# Amicus Curiae Brief — Train v. City of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0368%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 35 ## Text f - ‘ i -_ ¢ } *« ® e e ee, ,, \ . . < , > £ é Cr222 ; as) x ‘ t ay ‘ ? 6 \ ¢ > A ~ se 7 - 7 a es ‘ INTEREST OF THE Amicus .... TABLE OF CONTENTS ARGUMENT I. Severeign Immunity Is No Bar To A Suit Which Chal- Lie lenges An Action Taken Pursuant To A Power If The The Exercise Of That Power Is Not Discretionary Or If The Exercise Of That Power Is In Excess Of Statutory Authority. . The Administrator Has No Discretion To Refuse To Allot Initially AT Sums Authorized To Be Appropriated Under The Act. Even Assuming, -frguendo, That The Administrator Has The Discretion To Refuse To Allot The Fall Amounts Authorized, The Exercise Of That Discretionary Au- thority Is Subject To Judicial Review And Mast Not Frustrate The Goals Of The Act. If The Action Com- plained Of Produces Such Frustration, Sovereign Im- munity Will Not Bar Legal Actions: ....5.6....cccccccc000-... CONCLUSION . Application of Martin, 195 F.2d 303 (C.C.P.A. 1952)- Campaign Clean Water v. Train, 480 F.2d 492 (4th Cir. 1974) 9, 12 City of New York, 494 F.2d 1033 (D.C. Cir. 1974)... 6.7.8 Dugan v. Rank, 372 U.S. 009 (1963) TABLE OF CITATIONS Cases 6 / Fe one ELE LIE PERRET LOLS cra Maa a s LS ABIES it TAIN =. 5a 8 LLP EAE IE IDSA. LAPIN AIAE BAAS TE DOES f Page Kendall v. United states, 37 U.S. (12 Pet.) 524 (1838) 0. 9 Malone v. Bowdoin, 369 U.S. 643 (1962) ccc 3,8, 11 , National Automatic Laundry and’ Cleaning Council v. Shultz, 4 443. V2 OBS (DC. Cir. TOAD), csssscicscieseeencsctceianecentataressameascanennaees 9 | State Water Control Board v, Train, Civil No. 74-0328-R (E.D. 4 Wig TNO Ut Tose rece ects evevienseceiteceseseinen spies eee 10 i The Wilderness Society v. Morton, 479 F.2d 842 (D.C. Cir. 4 TZ) paces eee ease cease ag penne yap eas decease tease wesnetecroneenentnn eae 6 : United States v. Henning, 344 U.S. 66 (1952) ooo eee. 6 : Utah Junk Co. v. Porter, 328 U.S. 39 (1946) ooo. eee 6 ; Statutes ; Federal Water Pollution Control Act Amendments of 1972, 86 & Stat. 816, 33 U.S.C. §§ 1251, et «eg. (Supp. IT, 1972) : 4 Section 10] (a) o........0..ceceeeeeeeeeteeeeeeee ae ar eed enon tetegaed 4 ‘ Section 201 (g) (1) occ ccc cceceseeececeeceseeeeeeseseeseeeeeeveveveteevaveees 5 5 SEMEL: DO ZEA sen ates eset eet terse ctncrn cen SEC RIONE, LOS CR YS ipa septa icetiagecneeracseanct pein sgencemetawessseenetnes 5 : Section 205 (a) occ ccc eeceeeceeseeeseeseveveeseeeenee 2, 4, 5, 6,7 4 SOCIO, DOS) scccecccstcc ves wesedeesenssnviniiend siadtcconexsdmnsntentsevienenen 5 4 Section’ 206(£) (1) ccc Spee eee ete 5,9 Section 301 (a) .o..ceecceeeeceeeceeeccesseeceseceeseeeesseesseeeeeessessecesecees 4 3 art tt es) G1) en ee 10 ; SHOCEION UEC CE cineca spcpereverrsaees ners Pi etanenheer sapseones 7 ; Section 301 (b) (1) (B) o.cccccccscecccescseceseesesevsssvevesssessesssseesee 4, 5 > 3 SCHON: GOED) CT CNY sree setsercie scorers rend 4,5 % Section 309 oo.....cccececcccccccccceceeeeccescceceecessecececeeeesssceseecesseeeets OS E Section 402 22....ecccceecceecccceccceeceeeeceeeececeecsceeeeseeeeeceeeeeesseeeess 4,5 - Miscellaneous A Legislative History of the Water Pollution Control Act Amend- ments of 1972, Committee Print, Committee on Public Works, 93d Cong., Ist Sess. (January 1973) oo. eceeee eee: 6, 7,9 ee ee ee oe ee ee nergy In The Supreme Court of the United States October Term, 1974 No. 73-1377 Russeitt EF. TRAIN, ADMINISTRATOR, UNITED STATES IENVIRON MENTAL PROTECTION AGENCY, Petittoner, oo cq. Tue Ciry or NEw YorK on BENALF OF ITSELF AND ALL OTHER SIMILARLY SITUATED MUNICIPALITIES WITHIN THE STATE OF NEW YORK, ET AL. No. 73-1378 Russe_t E. TRAIN, ADMINISTRATOR, UNITED STATES ENVIRON MENTAL PROTECTION AGENCY, Petitioner, 99 c. > CAMPAIGN CLEAN WATER, INC, / On Writs of Certiorari to the United States Courts of Appeals for the District of Columbia and the Fourth Circuits \ BRIEF OF THE COMMONWEALTH OF VIRGINIA AS AMICUS CURIAE IN SUPPORT OF APPELLEES OPINIONS BELOW The opinion of the court of appeals in City of New York, No. 73-1377 (Pet. App. A. pp. 1A-34A), is reported at 494 F.2d 1033. The opinion of the district court (Pet. App. E, pp. 59A-78A ) is reported at 358 F. Supp. 669. The opinion of the court of appeals in Campaign Clean Water, No. 73-1378 (Pet. App. B, pp. 35A-53A). is re- GER STELLA AR IEEE TY ELL PASAT EP AER TRE PSB, SONOS H RG Lee RE aT EY LEC SOO —, ee Zz ported at 489 F.2d 492. The opinion of the district court (Pet. App. F, pp. 79A-100A) is reported at 361 F. Supp. 689, QUESTIONS PRESENTED 1. The question presented in City of New York is whether Sections 205(a) and 207 of the Water Pollution Control Act Amendments of 1972 authorize the Administrator, acting at the direction of the President, to control the rate of spending under the program by allotting less than the ‘fullamounts authorized by the Congress. 