Amicus Curiae Brief — Train v. City of New York

IN THE Le

SUPREME COURT

OF THE

UNITED STATES

October Term, 1973

Nos. 1377 and 1378

RUSSELL E. TRAIN, Administrator, United States

Environmental Protection Agency, Petitioner,

v.

Ciry oF NEw York, et al., Respondents.

and

RUSSELL E. TRAIN, Administrator, United States

Environmental Protection Agency, Petitioner,

| v.

CAMPAIGN CLEAN WATER, INC., Respondent.

ON WRITS OF CERTIORARI TO THE UNITED

STATES COURTS OF APPEALS FOR THE

DISTRICT OF COLUMBIA’ CIRCUIT

AND THE FOURTH CIRCUIT

AMICI CURIAE BRIEF

FOR THE STATE OF WASHINGTON AND

COMMONWEALTH OF PENNSYLVANIA

ISRAEL ‘PACKEL SLADE GORTON

pen epg Attorney General, Washington

JAMES R. ADAMS CHARLES B, Rog, JR.

MARTIN J. DURKAN

_ JAMES B. MCCABE

Special Assistant Attorneys General

Teno ee a ae em

STATE PRINTING PLANT <> oLveria, wasnmeron —

IN THE | |

SUPREME COURT

OF THE

UNITED STATES

October Term, 1973

Nos. 1877 and 1378

RUSSELL E. TRAIN, Administrator, United States

Environmental Protection Agency, Petitioner,

CITY OF NEW York, et a. Respondents.

RUSSELL E. TRAIN, 2 A United States

nvironmental Protection Agency, ' Petitioner,

CAMPAIGN CLEAN Warr, INC., | Respondent.

ON WRITS OF CERTIORARI TO THE UNITED

STATES COURTS OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

AND THE FOURTH CIRCUIT |

AMICI CURIAE BRIEF

FOR THE STATE OF WASHINGTON AND

COMMONWEALTH OF PENNSYLVANIA

ISRAEL PACKEL SLADE GORTON

Attorney General, Attorney General, Washington

Pennsylvania i .

JAMES R. ADAMS CHARLES B. ROE, JR.

Deputy Attorney General Senior Assistant Attorney General

MARTIN J. DURKAN

JAMES B. MCCABE

Special Assistant Attorneys General

‘iwnaae of Justice, Olympia, Washington 98504

Telephone: (206) 753-2354

einen, Ain iat

bee,

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Schl ny

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2 gt A LED EN I Alp A! A 08h 8 A AOR WN taps te

SUBJECT INDEX

Page

STATEMENT OF THE INTERESTS OF THE

PMICE CURIAL 2... ccccccccccccccccccccccssecccees 6

STATEMENT OF THE CASE......................... 13

STATEMENT OF THE ISSUES....................... i8

ARGUMENT—The Administrator of the Environmental

Protection Agency must allot under Section 205(a) of

the Federal Water Pollution Control Act No Less than

the Full Amount authorized to be appropriated by

Section 207 of the Act. ..........0... ccc ecccccceeeees 19

i ee 31

TABLE OF AUTHORITY CITED

Cases: P ‘

Campaign Clean Water v. Ruckelshaus, 361 F. Supp. 689,

5 BRC. 1441 (E.D.‘Va., 1973)... cece ccc e ec ncvces 14

City of New York, et al. v. Train, —— F.2d —~—, 6 ERC

BEE SATE CrP PONG oc ivrectcccscgipocsvecsces 17, 27

State of Washington et al. v. Train, Civil Action 74-105,

filed on January 21, 1974 (D.C.D.C.)...4...........13,.17

City of New York et al. v. Ruckelshaus, 358 F. Supp. 669,

Bocce unneeded oivccoesoctvives 21

State Highway Commission of Missouri v. Volpe, 479 F.2d

PE Es TEE eee hha pr edvcrctedeawacncoverss 24

Kendall v. United States, 12 Pet. 524 (1838)............. 30

_ FEDERAL STATUTES

Federal Water Pollution Control Act:

P.L. 92-500 (October 18, 1972) 86 Stat. 816, 33 U.S.C.

a I ope eae 8, 9, 10, 11, 13, 31

meee 10h -.. «66: bea eaves Few ier 056 sob 5 096s 14,17

Satie Mh oii ds iccs. By ers cn oda bs 15, 18

es ees eek bdbeneetsevdeewe v's 17

NN, OE go ies ds vdvdscosccetas chedhmeeetes ss 16, 17, 18, 19

‘Gestion 204 .;,.;....025,. nas Sie eee Peper ee 17, 18

Section 206 .., 06063. the howe dh knees 11, 13, 16, 18, 19, 20, 21, 22

Section 207 ....:.... Lb oe wha e ew ee bo oe 11, 13, 15, 18, 20, 21,22 __

I os cs os wb wke dvd eed 00c% 16

a

be Shad

SS Sere

PRAMS We ae ATR

x

Ppt csce tt cpm rere a Rs

STATE STATUTES

Page

Chapter 90.48 RCW ..............005. Gigi toca Seale 7"

MPO oun eee 7

Oe eee... oo 7,8

WE Oe os. a a

Ce Me... 3k 7

Maw em. ks a 7

Pennsylvania Department of Environmental Resources

Act (December 3, 1970) P.L. 834, 71 P.S. § 510-1 et seq.

