The Antideficiency Act: A Deficient Excuse for Federal Violation of Environmental Laws?

David B. Kopel

Editors' Summary: The Antideficiency Act embodies the constitutional mandate that only Congress is empowered to appropriate public funds. The Act prohibits officers and employees of the United States from spending or contracting to spend funds which have not been duly appropriated by Congress. It therefore may serve to excuse the federal government's failure to comply with or enforce environmental statutes when Congress has not made a specific appropriation for that purpose.

In this Article, the author traces the development of the Antideficiency Act and explores the limits and exceptions to its mandate. He proposes several constitutional and administrative theories under which environmental plaintiffs might force federal compliance with environmental statutes despite the Act's prohibitions. The author concludes that application of these theories will ultimately benefit not only the environment, but the U.S. Constitution and the Act itself.

Mr. Kopel is research director of the Independence Institute, a public policy research organization in Denver, Colorado. He formerly served as an assistant attorney general, Hazardous Waste Unit, Colorado Attorney General's Office. He received his J.D. from the University of Michigan Law School (1985) and his B.A. from Brown University (1982). Opinions expressed herein are those of the author only.

[23 ELR 10481]

The U.S. government is the largest, most powerful government in the history of the world, spending over a trillion dollars a year. It has legally committed itself to responsible environmental behavior. When enacting the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ to provide for the cleanup of hazardous substances, and the Resource Conservation and Recovery Act (RCRA)² to provide for sound management of hazardous wastes, Congress explicitly made both statutes applicable to the vast empire of federal property. But when environmental regulators or private citizens seek to enforce CERCLA and RCRA, or state versions of those statutes, federal officials responsible for the property often echo the reply of the recalcitrant choo-choo in The Little Engine That Could: "I would, if I could, but I can't, so I won't." The asserted obstacle to federal compliance is a statute called the Antideficiency Act.³

The Act forbids federal officials to create obligations in excess of appropriations. Hence, it is asserted, a federal facility cannot enter into a binding, multiyear compliance agreement or consent decree to clean up and properly manage a polluting federal facility. Since Congress has not made appropriations for 1995 or 1998, for example, federal officials cannot make meaningful commitments to obey environmental laws in those years, because the officials do not know if Congress will appropriate the needed funds.

Are the federal officials correct? Is the Antideficiency Act the trump card that exempts the federal government from apparently enforceable federal and state environmental laws? This Article suggests not.

After summarizing the Act, the Article explores several theories that would allow federal environmental spending in the absence of an appropriation. The first theory is the exception within the Act itself to allow expenditures without appropriation when such expenditures are "authorized by law."⁴ The second theory involves the ability of the federal government to accept uncompensated volunteer help in remediating facilities.⁵ Another potential legal basis for spending unappropriated funds, notwithstanding the Act, relates to "emergency" spending, as the federal government has defined "emergency." The Article also discusses two applications of separation of powers doctrine, involving first the inherent authority of the President to spend money, and second, the authority of the courts to compel the expenditure of money for compliance with court orders.

The Article suggests that while all of the theories for spending unappropriated funds are less than firmly established, at least some of the theories provide a tenable legal justification for federal spending on environmental remediation, [23 ELR 10482] even in the absence of congressional appropriation of funds. Finally, the Article suggests some potential sources for funds to comply with federal environmental obligations.

The Antideficiency Act

The core provision of the Antideficiency Act states:

An officer or employee of the United States Government or of the District of Columbia government may not make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation; or involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law.⁶

The Antideficiency Act reflects the constitutional imperative that only the legislative branch, and not the executive, is authorized to appropriate public funds. Article I of the U.S. Constitution provides that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law…."⁷

In roughly its present form, the Act dates from 1870.⁸ Earlier provisions have been in effect since 1820.⁹ It has been amended seven times since 1870,¹⁰ frequently in response to the executive branch's flagrant and repeated disobedience of previous versions of the law.¹¹

The Act applies not only to payment of funds, but also to the creation of obligations for payments of funds. Thus, it would appear to prevent the Department of the Army (the Army), for example, from signing a compliance agreement (a contract) with a state that obligated the Army to build a facility for which no appropriation had yet been made.¹²

The Antideficiency Act is a strict liability statute.¹³ Persons who, without a culpable mental state, violate the Act are subject to administrative discipline, including suspension without pay and removal from office.¹⁴ Violation of the Act could qualify as an impeachable offense. Violations that are committed "knowingly and willfully" carry a fine of up to $ 5,000, and a prison term of up to two years.¹⁵ Even if a willing federal official consents to violation of the Act, the state officials or private litigants who signed the compliance agreement or consent decree might be guilty of criminal violation of the Act.¹⁶

The Antideficiency Act appears to be something of a paper tiger, however. In the more than 100 years since its original enactment, there has not been a single recorded case of prosecution under the Act. As a result, some cynics describe the Act as "more a matter of folklore than law."¹⁷

The "Authorized by Law" Exception

The Antideficiency Act forbids creating obligations in advance of appropriations except where such obligations are "authorized by law." This raises the question of whether obligations to spend unappropriated funds in order to comply with federal or state environmental statutes are "authorized by law" within the meaning of the Act.

Read most narrowly, the "authorized by law" exception would apply only when the exception is authorized by federal statute. A broader reading of "authorized by law" could apply the exemption to all instances of authority recognized as "law," which could include constitutions, statutes, treaties, common law, and perhaps even contracts.¹⁸

At the very least, the exception allows the federal government to enter into contracts when Congress has specifically allowed such contracts. For example, if Congress passes a law allowing the Commissioner for Indian Affairs to enter into contracts "notwithstanding the fact that the appropriations for the fiscal year have not been made," then the Act allows such contracts to be made.¹⁹ The Comptroller General has opined that the Antideficiency Act is not violated when a statute orders an agency to [23 ELR 10483] incur obligations in advance of appropriations.²⁰ The Attorney General agrees.²¹

In other situations, the authorization not to wait for an appropriation may be implicit, but still easy to discern. In 1948, Congress authorized the Commissioner of Reclamation "to enter into contracts in an amount not in excess of $ 1,600,000" to construct a project in Santa Barbara, California, and to "enter into contracts in an amount not in excess of $ 2,000,000"²² for a project in Idaho. Congress did not at that time appropriate the $ 3,600,000 necessary to fulfill those authorized contracts. Nevertheless, the Comptroller General ruled that Commissioner of Reclamation could enter into those contracts without violating the Antideficiency Act.²³ Quoting an earlier Comptroller General opinion, the 1948 opinion stated that the Act

declares that the department shall have the power to bind the government by contract only in two cases: (1,) where the contract is expressly authorized by a law; and, (2,) where there is an appropriation already made large enough to fulfill it. In the first case there is an express power to contract for the work…. For instance: if Congress empowers the Secretary of War to contract for cleaning out the obstructions from a certain river, the Secretary may make a contract at once for the whole work; and even though no appropriation has yet been made to meet it, the faith of the Government will be pledged to make it good.²⁴

Accordingly, if Congress authorized the Department of Energy (DOE) to enter into contracts to bring federal nuclear facilities into compliance with RCRA, the "authorized by law" rule would seem squarely applicable, and no specific appropriation would be necessary.²⁵ The actual situation, unfortunately, is not so clear. It is well-settled that authority to contract without an appropriation may arise by implication.²⁶ Can it then be argued that the specific references in RCRA,²⁷ CERCLA,²⁸ and other federal pollution laws²⁹ to federal agencies' obligations to obey those laws implicitly authorizes expenditures on pollution compliance without a specific appropriation?

