National Association of Regional Councils v. Costle

No. 76-1970 (D.C. Cir. September 8, 1977)

ELR Digest

The court remands for modifications a district court order that the unobligated balance of the Environmental Protection Agency (EPA) budget authority provided by § 208(f)(3) of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1288(f)(3), for funding areawide waste treatment management planning agencies for fiscal years 1973 and 1974 remain available until September 30, 1977, and that those funds be used to finance 100 rather than 75 percent of the reasonable cost of state and local § 208 planning agencies.

Section 208 was designed to encourage and facilitate the development of areawide waste treatment management plans. It sets forth a timetable for the designation of areas and planning agencies and provides that the EPA Administrator shall make grants to these agencies to cover the reasonable costs of developing and operating the planning process required by the Act. This reimbursement was to be at the rate of 100 percent of costs in fiscal years 1973 and 1974, but only $13 million of the $150 million in contract authority for those two years was actually obligated because of EPA's delay in promulgating legally sufficient implementing regulations. See NRDC v. Train, 396 F. Supp. 1386, 5 ELR 20405 (D.D.C. 1975). EPA takes the position that the expiration of those fiscal years deprived the agency of any authority to obligate the remaining funds and that all funding awarded to planning agencies after June 30, 1975 must be limited to 75 percent of costs.

Plaintiff filed suit seeking a declaratory judgment that the $137 million unobligated balance of 1973 and 1974 contract authority should be made available for 100 percent financing of § 208 planning agencies. The district court entered summary judgment for plaintiff, reasoning that but for EPA's illegal delay in promulgating implementing regulations, the full authorization would have been obligated and ordered that the unobligated balance remain available for obligation until September 30, 1977.

The court of appeals first observes that § 208(f) simply provides two amounts as the top limits available for appropriation for fiscal 1973 and 1974 and that as a general rule budget authority made available for a specified period terminates at the end of that time. Since there was no specific statutory directive in this case that it should remain available beyond one year, the court holds that the unobligated 1973 and 1974 contract authority lapsed at the end of those fiscal years and was not available to EPA after that date.

The court acknowledges recent precedents affirming its power to order that funds be held available beyond their statutory lapse date, Jacksonville Port Authority v. Adams, 556 F.2d 52, 55-57 (D.C. Cir. 1977); Los Angeles v. Adams, 556 F.2d 40, 45-46 (D.C. Cir. 1977); National Ass'n of Neighborhood Health Centers v. Mathews, 551 F.2d 321, 338-39 (D.C. Cir. 1976), but distinguishes these cases from the one at hand on the ground that none involved unobligated budget authority which had lapsed before suit was filed. While a court may on equitable grounds prevent the termination of existing budget authority, it may not reinstate such authority, once terminated, without violating the constitutional provision vesting Congress with the sole power to make appropriations. The district court's judgment that lapsed 1973 and 1974 contract authority remain available for obligation must therefore be reversed.

There is, however, no constitutional impediment to a court order that the amounts actually authorized by Congress for funding § 208 planning agencies in subsequent years be used for 100 rather than 75 percent financing. Nor does § 208(f)(2), 33 U.S.C. § 1288(f)(2), which purports to limit funding to 75 percent of costs after June 30, 1975, prohibit such a result in light of the legislative history's clear demonstration that Congress intended start-up financing for the areawide waste treatment management planning process to be at the 100 percent level. The district court's order extending the availability of 100 percent financing simply brings the funding timetable of § 208 back into harmony with the implementation timetable, which was disrupted by EPA's failure to promulgate legally sufficient regulations in a timely manner and is fully consistent with the congressional intent and purpose behind the statute.

The case is remanded for modification of the district court's order. The lower court may use the unobligated 1973 and 1974 contract authority as a measure of the amount of 100 percent financing that should be provided out of available budget authority.

The full text of this decision is available from ELR (17 pp. $2.25, ELR Order No. C-1134).

Counsel for Plaintiff-Appellee
James P. Schaller, John J. Bosley
Jackson, Campbell & Parkinson
1828 L St. NW, Washington DC 20036
(202) 457-1632

Counsel for Defendants-Appellants
Edmund B. Clark, Douglas K. Miller, Michael A. McCord, Jacques B. Gelin
Department of Justice, Washington DC 20530
(202) 737-8200

Counsel for Amicus Curiae State of Maryland
Warren K. Rich, Ass't Attorney General
One S. Calvert St., Baltimore MD 21202
(301) 383-3737

Tamm, J., joined by Leventhal & MacKinnon, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]