Ca: Sere) oki Ses 10

Chapter i27, Laws of 1972 (Wash.), 2d ex. sess. .......... 10

OTHER AUTHORITIES

117 Cong. Rec. S. 17445 (Daily ed. Nov. 2, 1971)........... 27

118 Cong. Rec. H. 2727, H. 2728 (Daily ed. Mar. 29, 1972) . oR

118 Cong. Rec. H. 9122 (Daily ed. Oct. 4, 1972).......... 22, 24

118 Cong. Rec. H. 9123 (Daily ed. Oct. 4, 1972)............ 23

118 Cong. Rec. S. 16870 (Daily ed. Oct. 4, 1972)........... 29

118 Cong. Rec. S. 16871 (Daily ed. Oct. 4, 1972)... ........ 25

118 Cong. Rec. H. 10266 (Daily ed. Oct. 18, 1972).......... 26

119 Cong. Rec. S. 3808 (Daily ed. March 1, 1973).......... 30

SB Cpe. AS. BOO. SE, WO: S CR ov kk es See ce 30

go

IN THE

SUPREME COURT

OF THE

UNITED STATES

October Term, 1973

Nos. 1377 and 1378

RUSSELL E. TRAIN, Administrator, United States

Environmental Protection Agency, Petitioner,

v.

CITY OF NEW YoRrK, et al., Respondents.

and

RUSSELL E. TRAIN, Administrator, United States

Environmental Protection Agency, Petitioner,

v.

CAMPAIGN CLEAN WATER, INC., Respondent.

ON WRITS OF CERTIORARI TO THE UNITED

STATES COURTS OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

AND THE FOURTH CIRCUIT |

‘

AMICI CURIAE BRIEF

FOR THE STATE OF WASHINGTON AND

COMMONWEALTH OF PENNSYLVANIA

The State of Washington and the Common-

wealth of Pennsylvania, by and through their Attor-

ney Generals, file this Amici Curiae brief under Rule

42(4) of this Court.

Tae pre

ate

EIST NITE PAARL REALISE SA OR NEHER On Rm

Peres,

6

STATEMENT OF THE INTERESTS

OF THE AMICI CURIAE

All who are acquainted with the State of

Washington know that its lifeblood is closely

associated with two water bodies (1) the mighty

Columbia River—which enters the Northeast corner

of the state from British Columbia and snakes

through the eastern half of the state until it turns

west as the border between Oregon and Washington

and discharges at Washington’s Southwest corner

into the Pacific Ocean; and (2) Puget Sound—a

large arm of the Pacific Ocean which flows on tidal

cyclic basis deep into western Washington. ~

The total livability of the state is dependent

primarily on the quantity and quality of these waters

and their tributaries. Not only are they valuable for

navigation, both commercial and recreational, but

fish and wildlife use them for homes, food sources

and resting areas. They are also of the greatest im-

port for their scenic and aesthetic values. And, in

the ease of the Columbia, hydroelectric power pro-

duction and agricultural irrigation uses are most

important. It is fair to conclude that the environment

of Washington State, including the essential_char-

acter of its citizens, is determined largely by the

condition of the Columbia River and Puget Sound

and their associated waters.

The Commonwealth of ‘Pennsylvania’s posture,

with respect to Lake Erie, the Delaware and Susque-

hanna Rivers and numerous other water bodies, is

7

not dissimilar from that of the State of Washington.

Recognizing the importance of its water re-

sources, the government of the State of Washington

has taken a number of very significant steps to pro-

— tect these priceless resources. This has been especially

true with regard to their quality.

Twenty-nine years ago, the Washington State

Legislature enacted the state’s basic water pollution

control act. Chapter 216, Laws of 1945, now codified

in Chapter 90.48 RCW. The Legislature has peri-

odically reviewed this statute and added provisions

to improve its effectiveness as a vehicle for water

pollution abatement.’ Of significance to this case are

the provisions of Chapter 90.48 RCW which set forth

clear policies of cooperation and coordination in the

implementation of state and federal water pollution

efforts in the State of Washington. RCW 90.48.153

and RCW 90.48.260.°

*The major amendments to Chapter 90.48 RCW took place in 1955

(Chapter 71, Laws of 1955), 1967 (Chapter 13, Laws of 1967) and

1973 (Chapter 155, Laws of 1973).

The latest expression of general state water policy is contained in

the Water Resources Act of 1971. Now codified in Chapter 90.54 RCW,

RCW 90.54.020(3) sets forth a “fundamental” of management policy

for the state’s waters in these words:

The quality of the natural environment shall be protected and,

where possible, enhanced as follows:

(b) Waters of the state shall be of high quality. Regardless of

the quality of the waters ofthe state, all wastesand other mate-

rials and substances proposed for entry into said waters shall be

provided with all known, available, and reasonable methods of

treatment prior to entry. Notwithstanding that standards of quality

established for the waters of the state would not be violated,

wastes and other materials and substances shall not be allowed

to enter such waters which will reduce the existing quality thereof,

except in those situations where it is clear that overriding consid-

erations of the public interest will be served.

See RCW 90.52.040 also enacted in 1971.

*RCW 90.48.010, enacted in 1945 and amended in 1973, provides:

It is declared to be the public policy of the State of Washington

+

Bren: SPOEOIE O6Ne

Wee

ELIE LP REE RRA TS AS RETO AS ger Ke

NE REAP STRUM Rt Gs

8

The executive branch of Washington State gov- _

ernment has also promoted effective federal-state

coordination of the various efforts of government to

eliminate water pollution in Washington. During

1971 and 1972 the Committee on Public Works of

both the United States Senate and House of Repre-

sentatives engaged in extensive and intensive exam-

inations of the need for changes in the Federal Water

Pollution Control Act. P.L. 92-500. The state’s execu-

tive branch presented its views at various times

during the course of these Congressional activities.

