# 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%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 420 U.S. 35 ## Text TABLE OF CONTENTS PAGE Table of Authorities iii Questions Presented ._ . : 2 Statement of the Case 3 Interest of Amicus Curiae 4 Summary of Argument 6 7 | a Argument 7 i I. The Act and Its Legislative History Indicate the E Administrator Has No Discretion to Curtail : ‘ Authorized Funds at the Allotment Stage 7 : A. The Act Manifests Clear Congressional In- t tent to Attain Clean Water 7 B. The Statutory Scheme Imposes a Clear Mandatory Duty Upon the Administrator to Allot 12 C. The Amounts Authorized Were Based on National Needs to Achieve the Act's Pur- poses. 15 D. The Allotment Scheme Was Established to Aid the States in Planning to Meet Staiu- tory Requirements 18 TAP ORS AY | Pe a eae greet oF II. The Administrator Has No Discretion to Re- duce Allotments 24 A. The Act Requires Full Allotment 24 X Conclusion 1. B. If the Administrator Has Any Discretion at the Allotment Stage, He Hag Abused It Discretion was not exercised within the bounds delineated by the Act The refusal to allot 55% of|the funds authorized is a flagrant abuse of dis- cretion because it effectively frustrates the intent of Congress as embodied in the Act The President and the Administrator cannot do indirectly what .dent was forbidden by Congress to do by veto Ill. The Action of the Administrator Is Not So “Committed to Agency Discretion” As to Be Nonreviewable ii Bn Pe ne aint et BRIE, : PAGE 30 30 33 36 39 42 Be TRE NS AT Ate ET BS A OU PEO, TABLE OF AUTHORITIES PAGE Cases: Campaign Clean Water, Inc. v. Ruckelshaus, 361 F.Supp. 689 (E.D. Va., 1973) 31 Campaign Clean Water, Inc. v. Train, 489 F.2d 492 (1973) 41 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) .. ee 39 City of New York, et al. v. Ruckelshaus, 358 F.Supp. 669 (1973) 23, 27 City of New York v. Train, 494 F.2d 1033 (1974) | = oe 14, 17, 18, 25 Kendall v. United States, 12 Pet. 524 (1838) | 38 Martin-Trigona v. Ruckelshaus, No. 72-C-3044 (N.D. IL, June 29, 1973) : 4 14 Local 2677, American Federation of Government Employees v. Phillips, 358 F.Supp. 60 (D.D.C., 1973) ; 31 Richards v. Uniied States, 369 U.S. 1 (1962) 40 Stark v. Wickard, 321 U.S. 288 (1944) 39 State Highway Commission of Missouri v. Volpe, 479 F.2d 1099 (8th Cir., 1973) 27, 30, 31, 32 State of Florida v. Train, Civ. No. 73-156 (N.D. Fla., Feb: 25, 1974) 14 State of Maine v. Train, Civ. No. 14-51 (D. Maine, June 24, 1974) ' 14 State of Minnesota v. Fri, No. 4-73 Civ. No. 133 (D. Minn. June 25, 1973) 5, 14, 32, 33 iii ES STR GOR ATE BN LOT TIMED. NER TRAE TOE A BER PE EERE RR ee ET ee HT ta a AE SS eatuiday mac gt os ae we A Ny | ee SR IT OVE 5 AA AIOE Da AES Se Na =" PAGE State of Ohio v. Environmental Protection Agency, et al., Nos. C.73-1061 and C.74-104 . (N.D. Ohio, June 26, 1974) 14 State of Texas v. Ruckelshaus, C.A. No. A-73-CA-38 (W.D. Texas, Oct. 2, 1973) ee | Statutes: 37 Fed. Reg. 26282 33 38 Fed. Reg. 5330, §35.903(d) 34 38 Fed. Reg. 5331, §35.910-1(d) 14 Administrative Procedure Act, 5 U.S.C. $701 (Supp. V) (1966) 7,39 Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500 (Oct. 18, 1972), 86 Stat. 816, — 33 U.S.C. Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section 1251, et. seq. 101(a) . 3,7 101(a) (1) 8 101(a) (2) 8 101(a) (4) 3, 8 201(a) 3 8 201(g) (1) 8 202 (a) 9 203 9, 10,13 203 (a) 9 203 (b) 9 204 9, 10 204 (a) (2) ; 9 204 (a) (3) 3 9 204(a) (4) 9 204(a) (5) 9 205 5, 8, 10, 12, 14, 24, 25, 28, 35 iv Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section a Section Section Section Section 205(a) 205 (b) (1) 207 a 301(a) 301(b) 301(b) (1) (B) 301(b) (1) (C) 302 303 (e) 306 307 | 309(a) (3) 309(c) (1) 309 (d) 309(e) 402 402(b) (1) (A) 402(k) 403 502(5) 505(a) 505(a) (1) 505 (a) (2) 505(g) . 509(b) (1) (F) 510 2 AOR AMONG RASS Sak Ths BOE ie Mbt ED PAGE . 8,12 ore 13 _. .5, 9, 12, 15, 24, 25, 26, 28, 35 11 11 : 11 11, 12, 35 11 11, 12 11 11 PAGE Secondary Authorities : 118 Cong. Rec. H.27267— 20 118 Cong. Rec. H.2727 21 118 Cong. Rec. H.2728 21 118 Cong. Rec. H.9122 ; 25, 27 "118 Congo. Rec. H.9123 : 26 118 Cong. Rec. H.10266 : 36 118 Cong. Rec. H.10267 — 15 119 Cong. Rec. H.10268 27, 28 117, Cong. Rec. 8.17445 23 "118 Cong. Rec. $.16870 17 118 Cong. Rec. $.16871 29 118 Cong. Rec. 8.18534-35 4 118 Cong. Rec. 8.18546 17, 29 118 Cong. Rec. S.18547 28 118 Cong. Rec. $.18548 | f 15 _——-118 Cong. Rec. $.18549 29 : 119 Cong. Rec. 8.3808 ‘3 % a S % aA 7 a » [+ 4 2 a 4 vi A me Hee IN THE Supreme Court of the Gnited States October Term, 1973 No. 73-1377 RUSSELL E. TRAIN, Administrator, United States Environmental Protection Agency, Petitioner Vs. THE CITY OF NEW YORK on Behalf of Itself and All Other Similarly Situated Municipalities Within the State of New York, et al. No. 73-1378 RUSSELL E. TRAIN, Administrator, United States Environmental Protection Agency, Petitioner vs. CAMPAIGN @LEAN WATER, INC. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ‘DISTRICT OF COLUMBIA AND THE FOURTH CIRCUITS g BRIEF AMICUS CURIAE ON BEHALF OF THE STATE OF MINNESOTA “ f , 5 ; , QUESTIONS PRESENTED 1. May the Administrator of the U.S. Environmental Pro- tection Agency ignore Congressional intent and the manda- tory requirements of the Federal Water Pollution Control Act Amendments of 1972 by refusing to allot to the States the full sums authorized byg@ongress to be appropriated foFthe con- struction of publicly owned sewage treatment works? *2. If the Administrator had any discretion in controlling the rate of spending for construction of publicly owned sewage treatment works was it erroneously exercised in that (a) it was exercised at the allotment stage rather than obligation stage; (b) the decision was based upon evaluation of compet- ing national policies, priorities, goals, and objectives other than those established by Congress: (c) the amount withheld effectively frustrated achievement of the goals and purposes of the Act, and (a) in impounding the funds the Administra- tor sought to do indirectly what Congress directly forbade him to do by overriding the Presidential veto of the Act? 3. Is the allotment of funds within the narrow exception of being so ‘committed to agency discretion” that it is beyond judicial review even though the Act provides adequate stan- dards by which the discretion may be evaluated to determine whether it was erroneously exercised? STATEMENT OF THE CASE The cases before the Court present issues of statutory con- struction to determine the existence of discretion, or the extent . of any such Giscretion, granted to the Administrator of the United States Environmental Protection Agency (hereinafter the Administrator) in allotting funds among the States pur- suant to the Federal Water Po!lution Control Act Amendments of 1972 (hereinafter the Act).' The pervasive objective of the Act as stated in Section 101(a) “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’ Congress declared in Section 101(a) (4) of the Act that “it is the national policy that Federal financial assistance be provided to construct pub- licly owned treatment works; ... .” This policy is a vital part of the Act and is essential to achieve its objective. Con- _ gress authorized to be appropriated amounts not to exceed $5 billion for fiscal 1973, $6 billion for fiscal 1974 and $7 billion for fiscal 1975 to carry out this policy. Section 207. The President vetoed the Act on October 17, 1972. The President in his message to Congress stated: Even if this bill is rammed into law over the better judgment of the Executive—even if the Congress de- faults its okligation to the taxpayers—lI shall not de- fault mine. Certain provisions of S. 2770 confer a measure of spending discretion and flexibility upon the President, and if forced to administer this legis- 1Pub. L. 92-500 (Oct. 18, 1972), SG Stat. $16,.33 U.S.C. 1251, et seq. The Act is commonly referred to by section rather than by its Code Citation. Therefore all references to the Act hereinafter wil] be by section number of the Act as enacted, Pub. L. 92-500. lation I mean to use those provisions to put the brakes on budget-wreeking expenditures as much as possible. 