ELR Citation: ELR 21522
No(s). s. 90-5011, -5320 (D.C. Cir. Apr 3, 1992)

The court rules that a district court does not have the authority to order the U.S. Environmental Protection Agency (EPA or the Agency) to set aside funds for a water pollution abatement project from an underlying Federal Water Pollution Control Act (FWPCA) appropriation that Congress has rescinded. Rochester, New York, applied to EPA for $3,986,884 to cover the costs of settling lawsuits with the prime contractor and subcontractor for a city water treatment project partially funded under the FWPCA §206(a). The city filed this action in federal district court to require EPA to preserve and set aside the funds needed to cover the claim. The district court granted the city's request for a temporary restraining order. Subsequently, Congress rescinded EPA's authority to spend the unexpended portion of the funds appropriated for the §206(a) grant program.

The court holds that the district court lacked the authority to order EPA to set aside the funds, because the Appropriations Clause of the U.S. Constitution vests Congress with exclusive power over the federal purse. Here, Congress, with the full knowledge of the city's claim, chose to rescind the appropriated funds that would otherwise have been available to meet that claim. The district court's temporary restraining order did not obligate the United States to pay the city, conditionally or otherwise, as the court did not address the merits of the city's claim. It is unlikely that the city will go unpaid if it prevails in its claims against EPA, because the conference committee for the bill that rescinded EPA's §206(a) appropriations noted that if the city prevails on the merits, the conferees would expect the Agency to pursue alternative sources of payment. At oral argument, counsel for EPA vouched that it would find funds to cover the city's claim, even if that required obtaining a supplemental appropriation from Congress.

Counsel for Appellant
John J. Roberts, David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

E. Donald Elliott, Stephen G. Pressman
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Counsel for Appellees
Christopher L. Rissetto, Ronald L. Raider
Zorc, Rissetto, Weaver & Rosen
2115 Wisconsin Ave. NW, Ste. 600, Washington DC 20007
(202) 625-3100

Before BUCKLEY, WILLIAMS, and THOMAS,^* Circuit Judges.