The high point of the state’s efforts to influence the

development of this federal legislation was the per-

to maintain the highest possible standards to insure the purity of

all waters of the state consistent with public health and public

enjoyment thereof, the propagation and protection of wild life,

birds, game, fish and other aquatic life, and the industrial develop-

ment of the state, and to that end require the use of all known

available and reasonable methods by industries and others to

prevent and control the pollution of the waters of the state of

Washington. Consistent with this policy, the state of Washington

will exercise its powers, as fully and as effectively as possible, to

retain and secure high quality for all waters of the state. The

state of Washington in recognition of the federal government’s

interest in the quality of the navigable waters of the United States,

of which certain portions thereof are within the jurisdictional

limits of this state, proclaims a public policy of working coopera-

tively with the federal government in a joint effort to extinguish

the sources of water quality degradation, while at the same time

preserving and vigorously exercising state powers to insure that

present and future standards of water quality within the state

shall be determined by the citizenry, through and by the efforts of

state government, of the state of Washington.

RCW 90.48.153, enacted in 1949, provides:

The commission is authorized to cooperate with the federal

government and to accept grants of federal funds for carrying out

the purposes of this chapter. The commission is empowered to

make any application or report required by an agency of the

federal government as an incident to receiving such grants.

RCW 90.48.260, enacted in 1967 and amended in 1973, provides:

The department of ecology is hereby designated as the State

Water Pollution Control Agency for all purposes of the Federal

Water Pollution Control Act as it now exists and is hereby author-

ized to participate fully in the programs of the act as well as to

take all action necessary to secure to the state the benefits and to

meet the requirements of the act :

4

3

9

sonal appearance of the state’s governor, Daniel J.

Evans, before the Committee on Public Works of the

House of Representatives on December 7, 1971. On

this occasion Governor Evans urged the committee

to modify the FWPCA by:

(1) Setting forth goals of high quality for our

nation’s waters, including the elimination of water

pollution by 1985;

(2) Establishing a strong regulatory program

—the heart being a national waste discharge permit

program coupled with appropriate civil and criminal

sanction provisions;

(3) Providing a federal funding program to

finance the construction of public sewerage abate-

ment facilities;

(4) Creating a joint federal-state effort against

water pollution which, rather than eliminating one

government from the fight, encourages the utiliza-

tion of the best talents of both federal and state

governments.

The Commonwealth of Pennsylvania has fol-

lowed a course of action within its legislative process

which is not dissimilar to that taken by the state of

Washington, in that the Commonwealth of Pennsyl-

vania has statutorily recognized the need to purify

and preserve its limited water resources. The

Department of Environmental Resources has been

given the power and duty to implement Pennsyl-

vania’s policy with regard to conserving and puri-

fying Pennsylvania’s water resources. Pennsyl-

as Sr

eet a tal ae a

at ae

|

:

10

vania’s Department of Environmental Resot rces

Act of December 3, 1970, P.L. 834, 71 P.S. § 03

et seq.

To insure that the State of Washington would

be in a position of participating fully in the various

programs contemplating federal-state cooperation

in their implementation contained in ;the Federal

Water Pollution Control Act Amendments of 1972,

the legislature of the State of Washington in March,

1973, five months after enactment of the federal leg-

islation, enacted Chapter 155, Laws of 1973. This

legislation provided full authority for the executive

branch of the State of Washington to participate in

all of the federal-state programs of the new federal

legislation.

In addition, anticipating receipt of the share of

the federal funds authorized for allocation to the

state of Washington for use in financing of public

sewerage abatement and control facilities on a

matching arrangement with state and local govern-

ments, the electorate of the State of Washington, at

the general election of November, 1972, approved a

referendum authorizing the sale of state general

obligation bonds totaling $225,000,000 and the use

of the proceeds in assisting in the financing of public

water pollution control facilities and solid waste

facilities. Chapter 127, Laws of 1972, 2nd Ex. Sess.

The total needs, in terms of dollars for water

pollution control facilities by public entities in the

11

State of Washington, under both federal and state

laws and as determined by the United States Envir-

onmental protection Agency, to meet the 1977 re-

quirements of the Federal Water Pollution Control

Act, is estimated to be $1,078,715,110.

Under the allocation formulas provided in Sec-

tion 205 of the Federal Water Pollution Control Act

as applied to funds authorized under Section 207 of

the same act, the state of Washington is entitled to

a total of $211,300,000 consisting of $44,500,000 for

fiscal year 1973, $53,400,000 for fiscal year 1974,

and $113,400,000 for fiscal year 1975. By regula-

tions dated December 9, 1972, and January 15, 1974,

the Administrator of the United States Environ-

mental Protection Agency allotted to the state of

Washington $17,800,000 for fiscal year 1973, $26,-

700,000 for fiscal year 1974, and $64,700,000 for

fiscal year 1975.

Unless the full amount of federal funds is pro-

vided for use by public entities in Washington State,

there is no reasonable possibility that the facilities

required to be constructed by 1977 to meet federal

and state water pollution control treatment and re-

ceiving water standards will be constructed. Further

even if the full amounts are ultimately provided to

the state of Washington, the 1977 requirements for

water pollution control cannot be substantially

achieved unless the funds Congress intended for al-

location by the United States Environmental Pro-

tection Agency are provided to the state in such a

Ree eo ee

25 STM RATER RANT RET SY

EF

ASS

~

12

manner as to allow the commitment of funds and

construction of facilities begun during fiscal year

1975.