118 Cong. Rec. S. 18534-35 (Daily ed., October 17, 1972). Congress considered the veto message and overwhelmingly overrode the veto. In the House, the vote was 247 to 23; in the Senate, it was 52 to 12. The President’s intention was later carried out by his directive to the Administrator to allot to the States $2 billion instead of the $5 billion authorized for fisca] 1973, $3 billion instead of the $6 billion authorized for fiscal 1974 and, although not an issue herein, $4 billion instead of the $7 billion authorized for fiscal 1975. Respondent City of New York has obtained from the Court below an order which compels the Administrator to allot among the States the full amounts authorized by Congress. Respondent Campaign Clean Water has obtained an order for a de novo review of the Administrator’s decision to determine if he abused his discretion. Petitioner seeks review of both cases, which have been consolidated in this Court. INTEREST OF AMICUS CURIAE The Court’s decision in these cases will substantially affect the State of Minnesota by setting a precedent which will be devisive in its case against the Administrator in the United States Court of Appeals for the Eighth Circuit. Minnesota ob- tained from the United States District Court for the District of Minnesota, Fourth District, an order to compel the Admin- istrator to allot to Minnesota the full sums Congress autho- rized to be appropriated for the construction ef publicly owned > treatment works as provided in Sections 205 and 207 of the Act. The Administrator appealed the order to the Court of Ap- peals for the Eighth Circuit. Written briefs and oral argu- ment have been presented to the Court of Appeals. The case is presently pending for decision. Minnesota’s case involves virtually identical issues to those involved in the cases present- ly before the Court. The Administrator’s action resulted in a drastically reduced allotment to the State of Minnesota. For fiscal years 1973 and 1974 Minnesota received a total of $101.5 million instead of the $222.5 million authorized, or a total reduction of $121 mil- lion. The direct effect on Minnesota is that numercus sewage treatment works in the State will not be constructed or up- graded. Consequently, the cutback on the allotments to Minne- sota guarantees that its municipalities and sanitary districts will fail to meet the requirements and goals of the Act. There is an adverse environmental effect from the Admin- istrator’s refusal to allot because inadequately treated sewage and industrial wastes will continue to be discharged into Min- nesota waters. The stoppage of construction of treatment works for fiscal 1973 is estimated to result in a flow of 285 million gallons per day of inadequately treated sewage. The pollution and health effects from untreated sewage are well established. The State of Minnesota has great interest in achieving and maintaining high water quality necessary for the propagation 2 State of Minnesota v. Fri, No. 4-73, Civ. 133 (D. Minn., June 25, 1973). The opinion and order of Federal District Court Judge Miles W. Lord has not been reported. The factual references made here- in by the State of Minnesota are based on affidayits that are part of the record in Minnesota's case. The affidavits were not disputed by the Administrator. aa Si TPH AT RIO 6 of fish and wildlife and recreation in and on its waters. The recreational benefits accruing to the State from fish and game are estimated to be valued at approximately $200 million per year. Pollution from untreated sewage primarily causes oxygen depletion and artificial enrichment of lakes and rivers which adversely affect the propagation of fish and recrea- | tional uses. Construction of secondary treatment facilities re- duces or eliminates these detrimental effects. Minnesota urges that the result in this case should be to re- quire the Administrator to allot the Congressionally autho- rized funds now withheld from the States. SUMMARY OF ARGUMENT 1. Under the Act the Administrator has no discretion to determine the amounts to allot among the States. The Act con- tains mandatory language that the $5 billion and $6 billion for fiscal years 1973 and 1974, respectively, “ shall be allotted by the Administrator.” Congress intended the full sums au- thorized to be appropriated to be allotted among the States. This intent is manifested in the Act as a whole and its legis- lative history. 2. If the Administrator has been granted any discretion by the Act he exercised it erroneously. First, any discretion ‘rests at the obligation stage instead of the allotment stage. Second, even if there existed discretion at the allotment stage it was flagrantly abused by the Administrator. His discretion is circumscribed by the bounds of the Act and may not be exer- cised for reasons remote and unrelated to the Act. Third, the refusal to allot 555 of Congressionally authorized funds was an abuse of discretion because it was in derogation of the policy and goals established by Congress in the Act. The im- ~) poundment of the authorized funds was an attempt to undo * what Congress accomplished by exercising its Constitutional right to override the Presidential veto of the Act: emphatical- ly mandating that the full $18 million be allotted to the States. 3. The Administrator’s action does not fall under the narrow exception of the Administrative Procedure Act making nonreviewable actions totally committed to Agency discretion where the statutory authority is so broad that there is no law to apply. The Act provides definite standards against ‘which the Administrator’s action can be reviewed to deter- mine if he has misconstrued his powers and abused his dis- cretion. ARGUMENT I. THE ACT AND ITS LEGISLATIVE HISTORY INDICATE THE ADMINISTRATOR HAS NO DISCRETION TO CUR- TAIL AUTHORIZED FUNDS AT THE ALLOTMENT STAGE. A. The Act Manifests Clear Congressional Intent to Attain Clean Water. The Act is a comprehensive ‘and far-reaching law designed to clean up the Nation’s waters. The provisions for Federal financial assistance to construct publicly owned treatment works are major features of the Act and a keystone of the statutory objective. It is important that these financial provi- sions be put in proper context with other provisions of the Act relevant to the statutory scheme to attain clean water. The Act begins 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 ob- » eerie TB EO alt ce ON es ae aan ME RR INL ARE I INE NPRM DUE Af OPN S LSPA SRN EIT Foes Pa Le ARS mR ei sme oer. OES SOME LIOR SOT. vt aes ated Peers cate. tare 8 jective, Congress declared as goals of the Act that “the dis- charge of pollutants into the navigable waters be eliminated by 1985” and that “wherever attainable, an interim goal of water quality which provides for the protection and propaga- tion of fish, shellfish, and wildlife and provides for recrea- tion in and on the water be achieved by July 1, 1983.” Section 101(a)(1), (2). 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 II of the Act is entitled ‘Grants for Construction of Treatment Works.” The purpose of this title is ‘“‘to require and to assist the development and implementation of waste treat- ment plants and practices which will achieve the goals of this Act.” Section 201(a). The Administrator “is authorized to make grants to any State, municipality, or to intermunicipal or interstate agency for the construction of publicly owned treatment works.” Section 201(g)(1). Congress ‘‘authorized to be appropriated to carry out tnis title... for the fiscal year ending June, 30, 1973, not to exceed $5,000,000,000, for the fiscal year ending June 30, 1974, not to exceed $6,000,000,000 and for the fiscal year ending June 30, 1975, not to exceed $7,000,000,000.”’ Section 207. A state’s share of the authorized amounts for fiscal 1973 _ and 1974 is determined by a statutory formula based on “the ratio that the estimated cost of constructing all needed publicly owned treatment works in each State bears on the estimated cost of construction of all needed publicly owned treatment works in all of the States.” Section 205. Allotments to the. States commencing in fiscal 1975 are to be made in accordance with revised cost estimates submitted to and approved by Con- gress. Section 205(a). The designated shares are to be allotted among the States by the Administrator. Those allotted funds then are available for grants to construct publicly owned treatment works within the State. Section 203. An individual applicant for a grant sub- mits plans, specifications, and estimates for each proposed project 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). ‘ Prior to final approva! of'a treatment works project, the Administrator must consider the “limitations and conditions” of Section 204. For example, the Administrator is to deter- mine that (a) the treatment 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 water pollution control agency as entitled to priority over such other works in the State, (c) there are adequate provisions satis- factory to the Administrator for assuring proper and efficient operation and maintenance, 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) and (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 by the Administrator in the form of payments to the recipient of a grant as the work progresses and costs of construction are incurred on the project. Section 203(b). The successive administrative stages involving Title II grants this include: (a) the authorization of funds to be appropriat- ed, Section 207, Peer eerceeoreny ere - 10 a7 (b) the allotment by the Administrator of these 4 funds among the States, Section 205, (c) the submittal by the grantees of plans, speci- fications