No. 00-1628
In the Supreme Court of the United States
STATE OF NEBRASKA, EX REL., DON STENBERG,
ATTORNEY GENERAL OF NEBRASKA, PETITIONER
v.
UNITED STATES OF AMERICA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION
BARBARA D. UNDERWOOD QUESTION PRESENTED The Safe Drinking Water Act (SDWA), 42 U.S.C. 300j-7(a) (1994 & Supp.
IV 1998), provides that petitions for review of actions of the Environmental
Protection Agency "pertaining to the establishment of national primary
drinking water regulations * * * may be filed only in the United States
Court of Appeals for the District of Columbia circuit," and that petitions
for review of "any other action of the Administrator" may be filed
"in the circuit in which the petitioner resides or transacts business."
The question presented is whether 42 U.S.C. 300j-7 barred petitioner's
suit in the United States District Court for the District of Nebraska, challenging
the SDWA "as applied" to certain public water systems within Nebraska. In the Supreme Court of the United States No. 00-1628 STATE OF NEBRASKA, EX REL., DON STENBERG, v. UNITED STATES OF AMERICA, ET AL. ON PETITION FOR A WRIT OF CERTIORARI BRIEF FOR THE FEDERAL RESPONDENTS OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-7) is reported at 238
F.3d 946. The opinion of the district court (Pet. App. 8-10) is unreported. JURISDICTION The judgment of the court of appeals was entered on February 1, 2001.
The petition for a writ of certiorari was filed on April 24, 2001. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT 1. The Safe Drinking Water Act (SDWA or Act),
42 U.S.C. 300f et seq., establishes a detailed scheme under which the
responsibility for ensuring the safety of the Nation's drinking water is
shared between the federal government and the States. The Act is implemented
through regulations that are required to be promulgated by the Environmental
Protection Agency (EPA) and enforced by EPA or the States. 42 U.S.C. 300g-1
(1994 & Supp. IV 1998); 40 C.F.R. Pt. 141. States may assume the primary
responsibility for enforcing the SDWA by adopting drinking water regulations
and enforcement controls that "are no less stringent than the national
primary drinking water regulations [NPDWRs]," 42 U.S.C. 300g-2, or
States may leave the responsibility for enforcing the NPDWRs to EPA, 42
U.S.C. 300g-3(a)(2) (1994 & Supp. IV 1998). The SDWA does not of its own force regulate providers of drinking water,
or establish standards or treatment techniques to assure acceptable drinking
water quality. Instead, the Act requires EPA to promulgate primary regulations-NPDWRs-concerning
the "contaminants which, in the judgment of the Administrator, may
have any adverse effect on the health of persons," 42 U.S.C. 300f(1)(B),
as well as certain secondary regulations, 42 U.S.C. 300f(2). NPDWRs must
specify either a maximum level of contaminants that could adversely affect
human health, or a treatment technique for ensuring acceptable drinking
water with respect to a contaminant. 42 U.S.C. 300g-1(b) (1994 & Supp.
IV 1998). An NPDWR "is an enforceable standard applicable to all public
water systems nationwide." American Water Works Ass'n v. EPA, 40 F.3d
1266, 1269 (D.C. Cir. 1994); see 42 U.S.C. 300g.1 Section 300j-7 of the SDWA governs judicial review of the administration
of the Act. It provides that petitions for review of "actions pertaining
to the establishment of [NPDWRs] * * * may be filed only in the United
States Court of Appeals for the District of Columbia circuit" within
45 days of the promulgation of the regulations, and that petitions for review
of "any other action of the Administrator" under the SDWA may
be filed in a regional court of appeals within 45 days of the action. 42
U.S.C. 300j-7(a). Section 300j-7(a) further provides that "[a]ction
of the Administrator with respect to which review could have been obtained
under this subsection shall not be subject to judicial review in any civil
or criminal proceeding for enforcement or in any civil action to enjoin
enforcement."
42 U.S.C. 300j-7(a). In addition, Section 300j-7(b) specifies that certain
types of actions may be brought in district court, including challenges
to the grant or denial of a variance or exemption under 42 U.S.C. 300g-4
and 300g-5 (1994 & Supp. IV 1998). Section 300j-7 is modeled on the judicial review provision of the Clean
Air Act (CAA), 42 U.S.C. 7607(b), which vests the courts of appeals, and
not the district courts, with the principal authority to review the implementation
of the Act. See Western Neb. Res. Council v. EPA, 793 F.2d 194, 198 (8th
Cir. 1986). 2. In June 1991, EPA promulgated an NPDWR for lead and copper, which
became effective on December 7, 1992. 56 Fed. Reg. 26,460 (1991); 40 C.F.R.