The Commonwealth of Pennsylvania is pres-

ently holding approximately 530 applications by mu-

nicipalities to secure funding of their water quality

control programs under the Water Pollution Control

Act Amendments of 1972. Almost all of these appli-

cants have completed plans and specifications for

their projects, with a total cost estimated at $1.5

billion and are generally ready to proceed to ‘he

construction stage. Twenty percent of the applico-

tions have been pending since February of 1972,

40% since February of 1973 and 40% since February

of 1974. Sixty percent of the 530 projects are neces-

sary for the municipalities to comply with anti-

pollution orders, either of the courts or of the De-

partment of Environmental Resources. Pennsyl-

vania’s allocation of unimpounded federal construc-

tion grants for fiscal years 1973, 1974 and 1975 is

approximately $493.8 million, which will fund only

141 of the 530 qualified and needed projects. The re-

maining applications cannot be certified for funding

until and unless the impounded funds are released.

Because of their deep concern over a serious

malfunction in our nation’s water pollution abate-

ment effort, the State of Washington and the Com-

monwealth of Pennsylvania filed an action on Jan-

uary 21, 1974, requesting the United States District

Court for the District of Columbia to issue an order

13

compelling the Administrator to allot the full sum

Congress authorized to be appropriated for the con-

struction of publically owned treatment works as

provided in Sections 205 and 207 of the Act.’ Since

that time, some twenty-one additional states have

successfully intervened in said action.‘ The com-

bined interest of the plaintiffs and interveners in

said suit represents approximately one-third of all

of the impounded or unallotted funds for fiscal years

1973, 1974, and 1975.

STATEMENT OF THE CASE

_ The cases before this court have as their subject

matter the issue of statutory construction to deter-

mine the extent of discretion, if any, granted to the

Administrator of the United States Environmental

Protection Agency (hereinafter the Administrator )

in allotting funds among the states pursuant to the

of Federal Water Pollution Control Act Amendments

of 1972, Public Law 92-500 (October 18, 1972), 86

Stat. 816, 33 U.S.C. 1251 et seg. (hereinafter the

Act).

The facts are not in dispute. For preliminary

purposes they are as follows: On October 4, 1972

the Congress passed a water pollution bill authoriz-

ing appropriations in the amount of $11,000,000,000

for waste treatment plant consruction grants for

*State of Washington et al. v. Russell E. Train, Civil Action 74-105,

United States District Court for the District of Columbia, filed January

21, 1974.

‘Vermont, Illinois, Maryiand, Colorado, Connecticut, Arizona,

Idaho, Alabama, South Carolina, Iowa, Hawaii, Nevada, Oklahoma,

North Dakota, Tennessee, New Jersey, Oregon, Utah, Georgia;

Nebraska and Louisiana. ‘

s |

Sperm ee

EA TEEETICO ENN FECT OTS TANS NS eet REE .

ROT

Aa Sie

PEE SOL GNIS BIER

3 14

fiscal years 1973 and 1974. The bill was vetoed on

October 17, 1972, by the President who stated that

he found the measure to be of an “inflationary” na-

ture. The next day Congress overrode the veto. On

November 28, 1972, the Administrator announced

that pursuant to the President’s direction, he was

allotting only $5,000,000,000 of the total $11,000,-

000,000 for treatment plant construction projects

for fisca years 1973 and 1974. It is the Adminis-

trator’s ‘announced action, which is popularly re-—

ferred to under the rubric of “impoundment of

funds”, which is challenged in this suit. Campaign

Clean Water v. Ruckelshaus, 361 F. Supp. 689, 5

E.R.C. 1441 (E.D. Va., 1973).

The Act bégins by stating that its objective ‘is

to restore and maintain the chemical, physical and

biological integrity of the Nation’s waters.” Section

101(a). To achieve this objective, Congress declared

as goals of the Act that “the discharge of pollutants

into the navigable water be eliminated by 1985” and

that “wherever attainable, an interim goal of water

quality which provides for the protection and propa-

gation of fish, shellfish, and wildlife and provides for

recreation in and on the water to be achieved by

July 1, 1983”. Section 101(a)(1), (a). Congress

unequivocally stated in the Act that “it is the national

policy that Federal financial assistance be provided

to construct publicly owned waste treatment works.”

Section 101(a)(4).-

Title IT of the Act is entitled ““Grants for Con-

7~

‘15

struction of Treatment Works’. The purpose of this

title is ‘‘to require and to assist the development and

implementation of waste treatment plans and prac-

tices which will achieve the goals of this Act.” Sec-

tion 201(a). The Administrator “is authorized to

make grants to any State, municipalit’, or intermu-

nicipal or interstate agency for the construction of

publicly owned treatment works.” Section 201 (g)

(1). Congress “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 ex-

ceed $6,000,000,000 and for the fiscal year ending

June 30, 1975, not to exceed $7,000,000,000.” Sec-

tion 207.

The Administrator is required by the Act to

allot among the States the sums authorized to be

appropriated.