The answer is probably "no." First, the Antideficiency Act itself appears to forbid reliance on the "authorized by law" basis for spending in excess of appropriations.³⁰ Second, if Congress appropriates a particular sum for work on a project, and it is known that completion of the project will cost far more than the particular sum, the executive branch nonetheless lacks authority to enter into binding contracts for an amount larger than the appropriated sum.³¹ Thus, if Congress appropriates only a particular sum for environmental compliance at federal facilities, the executive branch is limited to that amount.

More broadly, a federal agency's general obligation to carry out the purposes of its organic act would not seem to be the kind of obligation "authorized by law" that could defeat the necessity of appropriation before action. To hold otherwise would render the Antideficiency Act meaningless,³² as well as nullify the Appropriation Clause of the U.S. Constitution.

The federal environmental laws, however, are not mere organic acts granting agencies general authority. They are more narrowly focused and could, arguably, be read as creating an unconditional command that federal agencies comply with the environmental standards created by Congress. In fact, both RCRA and CERCLA, as well as other environmental statutes, specifically impose on federal facilities the same obligation to obey pollution laws that applies to private facilities.³³

Nevertheless, even though RCRA and CERCLA command federal compliance with environmental laws, the overall structure of the statutes suggests that they do not by themselves authorize spending without an appropriation. In particular, the compliance exemption waiver provisions of these statutes suggest that the authors of the statutes were [23 ELR 10484] entirely aware of, and accepted, the possibility that the lack of an appropriation could prevent compliance. The President is allowed to waive RCRA or CERCLA compliance for particular facilities; but he may not waive compliance due to lack of appropriated funds unless the federal agency requested the funds and Congress did not provide them.³⁴ The structure of the waiver seems to indicate that Congress contemplated that federal agencies would go through the standard appropriation process for pollution compliance funding, and that if funding were not appropriated, the agency could not comply.³⁵

Moreover, CERCLA § 313 seems to reject expressly any implication of funding authority:

Any authority provided by this Act … to enter into contracts to obligate the United States or to incur indebtedness for the repayment of which the United States is liable shall be effective only to such extent or in such amounts as are provided by appropriation Acts.³⁶

Accordingly, it is doubtful that a court would find that Congress intended RCRA, CERCLA, and other environmental statutes to qualify for the "authorized by law" exception to the Antideficiency Act.

Alternatively, it could be argued that the federal environmental laws, having been enacted later than the Antideficiency Act, repeal it by implication insofar as it limits federal spending on environmental compliance at federal facilities. Such an argument would, however, be unlikely to prevail under the rule announced in Tennessee Valley Authority v. Hill³⁷ (the snail darter case). There, the Supreme Court stated that courts should be hesitant to find repeals by implication, and particularly hesitant about finding a selective repeal that only affects the application of the law to particular situations.

Volunteerism

An alternative approach to cleaning up federal facilities might be to ask for voluntary private efforts to undertake a cleanup. Businesses and individuals living near a contaminated federal facility might donate their own funds to ensure the cleanup of the federal mess next door, hoping that the cleanup would improve their own quality of life and property values. Such private donations are, unfortunately, plainly illegal under the Antideficiency Act.

The Act specifically forbids the federal government to accept donations of services. The rationale is that by "volunteering" their services and products, contractors could create a moral obligation for future payment (also known as "a coercive deficiency"). An additional rationale against volunteerism involves the constitutional policy of keeping federal operations under the control of elected officials. For example, in 1877, the Army ran out of money, and inquired whether raising funds from private donations would be acceptable. The Attorney General said "no," reasoning that use of outside revenue sources would reduce the congressional control over the Army that the U.S. Constitution had intended.³⁸

Both rationales seem valid today. The policy of congressional control of the Army would be similarly impaired if the Army attempted to raise funds for environmental compliance from organizations such as the Sierra Club.

Protection of Life and Property and Other Emergencies

Even in the absence of explicit congressional authorization, the executive branch has asserted authority to spend funds to protect life and property and for other emergencies. This asserted authority could be applied to environmental cleanups.

In October 1979, the appropriation for the General Accounting Office (GAO) lapsed. Nevertheless, the agency decided to continue operating and spending funds, based on the assumption that Congress did not really intend to shut down GAO. The agency merely directed its employees not to incur new expenses which were not essential to day-to-day operations.³⁹

The Office of the Attorney General (OAG), reviewing the GAO's decision, determined that the GAO had no authority to presume that Congress had not really wanted the GAO's operations to cease.⁴⁰ The OAG warned that any future expenditure of federal funds in violation of the OAG's interpretation of the Antideficiency Act could lead to criminal prosecution.⁴¹

While the OAG's opinion seemed to settle the issue of whether agencies could spend funds during a lapse in appropriations, the next year the Office of Management and Budget (OMB) issued a memorandum stating that in the absence of appropriations, agencies could continue operations to protect life and property.⁴² A 1981 Attorney General [23 ELR 10485] opinion validated the OMB's memorandum.⁴³ It stated there were a host of "protection of life and property" or "emergency" circumstances (some of them quite attenuated) where implicit congressional intent to spend funds could be found.⁴⁴

While it is has been argued that the 1981 OAG opinion ignored unfavorable precedent, was poorly reasoned,⁴⁵ and was inconsistent with the appropriations clause of Article I, § 9, it nevertheless remains in force. Thus, it is worth considering whether the 1981 OAG opinion recognizes the President's inherent authority to comply with environmental laws and to expend the necessary funds.

The opinion noted that the Antideficiency Act itself makes an exception for emergencies constituting a threat to human life or property.⁴⁶ The OAG read the emergency exception with the greatest latitude, stating that there need only be a reasonable relationship between the expenditure and the protection of life and property. Thus, even in the absence of an appropriation, the federal government could use emergency spending authority for the Federal Bureau of Investigation's (FBI's) agents to conduct investigations, food inspectors to examine meat, and agencies to make purchases related to such "emergency" services.⁴⁷

If these activities constitute emergency expenditures, then compliance with most environmental laws would seem also to constitute an "emergency." After all, environmental laws, like meat inspection statutes, are designed to prevent public health hazards. Many applications of CERCLA, for example, expressly involve a finding that there is or may be a release of hazardous substances that poses an "imminent and substantial endangerment" to public health or the environment.⁴⁸ Of course, most CERCLA cases do not involve genuine emergencies, as the word is understood by ordinary persons, but then neither do most FBI investigations or most wholesale meat inspections.

During the fall of 1990, when it appeared that President Bush and Congress would not be able to pass a budget agreement to fund the federal government after the fiscal year ended on October 1, the Bush Administration announced its intention to rely on the Carter Administration's 1981 OAG opinion to keep much of the federal government in operation, despite the absence of congressional appropriation. Accordingly, the 1981 OAG theory that virtually any activity that has some relation to protection of life and property, or some other "emergency," justifies spending in the absence of appropriation remains in force. Since the executive branch seems to have discerned implicit authority to spend almost at will, environmental regulators should not hesitate to compel the executive branch to use its purported authority to make expenditures on compliance with environmental laws that protect life and property.