141.80-141.91 (Lead and Copper Rule). The Lead and Copper Rule establishes
a treatment technique requiring, inter alia, that public water systems conduct
monitoring to determine the levels of lead and copper at consumers' taps
and, if the levels of such contaminants exceed "action levels"
established by EPA, that systems act to reduce the levels of lead and copper
at the tap. 40 C.F.R. 141.81-141.89; see 56 Fed. Reg. at 26,471. The rule was challenged
by several industry and environmental organizations on various grounds relating
to its coverage of lead, and was upheld in part and vacated in part by the
District of Columbia Circuit. See American Water Works Ass'n, 40 F.3d at
1275. 3. The State of Nebraska has assumed primary enforcement responsibility
under the SDWA. 42 U.S.C. 300g-2 (1994 & Supp. IV 1998). In September
1994, the State adopted EPA's Lead and Copper Rule. See 60 Fed. Reg. 33,803
(1995). In July 1998, however, the State filed suit in the United States
District Court for the District of Nebraska against EPA and other federal
defendants, seeking a declaration that the SDWA and its implementing regulations
violate the Commerce Clause and Tenth Amendment of the United States Constitution.
Nebraska v. EPA (Nebraska I), No. 4:98CV3226. In that action, the State
specifically challenged the Lead and Copper Rule. See Pet. App. 3. The
federal defendants moved to dismiss the action for lack of subject matter
jurisdiction pursuant to 42 U.S.C. 300j-7 (1994 & Supp. IV 1998). In May 1999, the district court granted the motion to dismiss, concluding
that, under Section 300j-7, the District of Columbia Circuit "has exclusive
jurisdiction over Plaintiff's claims." Order, Nebraska I, at 3. The
court explained that it "has not located any case which construes §
300j-7 to permit any court other than the Court of Appeals for the District
of Columbia [Circuit] to review regulations implementing the Lead and Copper
Rule for any purpose." Id. at 2. Instead, "the great weight
of authority supports the defendants' position that this court is without
jurisdiction to review regulations promulgated under the SDWA either as
valid final acts of the EPA or for a determination of their constitutionality."
Ibid. (citing Missouri v. United States, 109 F.3d 440 (8th Cir. 1997),
and Virginia v. United States, 74 F.3d 517 (4th Cir. 1996)).2 4. Four months after Nebraska I was dismissed, the State, joined by the
City of Grand Island, Nebraska, filed another action in the same district
court. This time, plaintiffs dropped the references to the Lead and Copper
Rule and simply alleged that unspecified provisions of the SDWA "as
applied in certain circumstances" exceed Congress's powers under the
Commerce Clause, and violate the Tenth Amendment and the non-delegation
doctrine. C.A. App. 1-2 (Compl.¶ 1). The complaint characterized the lawsuit as an "as applied"
challenge, focusing on the application of the SDWA to two public water facilities
in Nebraska, the Lincoln Regional Facility and the water system of the City
of Grand Island. See id. at 3-4 (Compl. ¶¶ 15, 16, 18). Plaintiffs
sought a declaratory judgment invalidating "the provisions of the [SDWA]
as applied to regulate the water supply systems at the Lincoln Regional
Center and the City of Grand Island." Id. at 4. The United States
moved to dismiss, arguing that, as in the case of Nebraska I, the district
court lacked jurisdiction under 42 U.S.C. 300j-7(a) (1994 & Supp. IV
1998). In April 2000, the district court dismissed the action "on the basis
of SDWA § 300j-7." Pet. App. 9. As the court explained, "[s]tripping
the complaint of references to the EPA's implementing regulations does not
change the result" in Nebraska I. Ibid. A plaintiff bringing an "as-applied" challenge contends that
the statute would be unconstitutional under the circumstances in which the
plaintiff has acted or proposed to act. Because the SDWA is not self-implementing,
Plaintiffs' "as-applied" challenge necessarily implicates the
EPA regulations or other final agency action. Plaintiffs cannot challenge
only the constitutionality of the statutory scheme. See Missouri v. United
States, 109 F.3d 440, 441-42 (8th Cir. 1997); Virginia v. United States,
74 F.3d 517 (4th Cir. 1996). Id. at 9-10 (citation omitted). The State appealed and the Eighth Circuit unanimously affirmed (Pet.
App. 1-7). The court of appeals rejected the State's argument "that
it is only attacking the Act and is not attacking a 'final Agency action'
under § 300j-7," id. at 5, explaining: As in Virginia and Missouri, Nebraska's suit challenging the constitutionality
of the Act is not independent of the EPA's implementing regulations. In
Nebraska I, Nebraska challenged the Lead and Copper Rule. After the district
court dismissed Nebraska I for lack of jurisdiction, Nebraska filed suit
again, only this time omitting references to the EPA's implementing regulations
and instead casting its complaint as an "as-applied" challenge
to the Act itself. However, the Act is not self-executing; rather, it is
applied through EPA regulations. See 42 U.S.C. § 300g-1(b)(1)(A) (requiring
the EPA to promulgate national public drinking water regulations). Therefore,
Nebraska's challenge to the Act as applied to the public water facilities
at the Lincoln Regional Center and the City of Grand Island necessarily
implicates the EPA's regulations. Id. at 6-7. Accordingly, the court of appeals held that
"§ 300j-7 required Nebraska to bring its suit in the United
States Court of Appeals for the D.C. Circuit." Id. at 7. ARGUMENT The court of appeals' decision that 42 U.S.C. 300j-7 (1994 & Supp.
