The Federal Water Pollution Control Act Amendments of 1972
provide a comprehensive program for controlling and abating water
pollution. Title II of these Amendments makes available federal
financial assistance for municipal sewers and sewage treatment
works. Section 207 of Title II authorizes the appropriation of "not
to exceed" specified amounts for each of three fiscal years, and §
205(a) provides that the "[s]ums authorized to be appropriated
pursuant to [§ 207] . . . shall be allotted by the Administrator"
of the Environmental Protection Agency. The President directed the
Administrator not to allot among the States § 207's maximum
amounts, but instead to allot no more than $2 billion of the $5
billion authorized for fiscal year 1973, and no more than $3
billion of the $6 billion authorized for fiscal year 1974, and the
Administrator complied with this directive. Thereupon, respondent
city of New York brought this class action seeking a declaratory
judgment that the Administrator was obligated to allot to the
States the full amounts authorized by § 207 for fiscal years 1973
and 1974, and an order directing him to make those allotments. The
District Court granted the respondents' motion for summary
judgment, and the Court of Appeals affirmed, holding that "the Act
requires the Administrator to allot the full sums authorized to be
appropriated in § 207."
Held: The 1972 Amendments do not permit the
Administrator to allot to the States under § 205(a) less than the
entire amounts authorized to be appropriated by § 207. Pp.
420 U. S.
42-49.
(a) That § 205(a) directs the allotment of only "sums" -- not
"all sums," as originally provided when the legislation went to
Conference -- and that the Conference Committee added the "not to
exceed" qualifying language to § 207, which authorized the
appropriation of specific amounts for the three fiscal years, show
no congressional intention of giving the Executive discretionary
control
Page 420 U. S. 36
over the rate of allotments under the Title II programs. The
"not to exceed" qualifying language in § 207 has meaning of its
own, apart from § 205(a), and reflects the realistic possibility
that approved applications for grants from funds already allotted
would not total the maximum amount authorized to be appropriated.
And the word "sums" has no different meaning, and can be ascribed
no different function in the context of § 20(a), than would the
words "all sums." Pp.
420 U. S.
42-46.
(b) The modified position taken by petitioner in this Court that
§§ 205(a) and 207 merely give the Administrator discretion as to
the timing of expenditures, not as to the ultimate amounts to be
allotted and obligated, as was urged in the lower courts, does not
alter this Court's conclusion. The Administrator's power to allot
under § 205(a) extends only to "sums" authorized to be appropriated
under § 207, since, even assuming some sort of power in the
Executive to control outlays under the Act, the legislative history
indicates that the power to control was to be exercised at the
obligation phase, rather than the allotment stage, of the process.
Pp.
420 U. S.
46-49.
161 U.S.App.D.C. 114, 494 F.2d 1033, affirmed.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, MARSHALL, BLACKMUN, POWELL, and
REHNQUIST, JJ., joined. DOUGLAS, J., concurred in the result.
Page 420 U. S. 37
MR. JUSTICE WHITE delivered the opinion of the Court.
This case poses certain questions concerning the proper
construction of the Federal Water Pollution Control Act Amendments
of 1972, 86 Stat. 816, 33 U.S.C. § 1251
et seq. (1970 ed.,
Supp III) (1972 Act), which provide a comprehensive program for
controlling and abating water pollution. Section 2 of the 1972 Act,
86 Stat. 833, in adding Title II, §§ 201-212, to the Federal Water
Pollution Control Act, 62 Stat. 1155, 33 U.S.C. §§ 1281-1292 (1970
ed., Supp.III), [
Footnote 1]
makes available federal financial
Page 420 U. S. 38
assistance in the amount of 75% of the cost of municipal sewers
and sewage treatment works. Under § 207, there is "authorized to be
appropriated" for these purposes
Page 420 U. S. 39
"not to exceed" $5 billion for fiscal year 1973, "not to exceed"
$6 billion for fiscal year 1974, and "not to exceed" $7 billion for
fiscal year 1975. Section 205(a) directs that "[s]ums authorized to
be appropriated pursuant to [§ 207] " for fiscal year 1973 be
allotted "not later than 30 days after October 18, 1972." The
"[s]ums authorized" for the later fiscal years 1974 and 1975
"shall be allotted by the Administrator not later than the
January 1st immediately preceding the beginning of the fiscal year
for which authorized. . . ."