Constitutional Authority of the Executive or Judicial Branch to Expend Money Without an Appropriation

The executive branch's "life and property" and "emergency" spending authorities are based on the Attorney General's broad interpretation of a narrow exception contained within the Antideficiency Act. Executive authority to expend unappropriated funds may also, arguably, be found in the text of the U.S. Constitution itself. The President's inherent authority to carry out his constitutional duties may include the authority to expend funds for environmental remediation.

Although as a general matter the U.S. Constitution places the responsibility to appropriate funds in the legislative branch, there are other circumstances where spending without appropriation may be permissible, or even mandatory. The clearest such circumstance is when the spending is necessary for federal conformance to constitutional mandates. For example, the Seventh Amendment guarantees the right to a jury trial in federal civil cases involving more than $ 20 in controversy.⁴⁹ Even if appropriated congressional funds to pay for jury trials have been exhausted, the government may not suspend such trials.⁵⁰

The 1981 OAG, which had construed a broad "emergency" exception to the Antideficiency Act, also found that the President had certain inherent spending authorities:

Unlike his subordinates, the President performs not only functions that are authorized by statute, but functions authorized by the Constitution as well. To take one obvious example, the President alone, under Article II, § 2, clause 1 of the Constitution, "shall have the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Manifestly, Congress could not deprive the President of this power by purporting to deny him the minimum obligational authority sufficient to carry this power into effect.⁵¹

In other words, since the President has the authority to issue pardons, he has the authority to buy pens and ink with which to write pardons. Presumably, the President would have the authority even if a congressional appropriation declared that "No funds appropriated to the executive branch shall be used for the purchase of pens with which to sign pardons or reprieves." To suggest that the President would not have the inherent authority to buy the pens would be to allow congressional spending authority to supersede other constitutional provisions.

In asserting inherent Presidential spending power to carry out Article II functions, the 1981 OAG opinion was not proclaiming new doctrine. In 1853, Attorney General Caleb Cushing had written that

when the Constitution of the United States … authorizes and requires the President to do a thing, which involves the expenditure of public money, then, and in such case, the legality of an engagement by the President to have [23 ELR 10486] the thing done, that is, of a contract for its performance, is wholly independent of the question of whether there is, or is not, an adequate appropriation by Congress for the object.⁵²

Within the context of the pens for pardons example, presidential authority to expend unappropriated funds seems relatively clear. But how far does the authority to spend under Article II powers extend? The 1981 opinion stated that the "inherent" spending authority of the President extended to presidential powers which were merely implied by the U.S. Constitution, as well as to those that were specifically enumerated. The "minimum obligational authority" was said to apply to all "initiatives … grounded in the peculiar institutional powers and competency of the President."⁵³

Most of the presidential powers granted by Article II would seem to involve fairly small sums of money, and to be relatively uncontroversial. Few people would object if the President, even without a congressional appropriation, bought typing paper with which "to give the Congress Information on the State of the Union," or spent money to "receive Ambassadors and other public Ministers."⁵⁴ Most of the President's powers under Article II would seem to have little relevance to creating inherent spending powers that could be used for environmental compliance. Even the President's authority as commander-in-chief of the Army and Navy would not necessarily create in the President the authority to expend funds to keep the Army and Navy in compliance with environmental laws.⁵⁵

There is one Article II clause, however, that could potentially give the President the power to spend funds for environmental compliance: "he shall take Care that the laws be faithfully executed."⁵⁶ Taking care that the federal government (particularly parts within the executive branch) comply with federal environmental law would seem to come within the ambit of taking care that the laws be faithfully executed.

Does the inherent obligational authority applicable to the rest of Article II not apply to the faithful execution power because it is broader and more general than other Article II powers? The Supreme Court has noted that there is no principled or legitimate way to hold that certain clauses of the U.S. Constitution are more important than other clauses.⁵⁷ Similarly, there would seem to be no principled way to determine that one presidential power is more important than another.⁵⁸

To the extent that a legitimate distinction could be created between permissive authorities and mandatory presidential duties, the faithful execution requirement is a mandatory duty. The implications of finding obligational authority in the faithful execution power are staggering. Because the Fifteenth Amendment forbids racial discrimination in voting, the President — absent a congressional appropriation — could potentially expend funds to prevent voting discrimination. Funding for such an objective could come from reprogramming money within executive branch accounts, or from impounding a percentage of general appropriations.⁵⁹ The federal statutes regarding illegal drugs, obscenity, and securities fraud are routinely violated, in part because Congress has not appropriated the tremendous sums that would be necessary to enforce these laws. The President's obligational authority to enforce these laws could be said to include spending the minimum sums necessary for full compliance with all of these laws. By the same token, the President could obligate the minimum sums necessary for federal facilities to comply with applicable environmental laws.

To persons who are not monarchists, the implications of the last paragraph may seem disturbing. A President who can spend at will to enforce the law is unbounded by the constraints intended by the authors of the U.S. Constitution. For example, one of the clearest objectives of the framers of the U.S. Constitution was to place the funding of military forces under congressional control.⁶⁰ Allowing military agencies such as the Department of Defense (DOD) or the DOE to spend unappropriated funds would weaken the principle of congressional control over the military.

The scholars and executive branch attorneys who have found inherent spending authority in the "faithful execution" clause have shown little interest in developing a theory to limit the scope of such authority. The executive may show greater interest in developing a theory of legal limits to its inherent spending authority if the present state of limitless authority becomes not (as it presently is) only a basis for unchecked executive action, but also a basis for restrictions on the executive branch, and for the reprogramming of funds from other executive branch programs into mandatory environmental compliance where that appears to be required by law.

Judicial Authority to Compel Spending

While the executive branch may have the discretionary ability to spend unappropriated funds, the judicial branch may actually have the power to compel such spending.⁶¹ Several state courts have held that they have the inherent authority to spend funds necessary to the functioning of the court, regardless of the lack of an appropriation.⁶² Sometimes the inherent power to appropriate is based on the theory that such authority is necessary to protect the separation of powers, for otherwise a legislature could destroy [23 ELR 10487] the judicial branch by refusing to appropriate funds.⁶³ If the judicial branch has the authority to expend funds to keep the courts functioning effectively, does the judiciary also have the authority to require litigants to expend funds to comply with judicial decisions?

