# Amicus Curiae Brief — Train v. City of New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 35

## Text

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

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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

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be Shad

SS Sere

PRAMS We ae ATR
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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
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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
;

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0368%3A08. Public record. Not legal advice.