(a) As the first step, an outside limit of funds is "authorized" by the Congress. That sum is $5 billion for fiscal year 1973 and $6 billion for fiscal year 1974.

(b) As the second step, the Acts requires the Administration to “allot” that sum among the states according to a specified formula found at (§ 205(a) of the Act). It is the part of the process which is the subject of this lawsuit.

(c) After the authorized sums are allotted to the several states, state and local public agencies may apply for grants from the sums allocated pursuant to the terms of the Act. At this stage, the Administrator has wide discretion as to the approval of specific projects (see §§ 201(g), 203(a), and 204 of the Act). 10. That portion of the Act which establishes the ministerial duty of the Administrator to make allotments provides as follows:

"Sums authorized to be appropriated pursuant to Section 207 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 the date of enactment of the Federal Water Pollution Control Act Amendments of 1972. Such sums shall be allotted among the S'ates by the Administrator in accordance with regulations promulgated by him, in the ratio that the estimated cost of constructing all needed publicly owned treatment works in each State bears to the estimated cost of construction of all needed publicly owned treatment works in all of the States. For fiscal years ending June 30, 1973, and June 30, 1974, such ratio shall be determined on the basis of Table III of House Public Works Committee Print No. 95–50. Allotments for fiscal years which begin after the fiscal year ending June 30, 1974 shall be made only in accordance with a revised cost estimate made and submitted to Congress in accordance with Section 516(b) of this Act and only after such revised cost estimate shall have been approved by law specifically enacted hereafter." (emphasis added). Section 205 (a)

11. (a) The authorization for appropriations in the amount of $5 billion and $6 billion for the fiscal years 1973 and 1974, is found in Section 207 which provides:

"There is authorized to be appropriated to carry out this title other than Seetions 208 and 209 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.”

(b) Under Section 205(a) and 207 of the Act the Administrator is required to allot among the states $5 billion for the fiscal year 1973 and 86 billion for the fiscal year 1974. No provisions of the Act or of any other law affords the Administrator discretion to reduce these allotments, whether by direction of the President or otherwise.

VI. UNLAWFUL ACTS

12. In breach of his ministerial duty to "allot" funds as required by Section 205(a) of the Act, the Administrator failed and refused to allot the sums therein authorized for fiscal year 1973 and 1974 prior to January 1, 1973, as specified in the Act.

13. Contrary to the provisions of law, the Administrator, by regulation promulgated and effective on December 8, 1972. allotted among the states for the fiscal years 1973 and 1974 "sums not to exceed $2 billion and $3 billion, respectivelv (Reg. $35.910–(1) (a), 37 Fed. Reg. 26282 (1972).) instead of the $5 billion and $6 billion required by the Act.

14. In doing so, the Administrator stated he did so pursuant to a letter dated November 22, 1972, in which the President directed the Administrator to so act and to withhold a portion of the allotments mandated by the Act. That letter says in relevant part:

I stated (in my veto message) that even if the Congress were to default its obligation to the taxpayers through enactment of this legislation. I would not default mine. Under these circumstances, I direct that you not allot among the States the maximum amounts provided by Section 207 of the Federal Water Pollution Control Act Amendments of 1972. No 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 should be allotted."

15. In refusing to perform his duties under the Act, defendant Ruckelshaus acted in breach of the Act and contrary to the provisions of Article I of the Constitution of the United States, which provides that Congress shall have the power to establish policy, pass laws and appropriate funds and Article II, Section 3 of the Constitution which provides that the President (and the officers acting under him) shall "take care that the laws be faithfully executed".

16. As a result of these reduced allotments, the amounts allotted to the State of California for grants to the state and its municipalities were $196 million and $294.5 million for the fiscal years 1973 and 1974, respectively, instead of the $490.8 million and $589 million required by the Act. (Reg. § 35.910-(1) (a), 37 Fed Reg. 26282 (1972).).

VII-INJURY

17. The Administrator's refusal to allot the sums authorized by Section 207 directly injures plaintiffs because it permanently withdraws from availability in California and San Bernardino County large portions (60% in fiscal 1973 and 50% in fiscal 1974) of the obligational authority conferred upon him by Congress. As a direct and proximate result thereof, the State of California and San Bernardino County will reduce the number of treatment work projects to be constructed.

18. Section 205(b)(1) of the Act provides that any sums allotted to a state pursuant to Section 205 (a) "shall continue available for obligation in such state for a period of one year after the close of the fiscal year for which such sums are authorized." Section 205(b) (1) further provides that at the end of such one-year period, sums allotted to a state which remain unobligated shall be immediately reallotted among the states by the Administrator. Such reallotments are to be in addition to any other allotments made to the states. Thus, Section 205(b) (1) creates a mechanism to make allotted sums continually available, until obligated, to fund federal grants for treatment works. The Administrator's refusal to allot the full amount of the sums authorized by Section 207 permanently removes such unallotted sums from the operation of the statutory mechanism for continual funding. Plaintiffs are injured by the Administrator's action because they are forever denied the benefits which would flow from the availability of such unallotted sums for federal grants.