The Antideficiency Act has been held not to bar the payment of funds pursuant to a court order.⁶⁴ Accordingly, payment of funds pursuant to a consent decree would seempermissible. In the context of potential judicial enforcement, the Act does not in itself preclude parties from suing the federal government for its failure to fulfill a contract or obey the law. The fact that the federal government cannot fulfill a commitment does not absolve it from liability for failure. If an appropriation is exhausted, the government must cease payment on a contract, but the contractor may still sue for breach.⁶⁵ Similarly, lack of funding is not a defense for the federal government's failure to comply with substantive laws.⁶⁶ In the particular context of federal environmental laws, the U.S. Environmental Protection Agency (EPA) takes the position that since a presidential waiver is always available under RCRA and CERCLA, the lack of funding is not a defense to a federal facility's failure to comply with pollution laws when there has been no waiver.⁶⁷

In creating legal documents such as consent decrees or permits — documents from which a lawsuit may later arise — environmental enforcers need not include in the document a provision excusing the federal government in case funds necessary to comply with the document are not appropriated. In Olin Corp. v. Badger Army Ammunition Plant,⁶⁸ Olin and the Army were both listed as permit holders at a RCRA facility requiring corrective action. Olin appealed, arguing that the Antideficiency Act made Olin unable to be certain that the funds necessary to carry out actions required to comply with the permit would be available. EPA Administrator William Reilly dismissed the appeal. The Administrator called Olin's fear of lack of funding "purely speculative," and added that if a lack of funding became a problem, "the issue would be best addressed through the exercise of enforcement discretion, or as a defense in an enforcement action."⁶⁹ Olin's instant attempt to use a speculative Antideficiency Act problem to escape a legal obligation "would defeat the statutory mandate that owners and operators of RCRA facilities remain responsible for compliance with the hazardous waste laws."⁷⁰

The Olin case bears directly on state negotiations with federal facilities. The facility may agree to sign an order requiring cleanup of the soils surrounding a particular building. At the same time, the facility may insist on an explicit contractual term allowing nonperformance if sufficient funds are not appropriated. The rationale of the Olin decision would militate against the inclusion of such a term, because there the occurrence of a funding shortfall is a speculative event that may never occur. According to Olin, the proper course is not to build enforcement strategy around a hypothetical funding shortfall, but to deal with the shortfall when and if it ever occurs. Accordingly, even if lack of appropriation prevented the DOE from obeying a compliance order, a state could still sue for violation of the order.

The power of federal courts to order spending by recalcitrant federal agencies is illustrated by litigation involving RCRA compliance at a facility under the control of the Bureau of Indian Affairs (BIA). In Blue Legs v. U.S. Bureau of Indian Affairs, the U.S. Court of Appeals for the Eighth Circuit ordered several federal agencies to clean up some hazardous waste dumps under RCRA.⁷¹ The federal government refused to comply, citing "the absence of funding authority" and stating "clearly the matter of funding is for Congress."⁷² The District Court, enforcing the Eighth Circuit's decision, excoriated the "cavalier, willful, and contumacious disregard of the clear mandate of the appellate decision."⁷³ To pay for the cleanup, the court ordered the diversion of funds appropriated for other purposes.⁷⁴

[23 ELR 10488]

The Blue Legs court was well within its traditional powers in ordering federal compliance. Indeed, under the Federal Rules of Civil Procedure the court could have ordered EPA to conduct the remediation and charge BIA for the cost.⁷⁵ Likewise, a court could order that a state environmental agency or other environmental plaintiff perform a cleanup of federal property, and charge the expense to the federal government.

If a federal facility still refused to obey an affirmative injunction, a federal court could issue a writ of attachment or sequestration against the federal facility, directing that the facility be turned over to the environmental plaintiff.⁷⁶ Whether a federal court should use its authority to force compliance absent an appropriation may depend on the court's perception of the federal defendant's good faith.⁷⁷ Of course, if compliance with a court order would interfere with "a paramount interest of the United States,"⁷⁸ the President would remain free to invoke executive authority to waive RCRA compliance, thereby trumping the court.⁷⁹

Not all courts, however, have been as forceful as the Blue Legs court in insisting that lack of appropriation is no excuse. For example, in Sierra Club v. Department of the Interior,⁸⁰ a federal court refused to apply contempt sanctions against the Department of the Interior (DOI) for its violation of an earlier court order to fulfill a statutory duty to buy redwood parks. In declining to impose sanctions, the court noted that the DOI needed new congressional appropriations.

In National Association of Regional Councils v. Costle,⁸¹ the U.S. Court of Appeals for the D.C. Circuit held that EPA could not be forced to transmit unappropriated funds to state and regional waste treatment agencies, even though EPA, in previous years, had the spending authority, and had failed to exercise it. While EPA's act had frustrated the intent of Congress, the court held that only Congress, and not the judiciary, could order the appropriation of funds.⁸²

As a matter of policy, courts sometimes decline to issue spending orders to federal agencies. As a matter of law, though, the authority of courts to do this seems clear. The Supreme Court has ruled that a federal court even has the authority to force a municipality to impose taxes to comply with a court order.⁸³ A fortiori, a court would have the authority merely to order the reprogramming of an agency's funds, so that the agency carries out its legal duty.

It could be argued that court orders for the expenditure of funds violate the separation of powers, for the authority to spend funds rests solely in the legislature.⁸⁴ However, an executive agency that fails to obey a nondiscretionary legislative command is itself violating the separation of powers, by inserting in a nondiscretionary statute the discretion that the legislature declined to provide the executive.⁸⁵ The related principle of checks and balances requires the courts to put a halt to executive branch acts in violation of the law.⁸⁶

Because judicial orders in the context of the environmental statutes do not interfere with the federal agencies' core areas of discretion (e.g., "what type of plutonium triggers work best"), but rather with nondiscretionary mandates simply requiring that the federal government obey the same safety standards as everyone else (e.g., "don't discharge your plutonium into ambient air"),⁸⁷ the judicial branch is not violating the separation of powers when it orders the executive branch to obey legislative commands. While the policy decision of whether courts should order the expenditure of federal funds to comply with judicial decrees and legislative commands may be decided differently by different courts, there is no reason for environmental plaintiffs to hesitate to ask the courts to use their powers.

Sources of Funds

In some situations, the executive branch, under its own volition, or under order from the judiciary, can expend unappropriated funds for environmental compliance. Where will those funds come from? The executive branch may find those funds through two mechanisms: reprogramming and creative accounting.⁸⁸

[23 ELR 10489]

It is important to point out the fundamental reason why most federal agencies do not receive appropriations sufficient to meet their environmental obligations is that they do not want to. What the Senate Public Works Committee observed in 1970 remains true today: "Federal agencies have been notoriously laggard in abating pollution and in requesting appropriations to develop control measures…."⁸⁹ Simply put, federal agencies spend their political capital on Capitol Hill in order to receive money to carry out discretionary agency activities, not to receive funds to carry out mandatory legal obligations to comply with environmental laws.

Reprogramming

Sometimes congressional appropriations come with a detailed specification of how money is to be spent. For example, an appropriation account might give the DOE's headquarters $ 60 million to spend on office supplies. The legislative history of the appropriation might indicate that $ 20 million should be spent on furniture, $ 10 million on computers, and $ 30 million on refurbishing offices for cabinet undersecretaries. It could be argued that the appropriation should be spent as the legislative history specifies.⁹⁰ The executive branch, with the support of the GAO, nonetheless does not believe itself bound by the legislative history of an appropriation account. Only statutory language actually enacted regarding an appropriation account is said to be binding.⁹¹ Thus, the DOE could use its $ 60 million headquarters appropriation of any headquarters purpose — such as by spending all $ 60 million on a new chandelier.

The federal government's asserted ability to reprogram money within appropriation accounts has important environmental implications. Suppose Congress give the DOE $ 400 million for its environmental restoration account. Legislative history indicated that $ 250 million is to be spent at Site A, and $ 150 million at Site B. The DOE is not (according to the GAO) bound by the legislative history. The $ 400 million is in the environmental restoration account, and may be "reprogrammed" within the account as the DOE chooses. Thus, if the Ohio agencies regulating Site B believe that that Site B needs a $ 350 million soil treatment project, the DOE cannot claim that spending the $ 350 million at Site B is beyond the DOE's legal ability. Likewise, if any agency takes its environmental spending from a general account, there is no legal impediment to the agency using all or nearly all of the funds in its account in order to comply with the environmental laws.