2. The question presented in Campaign Clean Water is whether the court of appeals, upon recognizing that the question whether the Administrator has discretion to allot less than the amounts authorized was no longer an issue in case, should have directed the district court to dismiss the complaint instead of remanding the case ‘for a hearing de novo to determine whether the Administrator abused his discretion in making the particular allotments. INTEREST OF THE AMICUS The interest of the Commonwealth of Virginia lies in the interpretation of $$ 205(a) and 207 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., in the context of appellant’s assertion that he is authorized, pursuant to those sections, to refuse to allot, by specified deadlines, the maximum amount of funds authorized to be appropriated in each of fiscal years 1973 and 1974. All publicly-owned treatment plants within the Common- wealth are required to comply, by July 1, 1977, with appli- cable effluent limitations established pursuant to the Act. . s 3 The refusal of the appellant to allot. and make available for obligation, all funds authorized will compound the seri- ous shortfall of federal funds needed by political sub- divisions of the Commonwealth to effect compliance with the requirements of the Act. ARGUMENT I. Sovereign Immunity Is No Bar To A Suit Which Challenges An Action Taken Pursuant To A Power If The Exercise Of That Power Is Not Discretionary Or If The Exercise Of That Power Is In Excess Of Statutory Authority. The sovereign immunity test has been firmly established by this Court. This test provides that if a statute confers a power, the exercise of which is not within the discretion of the Administrator, sovereign immunity will not bar a suit which seeks to challenge the validity of the action taken pursuant to that power. This test further provides that, if a statute confers a power, the exercise of which is within the discretion of the Administratdr. the general rule is that _ sovereign immunity will bar a‘suit, to which the United States has not consented or otherwise waived its immunity, which seeks to challenge the validity of the action taken pur suant to that power. Notwithstanding this general rule. sovereign immunity will not bar sucha suit if: 1. The exercise of the power allegedly exceeds statutory authority ; or 2. The exercise of the power is unconstitutional, even though that exercise is within the scope of statutory au- thority. Dugan v. Rank, 372 U.S. 609 (1903): Malone vy. Bowdoin, 369 U.S. 643 (1962). pad: WHY PO a ec ap eas a 4 lor the reasons developed iifra, it is clear that sovereign immunity does not bar a suit against the Administrator challenging the validity of his refusal to allot initially all sums authorized to be appropriated pursuant to $$ 205(a) amd 207 of the Federal Water Pollution Control Act Amend- ments of 1972 (hereinatter “the Act”), 33 U.S.C. $s 1285(a), 1287 (Supp. 11. 1972). This conclusion must fol- low because the duty of the Administrator to allot all funds authorized ts nondiseretionary. Even assuming, arguende, that this duty is discretionary, the action taken is revie cable by this Court, the power must not be exercised so as to frustrate the attainment of the goals of the Act, und the power has been exercised igvescess of statutory 4 ithority. Il. Tac Administrator Has No Discretion To Refuse To Allot Initially ‘All Sums Authorized To Be Appropriated Under The Act. A. Tue INtent Or THe Act Reouires Tuar Avi Sums AvrHorizep To Be Avrropriatep Be -ALLorrep INITIALLY. ~The analysis of the question presented will be clearer if the legislative goals and statutory mechanism set up under the Act are briefly outlined. The Act sets forth, iter alia, the following national goals and policy: that the discharge of pollutants be elimi- nated by 1985; that an interim goal of water quality be achieved by July 1, 1983; and, that federal financial assist- ance be provided to construct publicly-owned waste treat- ment works. See $ 101(a). To implement these goals and policies, the Congress pro- hibited the discharge of any pollutant by any person except as in-compliance with, inter alia, $$ 301(b)(1)(B). 