From these allotted sums, § 201(g)(1) authorizes the
Administrator "to make grants to any . . . municipality . . . for
the construction of publicly owned treatment works . . . ,"
pursuant to plans and specifications as required by § 203 and
meeting the other requirements of the Act, including those of §
204. Section 203(a) specifies that the Administrator's approval of
plans for a project "shall be deemed a contractual obligation of
the United States for the payment of its proportional contribution
to such project." [
Footnote
2]
Page 420 U. S. 40
The water pollution bill that became the 1972 Act was passed by
Congress on October 4, 1972, but was vetoed by the President on
October 17. Congress promptly overrode the veto. Thereupon, the
President, by letter dated November 22, 1972, [
Footnote 3] directed the Administrator "not [to]
allot among the States the maximum amounts provided by section
207," and, instead, to allot "[n]o more than $2 billion of the
amount authorized for the fiscal year 1973, and no more than $3
billion of the amount authorized for the fiscal year 1974. . . ."
[
Footnote 4] On December 8, the
Administrator announced by regulation [
Footnote 5] that, in accordance with the President's
letter, he was allotting for fiscal years 1973 and 1974 "sums not
to exceed $2 billion and $3 billion, respectively."
This litigation, brought by the city of New York and similarly
situated municipalities in the State of New York, followed
immediately. [
Footnote 6] The
complaint sought judgment against the Administrator of the
Environmental Protection Agency declaring that he was obligated to
allot to the States the full amounts authorized by § 207 for fiscal
years 1973 and 1974, as well as an order directing him to make
those allotments. In May, 1973, the District Court denied the
Administrator's motion to dismiss and granted the cities' motion
for summary judgment. The Court of Appeals affirmed, holding that
"the Act requires the Administrator to allot the full sums
authorized to be appropriated
Page 420 U. S. 41
in § 207." 161 U.S.App.D.C. 114, 131, 494 F.2d 1033, 1050
(1974).
Because of the differing views with respect to the proper
construction of the Act between the federal courts in the District
of Columbia in this case and those of the Fourth Circuit in
Train v. Campaign Clean Water, post, p.
420 U. S. 136, we
granted certiorari in both cases, 416 U.S. 969 (1974), and heard
them together. The sole issue [
Footnote 7] before us is whether the 1972 Act permits the
Administrator to allot to the States under § 205(a) less than the
entire amounts authorized to be appropriated by § 207. We hold that
the Act does not permit such action, and affirm the Court of
Appeals. [
Footnote 8]
Page 420 U. S. 42
Section 205(a) provides that the "[s]ums authorized to be
appropriated pursuant to [§ 207] . . . shall be allotted by the
Administrator." Section 207 authorizes the appropriation of "not to
exceed" specified amounts for each of three fiscal years. The
dispute in this case turns principally on the meaning of the
foregoing language from the indicated sections of the Act.
The Administrator contends that § 205(a) directs the allotment
of only "sums" -- not "all sums" -- authorized by § 207 to be
appropriated, and that the sums that must be allotted are merely
sums that do not exceed the
Page 420 U. S. 43
amounts specified in § 207 for each of the three fiscal years.
In other words, it is argued that there is a maximum, but no
minimum, on the amounts that must be allotted under § 205(a). This
is necessarily the case, he insists, because the legislation, after
initially passing the House and Senate in somewhat different form,
was amended in Conference, and the changes, which were adopted by
both Houses, were intended to provide wide discretion in the
Executive to control the rate of spending under the Act.
The changes relied on by the Administrator, the so-called Harsha
amendments, were two. First, § 205 of the House and Senate bills as
they passed those Houses and went to Conference, directed that
there be allotted "all sums" authorized to be appropriated by §
207. [
Footnote 9] The word
"all" was struck in Conference. Second, § 207 of the House bill
authorized the appropriation of specific amounts for the three
fiscal years. The Conference Committee inserted the qualifying
words "not to exceed" before each of the sums so specified.
The Administrator's arguments based on the statutory language
and its legislative history are unpersuasive. Section 207
authorized appropriation of "not to exceed" a specified sum for
each of the three fiscal years. If the States failed to submit
projects sufficient to require obligation, and hence the
appropriation, of the entire amounts authorized, or if the
Administrator, exercising whatever authority the Act might have
given him to deny grants, refused to obligate these total amounts,
§ 207 would obviously permit appropriation of the lesser amounts.