and estimates of treatment works projects to the Administrator for approval, Section 203, (d) the review by the Administrator of the proj- ects pursuant to the limitations and conditions of Section 204, (e) the approval by the Administrator of the project which thereby obligates the Federal govern- ment to pay 75 percent of the eligible costs, Section 203, and (f) the payment to the grantees by the Admin- istrator of project progress payments from the al- lotted funds, Section 203, and the appropriation by Congress of the funds necessary to cover the Admin- istrator’s expenditures on the project. The issues before the Court involve the Administrator’s ac- tion at the allotment stage. Title III of the Act is entitled “Standards and Enforce- ment.” The discharge of any pollutant by any person is unlaw- ful except when in compliance with various sections of the Act. Section 301(a). Persons operating publicly owned treatment works are included and are subject to enforcement actions. Section 301(b) provides that “[iJn order to carry out the objective of this Act there shall be achieved . . .” for all pub- licly owned treatment works secondary treatment by July 1, 1977, and the best practicable waste treatment technology by July 1, 1983. States are prohibited from adopting or enforcing an effluent limitation that is less stringent than those estab- lished under the Act. Section 510. 1] Title VI of the Act is entitled “Permits and Licenses.” Sec- tion 402 establishes the National Pollutant Discharge Elimi- nation System (hereinafter NPDES) which requires permits be obtained for the @ischarge of pollutants. The discharges from publicly owned treatment works require an application for an NPDES permit. Section 402(k). These permits must “insure compliance with, any applicable requirements of sec- tions 301, 302, 306, 307 and 403; ... .” Section 402(b) (1) (A). Neither the Administrator nor a State can issue a per- mit to a publicly owned treatment works under Section 402 which does not insure that requirements of the existing water quality standards are complied with or that effluent limits of secondary treatment are achieved by July 1, 1977. Any person, which by definition includes a municipality or ~ a sanitary district, Section 502(5), found willfully or negli- gently violating the effluent limitations of Section 301 is pun- ishable by a fine of not less than $2,500 nor more than $25,000 per day of violation or by imprisonment for not more than one year, or by both. Section 309(c)(1). Any person who merely violates Section 301 effluent limitations is subject to a civil penalty not to exceed $10,000 per day of such violation. Sec- tion 309(d). If the Administrator finds any person in violation of Sec- tion 301, he is required to issue an order to obtain compliance or to bring a civil action. Section 309(a)(3). A person who violates an order issued by the Administrator is subject to the civil penalty provision. Section 309(d). Whenever a munici- pality is a party to a civil action brought by the United States, the State is to be joined as a party. The State is liable to the extent that its law “prevent[s] the municipality from raising revenues needed to comply with such judgment.” Section 309 (e). ea Aa aia ee ue laltis Set eats teen et ere re 1 ETE, 28 Dente So LORD Yes 12 Any citizen adversely affected may commence a civil action against any person who is alleged to be in violation of an ef- fluent standard or limitation under the Act. Section 505(a) and (g). Federal district courts are given jurisdiction over these suits to enforce effluent standards and to apply any ap- propriate civil penalty under Section 309(d) of the Act. Sec- tion 505(a) (2). Any interested person may seek judicial re- view of any NPDES permit issued or denied under Section 402. Section 509(b) (1) (F). The statutory scheme includes a broad objective, with de- clared goals and policies, established deadlines for achieve- ment of effluent standards and limitations, permits for dis- charge of pollutants, and strong enforcement penalties to as- sure compliance. The Administrator’s refusal to allot 559% of the funds authorized must be viewed from the total perspec- tive of the Act. These féatures of the Act cannot be isolated from Sections 205 and 207. The Administrator’s narrow focus on Sections 205 and 207 distorts the clear thrust of the Act which is to abate water pollution. . B. The Statutory Scheme Imposes a Clear Mandatory Duty Upon the Administrator to Allot. . The requirement to allot the full amounts is clear and unambiguous. ; Sums authorized to-be #ppropriated pursuant to sec- tion 207 for each fiscal year beginning after June 30, 1972, shall be allotted by the Administrator not later than the January 1st immediately preceding the .be- ginning of the fiscal year for which authorized, ex- cept that the allotment for fiscal year 1973 shall be made not later than 30 days after the date of enact- ment of the Federal Water Pollution Control .Act Amendments ‘of 1972. (Emphasis added.) Section 205(a). 13 Contrary to the Administrator’s contention, the authorized funds do not remain indefinitely available for allotment. Sec- tion 205(b)(1) provides: ‘. Any sums allotted to a State under subsection (a) shall be availabie for obligation under section 203 on and after the date of such allotment. Such sums shall continue available for obligation in such State for a period of one'year after the close of the fiscal year foteewhich such sums are authorized. Any amounts so allotted which are not obligated by the end of such one-year period shall be immediatc!y reallotted by the Administrator, in accordance with regulations prom- ulgated by him, generally on the basis of the ratio used in making the last allotment of sums under this section. Such reallotted sums shall be added to the last allotments made to the States. Any sum made available to a State by reallotment under this sub- section shall be in. addition to any funds otherwise allotted to such State for grants under this title during any fiscal year. , (Emphasis added.) Only the funds allotted by the Administrator remain avail- “able for obligation. If the Administrator does not follow the statutory requirements by allotting and immediately reallot- ting* the authorized funds at the time and dates indicated, 3 The State of Minnesota in its case obtained an Order dated June 25, 1974, for supplemental injunctive relief compelling reallot- ment in 1974 of the state’s share of unobligated 1973 funds. It was Minnesota’s position that if the Administrator did noz “immediately reallot” the fiscal 1973 funds which were ordered to be allotted these funds would be irretrievably lost and not avail- able for ebligation. The Administrator by the supplemental Order was thereby not allowed to accomplish by reason of a lengthy appeal process what he was unable to accomplish under the Order to allot the full sums authorized for Minnesota. : x SRG t MASS LP EN EPA RES EAN BS TALE GRE ALY LET YS RS i He ROHAN REHM AH ay UL Ra ONT MERE IE ne ERLE ORES EN Beez me 14 f~ the unallotted funds lapse and are irretrievably lost to the States. The mandatory language of Section 205 precludes sup- plemental allotments. Numerous courts have arrived at the same conclusion. City of New York v. Train, 494 F.2d 1033 (1974); State of Ohio v. Environmental Protection Agency, et. al., C. 73-1061 and C. 74-104 (N.D. Ohio, June 26, 1974); State of Maine v. Train, Civ. No. 14-51 (D. Maine, June 21, 1974) ; State of Florida v. Train, Civ. No. 73-156 (N.D. Fla., Feb. 25, 1974); State of Texas v. Ruckelshaus, C.A. No. A- 73-CA-38 (W.D. Tex., Oct. 2, 1973); Martin-Trigona v. Ruckelshaus, No. 72-C-3044 (N.D. Ill, June 29, 1973); and State of Minnesota v. Fri, No. 4-73, Civ. 183 (D. Minn., June 25, 1978). The State of Minnesota does not desire to disparage the de- clared intentions of the Administrator eventually to commit the full amount of funds authorized by Congress. However, the Administrator has indicated in the Federal Register that “Ca]llotments shall be made not later than the January first preceding the beginning of the fiscal year for which au- thorizetngent for the allotment for fiscal year 1973 which is made herein.” 38 Fed. Reg. 5331, $35.910-1(d), Feb. 28, 1973. Moreover, the Administrator has not indicated in the Federal Register any intention to allot the full sums autho- rized by Congress. No regulations have been promulgated re- garding the procedure under which these funds are to be “sup- plementally” allotted to the States. The only way the State of Minnesota and other States can be legally certain that all au- thorized funds will be made available to them for obligation is by the Administrator’s adherence to the statutory allotment requirement of the Act. 15 C. The Amounts Authorized Were Based on National Needs to Achieve the Act’s Purposes. The designated sums in Section 207 were based on estimates of the needs of the Nation to construct and upgrade sewage treatment works to meet the requirements of the Act. The Congressional Record is replete with evidence supporting the ’ $18 billion figure. The National League of Cities and the U.S. Conference of Mayors estimated the total construction needs of municipali- ties at approximately $35 billion between the years 1972 and 1977. 