Sums authorized to be appropriated pur-

suant to section 207 for each fiscal year begin-

ning after June 30, 1972, shall be allotted by

the Administrator * * * Section 205(a)

(Emphasis added.) _

A state’s share of the authorized amounts for

fiscal year 1973 and 1974 is determined by a'statu-

tory formula based on “the ratio that the estimated

cost of constructing all needed publicly owned treat-

ment works in each State bears on the estimated cost

of construction of all needed publicly owned treat-

ment works in all of the States.” Section 205. Allot-

ments to the States commencing in fiscal 1975 are

es

PARP PRE OCG ANT ghey RS Ee EY

AIEEE REMY PENS SAO TAINS

MARA Y Ye

s -

1

neha te > Ne Ss Ae hed

Perresssscesr

16

to be in accordance with revised cost estimates sub-

mitted to and approved by Congress. Section 205(a).

The designated shares are to be allotted among

the States by the Administrator. These allotted funds

then are available for grants to construct publicly

owned treatment works within the State. Section 203.

An individual applicant for a grant submits plans,

specifications, and estimates for each proposed proj-

ect to the Administrator for his approval. Approval

of the plans, specifications, and estimates by the

Administrator is deemed to constitute a contractual

obligation of the United States for the payment of

its proportional contribution to such project. Section

203 (a).

The sums allotted to a State are to continue to

be available foi obligation for a period of one year

after the close of the fiscal year for which such sums

are authorized. The allotted sums that are not obli-

gated after the one year extension are to be ‘‘immedi-

ately reallotted by the Administrator in accordance

with regulations by him, generally on the basis of the

ratio used in making the last allotment of sums un-

der this section.” Section 205(b) (1).

Prior to final approval of a treatment works

project, the Administrator must consider the “limi-

tations and conditions” of Section 204. For example,

the Administrator is to determine that (a) the treat-

ment works is in conformity with any applicable

State plan under Section 303(e) of the Act, (b) such

works have been certified by the appropriate State

17

water pollution control agency as entitled to priority

over such other works in the State, (c) there are aJe-

quate provisions satisfactory to the Administrator

for assuring proper and efficient operation and main-

tenance, and (d) the size and capacity of the works

relate directly to the needs to be served by the works.

Section 204(a) (2), (3), (4), (5).

The Federal share of the construction costs for

approved projects is 75 per-centum. Section 202(a).

Expenditures of allotted funds are to be made hy the

Administrator in the form of payments to the recipi-

~ent of a grant as the work progresses and costs of

construction are incurred on the project. Section 203

(b).

The case of City of New York, et al. v. Train,

—— F.2d ——, 6 ERC 1177, 1179 (C.A.D.C. 1974)

describes the funding procedures for publicly owned

treatment works succinctly and accurately as fol-

lows: ’

The Act was poses to insure that ultimate

grantees could rely in advance on the amounts

available. Section 101(a) declares that to clean

the nation’s waters “it is the national policy

that Federal financial assistance be provided to

construct publicly owned waste treatment

works.” To this end, the Act created a funding

mechanism known as “contract authority”: The

technical operation of the sections of the Act

relating to this “contract authority” spendin

is at the heart of this — and a thoroug

understanding of the mechanism is, therefore,

imperative.

There are six distinct steps involved in

funding under the Act. (1). Authorization. by

E

;

ADA AT See eNO

PEM LE CN AER ETI TER EMAL EH RMN TO RCRD, FLEES EIEN PER CRE

Bprecrrereter mcs

18

Congress to appropriate funds ($ 207); (2)

“allotment” of these authorized sums among

the various states, pursuant to formula (§ 205) ;

(3) review by the Administrator of project pro-

posals submitted by a particular municipality

($$ 203, 201(g) (2) and 204) ; (4) “obligation”

by. the Administrator of the federal share of an

approved project ($$ 203 and 201(g) (1)); (5)

appropriation by Congress of funds to pay obli-

gated contracts as they fall due; and (6) dis-

bursement of the funds ($ 203(b) and (c)).

The second step is the step in controversy.

STATEMENT OF THE ISSUES

This case pertains to the allocation of funds to

the various states to finance publically owned waste

treatment works pursuant to Sections 205 and 207%

of the Federal Water Pollution Control Act Amend-

ments of 1972. ‘

The issues before this court are:

(1). Whether the Administrator of the United

States Environmental Protection Agency may ignore

Congressional intent and the mandatory require-

ments of the Federal Water Pollution Control Act

Amendments of 1972 by refusing to allot the full

sums authorized to be appropriated by Congress.

(2). Whether the Administratorvef the United

States Environmental Protection Agency may exer-

cise discretion based upon his judgmental evaluation

of competing national policies, priorities, goals and

objectives rather than those established by Congress

under the Federal Water Pollution Control Act

Amendments of 1972.

19

ARGUMENT—THE ADMINISTRATION OF THE

ENVIRONMENTAL PROTECTION AGENCY MUST ALLOT

UNDER SECTION 205(a) OF THE FEDERAL WATER

POLLUTION CONTROL ACT No LESS THAN THE FULL

AMOUNT AUTHORIZED TO BE APPROPRIATED BY

SECTION 207 OF THE ACT.

.The Administrator has no discretion under the

Act to determine the amounts tv allot among the

States. The Act contains mandatory language that

the $5 billion and $6 billion for fiscal years 1973 and

1974, respectively ‘shall be allotted by the Adminis-

trator’. Congress intended the full sums authorized

to be appropriated to be allotted among the States.

This intention is manifested in the Act as a whole

and its legislative history. |

If the Administrator fails to allot among the

States the authorized funds, they are irretrievably

lost to the States. Under Section 205(b) (1) only the

sums allotted to a State continue to be available for

obligation beyond the end of the fiscal year for which

the sums have been authorized.

