Whether Subsection 104(b)(4) of the Clean Air Act Permits the Receipt of Monetary Donations ( 2009 )

WHETHER SUBSECTION 104(b)(4) OF THE CLEAN AIR ACT PERMITS THE
RECEIPT OF MONETARY DONATIONS
Subsection 104(b)(4) of the Clean Air Act does not permit the EPA to accept and use donations of
money.
Subsection 104(b)(4) of the Clean Air Act permits the EPA to accept items of personal property
(other than money), such as an automobile, so long as the property in question would be received for use
directly in the anti-pollution research authorized by section 104.
December 8, 2009
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
ENVIRONMENTAL PROTECTION AGENCY
Subsection 104(b)(4) of the Clean Air Act authorizes the Administrator of the
Environmental Protection Agency (“EPA”) to “acquire” various kinds of property by various
means, including “donation,” to further research relating to the “prevention and control of air
pollution resulting from the combustion of fuels.” 42 U.S.C. § 7404(a) & (b)(4) (2006). You
have asked whether subsection 104(b)(4) permits the EPA to accept and use donations of money.
For the reasons discussed below in part I, we conclude that it does not. You have also asked
whether subsection 104(b)(4) permits the EPA to accept items of personal property (other than
money), such as an automobile. For the reasons given below in part II, we conclude that it does,
so long as the property in question would be received for use directly in the anti-pollution
research authorized by section 104.
I
Section 104 of the Clean Air Act is titled “Research relating to fuels and vehicles.”
It provides, in relevant part, as follows:
(a) Research programs; grants; contracts; pilot and demonstration
plants; byproducts research
The Administrator shall give special emphasis to research and
development into new and improved methods, having industry-wide
application, for the prevention and control of air pollution resulting from
the combustion of fuels. In furtherance of such research and development
he shall—
(1) conduct and accelerate research programs directed toward
development of improved, cost-effective techniques for--
(A) control of combustion byproducts of fuels,
(B) removal of potential air pollutants from fuels prior
to combustion,
(C) control of emissions from the evaporation of fuels,
Opinions of the Office of Legal Counsel in Volume 33
(D) improving the efficiency of fuels combustion so as
to decrease atmospheric emissions, and
(E) producing synthetic or new fuels which, when used,
result in decreased atmospheric emissions.
(2) provide for Federal grants to public or nonprofit agencies,
institutions, and organizations and to individuals, and contracts
with public or private agencies, institutions, or persons . . . ;
....
(b) Powers of Administrator in establishing research and development
programs
In carrying out the provisions of this section, the Administrator may—
(1) conduct and accelerate research and development of cost-
effective instrumentation techniques to facilitate determination of
quantity and quality of air pollutant emissions, including, but not
limited to, automotive emissions;
(2) utilize, on a reimbursable basis, the facilities of existing Federal
scientific laboratories;
(3) establish and operate necessary facilities and test sites at which
to carry on the research, testing, development, and programming
necessary to effectuate the purposes of this section;
(4) acquire secret processes, technical data, inventions, patent
applications, patents, licenses, and an interest in lands, plants, and
facilities, and other property or rights by purchase, license, lease,
or donation; and
(5) cause on-site inspections to be made of promising domestic and
foreign projects, and cooperate and participate in their
development in instances in which the purposes of the chapter will
be served thereby.
(c) Clean alternative fuels
The Administrator shall conduct a research program to identify,
characterize, and predict air emissions related to the production,
distribution, storage, and use of clean alternative fuels to determine the
risks and benefits to human health and the environment relative to those
from using conventional gasoline and diesel fuels. The Administrator shall
consult with other Federal agencies to ensure coordination and to avoid
duplication of activities authorized under this subsection.
42 U.S.C. § 7404 (emphasis added).
In your view, “the word ‘property’ when included in a statute that authorizes agencies
to accept donations, includes funds, money, or cash unless the statute excludes this form of
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Whether Subsection 104(b)(4) of the Clean Air Act Permits the Receipt of Monetary Donations
property from the reach of its gift acceptance authority.” See Letter from Patricia K. Hirsch,
Acting General Counsel, EPA, to Steven G. Bradbury, Principal Deputy Assistant Attorney
General, Office of Legal Counsel (December 15, 2008) at 2 (“EPA December Letter”). You note
that this Office has read the phrase “other property” to include money in at least one instance.
