United States v. Wayne County Department of Health

No. 82-1818 (6th Cir. October 26, 1983)

ELR Digest

The court rules that a district court lacks authority to bar reallocation or other disposal of Federal Water Pollution Control Act (FWPCA) sewage treatment construction grants allocated to Detroit for a fiscal year, but unobligated. In 1979 the United States and Detroit settled an FWPCA enforcement action concerning violations from the city's sewage treatment plant. The agreement was amended in 1980 to add air pollution control requirements. In late 1981, Detroit petitioned the court to set aside for it federal sewage treatment construction grant funds needed for compliance with the decree, which otherwise would be reallocated to other cities because Detroit could not timely meet all the requisites for obligation of the funds. Under Title II of the FWPCA, if the funds were not reallocated to other Michigan cities and obligated during fiscal year (FY) 1981, they would have to be reallocated to other states. The court issued the requested order. At the time it was not clear whether Congress would appropriate any construction grant funds for FY 1982, although money eventually was appropriated, of which $97 million was set aside for Michigan. Michigan then petitioned the court for modification of its order, allowing reallocation of the FY 1981 funds. Muskegon, Michigan intervened in support of the state, arguing that, but for the court's order, it would have qualified for reallocation of the FY 1981 funds two projects. The district court denied the motion to modify its order, and Muskegon and Michigan appealed. Muskegon's projects were funded out of FY 1982 allocations, and Detroit and the United States moved to dismiss the appeal as moot.

The court holds that the appeal is not moot, because the alleged harm is capable of repetition yet evading review. The district court interpreted the law to give it the authority to set aside unobligated construction grant funds for Detroit at any time. Detroit might prove unable to qualify for obligation of allocated funds in future years. The court rules that Muskegon could be subject to the same action again, since it would be an applicant for the limited pool of grant funds in the next several years. In addition, since Muskegon's positioning on the FY 1982 grants priority list is at issue, there is a continuing controversy to adjudicate.

The court rules that the district court lacked authority to bar reallocation of the funds. The FWPCA obligates the Environmental Protection Agency (EPA) to immediately reallocate unobligated funds to other states at the end of a fiscal year. The order below offered no explanation of the court's authority. The court rejects the argument forwarded by Detroit on appeal that the district court was authorized to overried the requirements of Title II, because it was hearing a Title III enforcement action. The requirements of Titles II and III are independent. Nor did EPA consent to waiver of the procedural requirements of Title II in signing the consent agreement. EPA did not consent to reservation of the grant funds below and the Title II requirements are not mere procedures. EPA lacks authority consent to ignore clear statutory requirements in any event. The court vacates the district court's orders setting aside the construction grant funds and remands the matter.

The full text of this opinion is available from ELR (7 pp. $7.00, ELR Order No. C-1343).

Counsel for Plaintiff-Appellant
Leonard R. Gilman, U.S. Attorney
817 Federal Bldg., 231 W. Lafayette, Detroit MI 48226
(313) 226-7715

Counsel for Defendants-Appellees
William I. Cahalan, Joseph B. Klein
Cahalan & Ackerman
3650 Penobscot Bldg., Detroit MI 48226
(313) 963-1155

Frank J. Kelley, Attorney General
525 W. Ottowa, Law Bldg., Lansing MI 48913
(517) 373-1110

(Krupansky, J.)

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]