Any sums allotted to a State under subsection

(a) shall be available for obligation under sec-

tion 203 on and after the date of such allotment.

Such sums shall continue available for obliga-

tion in such State for a period of one year after

the close of the fiscal year for which such sums

are authorized * * * (Emphasis added.)

The words “such sums” refer back to ‘any sums

allotted’’. .

Section 205(b) (1) further provides that any

20

funds allotted but not obligated are to be immedi-

ately reallotted by the Administrator.

-Any amounts so allotted which are not obligated

by the end of such one-year period shall be im-

mediately reallotted es the Administrator

* * Such reallotted sums shall be added

to the _last allotments made to the states

: _( Emphasis added. )

The obvious intent of these latter provisions is to

keep the money available to the States for construc-

tion projects. The Administrator has no authority

under the Act to reallot funds once the end of the

fiscal year is past.

The Administrator’s refusal to allot frustrates

the entire reallotment process. States have abso- -

lutely no opportunity to submit projects for approval

and consequent obligation of the unallotted funds.

Under full allotment all of the authorized funds con-

tinue to be available for obligation.” _

The plain meaning of the language of Sections

205 and 207 is to require the Administrator to allot

the full sums authorized. Section 205 provides that

“[s]ums authorized to be appropriated pursuant to

section 207 * * *_ shall be allotted by the Ad-

ministrator * * *” The sums authorized to be

appropriated under Section 207 are “to carry out”

the provisions of Title II regarding grants for con-

struction of publicly owned treatment works. The

*In order to prevent the possible lapse’ of fiscal year 1973 funds,

the Plaintiff and successful interveners/Plaintiffs in State of Wash-

ington, et al., v. Train, Civil Action 74-105, filed on January 21, 1974

in the District Court for the District of Columbia, succeeded on June

28, 1974 in obtaining a temporary restraining order to prevent the

possible lapse of $1,044,600,000.

ty

21

words ‘‘not to exceed”’ before the authorized amounts

in Section 207 establish the upper limit on the obli-.

gation of funds (not the allotment of funds) by the

Administrator.

The clear intent of Congress by a reading of

these sections is to require the full allotment of the

authorized funds. The Court in City of New York

etal..v. Ruckelshaus, 358 F. Supp. 669, 679 (D.D.C.

1973) succinctly stated that:

The language of the pertinent sections of. the

Act, read in the light of their legislative history,

clearly indicates the intent of Congress to re-

quire the Administrator to allot, at the appro-

priate times, the full sums authorized to be

appropriated by § 207: Hence, this court has

no choice other than to declare that § 205(a) of

the Act requires the Administrator to allot

among the states $5 billion for fiscal year 1973

and $6 billion for fiscal year 1974. (Emphasis

added. )

The overriding intent of Congress was to com-

mit the Federal government to a program by pro-

viding the statutory scheme and the financial means

to accomplish the task envisioned in the Act. The

pertinent language of the Act and its legisaltive his-

tory clearly indicate that the Administrator must

allot the full sums authorized to be appropriated by

Section 207 of the Act.

At the time the Act was being considered, Con-

gressman Harsha was the ranking minority member

of the House Public Works Committee, which re-

ported on the House version of the Act. He was also

PF Oe RES Ps Ie

TEES SRE POET

SERIA RY

Renee ee

22

the floor manager of the bill and a member of the

conference committee. Congressman Harsha ex-

plained to the House the meaning of certain of his

amendments to the Act. -

* * * JT want to point out that the elimina-

tion of the word “‘all” before the word “sums”

in Section 205(a) and insertion of the phrase

‘not to exceed” in Section 297 was intended by

the managers of the bill to emphasize the Presi- .

dent’s flexibility to control the rate of spending.

118 Cong. Rec. H. 9122 (Daily ed. Oct. 4, 1972)

(Emphasis added. )

At a later point of the debate, a colloquy between

Congressmen Jones, Ford and Harsha revealed the

actual intent of the amendments:

Mr. GERALD R. Forp. Mr. Speaker. I think it is

vitally important that the intent and purpose of

Section 207 is spelled out in the legislative his-

tory here in the discussion on this conference

report.

As I understand the comments of the gen-

tleman from Ohio [Harshal], the inclusion of

the words in Section 207 in three instances of

“not to exceed” indicates that is a limitation.

More importantly, that it is not a mandatory

requirement that in one year ending June 30,

1973, there would be $5 billion and the next year

ending June 30, 1974, $6 billion and a third

year ending June 30, 1975, $7 billion obligation

or expenditure? |

Mr. HARSHA. I do not see how reasonable minds

could come to any other conclusion than that the

language means we can obligate or expend up

to that sum—anything up to that sum but not

to exceed that amount * * *

MR. GERALD ForD. Mr. Speaker. I would like to

ask the distinguished chairman of the subcom-

23 | | 3

mittee and the chairman of the House conferees |

whether he agrees with the gentleman from

Ohio [Harsha]. \

Mr. JONES of Alabama, My answer is “‘yes”’.

Not only do I agree with him, but the gentleman

from Ohio offered this amendment which we

have now under discussion in the committtee of

conference, so there is no doubt in anybody’s Fy

mind of the intent of theJanguage. It is reflected ‘

in the language just explained by the gentleman

from Ohio[Harsha]. +

Mr. GERALD R. ForD. Mr. Speaker. This clari-

fied and certainly ought to wipe out any doubts

anyone has. The language is not a mandatory

requirement for full obligation and expenditure :

up to the authorization figure in each of the 7

three fiscal years * *** 118 Cong. Ree.