301 (by(1L)¢C). and 402. See § 301(a). Publicly-owned treat- ment works must provide, by July 1, 1977. secondary treat- ment |§ 301(b)(1)(B)], or higher levels of treatment re- quired to implement water quality standards | $ 301(b)(1) (C)], whichever is more stringent. These deadlines for compliance with technological limitations are required to be incorporated into individual discharge permits issued pur- suant to § 402. Title I] of the Act sets forth the mechanism by which the United States provides grant funds to underwrite 73 percent of the costs of compliance with the foregoing deadlines and limitations. The Administrator is authorized to make such grants. See § 201(¢)(1). The Act provides an authorization not to exceed $18 billion for fiscal vears 1973, 1974, and 1975. See § 207. The Administrator is required to allot sums authorized to be appropriated to the states in accordance with their needs. See § 205(a). The approval of the Ad- ministrator of plans, specifications, and estimates for a treatment works project constitutes a contractual obligat on of the United States to pay 75 percent of the costs of such construction. See $§ 203(a) and 202(a). Sums allotted but not obligated within a prescribed time must be reallotted to the states. See $205(b). A state may utilize future allotments under certain conditions if it wishes to get a headstart towards compliance with the statutory Ceadliny- See § 200(f)(1). The Administrator is compelled to enforce compliance with deadlines and technological limitations, and he has available to him a variety of remedies. Whenever a political subdivision of a state is a party to a suit brought by the Administrator, the state shall be joined as a party and shall be liable for the payment of any judgment, including the cost of compliance with applicable deadlines and limitations. to the extent that the political subdivision may not under state law raise the required revenues. See §$ 309. Citizens 6 may bring suit in federal court, regardless of the amount in controversy, to spur such enforcement by the Admin- istrator, The funding mechanism under the Act is a subject before th’s Court. The Commonwealth concurs with the court of appeals that the term “shall allot” in § 205(a) and the term concerning sums “not to exceed” in § 207 are not susceptible woa “plain meaning” analysis. City of New York vy. Train, 494 F.2d 1033, 1039 (D.C. Cir. 1974). This Court must construe these provisions to discover their true intent. Ctah Junk Co. v. Porter, 328 U.S. 39 (1946). This duty is clear where the language of the statute is of doubtful meaning. A pplication of Martin, 195 F.2d 303 (C.C.P.A.), cert. denied, 344 U.S. 824 (1952). In order to determine the true legislative intent, resort may be had to the legislative history of the Act. United States v. Henning, 344 U.S. 66 (1952); Wilderness Society v. Morton, 479 F.2d 842, 855 (1).C. Cir. 1973). Congress manifested a clear intent to commit a total of S18 billion in federal grant funds to underwrite the federal share of the costs of constructing publicly-owned treatment works by the deadlines established in the Act. An analysis of the legislative history of the Act shows that the Congress first set the goals it wished to achieve. See “A Legislative History of the Water Pollution Control Act Amendments of 1972," Committee Print, Committee on Public Works, 03rd Cong., Ist Sess., January 1973, 3, 120, 164-65, 283, vO4, 1535 (hereinafter cited as Legis. Hist.). Second, the Congress established the deadlines by which these goals would be achieved. Jd. at 32, 254, 303-04, 963, 1608-09. Third, the Congress determined the cost of meeting these deadlines. Jd. at 98-9, 100, 115, 120, 164-65, 185, 189-90, 243, 206. Fourth, the Congress provided corresponding au- 7 thorizations of funds to underwrite these costs. /d. at 26, 164-65, 189-90, 243, 206, 298, 1452, 1591-92. During the protracted consideration of the bills which resulted in the Act, the deadlines were correspondingly extended to accom- modate the required lead time for constriction (Jd. at 1209), and the authorizations were raised to correspond to higher Administration estimates