118 Cong. Rec. H. 10267 (Daily ed. Oct. 18, 1972). The U.S. Environmental Protection Agency’s own cost estimates for constructing waste treatment facilities planned for fisca! years 1972 through 1974 was $14.5 billion. The former Ad- ministrator of the Agency, William Ruckelshaus, explained in his letter to the President urging him not to veto the Act that the dollar figures were consistent with the needs estimate that his Agency had provided Congress.‘ The Ruckelshaus letter states in pertinent part as follows: The total value of construction initiated in the near-term under the enrolled bil! is expected to cor- respond closely to the total value of construction that would have been initiated under the Administration bill. Under the Administration’s proposal, communi- ties were free to continue to initiate reimbursable projects, were not constricted by the $6 billion au- . thorization, and could have substantially increased this amount. Reimbursable projects are precluded 4See also Senator Muskie’s explanation of how the Conferees ar- rived at the authorized levels. 118 Cong. Rec. $.18548 (Daily ed. Oct. 17, 1972). cages 16 under the enrolled bill and the $18 billion contract grant authority represents a ceiling, while the Ad- ministration’s $6 billion proposal represented a floor. With the projected close correspondence in a total near-term value of construction starts, the potential inflationary impact upon the entire construction sector would be minimized. . The total amount of contract grant authority con- tained in the enrolled bill is formulated from the Ad- ministration’s estimate of construction needs as sub- mitted to the Congress in February of this year. The total Federal share of 75% would amount to $13.6 billion. TH% needs estimate did not include funds for combined storm and collection sewers, or for recycled water supplies. These are project eligibilities newly specified by the enrolled bill. This needs estimate provided to the Congress was constructed to support the commitment of the Presi- dent in his State of the Union message of January 22, 1970, to “put modern municipal waste treatment plants in every place in America where they are needed to make our waters clean again, and to do it now.” This commitment was repeated in the Febru- ary 1970, Message on the Environment, which enun- ciated funding support for “every community that needs it with secondary waste treatment, and also special, additional treatment in areas of special need, including communities of the Great Lakes.” The com- mitment was re-endorsed in the February, 1971, Mes- sage on the Environment with a statement that we should provide ‘‘adequate funds to ensure construc- 17 tion of municipal waste treatment facilities needed to meet water quality standards.” (Emphasis added.) 118 Cong. Rec. S. 18546 (Daily ed. Oct. 17, 1972). Senator Muskie asked the Senate some crucial questions re- garding the high costs of attaining clean water and gave the following answers: Can we afford clean water? Can we afford rivers and lakes and streams and oceans which continue to make possible life on this planet? Can we afford life itself? Those questions were never asked as we de- stroyed 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 contribute to inflation simply do not understand the language of this crisis. The conferees spent hours and days studying 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 1973-75. That is a great deal of money; but that is how much it will cost to begin to achieve the requirements set forth in the legislation. (Emphasis added.) 118 Cong. Rec. S. 16870 (Daily ed. Oct. 4, 1971). The Court of Appeals for the District of Columbia in its de- cision in City of New York v. Train, supra, extensively re- viewed legislative history that preceded adoption of the $18 6 ce F Wages * {| 18 billion figure and correctly found it to be a clear expression of Congressional will. We find that it was Congress’ intention that that full $18 billion be spent to control water pollution. 494 F.2d at 1042. This conclusion should also be reached by this Court. If the full amount is not allotted, as the law requires, the needs and voals of this Nation to clean up its waters will not be met. Sub- sequent estimates now unfortunately demonstrate that the Congressional estimate itself was short.” Congress certainly did not intend that the development of a shortgage would justify a reduction in allotment. D. The Allotment Scheme Was Established to Aid the States in Planning to Meet Statutory Requirements. In the developmental stages of the Act amendments were proposed in both houses of Congress to strike the contractual obligation authority which binds the United States to pay its proportional share upon approval of a project by the Admin- istrator. The traditional method of funding has been the op- posite: to reimburse the grantee through the annual appro- priations process. The experience of Congress with the old method was that it did not work as intended and that the re- quirements of the Act necessitated a firm commitment that could be relied on by potential grantees for long range plan- ning purposes. Congressman Jim Wright, a member of the House Public Works Committee and later a conferee, in de- bating the issue on the floor of the House, made the follow- ing points which emerged as the prevailing view in the House: “The Administvaters report to Congress indicates total national needs of SOLS billion, of which S6O1 is cligible for federal grant participation, “Report to Congress—Costs of Construction of Pub- liclv-Owned Wastewater Treatment Works—1973 ‘Needs’ Survey.” ®The dates were changed in the final version of the Act to 1977 and 19 The bill requires that by 1976 every publicly owned plant in the Nation must provide at least secondary treatment, and that by 1981 it must employ as a minimum “the best practicable technology.” ® The bill promises that the Federal Government will contribute its pro rata share of the cost. But what good is that requirement, and what good is that promise, if we do not absolutely intend to de- liver upon our part of the bargain? Why should advance obligational authority be nec- essary? The events of the last few years suggest the answer. The authorization for fiscal 1969 was $700 million, but the appropriation was only $214 million—less than one-third—and the amount actually spent was only $134 million. For the 4 years, 1968 through 1971, the shortfall of appropriations below the amounts held out in the authorization bill totaled approximately $1.2 billion. And because of periodic administrative freezes on construction grants, the shortfall in the amounts actually granted came to approximately $1.6 billion. Mr. Chairman, many municipalities, faced with truly critical water pollution problems and intent on solving those problems in a timely fashion not- withstanding the failure of the Federal Government to live up to its part of the bargain, went ahead on their own and built the plants. Obviously it would not be our intention to penal- ize those communities for having demonstrated the 1983 respectively. 20 initiative and determination to move ahead. And so this bill authorized more than $2 billion to reim- burse them for that portion of the authorized Federal share that was withheld from them. But other communities waited, because they were unsure of the strength of the congressional commit- ment. And because they waited, the cost both to them and to the Federal Government is considerably great- er today than it would-have been had they been en- couraged to proceed 4 years ago. So this is the acid test. We decide right now just how serious we are about cleaning up the streams of this country. Do we mean it, or do we not? Are we certain, or are we uncertain? I for one am certain. I believe that most of the Members are. I am ready to make that commitment. I think the Public Works Committee is certain, and the majority of the House is certain. We can prove it by voting down this amendment and saying to the communities of this Nation that once they put their hands to the plow, they need not turn back. (Emphasis added.) 118 Cong. Rec. H. 2726 (Daily ed. Mar. 29, 1972). Congressman Harsha emphasized the need for advance plan- ning and assured availability of funds. Because of the magnitude of this program, it is essential that the States, the interstate agencies and the cities have both the ability for and a basis for long-range planning, construction scheduling and financing waste treatment plants, including the sale of bonds that they have to sometimes negotiate. 