But if, for example, the full amount provided for 1973 was
obligated by the Administrator in the course of
Page 420 U. S. 44
approving plans and making grants for municipal contracts, § 207
plainly "authorized" the appropriation of the entire $5 billion. If
a sum of money is "authorized" to be appropriated in the future by
§ 207, then § 205(a) directs that an amount equal to that sum be
allotted. Section 207 speaks of sums authorized to be appropriated,
not of sums that are required to be appropriated, and, as far as §
205(a)'s requirement to allot is concerned, we see no difference
between the $2 billion the President directed to be allotted for
fiscal year 1973 and the $3 billion he ordered withheld. The latter
sum is as much authorized to be appropriated by § 207 as is the
former. Both must be allotted.
It is insisted that this reading of the Act fails to give any
effect to the Conference Committee's changes in the bill. But, as
already indicated, the "not to exceed" qualifying language of § 207
has meaning of its own, quite apart from § 205(a), and reflects the
realistic possibility that approved applications for grants from
funds already allotted would not total the maximum amount
authorized to be appropriated. Surely there is nothing inconsistent
between authorizing "not to exceed" $5 billion for 1973 and
requiring the full allotment of the $5 billion among the States.
Indeed, if the entire amount authorized is ever to be appropriated,
there must be approved municipal projects in that amount, and
grants for those projects may
only be made from allotted
funds.
As for striking the word "all" from § 205, if Congress intended
to confer any discretion on the Executive to withhold funds from
this program at the allotment stage, it chose quite inadequate
means to do so. It appears to us that the word "sums" has no
different meaning, and can be ascribed no different function in the
context of § 205 than would the words "all sums." It is said
that
Page 420 U. S. 45
the changes were made to give the Executive the discretionary
control over the outlay of funds for Title II programs at either
stage of the process. But legislative intention, without more, is
not legislation. Without something in addition to what is now
before us, we cannot accept the addition of the few words to § 207
and the deletion of the one word from § 205(a) as altering the
entire complexion and thrust of the Act. As conceived and passed in
both Houses, the legislation was intended to provide a firm
commitment of substantial sums within a relatively limited period
of time in an effort to achieve an early solution of what was
deemed an urgent problem. [
Footnote 10] We cannot believe that Congress, at the
last
Page 420 U. S. 46
minute, scuttled the entire effort by providing the Executive
with the seemingly limitless power to withhold funds from allotment
and obligation. Yet such was the Government's position in the lower
courts -- combined with the argument that the discretion conferred
is unreviewable. The Administrator has now had second thoughts. He
does not now claim that the Harsha amendments should be given such
far-reaching effect. In this Court, he views §§ 205(a) and 207 as
merely conferring discretion on the Administrator as to the timing
of expenditures, not as to the ultimate amounts to be allotted and
obligated. He asserts that, although he may limit initial
allotments in the three specified years, "the power to allot
continues," and must be exercised, "until the full $18 billion
has
Page 420 U. S. 47
been exhausted." [
Footnote
11] Brief for Petitioner 13; Tr. of Oral Arg. 117. It is true
that this represents a major modification of the Administrator's
legal posture, [
Footnote 12]
but our conclusion that § 205(a) requires the allotment of sums
equal to the total amounts authorized to be appropriated under §
207 is not affected. In the first place, under § 205(a), the
Administrator's power to allot extends only to "sums" that are
authorized to be appropriated under § 207. If he later has power to
allot, and must allot, the balance of the $18 billion not initially
allotted in the specified years, it is only because these
additional amounts are "sums" authorized by § 207 to be
appropriated. But if they are "sums" within the meaning of §
205(a), then that section requires that they be allotted by
November 17, 1972, in the case of 1973 funds, and, for 1974 and
1975, "not later than the January 1st immediately preceding the
beginning of the fiscal year for which authorized." [
Footnote 13] The November 22 letter of the
President and the Administrator's consequent withholding of
authorized funds cannot be squared with the statute.