Even the GAO's expansive interpretation of reprogramming authority does not allow an agency to transfer funds from one appropriation account to another. The money appropriated to the headquarters account may not be shifted by the DOE to the environmental restoration account, and even a court would seem to have no authority to mandate such a shift.

Creative Accounting

A second "source" of funds for compliance with environmental obligations is in the federal government's accounting practices. If a particular federal agency has a $ 400 million line-item appropriation, the government could obligate itself to expenditures far in excess of the $ 400 million, according to federal attorneys.⁹²

At first glance, it would seem consistent with the Antideficiency Act that a federal officer signing a contract must be allowed to obligate only as much money as is then remaining in his department's funding. If an agency is funded for $ 400 million, and has already spent $ 140 million, then the agency may only contract for $ 260 million in obligations. The Department of Justice (DOJ), however, has taken a contrary view. If an agency has appropriated $ 400 million, the DOJ has argued in briefs, then the agency may sign any number of contracts for obligations of $ 400 million, regardless of whether any or all of the $ 400 million has already been spent on other items.⁹³

The federal assertion of such broad spending authority occurred in the context of litigation against the Department of Defense (DOD) contractors. The contractors wished to stop work on shipbuilding particular projects, since the sum of the shipbuilding contracts far exceeded the amount appropriated by Congress to pay for shipbuilding. The federal government refused to allow the builders to stop work, asserting, in effect, that as long at the government had authority to write one check for $ 10 million, the government had legal authority to enter into an infinite number of contracts for $ 10 million. No deficiency would arise, the government said, until checks totalling more than $ 10 million were actually written.⁹⁴

Inshort, the federal government frequently uses creative accounting to evade the will of Congress and the spending limits imposed by Congress. It would be appropriate for those same creative accounting procedures to be used against the federal government, to force it to comply with environmental laws. Without creative accounting, federal power to reprogram funds can be an alternative source of funds for compliance with environmental obligations.

Enforcement Against Government Contractors

In addition to finding ways to work around the Antideficiency Act's limitations on the federal executive, environmental enforcers also have the option of seeking enforcement against parties which are clearly not protected by the Antideficiency Act: government contractors. Many federal facilities, particularly those owned by the DOE or the DOD, are operated by private contractors. The facilities are "government-owned [23 ELR 10490] contractor-operated" (GOCO). In most cases, the contractor will be a co-permittee of a RCRA or other environmental license.⁹⁵ While the Antideficiency Act might prevent the owner (the government) from spending unappropriated funds to comply with environmental laws, the Act would not appear to prevent the private operator (a corporation) from spendings its own funds to comply with environmental laws.⁹⁶

It could be argued that the Antideficiency Act is nevertheless implicated, because contractual arrangements will frequently force the government to indemnify the contractor for funds the contractor spends for environmental compliance. Hence, unappropriated federal funds would in fact be spent.⁹⁷ This argument is not persuasive. First, the Antideficiency Act prevents the federal government from entering into open-ended indemnification agreements with its contractors.⁹⁸ Hence, any indemnification-related federal spending will never exceed an appropriated amount. Of course, in many situations, good judgment in enforcement discretion would militate against imposing unrecoverable costs on a contractor which was not actually responsible for the problem to be remediated.

Conclusion

Persons seeking to enforce environmental laws against the federal government will have differing views of current spending practices of the federal government. The executive branch currently asserts that the Antideficiency Act allows spending on "emergencies" that are not genuine emergencies, that the "faithful execution" clause of Article II authorizes the President to spend whatever he wants to enforce any law, and that the congressional appropriation of a particular sum of money authorizes the creation of obligations to spend that sum of money many times over. Environmentalists who believe in nearly limitless executive powers should have no hesitation about compelling the federal government to use its asserted inherent spending powers to comply with environmental laws.

Others, who believe that the federal executive has grossly overstepped constitutional limits and that the executive should almost never spend money without an appropriation, face a more difficult issue. Should the specious executive assertions of power be used to compel executive expenditures of funds for environmental purposes?

If the federal executive were to strictly abide by the U.S. Constitution, the executive would strictly adhere to the Antideficiency Act, which is little more than a restatement of the constitutional imperative. Instead, the federal executive has repeatedly arrogated to itself the power to spend money regardless of whether Congress has decided — through the only constitutional mechanism provided — to spend that money. The executive branch's disregard of Article I, § 9 comes perilously close to constitutional nullification.

Since state officials have an obligation to uphold the federal U.S. Constitution, should state officials force the federal executive to use its (wrongly claimed) "inherent" spending powers for environmental purposes? This Article suggests that the answer is "yes." Given the 1981 OAG, and the 1990 ratification of the OAG by the Bush Administration, it is likely that the federal executive branch will continue to spend unappropriated funds. With federal spending now increasing faster than at any time since World War II, there seems no prospect that the executive branch will voluntarily abandon its proclivity for spending whatever it wants, regardless of appropriation. If the only situation where the executive confronts its "inherent" spending power is in situations where the executive wishes to spend the money, then the executive will continue to spend unappropriated funds, arguably in violation of the U.S. Constitution.

But if the "inherent" spending authority of the federal executive begins to be used as a sword against the executive branch, to force it into unwanted spending on environmental projects, to force the reprogramming of funds away from other executive purposes, then the executive may begin to reexamine its claims of vast inherent spending authority. Hence, rigorous enforcement of federal and state environmental laws may prod the federal government back to a more proper and narrow interpretation of its constitutional authority to spend money not appropriated by the elected representatives of the people.

Public and private environmental enforcers did not bring the federal government to its present state of lawlessness regarding the environment and the U.S. Constitution. The enforcers lack the power to compel the federal government to obey the letter and the spirit or Article I, § 9, or the Antideficiency Act. In modern times, the federal government has invoked the Antideficiency Act only when it wishes to evade an obligation. Accordingly, environmental enforcers may well find it appropriate to reject federal excuses that the Antideficiency Act precludes compliance with environmental laws. By refusing to accept the Antideficiency Act as an excuse for violation of environmental obligations, public and private entities who enforce the environmental laws may benefit not only the environment, but also, in the long run, the U.S. Constitution and the Antideficiency Act itself.

1. 42 U.S.C. § 9601-75, ELR STAT. CERCLA (1980).

2. 42 U.S.C. § 6901-92, ELR STAT. RCRA (1976).

3. Antideficiency Act of Mar. 3, 1905, Pub. L. No. 58-217, § 4, 33 Stat. 1214, 1257-58, codified as amended at 31 U.S.C. §§ 1341, 1349-51, 1511-19 (1982).

4. 31 U.S.C. § 1341(a)(1)(B).

5. 31 U.S.C. § 1342.

6. 31 U.S.C. § 1341(a)(1).

7. U.S. CONST. art. I, § 9, cl. 7.

8. Act of July 12, 1870, ch. 251, § 7, 16 Stat. 230, 251 ("It shall not be lawful for any department of the government to expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or to involve the government in any contract for the future payment of money in excess of such appropriations.").