21 Now, this can only se accomplished if there is assured availability of Federal grant funds for future years. This necessary assurance ‘is not pro- vided by merely advancing appropriations for 1 year. That will not meet the needed assurance of long-term planning. This is a continuing program. The construction of a waste treatment plant con- sists of planning; economic and engineering feasi- bility studies; preliminary engineering for the prepa- ration of plans, specifications, and estimates ; the ac- quisition of land where appropriate, and the actual physical construction of the building itself. Under this legislation each one of these steps is ordinarily a separate project, a separate contract, and it is funded as completed or as work progresses. This is not the case under existing law where 25 percent of the total project must be completed before any pay- ment can be made. At the time any one of these preliminary steps is taken, such as the plans, specifications, and esti- mates, there is no assurance that appropriated funds would be available for subsequent projects for land acquisition and the actual building of this plant for which the plans, specifications, and estimates are being prepared. This, therefore, makes the orderly continuous planning and scheduling of work im- possible. Paysites PM HE (Emphasis added.) 118 Cong. Ree. H. 2727, H. 2728 (Daily ed. March 29, 1972). Senator Muskie presented similar prevailing arguments in the Senate. STEM ETON 22 Mr. President, in this bill we have undertaken to do something that we have never done before on a problem with such long-range impact as this. We have set deadlines that must be met by industry, and presumably by all polluters, including governmental polluters. We have set a deadline in 1976 and we have set a deadline in 1981; and finally we set the goal of no discharges of pollutants into any waterways by 1985.‘ There is only one way to meet deadlines like that, and that is to make a total commitment now. If we indicate in any way any reservations about our com- mitment as a government and as a Congress to the achievement of those goals in the point of view of the public sector, what we have done is undermine the credibility of our determination to insist on that goal and its achievement by the private sector. To achieve the deadlines we are talking about in this bill—I think all of us in the committee are proud of it, and we are committed to it—we are going to need the strongest kind of evidence of the Federal Government's commitment to pick up its share of tive load. We cannot budge, with any credibility, from the kind of investment in waste treatment facilities that is called for by this bill. The municipalities, through the Conference of Mayors, have estimated at the request of the committee that the initial investment required is $30 to $35 billion. The authorization we have provided in this bill of $14 billion* for 4 years 4 The dates were changed in the final version of the Act to 1977, 1983, and 1985 respectively. ’ This was changed to $18 billion in the final version of the Act. ™ 23 to meet the Federal share is a hard, conservative figure. All we are saying in asking the Senate to ap- prove contract authority is a commitment now to that $14 billion. If we have any hesitation about that commitment, then we will eliminate the contract au- thority and keep our options open. (Emphasis added.) 117 Cong. Rec. S. 17445 (Daily ed. Nov. 2, 1971). As noted by the District Court in City of New York v. Ruckelshaus, supra, 674 F. Supp. at 674: The seriousness of the planning problem was under- stood by Congress. It was one of the reasons for util- izing the device of allotment, thereby making funds available for obligation [by contract authority], in lieu of the ordinary appropriations procedure. It strains credulity to assume that Congress established the allotment and contract authority funding mechanism to cor- rect the vagaries of the annual appropriation process, and coincidently granted the Administrator discretion to undercut its commitment by reintroducing the uncertainties of the old system back into the process. The firm commitment of Con- gress vanishes with any exercise of discretion by the Admin- istrator at the allotment stage. If the funding provisions are to have any meaning at all, it can only be concluded that Con- gress did not intend the sums authorized for allotment to be altered at the whim of the Administrator. EEN LEER IR EA NT tes | NOS OEY T POE gore _ 24 II. THE ADMINISTRATOR HAS NO DISCRETION TO RE- DUCE ALLOTMENTS. A. The Act Requires Full Allotment. The Administrator contends that he has discretionary au- thority to allot less than the full amounts authorized to be ap- propriated. The basis for this contention rests entirely on amendments that were agreed to by the House and Senate Con- ferees considering the bill. The phrase ‘“‘not to exceed” was placed before the sums specified in Section 207 and the word “all” was deleted before the phrase ‘‘[s]ums, authorized to be appropriated” in Section 205.° The Administrator’s position is untenable. | The overriding intent of Congress was to commit the Fed- eral government to a program assuring financial means to ac- complish the tasks envisioned in the Act. The pertinent lan- guage of the Act and its legislative history, as outlined in Part ®*The two amendments in question were to Sections 205 and 207 of the Act, as shown below (bracketed material deleted, italicized material added): . ALLOTMENT Section 205. (a) [All] sums authorized to be appropriated pursuant to section 207 for each fiscal year beginning after June 30, 1972, shall be allotted by the Administrator not later than the January Ist immediate preceding the beginning of the fiscal year for which authorized, except that the allotment for fiscal year 1973 shall be made not later than 30 days after the date of enactment of the Federal Water Pollution Control Act Amendments. .. . AUTHORIZATION Sec. 207. There is authorized to be appropriated to carry out this title... for the fiscal year ending June 30, 1973, not to exceed $5,000,000,000, for the fiscal year ending June 30, 1974, not to exceed $6,000,000,000 and for fiscal year ending June 30, 1975, not to exrceed $7,000,000,000. The “not to exceed" language was an amendment only to the House version of $.2770; the words already appeared in the comparable section of the Senate bill. NAO A OLIVE ILE at SENG EID TD OOM 25 I of this amicus brief, clearly indicate that the Administrator must allot the full sums authorized to be appropriated by Sec- tion 207. Indeed, it is only by full allotment that there could even be control over the rate of spending at subsequent stages.” The Amendments relied on by the Administrator were spon- | sored by Congressman William H. Harsha of Ohio.’° At the “time the Act was being considered, Congressman Harsha was . the ranking minority member of the House Public Works Com- mittee, which reported on the House version of the Act. He was also the floor manager of the bill and a member of the con- ference committee. Congressman Harsha explained to the House the meaning of his amendments. .. . I want to point out that the elimination of the word “all” before the word “sums” in Section 205 (a) and insertion of the phrase “‘not to exceed” in Section 207 was intended by the managers of the bill ‘to emphasize the President’s flexibility to control the rate of spending. (Emphasis added.) 118 Cong. Rec. H. 9122 (Daily-ed. Oct. 4, 1972). \ Significantly, Congressman Harsha was merely emphasizing what the Act already provided: namely, full allotment and de- : ferred spending. At a later point of the debate, a colloquy be- ; tween Congressmen Jones, Ford and Harsha revealed the intent of the amendments. Mr. Gerald R. Ford. Mr. Speaker. I think it is vitally important that the intent and purpose of Sec- 3 tion 207 is spelled out in the legislative history here ; in the discussion of this conference report. 10 The District Court in The City of New York v. Train, supra. noted that the wWews of sponsors of the legislation at issue are of par- ticular importance when reviewing its legislative history. 358 F.Supp. at 677. Binsin Leek Gute 26 As I understand the comments of the gentleman from Ohio [Harsha], the inclusion of the words in Section 207 in three instances of “not to exceed” in- dicates that is a limitation. More importantly, that it is not a mandatory requirement that in one year end- ing 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 ? X. ( Mr. Harsha. I do not see how reasonable minds could come to aiuy other conclusion 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 R. Ford. Mr. Speaker. I would like to ask the distinguished chairman of the subcommittee and the chairman. of the House conferees whether he agrees with the gentleman from Oho [Harsha]. Mr. Jones of Alabama. My answer is “‘ves.’”’ Not only do I agree with him, but the gentleman from Ohio offered this amendment which ve have now under discussion in the committee of conference, so there is no doubt in anybody’s mind of the intent of the language. It is reflected in the language just explained by the gentleman from Ohio [Harsha]. Mr. Gerald R. Ford. Mr. Speaker. This clarifies and certainly ought to wipe away any doubts anyone has. The language is not a mandatory requirement for full obligation and expenditure up to the au- thorization figure in each of the three fiscal years. ... | (Emphasis added.) 118 Cong. Rec. H. 9123 (Daily ed. Oct. 4, 1972). . 27 This history necessarily reflects the understanding of the Congress that there must be full allotment, for only by such full allotment could it be possible for subsequent expenditures to be made up to the authorization figure. From the above ex- change it is clear that any discretion of the Administrator re- garding the authorized funds was intended to be exercised only through the mechanism of obligation and expenditure at later stages, and not through the allotment process. Congressman Harsha further noted that even in the exercise of discretion by the Administrator at a later point in time such discretion related solely to approval of plans, specifications and estimates. , . I would like to point out that the Administrator of the Environmental Protection Agency must ap- prove plans, specifications and estimates. This is the pacing item in the expenditures of funds. It is clearly the understanding of the managers that under these circumsiances the Executive can control the rate of - expenditures. <“mphasis added.) 118 Cong. Rec. H. 9122 (Daily ed. Oct. 4, 1972).'! Congressman Harsha explained the impact of the Act’s funding provisions in terms of expenditures in future fiscal 11 Congressman Harsha reiterated his comments on the floor of the House after the President’s veto. 118 Cong. Rec. H.10268 (Daily ed. Oct. 18, 1972). Congressman Harsha cited as support for the existence of flexibility the fact that impoundments by the execu- tive branch of highway funds. 118 Cong. Rec. H.9122 (Daily ed. Oct. 4, 1972). The District Court in The City of New York vr. Ruckelshaus, supra, 678 ¥ Supp. at 678, pointed out: . The impoundments of Feder.!-Aid Highway Act moneys referred to by Congressman Harsha were of funds allotted, e., the controls were being exercised at the obligation level rather than at the allotment level. (Emphasis added.) Significantly, the very, highway impound- ments referred to by Congressman Harsha were declared to be illegal by the Court in State Highway Commission of Missouri u. Volpe, 479 F.2d 1099 (Sth Cir., 1973). See SEN OS REE BARTS ERATE REMY RRS here were pesce aging 28 years. In so doing, he demonstrated that it was his understand- _ ing that Sections 205 and 207 required allotment of the full amount of the sums specified in Section 207. {T]he first major impact of obligations from the $5 billion authorizations for the fiscal year ending June 30, 1973, is in fiscal year 1975 .... As a matter of fact, for fiscal year 1973 if all the money were obligated and placed under contract, there would only be $20 million needed to meet the obligations. (Emphasis added.) 118 Cong. Rec. H. 10268 (Daily ed. Oct. 18, 1972). Unquestionably, when Congressman Harsha spoke hypo- thetically of the obligation of the entire $5 billion, he neces- sarily expressed his recognition that the entire $5 billion had to be available by allotment for obligation. His statement was intended to emphasize to the House that the President’s fear about “budget-wrecking”’ was unwarranted in view of the fact that there would be an inherent lag between the time when funds were obligated and the time when they would actually be spent. Thus, the pacing of expenditures is built into the funding mechanism, but such pacing is itself dependent upon full al- lotment as an absolute prerequisite. Senator Muskie made the same point to the Senate when he noted that the full $18 billion authorized by the Act probably would not be spent until the end of fiscal year 1979.'* Senator Muskie at the time was 12 Senator Muskie introduced into the record a table indicating the impact of the $18 billion on the budget. It was estimated that due to the extended period of time needed for construction that actual expenditure under full obligation would be the following per- centages of the sums authorized to be appropriated: for the first vear, 5 percent; the second year, 20 percent; the third year, 30 percent; the fourth vear, 40 percent; and for the fifth year, 5 per- cent. 118 Cong. Rec. S. 18547 (Daily ed. Oct. 17, 1972). 29 Chairman of the Senate Subcommittee on Air and Water Pol- lution, which reported out the Senate version of the Act. He was a floor manager of the bill and a member of the confer- ence committee. Senator Muskie, in a specific reference to the amendments proposed by Congressman Harsha, made it clear to the Senate that the meaning of the Act is as contended by the State of Minnesota and the City of New York herein. Under the amendments proposed by Congressman William Harsha and others, the authorizations for ebligational authority are “not to exceed” $18 billion over the next 3 years. Also “all” sums authorized to be obligated need not he com mitied, though they must be allocated. These two pnevisions were suggested to give the administration some flexibility concerning the obligation of construction grant funds. (Emphasis added.) 118 Cong. Rec. S. 16871 (Daily ed. Oct. 4, 1972.18 Incredibly, the Administrator points to the legislative his- tory and incredulously contends that Congressman Harsha, Senator Muskie and others, when explaining their understand- ing of the amendments, and in their use of such descriptive terms as “the obligation of construction grant funds,” “the expenditure of funds,” “controlling the rate of spending,” and the “pacing item in the expenditure of funds,” did not thereby intend to distinguish between the allotment stage, and the ob- ligation and expenditure stages, of the statutory scheme. The Administrator’s contention is based upon a palpable miscon- struction of the Act’s allotment provisions and constitutes a misrepresentation of the legislative history. 13 Senator Muskie reiterated his comments on the floor of the Senate after the President's veto. 118 Cong. Rec. $.18546, $.18549 (Daily ed. Oct. 17, 1972). iialcacelaate Wane y —. oo IORI ON CPM LLG TEIN A EL MRIS EES ULB EY EL PALI RED TPMT RIO Ns MGT EP OE LIER ARYL LLF It MEA ELSI IOS IG YE LOR: STEINER NP TL OORIIEE | UDI YR TaN | 30 B. If the Administrator Has Any Discretion at the Allot- ment Stage, He Has Abused It. 1. Discretion was not exercised within the bounds delineated by the Act. The Administrator’s discretion involves solely approval or disapproval of projects based upon criteria set forth in the Act. The Administrator has abused this limited discretion by his refusal to allot over one half (55 percent) of funds au- thorized by Congress to construct publicly owned treatment works. The objectives of the Act, its goals, policies, effluent limitation deadlines, and enforcement provisions have been ig- nored by the Administrator. He has made no effort to justify his action other than by reference to the President’s evalua- tion of competing national priorities,. regardless of the de- clared intent of Congress as stated by law. The Administrator may not arrogate such legislative power to himself. Congress alone enacts the law. Congress established bounds within which the Administrator is required to work in exercising any limited discretion he may have. These bounds are delineated by the clear language of the Act. The Adminis- trator may not look beyond these bounds for supporting ration- ale to reduce the allotment of funds. If his decision had been based on the needs and problems of sewage treatment facili- ties construction, it might have been on more solid ground. However, a decision based on totally unrelated considerations is contrary to law. This principle was firmly established in a case analogous to those before the Court, i.e., State Highway Commission of Missouri v. Volpe, 479 F.2d 1099, 1114 (8th Cir., 1973). The issue before the court in Volpe was whether the Secretary of Transportation may defer authority to obli- gate highway funds previously apportioned to the State or 31 Missouri under the Federal-Aid Highway Act of 1956 when the reasons given for deferment by the Secretary were the status of the economy and the need to control inflationary pressures. The funding scheme in the Highway Act is that principally adopted by Congress in the Act under considera- tion. The rationale of the Volpe case is irrefutable and should be recognized by this Court. To reason that there is implicit authority within the Act to defer approval [of projects] for reasons total- ly collateral and remote to the Act itself requires a strained construction which we refuse to make. It is impossible to find from these specific grants of au- thority discretion in the Secretary to withhold ap- proval on projects Congress has specifically directed because of a system of priorities the Executive chooses to impose on all expenditures. The Con- gressional intent is that the Secretary may exercise his discretion to insure that the roads are well con- structed and safely built at the lowest possible cost, all in furtherance of the Act, but when the impound- ment of funds impedes the orderly progress of the federal highway program, this can hardly be said to be favorable to such a program. In fact, it is in dero- gation of it. It is difficult to perceive that Congress intended such a result. (Emphasis added.) 