Second, even assuming an intention on the part of
Page 420 U. S. 48
Congress, in the hope of forestalling a veto, to imply a power
of some sort in the Executive to control outlays under the Act,
there is nothing in the legislative history of the Act indicating
that such discretion arguably granted was to be exercised at the
allotment stage, rather than or in addition to the obligation phase
of the process. On the contrary, as we view the legislative
history, the indications are that the power to control, such as it
was, was to be exercised at the point where funds were obligated,
and not in connection with the threshold function of allotting
funds to the States. [
Footnote
14] The Court of Appeals carefully examined the legislative
history in this respect and arrived at the same conclusion, as have
most of the other courts that have dealt with the issue. [
Footnote 15] We thus
Page 420 U. S. 49
reject the suggestion that the conclusion we have arrived at is
inconsistent with the legislative history of §§ 205(a) and 207.
Accordingly, the judgment of the Court of Appeals is
affirmed.
So ordered.
MR. JUSTICE DOUGLAS concurs in the result.
[
Footnote 1]
The provisions of Title II, as added by the 1972 Amendments
chiefly involved in this case are, in pertinent part, as
follows:
Section 205(a), 33 U.S.C. § 1285(a) (1970 ed., Supp. III):
"Sums authorized to be appropriated pursuant to section 1287 of
this title for each fiscal year beginning after June 30, 1972,
shall be allotted by the Administrator not later than the January
1st immediately preceding the beginning of the fiscal year for
which authorized, except that the allotment for fiscal year 1973
shall be made not later than 30 days after October 18, 1972. . .
."
Section 207, 33 U.S.C. § 1287 (1970 ed., Supp. III):
"There is authorized to be appropriated to carry out this
subchapter . . . for the fiscal year ending June 30, 1973, not to
exceed $5,000,000,000, for the fiscal year ending June 30, 1974,
not to exceed $6,000,000,000, and for the fiscal year ending June
30, 1975, not to exceed $7,000,000,000."
Section 203, 33 U.S.C. § 1283 (1970 ed., Supp. III):
"(a) Each applicant for a grant shall submit to the
Administrator for his approval plans, specifications, and estimates
for each proposed project for the construction of treatment works
for which a grant is applied for [
sic] under section
1281(g)(1) of this title from funds allotted to the State under
section 1285 of this title and which otherwise meets the
requirements of this chapter. The Administrator shall act upon such
plans, specifications, and estimates as soon as practicable after
the same have been submitted, and his approval of any such plans,
specifications, and estimates shall be deemed a contractual
obligation of the United States for the payment of its proportional
contribution to such project."
"(b) The Administrator shall, from time to time as the work
progresses, make payments to the recipient of a grant for costs of
construction incurred on a project. These payments shall at no time
exceed the Federal share of the cost of construction incurred to
the date of the voucher covering such payment plus the Federal
share of the value of the materials which have been stockpiled in
the vicinity of such construction in conformity to plans and
specifications for the project."
"(c) After completion of a project and approval of the final
voucher by the Administrator, he shall pay out of the appropriate
sums the unpaid balance of the Federal share payable on account of
such project."
[
Footnote 2]
The Act thus established a funding method differing in important
respects from the normal system of program approval and
authorization of appropriation followed by separate annual
appropriation acts. Under that approach, it is not until the actual
appropriation that the Government funds can be deemed firmly
committed. Under the contract authority scheme incorporated in the
legislation before us now, there are authorizations for future
appropriations, but also initial and continuing authority in the
Executive Branch contractually to commit funds of the United States
up to the amount of the authorization. The expectation is that
appropriations will be automatically forthcoming to meet these
contractual commitments. This mechanism considerably reduces
whatever discretion Congress might have exercised in the course of
making annual appropriations. The issue in this case is the extent
of the authority of the Executive to control expenditures for a
program that Congress has funded in the manner and under the
circumstances present here.
[
Footnote 3]
Letter from President Nixon to William D. Ruckelshaus,
Administrator, Environmental Protection Agency, Nov. 22, 1972, App.
15-16.
[
Footnote 4]
Although the allotment for fiscal year 1975 is not directly at
issue in this case, on January 15, 1974, the Administrator allotted
$4 billion out of the $7 billion authorized for allotment for that
fiscal year. Brief for Petitioner 6.
[
Footnote 5]
37 Fed.Reg. 26282 (1972).
[
Footnote 6]
The District Court ordered the action to proceed as a class
action under Fed.Rules Civ. Proc 23(b)(1) and (2), and also allowed
the city of Detroit to intervene as a plaintiff.