See EPA December Letter at 4 (citing 2 Op. O.L.C. 349, 352 (1977)). Thus, you believe the
phrase “other property” in subsection 104(b)(4) should be understood to include money.
In June 2008, the Office of Management and Budget (“OMB”) conveyed to your office
a contrary position, based in part on what it contended would be the incongruous consequences
that including money within the scope of subsection 104(b)(4) would have in light of the
requirements of the Miscellaneous Receipts Act (“MRA”), 31 U.S.C. § 3302(b) (2006). In
response to OMB’s contentions about the MRA, you argue that subsection 104(b)(4) should be
read as establishing an exception to the MRA. See EPA December Letter at 4-8.
We believe money is not included in the “other property” subsection 104(b)(4) authorizes
the EPA to acquire, but in reaching this judgment we do not believe it is necessary to address the
MRA. Instead, we reach this conclusion simply by examining the language of subsection
104(b)(4). When the phrase “other property” in subsection 104(b)(4) is considered in context,
we believe it is clear that Congress did not intend to include money among the forms of property
that the EPA can acquire for use in the research program authorized by section 104. While an
administrative agency is generally entitled to deference in its interpretation of an ambiguous term
in a statute it is charged with administering, “the question whether a statute is ambiguous arises
after, not before a court applies traditional canons of interpretation—the most important here
being the context in which the word appears.” OfficeMax, Inc. v. United States, 428 F.3d 583,
592 (6th Cir. 2005). As the Supreme Court has explained, “[a]mbiguity is a creature not of
definitional possibilities but of statutory context.” Brown v. Gardner, 513 U.S. 115, 118 (1994);
see Chevron USA, Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 n.9 (1984) (in
determining whether congressional intent is clear courts must “employ[] traditional tools of
statutory construction”); California Indep. Operator Corp. v. FERC, 372 F.3d 395, 400-401
(D.C. Cir. 2004) (rejecting agency’s interpretation, and concluding that “practice” in section 206
of the Federal Power Act is not ambiguous when considered in context). Here, we think
applying traditional tools of statutory construction demonstrates that “other property” in
subsection 104(b)(4) is not ambiguous.
First, Congress has passed many statutes that authorize an agency to receive gifts of
“money” in addition to authorizing the agency to receive gifts of “property.” See, e.g., 10 U.S.C.
§ 2601(a) (2006) (authorizing the Secretary of Defense or Homeland Security to “accept, hold,
administer, and spend any gift, devise, or bequest of real property, personal property, or
money”); 22 U.S.C. § 2395(d) (2006) (authorizing the President to accept “gifts, devises,
bequests, grants, etc.” of “money, funds, property, and services of any kind”); 22 U.S.C.
§ 2455(f) (2006) (authorizing the President to accept and use contributions of “funds, property,
and services”); 22 U.S.C. § 5422(c)(1) (2006) (authorizing the Secretary of Labor to accept
“any money or property, real, personal, or mixed, tangible or intangible, received by gift, devise,
bequest, or otherwise”); 29 U.S.C. § 568 (2006) (authorizing the Secretary of Labor to accept
and employ “any money or property, real, personal, or mixed, tangible or intangible, received by
gift, devise, bequest, or otherwise”); 29 U.S.C. § 2939(b) (2006) (same); 22 U.SC. § 2056(b)
(2006) (authorizing the Secretary of State to “accept from public and private sources money and
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Opinions of the Office of Legal Counsel in Volume 33
property” as “gifts, bequests, and devises”); 42 U.S.C. § 2476b(a) (2006) (authorizing the
Administrator of the National Aeronautics and Space Administration to “accept gifts and
donations of services, money, and real, personal, tangible, and intangible property”); and 42
U.S.C. § 7705c(a) (2006) (authorizing the Director of the Federal Emergency Management
Agency to “accept and use bequests, gifts, or donations of services, money, or property”).
These statutes, by specifically referencing “money” in addition to “property,” demonstrate
that Congress does not assume that the term “property” necessarily includes money or funds.