19. The allotment amounts and distribution formula set forth in Section 205 (a) of the Act were based on a Congressional conclusion as to the current needs of all states and municipalities. As a further result of the Administrator's illegal reduction of allotments, some treatment works that the Congress has determined are needed in San Bernardino County and elsewhere in the State of California will not be constructed.

20. To the extent that the Administrator's illegal reduction of sums allotted results in needed treatment works not being built, the waters in the affected areas will continue to deteriorate, and the plaintiff will remain deprived of the environmental and recreational benefits that Congress intended to secure by passage of the Act.

Wherefore, plaintiffs seek judgment herein :

(a) Adjudging and declaring that Section 205 (a) of the Act requires the Administrator to allot among the states $5 billion and $6 billion for the fiscal years 1973 and 1974, respectively; and

(b) Ordering the Administrator to revise the allotments he already has made, to comply with Section 205(a), for the fiscal years ending June 30, 1973 and June 30, 1974, and to make said allotments in the amount of $5 billion for the fiscal year ending June 30, 1973 and $6 billion for the fiscal year ending June 30, 1974; and

(c) Such other and further relief as this Court may deem just and proper. Dated: January 26, 1973.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

COMPLAINT CIVIL ACTION NO. 72-740

SOUTH CAROLINA STATE HIGHWAY DEPARTMENT

PLAINTIFF

v.

JOHN A. VOLPE, Secretary of Transportation, and CASPAR W. WEINBERGER,
Director, Office of Management and Budget

DEFENDANTS

The plaintiff, South Carolina State Highway Department, files its Complaint and requests for a declaratory judgment, in support thereof respectfully stating:

1. That jurisdiction in this cause is vested in this Court under Section 1391 of Chapter 87, Title 28, United States Code, it being a civil action against an officer of the United States acting in his official capacity and is being brought in the District of South Carolina, which is the legal residence of plaintiff, South Carolina State Highway Department. Jurisdiction is vested by Section 7.06 of Title 5, United States Code, and by reason of Section 1361 of Title 28, United States Code, in that this is an action to require the defendant Volpe to perform a duty owed to the plaintiff and by Section 2201 of Title 28, United States Code. 2. That plaintiff, South Carolina State Highway Department, is a state agen of the State of South Carolina, existing under the Constitution and laws of said State and vested with authority to sue with respect to those matters under its jurisdiction.

3. That under the Constitution and laws of the State of South Carolina and under Title 23 of the United States Code, plaintiff, South Carolina State Highway Department, is charged with the responsibility for highway construction within the State of South Carolina and with all phases of the Federal-Aid Highway Program involving said State, including the responsibility for receiving an expenditure of all funds allocated, apportioned, appropriated, and received by law as federal aid or reimbursement for highway construction.

4. That the defendant John A. Volpe, as Secretary of Transportation, is the official charged by congressional enactments, as reflected by currently applicable statutes under Title 23 of the United States Code, with apportionment to the State of South Carolina and other states of all funds made available by the Con gress for highway construction by federal law. Construction as used in the said laws and as interpreted by both state and federal agencies involved includes sums used for engineering, for acquisition of right-of-way, and for actual construction, and said term is used in its broad sense in this Complaint.

5. That Public Law 627 of the 84th Congress directed the construction of a System of Interstate and Defense Highways, and the Federal-Aid Highway Act of 1956 and said Public Law 627 created a "Highway Trust Fund" from which rein bursement to the states, including this plaintiff, was to be effected until said Interstate System was completed, and said fund was also to be used to meet requirements with respect to the Federal-Aid Highway Program generally, includ ing the Primary, Urban, and Supplementary Systems as defined by law and as recognized in the State of South Carolina.

6. That Subsection (g) of Section 209 of Public Law 84-627 provided that the Secretary of Commerce (whose rights, powers, duties, and obligations are now vested in the Secretary of Transportation, the defendant Volpe) apportion to the states those amounts which will be available in the Highway Trust Fund to which the respective states will be entitled for the respective fiscal years. Subsection (g) further provides that any funds so apportioned shall be available and remain available for expenditure until the close of the third fiscal year following that in which apportioned.

