Administration Wins First Victory In Impoundment Battle

The Nixon Administration's losing battle on the issue of impoundment was the subject of a Comment in the July issue of ELR.¹ At that time, a number of courts had held that the Federal Water Pollution Control act Amendments of 1972 required the Administrator of EPA to allot the entire $11 billion authorized under the act, and one court, while conceding that the government was not obligated to allot all authorized funds, ruled that the Administrator's impoundment of 55 percent of the $11 billion constituted a "flagrant abuse of discretion."

On August 17, however, a federal district court in California handed the Administration its first victory on the impoundment issue.² The decision came on suits, consolidated by the court, by the City of Los Angeles and by Congressman George Brown, who styled his a class action. After ruling that the actions were not barred on grounds of sovereign immunity, and the issue was not a political question warranting judicial abstention, Judge A. Andrew Hauk found that both plaintiffs lacked standing to sue. The court noted that in previous cases, plaintiffs had supplied affadavis averring that proposals for federal assistance in constructing waste treatment facilities had been rejected owing to the impoundment. Here, however, neither the city nor Representative Brown had shown that any injury to them had occurred or was likely to do so as a result of the impoundment. The court also noted that § 505 of the FWPCA authorized any citizen to sue "on his own behalf" and, as the legislative history made clear, did not permit class actions.³

Although the court recognized that by denying the plaintiffs' standing to sue, it had made a decision on the merits unnecessary, it went on to find that the EPA Administrator was not required to allot all the funds authorized by Congress. "No one," said the court, "has convinced us that when a legislature removes the word 'all' from the phrase, 'All sums authorized to be appropriated shall be allotted,' they mean that every penny must be spent." The court stated that it was "fully aware of the opposite decisions around the country," but found that "neither the amendments nor the sponsors' statements received proper attention in any of the decisions."

1. Impoundment: Courts Move to Compel Release of Withheld Funds, 3 ELR 10102 (July 1973).

2. Brown v. Ruckelshaus, 3 ELR 20834 (C.D. Cal. Sep. 7, 1973).

3. "The section is drawn to avoid problems raised by class action provisions of the Federal rules of civil procedure, specifically by Rule 23. Section 505 does not authorize a 'class action.' Instead, it would authorize a private action by any citizen or citizens acting on their own behalf." 1972 U.S. Code Cong. and Admin. News, at 3746.