[
Footnote 7]
The petition for a writ of certiorari also presented the
question whether a suit to compel the allotment of the sums in
issue here is barred by the doctrine of sovereign immunity, but
that issue was not briefed, and apparently has been abandoned. The
Administrator concedes that, if § 205(a) requires allotment of the
full amounts authorized by § 207, then "allotment is a ministerial
act, and the district courts have jurisdiction to order that it be
done." Brief for Petitioner 14.
[
Footnote 8]
On July 12, 1974, while this case was pending in this Court, the
Congressional Budget and Impoundment Control Act of 1974, Pub.L.
93-344, 88 Stat. 297, 31 U.S.C. § 1301
et seq. (1970 ed.,
Supp. IV), became effective. Title X of that Act imposes certain
requirements on the President in postponing or withholding the use
of authorized funds. If he determines that certain budget authority
will not be required to carry out a particular program and is of
the view that such authority should be rescinded, he must submit a
special message to Congress explaining the basis therefor. For the
rescission to be effective, Congress must approve it within 45
days. Should the President desire to withhold or delay the
obligation or expenditure of budget authority, he must submit a
similar special message to Congress. His recommendation may be
rejected by either House adopting a resolution disapproving the
proposed deferral.
These provisions do not render this case moot, or make its
decision unnecessary, for § 1001, note following 31 U.S.C. § 1401
(1970 ed., Supp. IV), provides that:
"Nothing contained in this Act, or in any amendments made by
this Act, shall be construed as --"
"
* * * *"
"(3) affecting in any way the claims or defenses of any party to
litigation concerning any impoundment."
The Act would thus not appear to affect cases such as this one,
pending on the date of enactment of the statute. The Solicitor
General, on behalf of the Administrator, has submitted a
supplemental brief to this effect. The city of New York agrees that
the case has not been mooted by the Impoundment Act, and no
contrary views have been filed.
Although asserting on the foregoing ground and on other grounds
that the Impoundment Act has no application here, the Executive
Branch included among the deferrals of budget authority reported to
Congress pursuant to the new Act:
"Grants for waste treatment plant construction ($9 billion).
Release of all these funds would be highly inflationary,
particularly in view of the rapid rise in non-Federal spending for
pollution control. Some of the funds now deferred will be allotted
on or prior to February 1, 1975."
In connection with that submission, the President asserted that
the Act "applies only to determinations to withhold budget
authority which have been made since the law was approved," but
nevertheless thought it appropriate to include in the report
actions which were concluded before the effective date of the Act.
120 Cong.Rec. S17195 (Sept. 23, 1974). Other than as they bear on
the possible mootness in the litigation before us, no issues as to
the reach or coverage of the Impoundment Act are before us.
[
Footnote 9]
Section 205 as it appeared in the Senate bill directed the
Administrator to "allocate", rather than to "allot." The difference
appears to be without significance.
[
Footnote 10]
The Act declares that "it is the national goal that the
discharge of pollutants into the navigable waters be eliminated by
1985," § 101(a)(1), 33 U.S.C. § 1251(a)(1) (1970 ed., Supp. III).
Congress intended also to apply to publicly owned sewage treatment
works "the best practicable waste treatment technology over the
life of the works consistent with the purposes of this subchapter."
§ 201(g)(2)(A), 33 U.S.C. § 1281(g)(2)(A) (1970 ed., Supp. III).
See § 301(b)(1)(b), 33 U.S.C. § 1311(b)(1)(b) (1970 ed.,
Supp. III). The congressional determination to commit $18 billion
during the fiscal years 1973-1975 is reflected in the following
remarks of Senator Muskie, the Chairman of the Senate Subcommittee
concerned with the legislation and the manager of the bill on the
Senate floor:
"[T]hose who say that raising the amounts of money called for in
this legislation may require higher taxes, or that spending this
much money may contribute to inflation, simply do not understand
the language of this crisis."
"The conferees spent hours and days studying the problem of
financing the cleanup effort required by this new legislation. The
members agreed, in the end, that a total of $18 billion had to be
committed by the Federal Government in 75-percent grants to
municipalities during fiscal years 1973-75. That is a great deal of
money, but that is how much it will cost to begin to achieve the
requirements set forth in the legislation."
