Campaign Clean Water, Inc. v. Train, No. 73-1745.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: HAYNSWORTH, , and RUSSELL and FIELD, Circuit
• Citation: 489 F.2d 492
• Parties: CAMPAIGN CLEAN WATER, INC., Appellee, v. Russell E. TRAIN, Administrator, Environmental Protection Agency, Appellant.
• Decision Date: 10 December 1973
• Docket Number: No. 73-1745.

489 F.2d 492 (1973)

CAMPAIGN CLEAN WATER, INC., Appellee,
v.
Russell E. TRAIN, Administrator, Environmental Protection Agency, Appellant.

No. 73-1745.

United States Court of Appeals, Fourth Circuit.

Argued October 2, 1973.

Decided December 10, 1973.

489 F.2d 493

Edmund W. Kitch, Atty. U. S. Dept. of Justice (Irving Jaffe, Acting Asst. Atty. Gen., Brian P. Gettings, U. S. Atty., Rodney Sager, and David G. Lowe, Asst. U. S. Attys., William D. Appler and Walter H. Fleischer, Attys., U. S. Dept. of Justice, on brief) for appellant.

W. Thomas Jacks, Washington, D. C. (Alan B. Morrison, Washington, D. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

Like a number of other pending actions,¹ this suit, brought by an environmental

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group concerned with water quality in Virginia, involves the discretionary power, if any, of the defendant Administrator, Environmental Protection Agency, to allot appropriation authority for fiscal 1973 and 1974, particularly as those allotments relate to Virginia, under the provisions of Section 205 of the Federal Water Pollution Control Act Amendments of 1972.² The Act sets forth a comprehensive legislative program for controlling and abating water pollution.³ In Subchapter II of that Act, provision is made for federal financial assistance to states and localities in planning and constructing sewage treatment plants, designed to assist in assuring the prompt attainment of specified standards of water quality.⁴ Under Section 207 of that Subchapter,⁵ grant authorizations⁶ are made "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, * * *." The grant authorizations in Section 207 are supplemented by Section 205 which provides for the allotment by the Administrator of such authorizations as approved among the States on a statutorily stated formula "not later than the January 1st immediately 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 October 18, 1972."

On November 22, 1972, the President wrote the Administrator directing the latter not to "allot among the States the maximum amounts provided by section 207"; specifically, he directed that, "No more than $2 billion of the amount authorized for the fiscal year 1973, and no more than $3 billion of the amount authorized for the fiscal year 1974 should be allotted." In directing such action, the President referred to the fact that the Act "permits a significant increase over our programs to fund the construction of wastewater treatment facilities" and stated that budget requests for funding such construction under the earlier programs in fiscal 1973 amounted to "$2 billion". In fixing the allotments to be made under Section 205, the President observed that, "These amounts will provide for improving water quality and yet give proper recognition to competing national priorities for our tax dollars, the resources now available for this program and the projected condition of the Federal treasury under existing tax laws and the statutory limit on the national debt"

The plaintiff brought this action for both declaratory and injunctive relief in connection with the administration of the Act. By way of declaratory relief,

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it asked judgment that "(a) the defendant Administrator lacks the discretion to refuse to allot among the states the full sums authorized by Congress; or, alternatively, (b) the defendant abused whatever limited discretion he possesses by withholding a greater amount of funds than contemplated by the Congress under the Act." It, also, requested injunctive relief, "directing the defendant to allot among the states the full sums of $5 billion and $6 billion authorized to be appropriated by section 207 of the Act for fiscal years 1973 and 1974." Without answering, the defendant Administrator moved to dismiss on the grounds "that the Court lacks jurisdiction over the subject matter of this suit and that the Complaint fails to state a claim upon which relief can be granted." At the same time, the plaintiff moved for summary judgment "on the grounds that there is no genuine issue as to any material fact and that, * * * plaintiff is entitled to judgment as a matter of law." After a hearing, the District Court denied the motion of the defendant to dismiss and granted in part the motion of the plaintiff for summary judgment.⁷ From that decision, the defendant Administrator appeals. We remand for further proceedings

I.

