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

Abstract

When environmental regulators or private citizens seek to enforce CERCLA and RCRA, or state versions of those statutes, federal officials responsible for the federal 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. The Act forbids federal officials to create obligations in excess of appropriations. Hence, a federal facility, it is asserted, cannot enter into a binding, multiyear compliance agreement or consent decree to clean up and properly manage a polluting federal facility. Since appropriations have not been made for two or three years hence, federal officials cannot make meaningful commitments to obey environmental laws then, because the officials do not know if the needed funds will be appropriated.

Are the federal officials correct? Is the Antideficiency Act the trump card that excuses the federal government from apparently enforceable federal and state environmental law? This article suggests not.

After summarizing the Antideficiency Act, the article explores several theories which have been offered to allow federal environmental spending in the absence of an appropriation. The first theory is the exception within the Antideficiency Act itself to allow expenditures without appropriation when such expenditures are “authorized by law.” The second theory involves the ability of the federal government to accept uncompensated volunteer help in remediating facilities. Another potential legal basis for spending unappropriated funds, notwithstanding the Antideficiency Act, relates to “emergency” spending, as the federal government has defined “emergency.”

Two separate applications of separation of powers doctrine, involving first the inherent authority of the President to spend money, and second, the authority the courts to compel the expenditure of money for compliance with court orders, are also discussed. 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 for environmental remediation, even in the absence of Congressional appropriation of funds. Finally, the article suggests some potential sources for funds to comply with federal environmental obligations.

Keywords: Antideficiency act, environmental clean-up

JEL Classification: H50, K42