IV 1998) precludes the filing of this "as applied" action in district
court is correct and does not conflict with any decision of this Court or
of any other court of appeals. Further review is not warranted. 1. As this Court has recognized, "[j]udicial review provisions
* * * are jurisdictional in nature and must be construed with strict
fidelity to their terms." Stone v. INS, 514 U.S. 386, 405 (1995).
"[T]he 45-day time limit of section 300j-7(a), like those found in
similar environmental statutes, defines the duration of this court's jurisdiction."
Western Neb. Res. Council v. EPA, 793 F.2d 194, 198 (8th Cir. 1986). The
provision "brings finality to the administrative process and reflects
'a deliberate congressional choice to impose statutory finality on agency
[action], a choice we may not second-guess.'" Ibid. (quoting Eagle-Picher
Indus. v. EPA, 759 F.2d 905, 911 (D.C. Cir. 1985) (court's alteration)).
Accordingly, courts have consistently rejected litigants' attempts to avoid
the forum and timing limitations of Section 300j-7, as well as those established
by analogous provisions of other environmental statutes. See, e.g., Missouri
v. United States, 109 F.3d 440 (8th Cir. 1997); Virginia v. United States,
74 F.3d 517 (4th Cir. 1996); Halogenated Solvents Indus. Alliance v. Thomas,
783 F.2d 1262 (5th Cir. 1986); see also Western Neb. Res. Council, 793 F.2d
at 198 (citing cases). The court of appeals correctly construed Section 300j-7 as requiring
that actions challenging the administration of the SDWA must be brought
in the appropriate court of appeals, and rejected the State's effort to
circumvent that requirement by omitting reference in this "as applied"
case to the regulations that the State challenged in Nebraska I. As the
court explained, because the SDWA is not self-executing, the Act affects
particular public water systems only by virtue of EPA's implementing regulations
and enforcement actions. Pet App. 7. Thus, the State's "as applied"
challenge to the SDWA necessarily implicates EPA's regulations or actions,
and therefore is subject to exclusive court of appeals review pursuant to
Section 300j-7. Ibid. Contrary to petitioner's suggestion (Pet. 7), the court of appeals did
not hold that any action brought in district court "to consider the
constitutionality" of the SDWA would necessarily be barred by Section
300j-7. Rather, the court held that the "as applied" challenge
brought by petitioner in this case is not independent of EPA's implementing
regulations and enforcement actions, and therefore is precluded by Section
300j-7. See Pet. App. 7 ("Nebraska's challenge to the Act as applied
to the public water facilities at the Lincoln Regional Center and the City
of Grand Island necessarily implicates the EPA's regulations."). That
conclusion is bolstered by the procedural history of this case: this action
followed shortly on the heels of the dismissal of Nebraska I, which focused
expressly on EPA's Lead and Copper Rule and raised essentially the same
constitutional claims that petitioner seeks to litigate in district court
here.3 2. Petitioner does not allege any circuit conflict warranting certiorari.
Indeed, the court of appeals' decision in this case is in line with the
court's prior decision in Missouri v. United States, supra, and with the
Fourth Circuit's decision in Virginia v. United States, supra. Those cases
dealt with attempts similar to that of Nebraska in this case to circumvent
the judicial review provision of Section 307(b)(1) of the CAA, 42 U.S.C.
7607(b)(1), which petitioner acknowledges (Pet. 7) is "substantially
similar to 42 U.S.C. § 300j-7." Section 307(b)(1) of the CAA-the model for Section 300j-7(a) of the SDWA-provides
that petitions for review of regulations issued under the CAA must be filed
in the District of Columbia Circuit, and that challenges to other final
agency action under the CAA must be filed with the regional court of appeals.
In both Missouri and Virginia, States brought suit in district court challenging
the administration of the CAA as well as the constitutionality of the statute
itself, and argued that the jurisdictional command of Section 307(b)(1)
does not extend to the constitutional claims. In both cases, the courts
of appeals rejected that contention, explaining that the underlying actions
were prompted by agency action, and that "[t]here is simply no reason
the constitutional challenges of this lawsuit should be, or even can be,
separated from a challenge to final EPA action under the CAA." Missouri,
109 F.3d at 442; see Virginia, 74 F.3d at 522-523 (State may not "circumvent
direct review in the circuit court under CAA § 307(b)(1)" simply "by framing its complaint as a constitutional
challenge to the CAA"; "CAA § 307(b)(1) channels review of
final EPA action exclusively to the courts of appeals, regardless of how
the grounds for review are framed."). As the Eighth Circuit held below,
the same conclusion follows under Section 300j-7 of the SDWA with respect
to the "as applied" action brought by the State in this case.