9. Act of May 1, 1820, ch. 52, § 6, 3 Stat. 568 ("No contract shall hereafter be made by the Secretary of State, or of the Treasury, or of the Department of War, or of the Navy, except under a law authorizing the same, or under an appropriation adequate to its fulfillment."). 12 Stat. 214, 220 (1861) ("No contract of purchase on behalf of the United States shall be made unless the same is authorized by law or is under appropriation adequate to its fulfillment.").

10. Act of Feb. 27, 1906, ch. 510, § 3, 34 Stat. 48; Act of Sept. 6, 1950, Pub. L. No. 81-759, § 1211, 64 Stat. 595, 765 (encouraging agencies to set aside surplus funds for emergency reserve); Pub. L. No. 85-170, § 1401, 71 Stat. 440 (1957); Pub. L. No. 93-198, § 421, 87 Stat. 789 (1973); Pub. L. No. 93-344, § 1002, 88 Stat. 332 (1974); Pub. L. No. 93-618, § 175(a)(2), 88 Stat. 2011 (1975).

11. Antideficiency Act of Mar. 3, 1905, Pub. L. No. 58-217, § 4, 33 Stat. 1214, 1257-58, codified as amended at 31 U.S.C. §§ 1341, 1349-51, 1511-19; Herbert L. Fenster & Christian Volz, The Antideficiency Act: Constitutional Control Gone Astray, 11 PUB. CONT. L.J. 155, 160-61 (1979).

12. See, e.g., 21 Op. Att'y Gen. 288 (1896) (because appropriation was exhausted, Navy must cease work on import docks); 48 Op. Comp. Gen. 494 (multiyear installment purchase plan for computer system is invalid).

13. See 64 Op. Comp. Gen. 283, 289 (1985) (agency's good faith irrelevant to existence of violation).

14. 31 U.S.C. § 1349(a).

15. 31 U.S.C. § 1350.

16. See Anthony Miller Inc. v. United States, 172 Ct. Cl. 60, 348 F.2d 475 (1965); Ross Construction Corp. v. United States, 183 Ct. Cl. 694 (1968).

Except where specifically noted, the analysis in this Article is equally applicable to government environmental enforcement agencies (such as states or the federal EPA) and to private environmental litigants acting under any of the statutes conferring citizen standing to enforce environmental standards. E.g., Federal Water Pollution Control Act (FWPCA) § 505(a), (d), 33 U.S.C. § 1365(a), (d), ELR STAT. FWPCA 065; RCRA § 7002(a), (e), 42 U.S.C. § 6972(a), (e), ELR STAT, RCRA 55, 56; 28 U.S.C. § 2412(d)(1)(A) (Equal Access to Justice Act, providing recovery of expenses and attorney's fees in cases where citizens prevail in litigation against federal government, and government's position was not "substantially justified.").

17. Fenster & Volz, supra note 11.

18. See H.L.A. HART, THE CONCEPT OF LAW (1961); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977); PHILIP SOPER, A THEORY OF LAW (1984).

Some theorists suggest that "law" does not depend on a government for its existence, and in fact functions better without one. BRUCE BENSON, THE ENTERPRISE OF LAW (1990).

19. Comp. Gen. Dec. B-197742 (Aug. 1, 1986) (unpublished), cited in Rami S. Hanash, Effects of the Anti-Deficiency Act on Federal Facilities' Compliance With Hazardous Waste Laws, 18 ELR 10541, 10544 (1988).

20. See 44 Op. Comp. Gen. 89, 90 (1964); 39 Op. Comp. Gen. 422, 426 (1959); 31 Op. Comp. Gen. 238, 239 (1955); 28 Op. Comp. Gen. 300, 302 (1948); 15 Op. Comp. Gen. 167, 169 (1935).

21. "Upon a Lapse," 43 Op. Att'y Gen. 2, n. 1. (41 U.S.C. § 11 permits contracts for "clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies" in advance of appropriation). See also 15 Op. Att'y Gen. 209; 25 U.S.C. § 99; 31 U.S.C. § 668.

22. Interior Dept. Appropriation, Act of 1949, Pub. L. No. 48-841, 62 Stat. 1127.

23. 28 Op. Comp. Gen. 163 (1948).

24. 9 Op. Att'y Gen. 18. See also 27 Op. Comp. Gen. 452, 454 (1948) (Merchant Marine Act of 1936 "specifically authorizes the Maritime Commission to enter into contracts for extended [word missing] — in the case of operating-differential subsidy agreements for periods not to exceed 20 years," thus Maritime Commission's entry into such long-term contracts, without congressional appropriation for fulfillment of contracts, was not a violation of Antideficiency Act).

25. Although this Article discusses factual scenarios involving RCRA and CERCLA, the reasoning is equally applicable to most other environmental statutes. Any environmental regulator dealing with the federal government is likely to encounter the Antideficiency Act at some, perhaps unexpected, point. E.g., 10 C.F.R. § 30.35(f)(4) (1993); 53 Fed. Reg. 24018 (June 27, 1988) (governments which are nuclear power facility licensees need not establish financial assurance for decommissioning the facility, but may instead simply submit a statement of intent to seek funding for decommissioning when necessary; lenient rule based on Antideficiency Act).

26. 43 Op. Att'y Gen. No. 29 (1981).

27. RCRA § 6001, 42 U.S.C. § 6961, ELR STAT. RCRA 51.

28. CERCLA § 120, 42 U.S.C. § 9620, ELR STAT. CERCLA 048.

29. Clean Air Act Amendments of 1977, § 113, Pub. L. No. 95-95, 91 Stat. 685, 709 (1977); FWPCA § 313(a), 33 U.S.C. § 1323(a), ELR STAT. FWPCA 050; Safe Drinking Water Act (SDWA) § 1447, 42 U.S.C. § 300j-6, ELR STAT. SDWA 019.

30. 31 U.S.C. § 1341(a)(1)(B); J. Gregory Sidak, The Recommendation Clause, 77 GEO. L.J. 2079, 2101 (1989).

31. Fifteen Per Cent. Contracts, 15 Op. Att'y Gen. 235 (1877); Government Contracts not to Exceed Appropriations, 14 Op. Att'y Gen. 600 (1847). In the Government Contracts case, the Attorney General interpreted the 1820 predecessor to the Antideficiency Act where the amount appropriated by Congress to build two navy yards was inadequate for the task. "The prohibition is too explicit and comprehensive to overcome by any rule of construction known to law. Wherever Congress has intended a departure from the salutary rule contained in the act of 1820, the authority to contract, it would seem, has been conferred by express words." As examples of situations where Congress had expressly authorized departure from the rule requiring prior appropriations, the Attorney General pointed to acts of Congress authorizing the executive to "to enter into contract" for the construction of a war steamer, or "to construct, by contract" public vessels at private ship-building facilities when such construction could be done less expensively than at navy yards. The explicit authority to contract was taken as authority to enter into contracts for unappropriated sums. Id. at 602.

32. 43 Op. Att'y Gen. No. 29 (1981); 30 Op. Att'y Gen. 157, 161 (1913) (Post Office's general obligation to deliver the mail promptly does not allow it to hire auxiliary and temporary mail carriers without an appropriation.).

