Delaware River Basin Commission v. Bucks County Water & Sewer Authority

*1101BROTMAN, District Judge,

dissenting;

The majority opinion is both thoughtful and scholarly. In my judgment, however, the majority ultimately arrives at an incorrect result. Therefore, I must respectfully dissent.

Initially, it is worthwhile to note that I concur with the majority in the applicability of the rational basis standard of scrutiny. The reasons underlying this deserve brief mention. First, we are concerned here with a purely economic regulation, one that has no effect on any fundamental rights. The sole question before us is who must pay the Commission for water withdrawn from the Delaware.1 Secondly, there can be no contention that the statutory scheme at issue here invidiously discriminates against any suspect class. Surely, the predominantly suburban residents of Bucks County have access to the political process to effect any needed reforms. Cf. United States v. Carotene Prods. Co., 304 U.S. 144, 152 n.4, 58 S.Ct. 778, 783-784 n.4, 82 L.Ed. 1234 (1938); Harzenski & Weckesser, The Case for Strictly Scrutinizing Gender-Based Separate But Equal Classification Schemes, 52 Temp.L.Q. 439, 450-52 (1979). Hence, because a purely economic regulation is at issue and because no suspect class is implicated, the proper standard of scrutiny is that of the rational basis test.2

The rational basis test demands that a statutory or regulatory classification be rationally related to a legitimate governmental end. Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 943, 59 L.Ed.2d 171 (1979). It does not demand that the legislature adopt the best possible or fairest allocation of rights and duties, but merely insists that the legislature act reasonably. As it seems very clear to me that the classification at issue here is a rational one, I would affirm the judgment below. In establishing the Commission and giving it the right to levy charges for withdrawals from the river, Congress decided to respect the existing legal rights of various local entities to withdraw water free of charge. The grandfather clause at issue here was enacted to prevent the Commission from charging municipalities such as Philadelphia and New York for continuing to withdraw water in the quantities they were legally sanctioned to withdraw before the Commission was established. The rationale for this provision is amply explicated in the opinion below:

But it seems entirely expectable for Congress to have elected to distinguish between uses of Basin waters legally sanctioned as of 1961 and uses which would arise and seek legal sanction in the future. Congress may well have supposed that, broadly speaking, the Delaware River and its tributaries met the water use needs of the region as of 1961, and that most Commission projects aimed at enlarged and more equitable water allocation would be geared to meeting needs developing after the effective date of the Compact. A “grandfather clause” exempting from charges those uses previously validated by state law is a reasonable legislative classification wholly consistent with the principles of equal protection.

Delaware Riv. Basin Comm'n v. Bucks Cty. Water & Sewer Auth., 474 F.Supp. 1249, *11021255 (E.D.Pa.1979) (footnote deleted). In brief, at the time the Commission was established, the natural flow of the river was evidently sufficient to meet the needs of the existing users in the amounts they were legally sanctioned to withdraw. Because whatever improvements were later made by the Commission did not benefit these established users, the grandfather clause — exempting these users from charges for withdrawals not in excess of their legal entitlement as of 1961 — was perfectly rational.3 Minnesota v. Clover Leaf Creamery Co., - U.S. -, -, 101 S.Ct. 715, 725-726, 66 L.Ed.2d 659 (1981).

I do not mean to argue that the system adopted is the best or most equitable of all conceivable ways to finance the improvements for the Delaware. Indeed, in my opinion, it would be proper for Philadelphia, a major user of the river’s water, to share the cost of any necessary improvements. However, these are concerns properly addressed to the legislature, not to this Court in its role as guardian of the Constitution. I had thought that equal protection scrutiny of purely economic regulations was finally put to rest some years ago in Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). See also Minnesota v. Clover Leaf Creamery Co.,-U.S.-, -, 101 S.Ct. 715, 725-726, 66 L.Ed.2d 659 (1981); New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam). We must be careful not to open the door towards a return to the era in which courts were all too willing to allow their economic opinions to color their judgments about matters of constitutional law. See, e. g., Hammer v. Dagenhart, 247 U.S. 251, 38 S.Ct. 529, 62 L.Ed. 1101 (1918), overruled, United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941).

Interestingly, the majority stops short of entirely invalidating the grandfather scheme. The holding appears to be that the statute is constitutional insofar as it allows prior users, such as Philadelphia, to continue withdrawing water free of charge up to the amount of water they were actually withdrawing in 1961, when the Compact became effective. The majority merely finds the statute unconstitutional in that it exempts prior users from charges to a slightly greater extent — in an amount that is the lesser of (a) the quantity authorized by a valid State permit issued prior to 1961, (b) the physical capacity of the user’s system to withdraw water at that time, or (c) the total allocable flow at the point of withdrawal. The record does not reveal the precise figures. What is clear, however, is that today’s decision merely invalidates the grandfather clause to a relatively slight degree.4 To my mind, the constitutional guarantee of equal protection does not draw such nice distinctions. That is particularly true with respect to purely economic regulations, such as that present here. The question of the precise scope of the exemption from charges is a matter properly committed to the judgment of the legislature. Accordingly, I would affirm the judgment below.

. Of course, even if the important issue of access to water were involved here, which it is not, we would nonetheless employ minimal scrutiny. Access to water is not the kind of fundamental constitutional right that merits equal protection strict scrutiny. See generally San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Gunther, The Supreme Court 1971 Term— Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972).

. In footnote 11 the majority advances the intriguing idea that administrative agency regulations may deserve more careful scrutiny than statutes adopted by elected legislatures. That idea may have merit in general, but it is inapplicable here. If one compares Commission Resolution 74-6 with Section 15.1(b) of the Compact, it is evident that the resolution directly implements the statutory “grandfather clause.” Indeed, the resolution represents a rather grudging interpretation of the statutory exemption. Thus, to the extent we invalidate the resolution, we also, in effect, invalidate the statute.

. I agree with the majority that it would have been preferable had Congress expressly articulated the purpose(s) of the grandfather clause. However, legislators are very busy people. Thus, it is impractical to insist that Congress provide a justification for every subsection of every statute it passes.

. The assertion that Philadelphia and other pre1961 users have no “reliance interest” in amounts in excess of their actual usage in 1961 is subject to dispute. The Commission’s regulation would only allow free withdrawals to the extent of the user’s pumping capacity in 1961. Obviously, in building their pumping facilities, pre-1961 users legitimately relied on their free access to the Delaware’s water to the extent authorized by existing law.