Moreover, even when Congress uses a general term, such as “any property,” to
characterize the types of property that an agency may receive, it sometimes spells out in a related
statutory provision that money is among the types of property the agency may receive. See, e.g.,
28 U.S.C. § 524(d)(1) & (2) (2006) (authorizing the Attorney General to “accept, hold,
administer, and use gifts, devises, and bequests of any property or services,” and subsequently
specifying how “[g]fits, devises, and bequests of money” shall be deposited in the Treasury and
appropriated); 7 U.S.C. §§ 2264 & 2265 (2006) (authorizing the Secretary of Agriculture to
“accept, receive, hold, and administer on behalf of the United States gifts, bequests, or devises
of real and personal property . . . for the benefit of the National Agricultural Library,” and
subsequently specifying how “[a]ny gift of money accepted pursuant to the authority” shall be
deposited in the Treasury and appropriated). These statutes show both that Congress has more
than one way to indicate expressly that money is among the types of “property” that an agency
may receive, and that the meanings of general terms such as “any property,” “other property,”
or “property” need to be discerned by considering the surrounding statutory context.
This is not to say that Congress must expressly state in a gift acceptance provision or a
related provision that money is among the types of property an agency may accept by donation
in order for money to be included. Our 1977 opinion addressing the gift acceptance provision
formerly codified at 40 U.S.C. § 298a (1976) (and now codified at 40 U.S.C. § 3175 (2006))
concluded that if Congress employs the term “property” in a context that indicates that its
meaning is expansive enough to encompass money, an explicit invocation of the terms “money”
or “funds” may not be necessary. 2 Op. O.L.C. at 352. But Congress’s inclusion of an explicit
reference to money in numerous statutes that also use the term “property” undermines, in our
view, the position that “the word ‘property’ when included in a statute that authorizes agencies to
accept donations, includes funds, money, or cash unless the statute excludes this form of
property.” EPA December Letter at 2.
Second, the immediate statutory context of the phrase “other property” in subsection
104(b)(4) indicates that it does not include money. See, e.g., King v. St. Vincent’s Hosp., 502
U.S. 215, 221 (1991) (“the meaning of statutory language, plain or not, depends on context”); id.
(“Words are not pebbles in alien juxtaposition; they have only a communal existence; and not
only does the meaning of each interpenetrate the other, but all in their aggregate take their
purport from the setting in which they are used.”) (quoting NLRB v. Federbush Co., 121 F.2d
954, 957 (2d Cir. 1941) (L. Hand, J.)). Section 104 is not a general gift acceptance provision that
permits an agency to accept donations for any authorized purpose. See, e.g., 29 U.S.C. § 568
(2006) (titled “Acceptance of donations by Secretary” and providing that “[t]he Secretary of
Labor is authorized to accept, in the name of the Department of Labor, and employ or dispose of
in furtherance of authorized activities of the Department of Labor, during the fiscal year ending
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Whether Subsection 104(b)(4) of the Clean Air Act Permits the Receipt of Monetary Donations
September 30, 1995, and each fiscal year thereafter, any money or property, real, personal, or
mixed, tangible or intangible, received by gift, devise, bequest, or otherwise”). Rather, it permits
acquisition of property only in order to facilitate a particular activity, namely, research to control
air pollution resulting from the combustion of fuels. And consistent with that focused purpose,
the words preceding “other property” in subsection 104(b)(4) indicate a limitation on the forms
of property that may be “acquire[d]” pursuant to that subsection. 1
The subsection states that the Administrator may acquire “secret processes, technical
data, inventions, patent applications, patents, licenses, and an interest in lands, plants, and
facilities.” These detailed specifications would be unnecessary if the subsequent phrase “other
property” was intended to include all types of property, including money. The list instead is best
read to illustrate the types of property that may be received, types that are all distinguishable
from money. Consistent with this purpose, the list that precedes the phrase “other property or
rights” is narrowly focused on tools useful in research—various forms of intellectual property
as well as space and facilities. Money, although always generally useful, is not in and of itself
a research tool in the way that intellectual property—the specified “secret processes, technical
data, inventions, patent applications, patents licenses”—and physical space and equipment—
“an interest in lands, plants, and facilities”—are in and of themselves research tools.