of the costs of com- pliance with the deadlines. /d. at 164-65, 189-90, 2066. These conclusions are consistent. with the interpretation by the court of appeals of the overall intent of the Act. City of New York v. Train, supra, at 1039-42. B. Tue Harsua AMENDMENTS To $$ 205(a) ANpd 207 Dip Nor AUTHORIZE THE ADMINISTRATOR To Rerusk To ALLoT INITIALLY ALL FuUNps AUTUGRIZzED. ¢ Prior to the Harsha Amendments, § 207 unequivocally authorized a total of $18 billion for the three year period ending on June 30, 1975. Section 205(a) required the Ad- ministrator to allot all sums authorized by specified dead- lines. It is clear that, in view of the deadlines for compliance established under the Act |$ 301(b)(1)] and the lead time required for construction (Legis. Hist. 1209), the Con- gress intended that all funds authorized would be obligated by the Administrator prior to June 30, 1975. See S. Rep. No. 414, 92nd Cong... Ist Sess. 35 (1971). Legis. Hist. 1453. ro The Harsha Amendments inserted the term “not to ex- ceed” in $ 207 and deleted the word “all” from § 205(a). The intended result of these changes is fully discussed by the court of appeals in its opinion. That court found that the intended result of the amendments was to provide the Administrator with flexibility to control the rate of spend- 8 ing, w.e., the rate at which obligations would be made, rather than the discretion to refuse to allot and to obligate the entire amount authorized by § 207. City of New York Vv. Train, supra at 1042-46. The Commonwealth concurs in this interpretation because it is consistent with the expressed intent of Congress to effect compliance with the deadlines of the Act and to minimize the fiscal impact of expenditures made pursuant to the Act. The Congress could not have meant to give the Administrator the discretion to allot less than the full amounts authorized because, with such discretion, the Administrator could control the total amount available to be spent, and, in turn, could frustrate the attain- ment of the objectives of the Act. Since the Congress did not grant to the Administrator the discretion to refuse to ailot initially the full amounts authorized, such refusal is in excess of statutory authority, and, accordingly, sovereign immunity is no bar to a suit alleging the invalidity of that action. Malone vy. Bowdoin, supra. Ill. Even Assuming, Arguendo, That The Administrator Has The Dis- cretion To Refuse To Allot The Full Amounts Authorized, The Exercise Of That Discretionary Authority Is Subject To Judicial Review And Must Not Frustrate The Goals Of The Act. If The Action Complained Of Produces Such Frustration, Sovereign Immunity Will Not Bar Legal Action. A. Tue Action OF THE ADMINISTRATOR Is SuBJEcT To Jupiciau Review. It is settled that a court may inquire into the exercise by an administrator of discretion conferred by statute to de- termine whether or not that discretion was exercised in such 9 a manner as to make impossible the attainment of the ob- jectives of the statute. Nendall vo. United States, 37 U.S. (12 Pet.) 524 (1838): National Automatic Laundry and Cleaning Couneil v. Shults, 443 F.2d 689 (D.C. Cir. 1971); Campaign Clean Water v. Train, 489 F.2d 492, 498 (4th Cir. 1974). B. THe Ap Ministraror’s REFUSAL To Anton At Seas AltHorizep Has Cavsep, Or GREATLY Contriseren To, Tie INapiity Or Vireinia To Compiy Witt Tir Onyectives Or The Act. All publicly-owned treatment works ‘are required to comply by July 1, 1977, with effluent limitations based on secondary treatment or with limitations required to im- plement applicable water quality standards. The Adminis- trator estimated that $424.4 million in federal funds would be required to underwrite the federal share of the costs of compliance with these limitations and deadlines. S. Rep. No, 92-1236, 92nd Cong., 2d Sess. 15 (1972), Legis. Hist. 296. The Congress clearly intended to provide the authorized funds at an early time in the period required for c mnpliance. This intent has been discussed supra, and is evidenced by congressional recognition of (1) the lead time required to plan, design, and construct treatment works (Legis. Hist. 1209); (2) the advanced construction provisions of $ 206 (1 )(1L): and, (3) the notation with approval of phased funding ( Legis. Hist. 294). On November 22, 1972, the Administrator refused to allot to Virginia $174.9 million that should have been allotted and made