"
* * * *"
". . . [T]here were two strong imperatives which worked together
to convince the members of the conference that this much money was
needed: first, the conviction that only a national commitment of
this magnitude would produce the necessary technology; and second,
the knowledge that a Federal commitment of $18 billion in
75-percent grants to the municipalities was the minimum amount
needed to finance the construction of waste treatment facilities
which will meet the standards imposed by this legislation."
"
* * * *"
"Mr. President, to achieve the deadlines we are talking about in
this bill, we are going to need the strongest kind of evidence of
the Federal Government's commitment to pick up its share of the
load. We cannot back down, with any credibility, from the kind of
investment in waste treatment facilities that is called for by this
bill. And the conferees are convinced that the level of investment
that is authorized is the minimum dose of medicine that will solve
the problems we face."
118 Cong.Rec. 33693-33694 (1972).
Both Houses rejected authorization-appropriation funding in
favor of the contract-authority system, which was deemed to involve
a more binding and reliable commitment of funds.
See 117
Cong.Rec. 38799, 38846-38853 (1971); 118 Cong.Rec. 10751-10761
(1972). Congressman Harsha, the House floor manager of the bill,
explained the preference for the contract-authority approach, and
indicated that it was essential for orderly and continuous
planning.
Id. at 10757-10758.
[
Footnote 11]
The Administrator goes on to argue that, under his present view
of the Act, there is little, if any, difference between discretion
to withhold allotments and discretion to refuse to obligate, for,
under either approach, the full amounts authorized will eventually
be available for obligation. The city of New York contends
otherwise Our view of the Act makes it unnecessary to reach the
question.
[
Footnote 12]
The Administrator now indicates that the Act is presently being
administered in accordance with his view of the Act asserted here.
Brief for Petitioner 13.
[
Footnote 13]
Under § 205(b), any funds allotted to a State that remain
unobligated at the end of a one-year period after the close of the
fiscal year for which funds are authorized become available for
reallotment by the Administrator in accordance with a formula to be
determined by the Administrator. These provisions for reallotment,
as well as the reallotment formula, plainly apply only to funds
that have already been allotted.
[
Footnote 14]
Senator Muskie, who was the senior majority conferee from the
Senate, gave his view of the meaning of the Harsha amendments on
the floor of the Senate:
"Under the amendments proposed by Congressman William Harsha and
others, the authorizations for obligational authority are 'not to
exceed' $18 billion over the next 3 years. Also, 'all' sums
authorized to be obligated need not be committed, though they must
be allocated. These two provisions were suggested to give the
Administration some flexibility concerning the obligation of
construction grant funds."
118 Cong.Rec. 33694 (1972). He repeated his views in the course
of Senate proceedings to override the President's veto.
Id. at 36871. Nothing was said in the Senate challenging
the Senator's view that executive discretion did not extend to
allotments.
In the House, the power to make allotments under § 205 was not
mentioned in terms. The impact of the Harsha amendments was
repeatedly explained by reference to discretion to obligate or to
expend. Typical was Representative Harsha's remarks that the
amendments were intended to "emphasize the President's flexibility
to control the rate of spending . . . ," and that "the pacing item"
in the expenditure of funds was the Administrator's power to
approve plans, specifications, and estimates.
Id. at
33754.
See also id. at 33693, 33704, 33715-33716,
33754-33755, 36873-36874, 37056-37060.
[
Footnote 15]
161 U.S.App.D.C. 114, 494 F.2d 1033 (1974),
aff'g 358 F.
Supp. 669 (DC 1973). Other District Courts have reached this
same result:
Ohio ex rel. Brown v. Administrator, EPA,
Nos. C. 73-1061 & C. 74-104 (ND Ohio June 26, 1974);
Maine
v. Fri, Civ. No. 14-51 (Me. June 21, 1974);
Florida v.
Train, Civ. No. 73-156 (ND Fla. Feb. 25, 1974);
Texas v.
Ruckelshaus, No. A-73-CA-38 (WD Tex. Oct. 2, 1973);
Martin-Trigona v. Ruckelshaus, No. 72-C-3044 (ND Ill. June
29, 1973);
Minnesota v. EPA, No. 4-73, Civ. 133 (Minn.
June 25 1974). The only District Court case in which the issue was
actively litigated and which held to the contrary was
Brown v.
Ruckelshaus, 364 F.
Supp. 258 (CD Cal.1973).