite
system.” Congressional Quarterly Weekly Report, Vol.
31, No. 14, p. 788 (April 7, 1973).
All legislative powers were bestowed by our Consti-
tution (art. I, § 1) upon the Congress of the United
States. Article I, section 9 of the Constitution delegates
all authority for appropriations to the Congress. Execu-
tive power is vested in the President by article II, sec-
tion 1.
Although the Constitution does not expressly prohib-
it one branch from exercising the powers of another,
*Senator Samuel J. Ervin, Jr., Chairman, Government Opera-
tions Committee; Senator James O. Eastland, President Pro
Tempore, Chairman, Judiciary Committee; Senator Michael J.
Mansfield, Majority Leader; Senator Robert C. Byrd, Assistant
Majority Leader; Senator Jennings Randolph, Chairman, Public
Works Committee; Senator John L. McClellan, Chairman, Ap-
propriations Committee; Senator Howard W. Cannon, Chairman,
Aeronautical & Space Sciences Committee; Senator Thomas F.
Eagleton, Chairman, District of Columbia Committee; Senator
J. W. Fulbright, Chairman, Foreign Relations Committee; Sena-
tor Vance Hartke, Chairman, Veterans’ Affairs Committee; Sena-
tor Henry M. Jackson, Chairman, Interior & Insular Affairs
Committee; Senator Gale W. McGee, Chairman, Post Office &
Civil Service Committee; Senator Warren G. Magnuson, Chair-
man, Commerce Committee; Senator Lee Metcalf, Chairman,
Joint Committee on Congressional Organization; Senator John
Sparkman, Chairman, Banking, Housing & Urban Affairs Com-
mittee; Senator Stuart Symington; Senator Harrison A. Williams,
Jr., Chairman, Labor & Public Welfare Committee; Representa-
tive Morris K. Udall; Senator John A. Stennis, Chairman,
Armed Services Committee; Senator Herman E. Talmadge, Chair-
man, Agriculture & Forestry Committee; Senator Frank E. Moss,
Chairman, Aeronautical & Space Sciences Committee; Senator
Hubert H. Humphrey; Senator John V. Tunney; Representative
William V. Alexander, Jr.; Representative Robert F. Drinan;
Representative J. J. Pickle; Representative Benjamin Rosenthal.
es ee a SR 1 OT VR OMAN FACIE
—\
it has been said that the doctrine of separation of pow-
ers is fundamental to our form of government. National
Ins. Co. v. Tidewater Co., 337 U.S. 582 (1949). The
United States Supreme Court has repeatediy referred
to the doctrine as one of the chief merits of our system
of a written constitution. Rescue Army v. Municipal
Court, 331 U.S. 549 (1947); O'Donoghue v. United
States, 289 U.S. 516 (1933); Kilbourn v. Thompson,
103 U.S, 168 (1880). Although there is bound to be a
certain area of concurrent jurisdiction, the continued
integrity of our system may depend upon the mutual iin-
dependence of the Legislature, the Executive and the
Judiciary. McCray v. United States, 195 U.S. 27
(1903).
It is true that the President has the duty to “take.
care that the laws be faithfully executed.” However,
as the Fourth Circuit Court of Appeals stated in Cam-
paign Clean Water: : : |
“The power to spend rests primarily with Con-
gress under the Constitution; the executive, on the
other hand, has the constitutional duty to exe-
cute the law in accordance with the legislative pur-
pose sd expressed. When the executive exercises
its responsibility under appropriation legislation
in such a manncr as to frustrate the Congression-
al purpose, either by absolute refusal to spend or
by a withholding of so substantial an amount of
the appropriation as to make impossible the attain-
ment of the legislative goals, the executive tres-
passes beyond the range of its legal discretion and
presents an issue of constitutional dimensions which
is obviously open to judicial review. . . .” Ap-
pendix pp. 45A, 46A, 47A (footnotes omitted).
ie and Yl
sre Yee
Should this Court conclude that the FWPCA did not
specifically require all funds to be allotted, we would
urge Your Honors to recognize the validity of the posi-
tion summarized in Presidential Impounding of Funds:
The Judicial Response, supra, pp. 355-56, where it is
stated: | '
_ “There is no basis for a general impounding
power, by express terms or by implication, either
in the Constitution or in any general statute.
Authorization and appropriations statutes only
rarely allow the president entirely to terminate a
program by impounding. The president may end
a program only be [sic| vetoing it in accordance
with the Constitution. He has no authority to use |
impounding as an absolute, retroactive, or item
veto. Congress should be presumed to have passed
each appropriation statute with the intent that*>
the monies be spent; in the absence of explicit
statutory language to the contrary, the president .
should be deemed bound by his oath of office to
carry out Congress’s purpose. In most cases, the
courts have power to grant persons who have been
injured by unlawful impounding a legal remedy.
This power should be exercised to insure that
persons receive benefits that Congress intended
them to have, to preserve the constitutional sepa-
ration of powers, and to forestall a serious consti-
tutional crisis.” (Footnote omitted. )
As early as 1838 the Supreme Court indicated that the
‘duty to execute the laws does not include the right to
denegrate the law. Kendall v. United States, 37 US.
* 524 (1838). Application of the reasoning of the Ken-
dall case recently resulted in a District Court’s enjoin-
|
"o>
—J—
ing the Office of Economic Opportunity from ter-
minating the funding for a program. Relying on Ken-
dall, the court rejected the argument that the President
_ has discretionary power to refuse to spend certain
funds. Local 2677, American Fed. of Gov. Emp. v.
Phillips, 358 F. Supp. 60 (D. D.C.973).
*President Nixon did not agree with the policy de-
cision made by Congress when it authorized $18 bil-
lion for appropriation for waste treatment plants. He
accordingly exercised his constitutional prerogative to
veto the legislation, and Congress in turn exercised
its constitutional right, granted in article I, sectior 7,
to override that veto, The legislative, not the execu-
tive, branch thus may have the final say as to what
becomes law. To now allow the President to accomplish
by reducing allotments what he could not by veto
should be tantamount to giving the President an item
veto and would. violate the doctrine of separation of
powers.
Conclusion
The issue: before this Court is clear. Having failed
to reverse the policy decision of Congress by exercise
of his constitutional power of veto, will the President
now succeed by extra-constitutional measures to frus-
trate the intent of Congress and lessen the national
commitment to clean our waters?
We contend that the legislative history: of the
FWPCA, and of’ sections 205(a) and 207 in. particu-
lar, makes clear the congressional commitment to spend
the $18 billion deemed necessary as the federal share
for construction of waste treatment plants. Allotment
by the Administrator of funds authorized to Be ap-
propriated is a ministerial act, though some flexibility
OL MBA |
ee ee
SETTER AF SEPA ET ETRE -
RUE TEA Ngee Heaney nay
—
in spending is built into the Act. Mandamus is a proper
remedy to protect the interests of the states which
must build waste treatment plants to comply with the
requirements of the Act.
This Court should not abdicate its responsibility to
act to maintain the constitutional doctrine of separa-
tion of powers. This Court should affirm the judgment
of the Court of Appeals for the District of Columbia
and reverse the decision of the Fourth Circuit Court
of Appeals.
Respectfully submitted,
EVELLE J. YOUNGER,
Attorney General,
ROBERT H. O'BRIEN,
Senior Assistant Attorney General,
NICHOLAS C. YOST,
Deputy Attorney General,
Attorneys for People of the State |
of California as Amicus Curiae
in Support of Respondents.
Of Counsel:
JAN E. CHATTEN.
~~
oe
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