This interpretation of subsection 104(b)(4) is reinforced by the canon of statutory
construction ejusdem generis, which instructs that where “general words follow specific words
in a statutory enumeration, the general words are construed to embrace only objects similar in
nature to those objects enumerated by the preceding specific words.” Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 114-115 (2001) (internal quotation marks omitted) (quoting 2A N. Singer,
Sutherland on Statutes and Statutory Construction § 47.17 (1991)). For example, in Washington
State Department of Social & Health Services v. Keffeler, the Supreme Court determined that the
statutory phrase at issue, “other legal process,” had to be read narrowly due to the words that
preceded it. 537 U.S. 371, 383-84 (2003). Keffeler concerned the legality of a Washington State
scheme whereby, for children under the State’s foster care, the state credited Social Security
benefits received on behalf of each of those children to a special account, and debited that
account to pay foster care providers. Federal law protected those Social Security benefits from
“execution, levy, attachment, garnishment, or other legal process.” 42 U.S.C. § 407(a); id.
§ 1383(d)(1). The question before the court was whether “other legal process” covered
Washington State’s scheme. The Court concluded that it did not, even though the phrase at
issue, “in the abstract,” encompassed the contested activity. Keffeler, 537 U.S. at 383-84
(“[T]he case boils down to whether the department’s manner of gaining control of the federal
funds involves ‘other legal process,’ as the statute uses that term. That restriction to the statutory
usage of ‘other legal process’ is important here, for in the abstract the department does use legal
process as the avenue to reimbursement.”). The Court found that “other legal process” needed to
be read “far more restrictively” because it was limited by the terms that preceded it, “execution,
levy, attachment, garnishment.” Id. at 384-85. The Court looked at those preceding terms,
identified a unifying theme, and read “other legal process” to mean “process much like the
1
We are aware of two other statutes in the U.S. Code with the same phrasing as subsection 104(b)(4), both
of which, like section 104, authorize scientific research on a particular subject. See 7 U.S.C. §§ 178g, 178h (2006).
These statutes are administered by the Departments of Agriculture and Commerce. The General Counsel’s Offices
in both of those departments have informed us that they are unaware of either department acquiring any property
under these statutes.
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processes of execution, levy, attachment, and garnishment, and at a minimum . . . requir[ing]
utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one,
by which control over property passes from one person to another in order to discharge or secure
discharge of an allegedly existing or anticipated liability.” Id. at 385.
Applying the ejusdem generis canon to subsection 104(b)(4) supports the conclusion
that “other property” does not include money. Like “other legal process,” the term at issue in
Keffeler, “other property” in subsection 104(b)(4) could, “in the abstract,” shorn of context,
encompass the contested thing. But nothing in the list that precedes “other property” looks
anything like money. Instead, each item in the list that precedes it could be classified as a tool
that the Administrator might need to acquire for direct use in research. There is no item on the
list, for example, of general value, which might indicate that “other property” should encompass
property not directly useful in research but indirectly useful as a funding source.
To be sure, subsection 104(b)(4) includes “donation” as one of the allowable ways of
obtaining something useful in the authorized research. And, in the abstract, money may be
received by donation. But we do not read the word “donation,” in context, to indicate an
expansive meaning of the term “other property.” The word “donation,” like the term “other
property,” does not stand alone. It appears in a list of specified means of acquisition that is
exhaustive. That list reinforces our conclusion that the illustrative examples that precede “other
property” indicate that money was not intended to be among the things that could be accepted
as a gift. “[P]urchase, license, lease, or donation” are the four ways one can obtain tangible or
intangible personal property, real property, or the rights to use intellectual property. Money
uniquely cannot be purchased, licensed or leased. It would be anomalous to authorize the
Administrator to “acquire” money by “purchase, license,” or “lease.” Thus, the inclusion of the
word “donation” does not indicate that the word “property” should be read to include money.
It is better read to denominate another means by which non-monetary types of property may be
acquired.
In arguing that the term “other property” in subsection 104(b)(4) should be read to
encompass money, your office notes that an earlier opinion by this Office addressing a different
statute’s use of the phrase “other property” could be read to encompass money. EPA December
Letter at 6. A brief examination of the statute at issue in that earlier opinion, however, only
supports our conclusion here.