33. CERCLA § 120, 42 U.S.C. § 9620, ELR STAT. CERCLA 048-052; RCRA § 6001, 42 U.S.C. § 6961, ELR STAT. RCRA 51; Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 113, 91 Stat. 685, 709 (1977); FWPCA § 313(a), 33 U.S.C. § 1323(a), ELR STAT. FWPCA 050; SDWA § 1447, 42 U.S.C. § 300j-6, ELR STAT. SDWA 019.

34. RCRA § 6001, 42 U.S.C. § 6961, ELR STAT. RCRA 51; CERCLA § 120(j)(1), 42 U.S.C. § 9620(j)(1), ELR STAT. CERCLA 052. The Clean Water Act contains a similar waiver provision. FWPCA § 313(a), 33 U.S.C. § 1323(a), ELR STAT. FWPCA 050.

35. Hanash, supra note 19, at 10544.

36. 42 U.S.C. § 9662, ELR STAT. CERCLA 073.

37. Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978); United States v. Langston, 118 U.S. 389, 393 (1886) ("Repeals by implication are not favored.").

38. "Support of the Army" 15 Op. Att'y Gen. 209, 211 (1877).

39. GAO Memorandum of October 1, 1979, reprinted in 125 CONG. REC. 26974 (1979) and in 125 CONG. REC. S13784 (daily ed. Oct. 1, 1979) (remarks of Sen. Magnuson).

40. Applicability of the Antideficiency Act Upon a Lapse in Agency Appropriations, 43 Op. Att'y Gen. No. 24 (1980).

This Article frequently cites Attorney General and Comptroller General opinions, even though such opinions are advisory only. Because the federal government often turns to the Attorney General or Comptroller General to determine the legality of a pending action, there is a relatively large volume of Attorney General and Comptroller General opinions regarding the Antideficiency Act. Because prosecutions under the Antideficiency Act never occur, and because citizens as a general matter do not have standing to challenge unconstitutional federal spending, the number of judicial decisions involving the Antideficiency Act is relatively small. See, e.g., Frothingham v. Mellon, 262 U.S. 447 (1923) (allegedly unconstitutional spending); Flast v. Cohen, 392 U.S. 83 (1968) (standing to challenge to unconstitutional spending allowed only in limited circumstances).

While it might be feared the Attorney General or Comptroller General opinions would not provide fair analysis of the Antideficiency Act, because attorneys for the federal government would be loath to take seriously restrictions on federal power, most of the Attorney General and Comptroller General opinions do not appear to suffer from bias. With the notable exception of a 1981 Attorney General opinion (see text at note 43, infra), most of the legal opinions do not appear to show favoritism to unbounded federal power.

41. "Upon a Lapse," 43 Op. Att'y Gen. at 6.

42. Memorandum for Heads of Executive Departments and Agencies from the Office of Management and Budget, Sept. 30, 1981, unpublished memorandum discussed in Alan L. Feld, Shutting Down the Government, 69 B.U.L. REV. 971, 980 (1989).

43. "Authority of the Continuance of Government Functions During a Temporary Lapse in Appropriations," 5 Op. Off. Legal Counsel 1, 5-6 (1981), a.k.a. "Applicability of the Antideficiency Act Upon a Lapse in Agency Appropriations," 43 Op. Att'y Gen. 29 (1981) [hereafter 1981 OAG].

44. Id.

45. Feld, at 984.

46. 13 U.S.C. § 1342.

47. 1981 OAG, at 14.

48. CERCLA § 106, 42 U.S.C. § 9606, ELR STAT. CERCLA 024.

49. "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved…." U.S. CONST. amend. VII.

50. Armster v. United States, 637 F. Supp. 173 (D.D.C. 1986); Note, Congressional Underappropriation for Civil Juries: Responding to the Attack on a Constitutional Guarantee, 55 U. CHI. L. REV. 237 (1988).

51. 1981 OAG at 5-6. For a good critique of the 1981 OAG, see Feld, supra note 42.

52. Contracts for the Extension of the Capitol, 6 Op. Att'y Gen. 26, 28 (1853).

53. "Authority for the Continuance," supra note 43, at 6-7.

54. U.S. CONST. art. II, § 3.

55. U.S. CONST. art. II, § 2, cl. 1.

56. U.S. CONST. art. II, § 3.

57. Valley Forge Christian College v. American United for Separation of Church and State, 454 U.S. 464, 484 (1982).

58. See McConnell, Why Hold Elections? Using Consent Decrees to Insulate Politics From Political Change, U. CHI. LEGAL F. 295, 320 (1987) ("There is no calculus for determining which of the President's constitutional powers are more important than the others.").

59. J. Gregory Sidak, The President's Power of the Purse, DUKE L.J. 1162, 1201, 1219 (1989).

60. See, e.g., JAMES MADISON, NOTES OF DEBATE IN THE FEDERAL CONVENTION OF 1787, 580 (W. W. Norton 1987) (remarks of Mr. Gerry, Sept. 5, 1787).

61. The fact that the Constitution forbids the executive branch to spend money without a legislative appropriation does not forbid the judicial branch to make determinations regarding the legal obligations of the executive branch. Collins v. United States, 15 Ct. Cl. 22, 35 (1879).

62. O'Coins, Inc. v. Treasurer of County of Worcester, 362 Mass. 507, 287 N.E.2d 608 (1972).

63. Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193 (1971); Carlson v. State, 247 Ind. 631, 220 N.E.2d 532 (1966); Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963); Board of County Commissioners v. Judicial Space, etc., 378 So. 2d 1247 (Fla. 1979); Judges for the Third Judicial Circuit v. County of Wayne, 383 Mich. 10, 172 N.W.2d 436 (1969), modified by 386 Mich. 1, 190 N.W.2d 288 (1971); In re Clerk Court's Compensation of Lyon County v. Lyon County Commissioners, 308 Minn. 172, 241 N.W.2d 781 (1976); Board of Commissioners of Vigo County v. Stout et al., 136 Ind. 53, 35 N.E. 683 (1893).

65. Ferrir v. United States, 27 Ct. Cl. 542 (1892).

66. United States v. Voite, 233 U.S. 509 (1914); New York Airways, Inc. v. United States, 369 F.2d 743, 748, 752 (Ct. Cl. 1966) ("the mere failure of Congress to appropriate funds, without further words modifying or repealing, expressly or by clear implication, the substantive law, does not in and of itself defeat a Government obligation created by statute" … "it merely" forces the plaintiff "to a recovery in the Court of Claims"); Ralston v. United States, 91 Ct. Cl. 91, cert. denied, 311 U.S. 687 (1940).

Long-standing judicial precedent has held that when Congress enacts an appropriation that specifically forbids the spending of funds for a particular statutory obligation, the obligation is neither repealed nor suspended — just as failure to make a payment on a note does not extinguish the obligation to pay the note in full. Gibney v. United States, 114 Ct. Cl. 38, 51-52 (1949) (overtime pay); Ralston v. United States, 91 Ct. Cl. 91, 96 (1940) (military pension); Leonard v. United States, 80 Ct. Cl. 147, 150 (1935) (pay for instructor at Military Academy); Danford v. United States, 62 Ct. Cl. 285, 288 (1926) (pay of a military officer); Strong v. United States, 60 Ct. Cl. 627, 630 (1925) (pay of professor at military academy); Ferris v. United States, 27 Ct. Cl. 542, 546 (1892) (dredging contractor, "insufficiency does not pay the Government's debts, nor cancels its obligations, nor defeats the rights of other parties").