7. That in accordance with said law, the defendant John A. Volpe and his predecessor in office (including the Secretary of Commerce) have made to the states and to plaintiff apportionments from time to time since the passage and effe tive date of said act and that such apportionments were as prescribed by law. 8. That notwithstanding the apportionments aforesaid made at various times and in accordance with law, the defendant Volpe has deprived plaintiff of the full use of said apportionments and has prevented plaintiff and the other states of the United States receiving federal highway aid from establishing and maintaining reasonable, orderly, and sustained highway programs as will hereinafter appear. The plaintiff further states that the defendant Volpe has allegedly been advised and encouraged by the defendant Casper W. Weinberger, as Director of the Office of Management and Budget, in the course of action concerning which Complaint is made.

9. That the acts and unlawful orders complained of by plaintiff are as

follows:

(a) That on about August 30, 1965, highway funds were apportioned to all states in the amount of 4 billion dollars, which said funds were immediately available for obligation, but the then Secretary of Commerce imposed "contract controls" arbitrarily and without authority of law and restricted amounts avail able for obligation to all states, including South Carolina, on a pro rata basis

as follows:

1. On October 8, 1965, there was released nationwide the sum of 1 million dollars. On January 3, 1966, there was released nationwide the sum of 1 billion dollars. On April 14, 1966, there was released 1 billion dollars, so that

for the remainder of said fiscal year, there was withheld the sum of 1 billion dollars for the fiscal year 1965-1966, and there was thereafter, on July 11, 1966, after the close of the fiscal year, June 30, 1966, a release of 1 billion dollars. 2. On October 7, 1966, there was apportioned to all states 4.4 billion dollars and, on the same date, by "contract control," there was released the right to obligate nationwide 1 billion dollars in lieu of one-fourth of the 4.4 billion dollars apportioned. Thereafter, on November 23, 1966, unobligated reimbursable obligation authority was "frozen." At the same time, a 10 per cent "holdback" on the release of July 11, 1966, was issued, so that $100,000,000 of apportioned obligation authority was withdrawn from the states. This served to restrict the obligational authority nationwide by $1,100,000,000 rather than the 4.4 billion dollars apportioned. On January 1, 1967, the Secretary released a balance of 750 million dollars. On March 1, 1967, the Secretary released for obligation $175,000,000 with certain restrictions. Twenty days later, those same restrictions were rescinded, March 21, 1967. On April 1, 1967, the Secretary released nationwide 750 million dollars and, later the same day, released an additional 350 million dollars. On April 10, 1967, the Secretary released one-half of the funds being held back by him, which amounted to 515 million dollars thereby making a total release during fiscal year 1966-1967 of $3,310,614,766 in lieu of the 4.4 billion dollars authorized and apportioned.

3. That thereafter, on July 1, 1967, the Secretary released an additional 515 million dollars and thereafter, on the same day, released an additional $1,100,000.000, so that the shortage for all states for obligational authority as opposed to apportionment was $474,385,234 from the 4.4 billion dollars apportioned.

4. That on August 29, 1967, there was apportioned $4,800,000,000 for all states and on October 1, 1967, there was released for obligation $1,100,000,000. On January 1, 1968, there was released an additional $1,100,000,000. On January 23, 1968, there was released for all states $751,750,000, making the "frozen" unobligated funds $1,001,957,242 and for which the states, including this plaintiff, could not enter into agreement.

5. That on July 1, 1968, by "contract control," there was released for the last of calendar year 1968 the sum of $2,263,250,000, but on September 6, 1968, the Secretary declared a cutback of funds involving projects to be advertised after September 12, 1968, causing a freeze on $1,246,701,000 and a total withdrawal from apportioned funds up to said time in the amount of $2,966,341,758 for all states.

6. That on October 31, 1968, there was apportioned to all states the sum of $5,425,000,000, but, by the imposition of "contract controls," there was released to all states on the date shown the following amounts: December 1, 1968, $120,000.000; January 1, 1969, $600,000,000; February 1, 1969, $600,000,000; March 1, 1969, $600,000,000; April 1, 1969, $600,000,000; May 1, 1969, $600,000,000: and June 1, 1969, 632,451,000 or a total release for the period ending July 1, 1969, of $4,769,000,000, and on June 26, 1969, the Secretary declared that any funds available were withdrawn, which "froze" nationwide $111,000,000.