H. 9123 (Daily ed. Oct. 4, 1972) (Emphasis Ff

added. ) £

From the above exchange, it is clear that any :

discretion of the Administrator regarding the au-

thorized funds was intended to be exercised only at

the obligation and expenditure stage and not at the

allotment stage.

Congressman Harsha noted the recent impound-

ments of highway funds (after allotment) by the

executive branch. 8

[T]he Committee on Public Works is acutely

aware that moneys from the highway trust fund

have been impounded by the Executive. Ex-

penditures from the highway trust fund are

made in accordance with similar contract au-

thority provisions to those in this bill. Obviously,

expenditures and appropriations in the water

ollution control bill could also be controlled.

owever, there is even more flexibility in this

water pollution control bill because we have

c

E

&

F

i

24

added “not to exceed” in Section 207, as I in-

dicated before. |

Surely, if the Administration can impound

moneys from the highway trust fund which does

not have the flexibility of the language of the

water pollution control bill, it can just as rightly.

control expenditures from the contract author-

ity produced in this legislation by that same

means. 118 Cong. Rec. H. 9122 (Daily ed. Oct.

4, 1972) Emphasis added. )

However, the court in the New York case, supra, at

678 pointed out:

* * * The impoundments of Federal-Aid

Highway Act moneys referred to by Congress-

man Harsha were of funds allotted, i.e., the

controls were being exercised at the obligation

level rather than at the allotment level. (Em-

phasis added.) ;

Significantly, the very highway impoundments re-

ferred to by Congressman Harsha were declared to

be illegal by the court in State Highway Commission

of Missouri v. Volpe, 479 F.2d 1099 (9th Cir., 1973).

Furthermore, Congressman Harsha followed his im-

poundment comments by noting that the Administra-

tor may exercise discretion at a later point in time

solely as it related to approval of plans, specifications

and estimates.

* * * T would like to point out that the

Administrator of the Environmental Protec-

tion Agency must approve plans, specifications

and estimates. This is the pacing item in the

expenditures of funds. It is clearly the under-

standing of the managers that under these cir-

cumstances the Executive can control the rate

of expenditures. 118 Cong. Rec. H. 9122 (Daily

ed. Oct. 4, 1972) (Emphasis added. ) ;

25

On the Senate side, the main spokesman for the

Act was Senator Edmund Muskie. Senator Muskie

at that time was Chairman of the Senate Subcom-

mittee on Air and Water Pollution, which reported

out the Senate version of the Act. He was also a floor

manager of the bil! and a member of the conference

committee. Senator Muskie, in a specific reference

to the amendments proposed by Congressman Har-

sha, made it clear to the Senate that the meaning of

the Act is as contended herein

Under the amendments proposed by Con-

gressman 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

obligation of construction grant funds. 138

Cong. Rec S 16871 (Daily ed. Oct. 4, 1972)

(Emphasis added. )

The President also understood that Congress

intended the full allotment of funds for in his veto

message he stated:

Certain provisions of * * * [the bill]

confer a measure of spending discretion and

flexibility upon the President, and if forced to

administer this legislation I mean to use those

provisions to put the brakes on budget-wrecking

expenditures as much as possible.

~ But the law would still exact an unfair and

unnecessary price from the public. For I am

convinced * * * that the pressure for full

. funding this bill would be so intense that funds

approaching the maximum authorized amount

could ultimately be claimed and paid out, no

BERIT EL ROO TIN EY Ee APN Ee a

26

matter what technical controls the bill appears

to grant the Executive. 118 Cong. Rec. H. 10266

(Daily ed. Oct. 18, 1972) (Emphasis added. )

It is significant that the _Pres.dent, in vetoing

the bill, actually assumed an interpretation of the

Act contrary to that subsequently taken in impound

ing the funds. The President initially assumed the ex-

istence of discretion only at the spending level; how-

ever, after the veto was overridden the President

assumed the right to impound at the earlier stage of

allotment. The fact that the President originally in-

terpreted the Act in the same manner as is herein

contended, constitutes a compelling argument

against the subsequent, contrary interpretation

taken by the President. Presumably, the President

concluded that he would be under pressure to spend

more than he wanted to unless be impounded at the

allotment stage. The President and the Administra-

tor are therefore seeking to do indirectly what the

President originally recognized he could not be di-

rectly.

Congressman Harsha emphasized the need for

advance planning and assured availability of funds

in these words:

Because of the magnitude of this program,

it is essential that the States, the interstate ag-

encies and the cities have both the ability for

and a basis for long-range planning, cgnstruc-

tion scheduling and financing waste treatment

plants, including the sale of bonds that they have

to sometimes negotiate.

— Now, this can only be accomplished it there

is assured availability of Federal grant funds

for future years. This necessary assurance is

boas

27

not. provided by merely advancing appropria-

tions for 1 year. That will not meet the needed

assurance of long-term planning. This is a con-

tinuing program.

The construction of a waste treatment

plant consists of planning; econemic and engi-

neering feasibility studies; preliminary engi-

tions, and estimates; the acquisition of land

Where appropriate, and the actual physical con- 4

struction of the building itself. Under this leg- ;

islation each one of these steps is ordinarily a

separae project, a separate contract, and it is 7

funded as completed or as work- progresses. This

is not the case under existing law where 25 per-

cent of the total project must be completed be-

fore any payment can be made.