478 F.2d at 1114. See also Campaign Clean Water, Inc. v. Ruckelshaus, 361 F. Supp. 689 (E.D. Va. 1973) ; Local 2677, American Federation of Government Em- ployees v. Phillips, 358 F. Supp. 60 (D.D.C., 1973). The rationale of Volpe, supra, bears forceful application to the present case. The Congressional intent as manifested in the Act here absolutely requires the Administrator to pro- _— 32 vide federal financial] assistance for construction of publicly owned sewage treatment works. The Administrator was given discretion only to insure that the facilities are well designed and constructed for efficient operation and are capable of meeting the needs of the people in the areas to be servéd at the lowest possible cost. The Administrator’s unlawful action here has the effect of disapproving numerous projects with- out proper review under the limitations and conditions of Section 204, thereby subverting the legislative objective. Judge Miles Lord, in considering State of Minnesota v. Fri, supra, followed the rationale of Volpe, supra. He correctly noted: Nothing in the Act gives the Administrator the authority to consider matters outside the corners of the Act itself. In failing to allot all of the money authorized in this matter, the Administrator is acting in express violation of the Act itself as well as in vio- lation of the purposes of the Act as set forth by Con- gress. Furthermore, to the extent the Administrator has some discretion in this matter, the refusal to allot » nearly half of the funds authorized for reasons not related to the Act and its stated purposes marks a clear abuse of such discretion. (Emphasis added.) Slip Op. at 14. The Administrator cannot be allowed to exercise discretion as though the Act did not exist. The Act alone must be the basis for any exercise of discretion by the Administrator. 2. The refusal to allot 55% of the funds authorized is a fla- grant abuse of discretion because it effectively frustrates the intent of Congress as embodied in the Act. The action of the Administrator drastically reduced the States capacity to carry out the purposes of the Act to fund the construction of sewage treatment facilities for the abate- ment of pollution of the waters of the State. The present Min- nesota allotment is $121 million short of full allotment for the two fiscal years in question.'4 The Minnesota Pollution Con- trol Agency, the agency administering the federal grant pro- gram, had pending 140 grant applications to upgrade or con- struct publicly owned treatment works for fiscal year 1973. These applications represented an estimated total construc- tion cost of $212 million. If 75 percent federal funding were available, this would amount to $160 million. Consequently, the needs of Minnesota outstripped the Administrator’s al- lotted amount for fiscal 1973 alone by a minimum of $119 miflion. Under the Administrator’s allotment only 13 of the 140 applicants of the MPCA would be fully funded and one or two others stood to be partially funded. The total number of grant applicants for fiscal 1974 is approximately 200. This figure includes a carry-over of those projects from fiscal 1973 which were not funded. The Administrator’s allotment allows funding of only five additional projects in fiscal 1974.'* Minnesota’s case is not an isolated example. Its experi- ence is duplicated in many, if not all States, with the result that thousands of plant construction projects have gone un- funded. Many more will go unfunded in the upcoming fiscal 14 Allotment Regulation, 37 Fed. Reg. 26282 (1972). 15 These facts were presented by affidavits in State of Minnesota v. Fri, supra, and were not disputed by the Administrator SERIE FRO IEI IE: 4 sash RA SY PEPE 34 years as the needs of the States go unmet. These monies will not be forthcoming unless allotted as required by law. The program initiated by the Act has effectively ground to a halt, frustrating the express intentions of the Congress.'" Furthermore, the intricate statutory scheme is so interre- lated that the action of the Administrator has set off a domino-like chaif? reaction. Not only are projects halted now but municipalities are discouraged from proceeding with con- struction plans on their own. EPA regulations prohibit the awarding of any grant if initiation of the project construc- tion has occurred, 38 Fed. Reg. 5330, $35.903(d) (1973). The inevitable result is that no eligible applicant or grantee will proceed with construction until the Administrator approves its project and thereby legally guarantees 75 percent federal funding. The Act holds out a generous “carrot” which no po- tential recipient can, as a practical matter, refuse. Conse- quently, no construction or upgrading of publicly owned treat- ment works in Minnesota and other States will be initiated until federal grants are made available for obligation by the Administrator. The resulting total paralysis of the program is an intoler- able situation for potential grantees. They are faced with statutory deadlines to meet specific effluent limitations. All publicly owned treatment works in existence on July 1, 1977, are required to have effluent limitations based on a minimum of secondary treatment. More stringent standards may be ap- plicable to public treatment works by July 1, 1977, if neces- sary to meet water quality standards established pursuant to 16 This Court should not be misled by Table I, Petitioner's Brief, p. 49, showing that many States have not fully obligated the re- duced allotments. Minnesota has numerous project: applications pending approval by the Administrator. Indeed Table T more cor- rectly indicates the grant nrogram is floundering because of the———— Administrator's failure to make a full commitment of the funds. 35 State law or regulation. Section 301(b) (1) (B) and (C). This means that all publicly owned treatment works presently have less than three years to be in compliance with Federal and State laws and regulations. Construction of major projects can easily take three or four years. Those treatment works that fail to meet the effluent standards face a civil penalty of up to $10,000 per day of violation. Section 309(d). Any citi- zen adversely affected by a violation of an effluent standard may initiate legal action. The remedies available by a citizen suit could include appropriate civil penalties under Section 309(d) of the Act. Section 505(a) (1) and (2). As a result, without the allotment of the impounded funds, many commu- nities, particularly smaller ones, will simply be unable to com- ply with the effluent standards and will thereby be subject to enormous penalties. Congress could not have intended for its purposes to be so effectively emasculated by the action of one official at one stage of the statutory scheme. The Administrator suggests that he has the authority and will eventually allot the full amount of the authorized funds, and thus there is no adverse effect on the States. This assumes that there is legal merit to the Administrator’s interpretation of Sections 205 and 207, an interpretation which must be rejected as a spurious after- thought. When Sections 205 and 207 are analyzed in the context of the whole Act and its legislative history, the inevitable con- clusion is that the Administrator must allot the full sums au- thorized by Congress. It is inconceivable that Congress in- tended to grant the Administrator unfettered discretion at the allotment stage and thereby make the Act a series of empty promises. sen’ ars eer es PEA IPRI EL PINOT A TT PAE ND np NRO Ly RAP RST TING yore ya £9 ENTREE RNY BRI e Failure to allot over half of the sums authorized for fiscal year 1973 and 1974 was a clear abuse of discretion. Bose Wey MITE fait te 36 3. The President and the Administrator cannot do indirectly what the President was forbidden by Congress to do by veto. When the Act was first passed by Congress the President exercised his veto power over it. At that time he understood that Congress intended the full allotment of funds. In his veto message he stated: Certain provisions of ... [the] bill confer a mea- sure of spending discretion and flexibility upon the President, and if forced to administer this legislation 1 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 unnec- . essary price from the public. For I am convinced . . that the pressure for full funding under this bill would be so intense that funds approaching the mazi- mum authorized amount could ultimately be claimed and paid out, no matter what technical controls the bill appears to grant the Executive. (Emphasis added.) 