available for obligation during fiscal years 1973 and 1974. In taking this action, the Administrator allotted to Virginia only $145.6 million. The Commonwealth jm- I IE SIO DGG RMR IT LEI LAG REY epg SEAL hs Re PON ROT MOTD Fgh POLES? Bs ‘ee Op Rate eC = Re ene 10 mediately proceeded in good faith to submit to the Adminis- trator grant applications within the limits set by this allot- ment. The full amount allotted for these two fiscal years has not yet been fully obligated. This is not the result, however, of a paucity of qualified projects in the Commonwealth. Rather, since the federal share of total costs of applications submitted was equal to the available allotment, and_ since every application has not yet been approved, the full allot- ment has not vet been obligated. The Commonwealth now finds herself in dire straits. Her present needs for federal funds, as determined by the Ad- ministrator, are $1.008 billion. These funds are required to underwrite the federal share of the costs of compliance with the effluent limitations contained in § 301(b) of the Act. These increased needs are due to, tter alia, more refined cost estimates, new requirements established by the Admin- istrator, and inflation. In view of the shortfall in required federal funds and the 30-45 month lead time required for construction, it is now clear to the Commonwealth that all of her publicly- owned treatment works will not meet the July 1, 1977, dead- line. Accordingly, the Commonwealth has filed suit [State IWater Control Board v. Train, Civil No, 74-0328-R (E.D. Va., filed July 19, 1974) ] in which she seeks relief from enforcement of the July 1, 1977, deadline. The Common- wealth has requested the court to declare that, for any publicly-owned sewage treatment plant, compliance with applicable limitations shall not be required until federal funds are made available in an amount sufficient to under- write 75 percent of the costs of compliance with the Act, and until a reasonable time has been allowed for completion of construction. The Commonwealth does not seek a blanket extension of this deadline; rather, she seeks to have the 11 deadline set on a case-by-case basis, and she has suggested a means under the Act whereby the court can readily super- vise compliance with revised deadlines. It must be emphasized that, notwithstanding refined needs estimates and inflation, the impoundment of more than one-half of the funds authorized for fiscal years 1973 and 1974 has caused, or contributed greatly to, the im- possibility of compliance by Virginia's political subdivisions with thé July 1, 1977, deadline. This impoundment has frustrated the clear legislative objectives of the Act. Such frustration is an abuse of discretion which is open to judicial review, and on account of which judicial relief should be afforded. Further, since the action taken is an abuse of discretion, a suit challenging the validity of that action is not barred by sovereign immunity. JJalone v. Bowdoin, supra. IV. CONCLUSION It is clear from an examination of the legislative history of the Act that the Congress did not intend to confer upon the Administrator the discretion to refuse to allot the full sums authorized to be appropriated pursuant to § 207 of the Act. Accordingly, the decision of the court of appeals in City of New York v. Train should be affirmed. Even assuming, arguendo, that such discretion does exist, the Administrator must not exercise that discretion in such a way as to frustrate the attainment of the objectives of the Act. The court may review an action which results trom an alleged abuse of discretion to determine whether the action taken would frustrate the Act's objectives. If the court determines that these objectives are frustrated by the action complained of, sovereign immunity will not bar a suit LN ITT er ae ee ph I aa a bt) Nae Seen aire ae ae me al tats MERE RIS He LOE Ry Met Ser am PRE & challenging the validity of that action. The decision of the court of appeals in Campaign Clean Water v. Train should be affirmed. Respect fully submitted, ANDREW DP. MILLER Attorney General of the Commonzealth of Virginia Amicus Curtae GERALD L, BALILES A‘ Deputy Attorney General JAMEs E. RYAN, JR. Assistant Attorney General Supreme Court—Library Building 1101 East Broad Street Richmond, Virginia 23219 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0368%3A09. Public record. Not legal advice.