At the time any one of these preliminary

steps is taken, such as the plans, specifications,

and estimates, there is no assurance that ap-

propriated funds would be available for subse-

quent projects for land acquisition and the ac-

tual building of this plant for which the plans,

specifications, and estimates are being prepaerd.

This, therefore, makes the orderly continuous

planning and scheduling of work impossible.

118 Cong. Rec. H. 2727, H. 2728 (Daily ed.

Mar. 29, 1972) (Emphasis added.) *

Senator Muskie presented similar prevailing

arguments in the Senate.’

As noted by the court in the New York City case,

supra, at 674:

The seriousness of the planning problem was

understood by Congress. It was one of the rea-

sons for utilizing the device of allotment, there-

by making funds available for obligation [by

contract authority], in lieu of the ordinary ap-

propriations procedure. -

Be SRE

*117 Cong. Rec. S. 17445 (Daily ed. Nov. 2, 1971).

| Sore Watt Chistes ed

28

It does not make sense to assume that Congress

established the allotment and contract authority

funding mechanism to correct the vagaries of the

annual appropriation process, and coincidently grant

the Administrator discretion to undercut its com-

mitment by reintroducing the uncertainties of the

old system back into the process. The intended firm

commitment of Congress vanishes with any exercise

of discretion by the Administrator at the allotment

stage. Thus if the funding provisions are to have any

meaning at all, it must be concluded that Congress

did not intend the sums authorized for allotment to

be altered at the whim of the Administrator. .

Senator Muskie asked the Senate the following

crucial questions regarding the high costs of attain-

ing clean water and then gave the following answers:

Can we afford clean water? Can we afford

_ rivers and lakes and streams and oceans which

continue to “rs possible life on this planet?

Can we afford life itself? Those questions were

never asked as we destroyed the waters of our

nation, and they deserve no answers as we

finally move to restore and renew them. These

questions answer themselves. And those who

say that raising the amounts of money called

for in this legislation may require higher taxes,

or that spending this much money may con-

tribute to inflation simply do not understand

the language of this crisis.

The conferees spent hours and days study-

ing the problem of financing the cleanup effort

required 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 grants to municipalities during fiscal years

29 “

1973-75. That is a or 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.)

When the language of Sections 205 and 207 ave

_ analyzed in context of the whole Act and its legisla-

tive history, the inevitable conclusion is that the Ad-

ministrator must allot the full sums authorized by

Congress. It is inconceivable that Congress intended

t9 grant the Administrator unfettered discretion at

the allotment stage which in effect makes the Act a

series of empty promises.

Even.if the Administrator had any discretion,

which he did not, he nonetheless has abused whatever

discretion he may have possessed by his refusal to

allot over one-half of the funds authorized by Con-

gress to construct publicly owned treatment works.

The broad objection of the Act, its goals, policies,

effluent limitation deadlines, enforcement provisions,

have been completely ignored by the Administrator.

The position of the amici curiaé is further sup-

ported with compelling effect by a memorandum au-

thorized by Justice William Rehnquist when he was

serving as an Assistant Attorney General in the

Office of Legal Counsel of the Department of Justice.

Thé memorandum was addressed to the Deputy Coun-

sel to the President and concerned the President’s

authority to impound funds appropriated for aid to

federally impacted schools. It reads in part as fol-

lows:

With respect to the suggestion that the

30

President has a constitutional power to decline

to spend appropriated funds, we must conclude

that existence of such a broad power is su

ported by neither reason nor precedent. There

is, of course, no question that an appropriation

act permits but does not require the executive

branch to spend funds. (See 42 Ops. A.G. No.

32, p. 4 (1967) ). But this is basically a rule of

construction, and does not meet the question

whether the President has authority to refuse

to spend where the appropriation act or the sub-

stantive legislation, fairly construed, require

such action.

Although there is no judicial precedent

squarely in point, Kendall v. United States, 12

Pet. 524 (1838), appears to be authority against

the Presidential power. In that case it was held

that mandamus lay to compel the Postmaster

General to pay to a contractor an award which

had been arrived at in accordance with a pro-

cedure directed by Congress for settling the case.

[T]he mere fact that a duty may be described

as discretionary does not, in our view, make the

principle of the Kendall case inapplicable, if the

action of the federal officer is beyond the bounds

of discretion permitted him by the law. 119

» Rec. S 3808 (Daily ed. March 1, 1973

mphasis added. )

31

CONCLUSION

From the foregoing, the amici curiae contend

there is no statutory basis or justification for the

Administrator to thwart the declared priorities and

policies of Congress provided in the Federal Water __

Pollution Control Act Amendments of 1972. The 4

amici curiae therefore request this court declare

invalid the Administrator’s action in refusing to allot :

the full amount of the authorized funds to the states

to implement the construction grant program of

the 1972 Act.

Sat oi

COUNSEL FOR THE

STATE OF WASHINGTON:

SLADE GORTON

Attorney General

CHARLES B. ROE, JR.

Senior Assistant Attorney General

MARTIN J. DURKAN

Special Assistant Attorney General,

JAMES B. MCCABE,

Special Assistant Attorney General,

COUNSEL FOR THE

COMMONWEALTH OF

PENSYLVANIA:

ISRAEL PACKEL,

Attorney General,

JAMES R. ADAMS,

Deputy Att General.

Dated: August, 1974. vo

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