Of course when there is evidence that Congress actually did intend the lack of funding to effect a suspension, the courts will give effect to that intent. United States v. Dickerson, 310 U.S. 554 (1940) (military enlistment bonus); Shipman v. United States, 18 Ct. Cl. 138, 147 (1883) (court found that obligation to pay for road-building was expressly made contingent on appropriation of sums for the obligation).

67. EPA, Federal Facilities Compliance Strategy, (Draft. Dec. 1987), at VI-14.

68. 1989 RCRA Lexis 26 (EPA, Nov. 22, 1989).

69. Id. at *6.

70. Id.

71. Blue Legs v. United Bureau of Indian Affairs, 867 F.2d 1094, 19 ELR 20717 (8th Cir. 1989).

72. Blue Legs v. EPA, 732 F. Supp. 81, 83, 19 ELR 20831 (D.S.D. 1990).

73. Id.

74. Although not relied on by the court, the legislative history of the federal Administrative Procedure Act reveals clear intent that courts require affirmative corrective acts from agencies not complying with the law. S. REP. NO. 752, 79th Cong., 1st Sess. 26 (1945) (reviewing courts "must (A) compel action unlawfully withheld or unreasonably delayed"). Congress' explicit authorization of federal courts to issue writs of mandamus further underscores congressional intent to give courts the authority to bring the executive into compliance with the law. 28 U.S.C. § 1361 ("The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owedto the plaintiff.").

75. FED. R. CIV. P. 70 ("If a judgment directs a party to … perform any other specific act and the party fails to comply within the time specified, the court may direct the act be done at the cost of the disobedient party by some other person appointed by the court….").

Older precedent suggests that obligations of one federal agency (such as the DOE) to pay funds to another federal agency (such as EPA) do not even fall within the ambit of the Antideficiency Act. Support of the Army, 15 Op. Att'y Gen. 209 (1877); Reeside v. Walker, 52 U.S. (11 How.) 272 (1851); Feld, at 985. More recent authority, however, states that the Act applies with full force to transactions between agencies of the federal government. 59 Op. Comp. Gen. 386, 389 (1980).

76. FED. R. CIV. P. 70.

77. Hanash, supra note 19, at 10546.

78. RCRA § 6001, 42 U.S.C. § 6961, ELR STAT. RCRA 51.

79. For an argument that courts should consider paramount interests, such as national security concerns, even absent a waiver, see Hanash, supra note 19, at 10547.

80. 424 F. Supp. 172, 6 ELR 20605 (N.D. Cal. 1976).

81. 546 F.2d 583, 7 ELR 20737 (D.C. Cir. 1977).

82. See also, National Wildlife Federation v. United States, 626 F.2d 917, 924, 10 ELR 20172 (D.C. Cir. 1974). In National Wildlife, the court declined to issue a writ of mandamus to compel the President to submit budget report in compliance with Forest and Rangeland Renewable Resource Planning Act. The court reasoned that the judiciary should not be involved in wrangling over the federal budget and budget procedures. Such matters are the archetype of those best resolved through bargaining and accommodation between the legislative and executive branches. We are reluctant to afford discretionary relief when to do so would intrude on the responsibilities — including the shared responsibilities — of the coordinate branches.

Id.

83. Missouri v. Jenkins, 495 U.S. 33 (1990).

84. JAMES MADISON, THE FEDERALIST, No. 47 (under separation of powers, different types of power are assigned to different branches of government).

85. Michael D. Axline, Constitutional Implications of Injunctive Relief Against Federal Agencies in Environmental Cases, 12 HARV. ENVTL. L. REV. 1, 54 (1988).

86. Id., at 55. Cf. ALEXANDER HAMILTON, THE FEDERALIST No. 78 ("The complete independence of the courts of justice is peculiarly essential [because] … every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void"); Antonin Scalia, Responsibilities of Regulatory Agencies Under Environmental Laws, 24 HOUS. L. REV. 97, 109 (1987)(when agency crosses the lines of a clear statute, "it is assuredly the function of the courts to strike it back").

87. Axline, supra note 85, at 60.

88. Also, in many cases, the federal department or agency which is subjected to a court order to pay funds to a plaintiff will pay the money out of its Judgment Fund (a fund created by congressional appropriation, which allows the agency or department to satisfy legal judgments against the agency or department).

89. S. REP. NO. 1196, 91st Cong., 2d sess., 37 (1970), reprinted in 1970 U.S. CODE CONG. & ADMIN. NEWS 5356.

90. See Fenster & Volz, supra note 11, at 194-96. But see Alabama Rural Fire Ins. Co. v. United States, 572 F.2d 727 (Ct. Cl. 1978).

91. Newport News Shipbuilding and Drydock Co., 55 Comp. Gen. 813, 820, 76-1 CPD para. 136 (1976) ("the total amount of a line item appropriation may be applied to any of the programs or activities for which it is available in any amount absent further restrictions provided by the appropriation act or another statute").

92. Fenster & Volz, supra note 11, at 217.

93. Cases cited in Fenster & Volz, supra note 11, at 164: United States v. Litton Systems, Inc. No. S-76-187(C) (S.D. Miss. 1976) (brief filed July 21, 1976); United States v. Newport News Shipbuilding & Drydock Co. No. 75-88-NN (E.D. Va. 1975) (brief filed Aug. 28, 1975); Appeal of Ball Brothers, Inc., NASA BCA No. 1277-6 (Oct. 16, 1976).

94. Id.

95. E.g., Olin.

96. Sierra Club v. U.S. Dep't of Energy, No. 89-B-181 (D. Colo. Feb. 28, 1990) (available from ELR Document Service, No. AD-91) (holding that a claim against a government contractor for closure of RCRA units at a nuclear weapons plant is not moot notwithstanding the fact that the contractor no longer operates the plant).

97. Hanash, supra note 19, at 10547.

98. Comp. Gen., slip op. B-201072, May 3, 1982, Matter of: Assumption by Government of Contractor Liability to Third Persons; 35 Op. Comp. Gen. 85, 87 (1955); 16 Op. Comp. Gen. 803 (1937); 7 Op. Comp. Gen. 507 (1928); Matter of: Project Stormfury, 59 Op. Comp. Gen. 369 (1980) (agreement to indemnify Australia, subject to appropriation by Congress, violates spirit of Antideficiency Act by creating moral obligation on part of U.S., and is therefore a "coercive deficiency"); 2 Op. Off. Legal Counsel 219, 222-23 (1978) (government may not agree to indemnify airlines for passenger injuries caused by airline's cooperation with government action against a hijacker; however, a federal agency may agree to indemnify an airline up to a limit of agency's unspent and available general appropriation). But See Matter of: Government Indemnification of Public Utilities against Loss arising out of sale of Power to Government, 59 Op.Comp. Gen. 705 (1980) (Government may agree to indemnify public utility against third-party claims, because likelihood of claim remote, and utilities demand indemnification from all customers; GSA rejects "overly technical and literal reading" of the Antideficiency Act).