In 1977, we concluded that 40 U.S.C. § 298a (1976) (now codified at 40 U.S.C. § 3175)
allowed the Administrator of General Services (“GSA”) to accept gifts of money. Our analysis,
in its entirety, was as follows: “The statute applicable to GSA does not expressly mention gifts
of money, but such gifts would appear to be included in the general phrase in 40 U.S.C. § 298a
(1976), ‘gifts of real, personal, or other property.’” 2 Op. O.L.C. 349, 352 (1977). At the time
we wrote that opinion, 40 U.S.C. § 298a was titled “Acceptance of gifts of real, personal, or
other property.” Its entire text was as follows:
The Administrator of General Services, together with the Postmaster
General where his office is concerned, is authorized to accept on behalf of
the United States unconditional gifts of real, personal, or other property in
aid of any project or function within their respective jurisdictions.
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Whether Subsection 104(b)(4) of the Clean Air Act Permits the Receipt of Monetary Donations
Unlike the statutory text surrounding the term “other property” in subsection 104(b)(4),
there is no context to limit the meaning of the term “other property” in former section 298a. On
the contrary, the different preceding phrase in former section 298a, “unconditional gifts of real,
personal,” stands in contrast to the beginning of subsection 104(b)(4). First, it authorizes receipt
of property by only one means, “gifts,” i.e., donation. That is consistent with the inclusion of
money in the forms of property authorized to be accepted and contains none of the limiting
implications of “acquire . . . by purchase, license, lease” in subsection 104(b)(4). Second, the
terms “real” and “personal” are general and encompassing, again unlike the much more specific
types of property interests identified in subsection 104(b)(4), “secret processes, technical data,
inventions, patent applications, patents, licenses, and an interest in lands, plants, and facilities.”
All property, of any kind, is either “real” or “personal,” including money. See, e.g., Black’s Law
Dictionary 1254 (8th ed. 2004) (defining “personal property” as “[a]ny movable or intangible
thing that is subject to ownership and not classified as real property”). 2 Our conclusion that the
phrase “other property” should be interpreted differently in subsection 104(b)(4) and in former
section 298a, then, flows naturally from the starkly different statutory contexts in which the
phrase appears.
We have also examined the legislative history of section 104, but we think it sheds no
light on the question before us. The legislative history contains no discussion of the meaning of
the term “other property,” nor does it address what the drafters meant by their use of the terms
“acquire” or “donation.” As the EPA acknowledges in its December 15, 2008 letter, the
legislative history contains “no specific discussion of what Congress intended by the phrase
‘and other property.’” EPA December Letter at 3. The two places in the legislative history to
which the EPA draws attention in its letter are inconclusive at best, and primarily can be read to
indicate that Congress was focused on empowering the EPA Administrator to obtain the tools
necessary for the relevant research programs, not on validating a general gift or donation statute.
First, the EPA notes that the original Senate Report on the bill that included section 104
stated that “the Secretary is directed to . . . acquire property and rights by various means.” EPA
December Letter at 3 (citing S. Rep. No. 90-403, July 15 1967, at 41). The use of the term
“property” without explanation or elaboration sheds no light on whether it includes money. In a
preceding paragraph, the Report characterizes section 104’s purpose as “requir[ing] the Secretary
to give special emphasis to research into new methods for the control of air pollution resulting
from fuel combustion.” S. Rep. No. 90-403, at 41 (1967). The reference to the Secretary’s
direction to “acquire property and rights by various means” appears in a list of the Secretary’s
obligations “[i]n order to carry out the provisions of this section.” Id. The Secretary “is directed
to conduct research and development of low-cost instrumentation techniques to determine the
quantity and quality of air pollution emissions; make use of existing Federal laboratories;
establish and operate facilities to carry out the research; acquire property and rights by various
means, and cooperate and participate in the development of foreign and domestic projects.” Id.
Every element of this passage indicates that Congress’s focus was on the research itself, and on
the acquisition of the tools necessary to accomplish the research, rather than on the types of
2
In fact, in 2002 Congress amended 40 U.S.C. § 298a to replace “real, personal, or other property” with
the simple term “property” because the phrase “real, personal, or other” was “unnecessary.” H.R. Rep. No. 107-479,
at 57 (2002).