The defendant Administrator at the outset raised a number of procedural barriers to the maintenance of this action. He put in issue the standing of the plaintiff to maintain this action, the justiciability of the issues, the prematureness of the proceedings, and finally. the bar of sovereign immunity. These claims were carefully considered in the thoughtful opinion of the District Court and were found meritless. For the reasons assigned by the District Court and for the reasons hereafter developed, we agree.

II.

Turning to the substantive controversy: The plaintiff concedes the Congress intended to give the executive certain discretion in making allotments under Section 205; the defendant Administrator asserts the existence of such discretion; and the District Court found that there was such discretion.⁸ The existence

489 F.2d 496

of discretion, therefore, is not in issue on this appeal. The point of controversy is the extent of that discretion and the power of the Court to review. The plaintiff, in the District Court, contended that the discretion granted by Congress to the Administrator was not "unbridled"; that specifically it was not broad enough "to give the Administrator the discretion to gut the Act." In developing this contention, it emphasized the purposes and goals of the Act and argued that the Administrator's discretion may not be exercised in a manner and to an extent that the purposes of the Act are frustrated and nullified and that Courts have both the power and the duty to prevent such nullification. The defendant, on the other hand, took the position that, while the Administrator had not by his limited allotments frustrated the legislative purposes reflected in the Act, he has absolute discretion in making such allotments, and that his exercise of discretion is immune from judicial review. In resolving these conflicting positions, the District Court found that, on its face, an "impoundment policy,⁹ by which 55% of the allocated funds will be withheld, is a violation of the spirit, intent and letter of the Act and a flagrant abuse of executive discretion."¹⁰ It found authority to declare judgment "that that policy is null and void".¹¹ Though it thus found the allotments as fixed by the Administrator invalid, it denied injunctive relief on the ground the Court was not equipped to "supervise the Administrator in the administration of the Act", partially because of "the expert discretion designed for the appropriations

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stage."¹² And, finally, it limited the application of its judgment "to those interests in Virginia represented by the plaintiff organization."¹³

As we have already stated, the right of the defendant to exercise discretion in making the allotment under Section 205 is not challenged by this appeal: that right is conceded. We are not concerned with the question whether an appropriation, either by its very nature¹⁴ or under the terms of the Antideficiency Act,¹⁵ even in the absence of any expressed grant of executive discretion in its use, involves some element of discretion in the executive. We are dealing here with a legislative provision which it has been held (and from this holding there is no appeal) does vest the executive with discretion. In short, the issues on this appeal are whether, accepting the holding that there was discretion in this case, its exercise is judicially reviewable, and, if reviewable, what standards or criteria are to be used in assessing the validity of its exercise. Those are the only issues posed by the appeal.

It is the defendant's position that, by conceding executive discretion in the fixing of the allotments under Section 205, the plaintiff has admitted a want of judicial power to review his exercise of that discretion. He rests this argumentr upon Section 10 of the Administrative Procedure Act,¹⁶ which provides that administrative action, the exercise of which is "committed to agency discretion" is not judicially reviewable. Cf., Davis, Administrative Law Treatise, 1970 Supp., § 28.16, p. 964. What the defendant urges is similar to the administrator's argument in Overseas Media Corporation v. McNamara (1967) 128 U.S.App.D.C. 48, 385 F.2d 308, 316, n. 14, i. e., that we should "adopt the view

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that the legislative act of committing a matter to an agency's discretion forecloses court consideration of an alleged abuse of that discretion" under any circumstances. To that argument, the Court in Overseas replied firmly, "The Legislative History of the Administrative Procedure Act belies this position."¹⁷ And this conclusion in Overseas was confirmed in Citizens to Preserve Overton Park v. Volpe (1971) 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 Ed.2d 136, where, speaking of this exception, the Court characterized it as "a very narrow exception", whose application, according to "The legislative history of the Administrative Procedure Act" is limited to "those rare instances where `statutes are drawn in such broad terms that in a given case there is no law to apply.'" In resolving whether the matter falls within that "rare" instance in which the executive action is non-reviewable, the problem is "that of determining when the agency action is `committed to agency discretion' within the meaning of section 10 of the Administrative...