7. On July 1, 1969, by "contract controls," the Secretary released $1,260,000,000. On October 27, 1969, by "contract controls," the Secretary released an additional $1.260,000,000, so that on said date, there was being withheld nationwide $1,571,592,476 and which amount the states were authorized to obligate. On December 15, 1969, the Secretary of Transportation apportioned funds in the amount of $5,425,000,000 to all states and, on January 1, 1970, by a "contract control," released $1,260.000,000 for all states. On April 1, 1970, the Secretary released $1,264,000,000 and, on April 24, 1970, the Secretary released only $380,$45.000 for the remainder of the fiscal year. Total amount released in fiscal year 1970, therefore, came to $5,424,845.000 nationwide and, on July 17, 1970, the carryover balances of fiscal year 1970 which were unobligated were withdrawn. 8. On July 30, 1970, there was issued a directive to the Secretary's employees to limit the obligation of the State of South Carolina for the next fiscal year to $45,800,000 regardless of apportionments; that the plaintiff herein was entitled to a pro rata share of all apportionments indicated hereinabove, and each and every special order described herein directly affected the right of the State of South Carolina to plan, program, and contract for highway work with federal aid. In certain instances, the plaintiff had to wait until special "contract control" directives were issued in order to enter upon the planning stage, the right-of-way acquisition stage, or the actual construction stage of projects then Current and pending: that the unlawful and authorized reductions indicated required plaintiff in each instance to reassess the values of projects with which it was then concerned as to priority and as to the amount of available funds, all

of which wrongful acts on the part of the Secretary breached his duty to plaintiff and were unlawful, arbitrary, capricious, and discriminatory.

9. That on July 30, 1970, the defendant Volpe issued the directive which permitted certain favored states to carry over certain balances which he prescribed and which did not fairly represent the apportionments carried over for a period of the two preceding fiscal years and to which all states were respectively eztitled. At said time, the carry-over balance of South Carolina was actually approximately $376,000, whereas South Carolina was permitted to carry over $188,000.

10. That after the commencement of his suit, the Secretary of Transportation issued a directive under date of December 31, 1970, by which South Carolina was apportioned $41,839,342.

11. On April 26, 1971, the Secretary advised all states of the amount which they would be permitted to obligate during the fiscal year 1972 and which shows that South Carolina will be permitted to obligate $36.300.000 rather than the $45,800,000 to which it is lawfully entitled. Said communication also states that "there will be no 1971 obligation authority carried forward into fiscal year 1972 on a State-by-State basis," which said order while apparently ending the discrimination complained of with respect to the July 30, 1970, directive does deprive this plaintiff of its rights under Section 209, supra, and Section 118 of Title 23 of the United States Code by which all apportioned balances carry over into succeeding fiscal years.

12. That all the said acts on the part of the Secretary, except for the respier tive apportionments made in accordance with law and direction of the Congress, were arbitrary, capricious, without authority, and have served to hinder and delay plaintiff in its receipt of Federal-Aid Funds and in the planning and execution of its highway program and have greatly increased the cost to the taxpayers of the State and of the United States for the construction of highways since the imposition of "contract controls" and have delayed the interstate program more than five years beyond the date originally fixed for its completion by the Congress, which said end could have been achieved except for the unlawful and arbitrary acts of the Secretary aforesaid.

13. That although there remains due the plaintiff under existing apportionments an unobligated balance of $24,934,714.53 which was available to plaintif on January 1, 1971, although nominally for the fiscal year 1972 which the defendant Volpe refuses to permit the plaintiff to obligate until such time as the defendant Volpe may forward some unlawful and arbitrary order of “contract control" document and in spite of the fact that there is now a request of plaintiff in the hands of the Division Engineer of the Federal Highway Administration which is otherwise acceptable; that said arbitrary and unlawful act on the part of the defendant Volpe is preventing the plaintiff, South Carolina State Highway Department, from pursuing its previously arranged highway construction schedule and by reason of delay will require additional funds in order to carry out the contemplated projects.

14. That unless this Court enter its declaratory judgment defining the rights of plaintiff and placing a limitation on the acts and orders of the defendant Volpe, the State of South Carolina and other states similarly situated will suffer irreparable loss and have no other adequate remedy.

For the above and foregoing reasons, the plaintiff, South Carolina State Highway Department, on its behalf and on behalf of all states of the United States. respectfully requests that this Court find, declare and determine as follows: 1. That the authority of the Secretary with respect to apportionments to the states be held to be limited to that set forth in Subsection (g) of Section N of Public Law 92-627 with respect to Interstate Funds and to the current authorizations of the Congress specifically those contained in Sections 105 (a) and 106(a) of the Federal-Aid Highway Act of 1970.

2. That all the purported orders designated as a means for "contract control" or as "limitations of obligation" or which serve to limit the availability of funds as fixed by the apportionments aforesaid be held to be unlawful and arbitrary and that the Secretary be directed to issue no such further orders or limitations except after appropriate delegation of authority to do so by the Congress as evidenced by a change in existing laws.

3. That the only lawful limitation on the right of the states to obligate funds apportioned to them be as prescribed in Section 118 of Title 23, United States