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property the EPA could acquire. No reference is made to donations or gifts. The statement that
the Secretary is directed “to acquire property by various means” demonstrates, at most, that
Congress intended to broadly empower the acquisition of the necessary property, not that
Congress intended such property to include money.
Second, the EPA points to a comment in another Senate Report issued when Congress
amended section 104 to increase appropriations. In that Report, the Committee on Public Works
expresses an expectation that “projects involving cost sharing by industry will account for an
increasing share of the [research and development] program in the months and years ahead,
particularly in the area of prototype testing.” S. Rep. No. 91-286, at 6 (1969). This statement,
like the one in the earlier Senate Report, in no way suggests an intent to enable the EPA
Administrator to receive and use donated funds. Nowhere does the Report state that such
“cost sharing” shall occur by the donation of private funds to the EPA. In fact, other parts of
the Report indicate that such cost sharing would be achieved through the sharing of real and
intellectual property, the kinds of “property” specified in subsection 104(b)(4). For example, the
Report notes that “section 104 allows for the construction and testing of demonstration control
equipment on private property. The consequence is to ease the legal problems associated with
supporting large-scale development and demonstration projects involving construction on private
property. The construction and operation of demonstration plants at industrial sites is often the
best means of making a realistic evaluation of the economic and technical feasibility of new
processes.” Id. at 5. This passage fits with subsection 104(b)(4)’s statement that the
Administrator may “acquire . . . an interest in lands, plants, and facilities.” Similarly, in the
paragraph following the statement about cost-sharing quoted by the EPA, the Report notes that
“[a]greements regarding the handling of proprietary information have been negotiated to pave
the way for evaluation of flue-gas treatment processes developed by Wellman-Lord and the
Monsanto Co.” Id. at 7. This passage fits with subsection 104(b)(4)’s authorization of the
Administrator to “acquire . . . patents, licenses.”
Considering both the immediate context in which “other property” appears in subsection
104(b)(4) and the broader context of other statutes authorizing agencies to accept donations, we
believe Congress did not intend to authorize the EPA to accept monetary donations when it
authorized the acquisition of certain types of property in subsection 104(b)(4).
II
In a follow-up letter, dated May 29, 2009, your office has asked us to address a related
question, whether “other property” in subsection 104(b)(4) includes items of personal property
other than money, such as an automobile. See Letter from Patricia K. Hirsch, Acting General
Counsel, EPA, to David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel
(May 29, 2009) at 1 (“EPA May Letter”). We conclude that it does.
As our discussion in part I indicates, we believe that, under the ejusdem generis canon,
the term “other property” in subsection 104(b)(4) is constrained by the items in the list that
precedes it. While many of those items are forms of intangible property, such as various kinds of
intellectual property, not all of them are. Among the types of property that may be acquired are
“lands, plants, and facilities.” Admittedly, the reference to those forms of property is prefaced
by “an interest in.” 42 U.S.C. § 7404(b)(4). But fee simple ownership is one type of property
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Whether Subsection 104(b)(4) of the Clean Air Act Permits the Receipt of Monetary Donations
interest. And, in any event, as explained above, this list identifies types of property that are all
tools directly useful in executing the anti-pollution research authorized by section 104. In
particular, the term “facilities” is quite broad, and would appear to cover a research lab and
relevant research equipment. Personal property, moreover, may not only be acquired by
donation, but also by purchase, license, or lease. Therefore, we believe that property that would
be used directly in the anti-pollution research authorized by section 104 falls within the scope of
property that can be acquired pursuant to subsection 104(b)(4). With this understanding of the
term “property” in mind, certainly an automobile could fall under the term if, for example, it
were acquired to test its emissions or even if it were acquired to shuttle equipment between
research facilities.
For the foregoing reasons, we conclude that subsection 104(b)(4) of the Clean Air Act
does not authorize the receipt and use of donated money but does authorize the EPA to receive
personal property that does not fall into one of the specifically enumerated categories so long as
it is for use directly to carry out the anti-pollution research authorized by section 104.
/s/
JONATHAN G. CEDARBAUM
Deputy Assistant Attorney General
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