ELR Citation: ELR 20502
No(s). 97-2111-LFO (D.D.C. Oct 13, 1998)

The court holds that the 1997 Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act did not require the U.S. Environmental Protection Agency (EPA) Administrator to set aside $10 million for health effects studies in fiscal years 1995, 1996, and 1997 under the Safe Drinking Water Act (SDWA). The court first holds that the water associations have standing. Congress' explicit insistence that contaminant regulations stand on "the best available, peer-reviewed science and supporting studies" establishes the instant case as one in which a party brings suit to validate a procedural right that protects concrete interests. The associations' inability to establish with any certainty that health effects studies will lead to regulations that produce benefits to its members does not deprive it of standing.

Next, the court holds that the Administrator is not obligated to set aside $20 million—$10 million each for fiscal years 1995 and 1996—for health effects studies. The 1997 Appropriations Act makes clear that appropriations made therein are for the fiscal year ending September 30, 1997. There is no mention that the appropriations are intended for any other fiscal year. Moreover, because the legislation establishing the drinking water funds was not established until August 6, 1996—after passage of the deadline by which the earlier appropriations could be made—the 1995 and 1996 appropriations for drinking water state revolving funds converted to appropriations for clean water state revolving funds. Thus, by confining itself to fiscal year 1997, the Appropriations Act necessarily precluded the Administrator from setting aside funds for health effects studies for each of fiscal years 1995 and 1996. The court then holds that the Administrator is not obligated to set aside $10 million for health effects studies in fiscal year 1997. The state and tribal assistance grants section of the 1997 Appropriations Act did not make an appropriation under SDWA §1452. A plain reading of this section establishes as a matter of law that it was a specific earmark whose explicit limitations prevented it from being made "pursuant to" SDWA §1452, thereby excluding funding for health effects studies. This reading is amply supported by the conference report that accompanied it. Moreover, that Congress did not trigger the health effects set-aside with the state and tribal assistance grants section of the 1997 Appropriations Act is further confirmed by the Omnibus Consolidated Appropriations Act, which specifically appropriated $10 million for health effects research to carry out the purposes of the SDWA amendments of 1996.

Counsel for Plaintiff
Robert Saner
Powers, Pyles, Sutter & Verville
1875 I St. NW, 12th Fl., Washington DC 20006
(202) 466-6550

Counsel for Defendants
Wendy Blake
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000