118 Cong. Rec. H. 10266 (Daily ed. Octo- ber 18, 1972). The President recognized that the Act required the use of the funds for the purposes appropriated and vetoed it for that reason. Congress overrode this veto, reaffirming its strong commitment to the program. It is significant that the President, in vetoing the bill, actually assumed an interpretation of the Act contrary to that subsequently taken in impounding the funds. The President initially assumed the existence of discretion only at the spend- ing level. However, aftey the veto was overridden the Presi- dent assumed the right to impound at the earlier stage of al- 37 lotment. The fact that the President originally interpreted the Act in the same manner as that contended by the Respondents constitutes a compelling argument against the subsequent contrary interpretation taken by the President through the Administrator. Presumably, the President concluded that he would be under pressure to spend more than he desired unless he impounded at the allotment stage. The President and the Administrator cannot do indirectly what the President origi- nally recognized he could not do directly. Where the Executive Branch is mandated by Congress to expend funds for a weii-defined progiam containing specific time tables set up to reach the desired goal, it is the duty of the Executive to execute that law. The Executive may not decline to execute it. The position of the State of Minnesota is further supported with compelling effect by a memorandum authored by Justice William Rehnquist when he was serving as an Assistant At- torney General in the Office of Legal Counsel of the Depart- ment of Justice. The memorandum was addressed to the Deputy Counsel to the President and concerned the President’s authority to impound funds appropriated for aid to federally impacted schools. It reads in part as follows: With respect to the suggestion that the President has a constitutional power to decline to spend appro- priated funds, we must conclude that existence of such a broad power is supported 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 Rata i alee 2 RARE AEE SEERA ETRY the President has authority to refuse to spend where eT PRATER rE San Ree eet Petree stecece Aare Meee 38 the appropriation act or the substantive legislation, fairly construed, require such action. It is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the Presi- dent to comply with a Congressional directive to spend. It may be argued that the spending of money is inherently an executive function, but the execution of any law is, by definition, an executive function. and it seems an anomalous proposition that because the Executive Branch is bound to execute the laws, it _ is free to decline to execute them. (Emphasis added.) The Rehnquist memorandum is reprinted at 119 Cong. Rec. S. 3808 (Daily ed. March 1, 1973). The principle that an administrative official may be com- pelled to expend money mandated to be spent was estab- lished long ago in Kendall v. United States, 12 Pet. 524 (1838), where it was held that mandamus law to compel the Post- master General to pay to a contractor an award which had been arrived at in accordance with a procedure directed by Congress for settling the case. Here the Executive Branch should thus be compelled to act within the bounds defined by the law by allotting the monies needed to implement the com- prehensive program to attain clean water. ie ao pig 4s Gipson eo 39 Ill. THE ACTION OF THE ADMINISTRATOR IS NOT SO “COMMITTED TO AGENCY DISCRETION” AS TO BE NONREVIEWABLE. The Administrator contends that his refusal to allot 55% is nonreviewable because it comes within the admittedly “very narrow” exception of the Administrative Procedure Act, 5 U.S.C. §701 (Supp. V) making actions “committed to agency discretion by law’ not subject to review. This contention has no merit, for the exception is limited to cases where the stat- ute is ‘drawn in such broad terms that in a given case there is no law to apply.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971). In this case there is abundant statutory language governing the bounds of the Adminfstra- tor’s actions. Once these limits are exceeded the action is re- viewable. It is clearly the business of the judicial branch to determine the limits of statutory grants of authority. Justice Reed in Stark v. Wickard, 321 U.S. 288, 309-10 (1944), placed the issue in proper perspective. When Congress passes-an Act empowering admin- istrative agencies to carry on governmental activi- ties, the power of those agencies is circumscribed by the authority granted. This permits the courts to par- ticipate in law enforcement entrusted to adminis- trative bodies only to the extent necessary to protect justifiable individual tights- against administrative action fairly beyond the granted powers. The respon- sibility of determining the limits of statutory grants of authority in such instances is a judicial function entrusted to the courts by Congress by the statutes —eatablishing courts and marking their jurisdiction. Cf. United States v. Morgan, 307 U.S. 183, 190-91. er Gi 40 This is very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people. Congress and the Executive supervise the acts of administra- \ tive agents. The powers of departments, boards and ‘administrative agencies are subject to expansion, contraction or abolition at the will of the legislative and executive branches of the government. These branches have the resources and personnel to exam- ine into the working of the various establishments to determine the necessary changes of function or management. But under Article III, Congress estab- lished courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by exertion of unauthorized administrative power. In determining whether the Administrator’s action is in- consistent with the Act, this Court should follow the basic canon of construction observed in Richards v. United States: We believe it fundamental that a section of statute should not be read in isolation from the context of the whole Act, and that in fulfilling our responsibility in interpretating legislation, “we must not be guided by a single sentence or member of a sentence, but [should] look to the provisions of the whole law, and to its object and policy.” 369 U.S. 1, 11-12 (1962). The provisions of the Act provide the appropriate stan- dards. A court by analysis of the Act can easily determine that theatitude-of the questioned discretion is not as broad as the Administrator mistakenly asserts. The standards for review are found in the purposes and policies of the Act, its objec- 41 tives and goals, its project review provisions, its time limits and its effluent limitations. As Judge Russel stated in Cam- paign Clean Water v. Train, 489 F.2d 492, 498 (1973). [T]he executive . . . has the constitutional duty to execute the law in accordance with the legislative * purpose so expressed. When the executive exercises its responsibility under appropriate legislation in such a manner as to frustrate the Congressional pur- pose, either by absolute refusal to spend or by a with- - holding of so substantial an amount of the appropria- tion as to make impossible the attainment of the leg- islative goals, the executive trespasses beyond the range of its legal discretion and presents an issue of constitutional dimensions which. is obviously open to judicial review. | The Act does not confer upon the Administrator or his agency the discretion to deny allotment of funds using any other standards but those provided in the Act. The Adminis- trator is asking the Court to recognize discretion that totally disregards the Act»and thereby negates the existence of any . law applicable to him. The Administrator’s contention is un- tenable. 42 CONCLUSION The State of Minnesota respectfully requests that the Court hold that the Administrator is mandated by the Act to allot to the States the full amount of sums authorized by Congress for the construction of publicly owned sewage treatment fa- cilities. In the alternative, the Court should hold that the ac- tion of the Administrator constituted an abuse of discretion. Respectfully submitted, WARREN SPANNAUS Attorney General State of Minnesota BYRON E. STARNS Deputy Attorney General PETER W. SIPKINS Solicitor General ELDON G. KAUL - Special Assistant Attorney General 1935 W. County Road. B2 ~ Roseville, Minnesota 55118 Attorneys for the Amicus State of Minnesota August, 1974 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0368%3A11. Public record. Not legal advice.