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Administration Wins First Victory in Impoundment Battle

November 1973

Citation: 3 ELR 10168

Issue: 11

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 as 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 affidavits 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

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