See Pet. App. 5-6; id. at 9-10. 3. The Eighth Circuit's decision in this case also comports with this
Court's decision in Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994),
which the courts of appeals relied upon in Missouri, 109 F.3d at 441, and
Virginia, 74 F.3d at 523. In Thunder Basin, this Court rejected the proposition that a litigant
may bypass a statutory scheme for judicial review merely by asserting constitutional
claims. There, the Court held that the administrative and judicial review
provisions of the Federal Mine Safety and Health Act of 1977 (MSHA), 30
U.S.C. 815, 816, 823, precluded a pre-enforcement constitutional challenge
in district court to an order of the Mine Safety and Health Administration.
Although the statute was "facially silent" with respect to pre-enforcement
claims, the Court held that an intent to preclude pre-enforcement review
was "fairly discernible" from the "detailed" statutory
scheme that provided for internal administrative review, followed by judicial
review of the final agency decision in the court of appeals. 510 U.S. at
207-208. In so holding, the Court noted that two provisions of the MSHA
expressly provided for district court review in specified circumstances.
Id. at 209. Congress's intent to preclude district court jurisdiction over actions
challenging the administration of the SDWA is just as readily, if not more
readily, discernible from the text of the SDWA. Section 300j-7 evidences
a clear intent to channel actions for judicial review of most EPA actions
implementing the Act into the circuit courts, rather than the district courts.
Section 300j-7(a) provides that petitions challenging EPA's implementing
regulations may be filed "only" in the District of Columbia Circuit,
and that petitions challenging "any other action of the Administrator"
may be filed in the regional circuit court. The proviso expressly bars
adjudication in any other proceeding of claims "with respect to which
review could have been obtained under this subsection," i.e., by means
of a petition for review in the court of appeals. 42 U.S.C. 300j-7(a) (1994
& Supp. IV 1998). At the same time, Section 300j-7(b) expressly confers
district court jurisdiction over a limited class of cases (e.g., challenges
to the grant or refusal to grant a variance), which reinforces the conclusion
that Congress intended the courts of appeals to have exclusive jurisdiction
over claims not specified in Section 300j-7(b). See Thunder Basin, 510
U.S. at 209. 4. Contrary to petitioner's suggestion (Pet. 5), this case does not concern
"[t]he ability of a state to access the federal courts to resolve a
dispute with the government of the United States over an issue of federal
constitutional law." Nebraska has not been denied access to the federal
courts to present its constitutional challenges to the SDWA as applied to
the public water systems at issue in this case. It is undisputed that petitioner
could have obtained review of its constitutional claims by petitioning the
District of Columbia Circuit within 45 days of the promulgation of the regulation
that it expressly challenged in Nebraska I, and whose application it effectively
seeks to challenge in this case. See Western Neb. Res. Council, 793 F.2d
at 198 ("Without question, the 45-day limitation of section 300j-7(a)
provided [plaintiff] with a meaningful opportunity to seek review of the
agency's action-due process requires no more."); Virginia, 74 F.3d
at 523, 525. Petitioner's failure to avail itself of that forum for its
"as applied" claims does not entitle it to bypass the scheme carefully
established by Section 300j-7(a) for judicial review of the administration
of the SDWA.4 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. BARBARA D. UNDERWOOD MAY 2001 1 The Act defines public water systems (PWS) in part as "system[s]
for the provision to the public of water for human consumption through pipes
or other constructed conveyances." 42 U.S.C. 300f(4)(A) (1994 & Supp. IV 1998). 2 As discussed below, Missouri and Virginia involved actions brought
by States challenging, inter alia, the constitutionality of the CAA under
the Tenth Amendment. Both actions were filed by States in federal district
court; the Eighth Circuit in Missouri, 109 F.3d at 441-442, and the Fourth
Circuit in Virginia, 74 F.3d at 523-525, held that the district courts lacked
jurisdiction under the judicial review provision of the CAA, 42 U.S.C. 7607(b)(1),
which-like 42 U.S.C. 300j-7 (1994 & Supp. IV 1998)-establishes exclusive
jurisdiction for challenging the administration of the Act in the courts
of appeals. In so holding, the Missouri and Virginia courts specifically
rejected the argument that constitutional challenges to the statute itself
"should be, or even can be, separated from a challenge to final EPA
action under the CAA." 109 F.3d at 442; see 74 F.3d at 523. 3 The telling procedural history of this case makes it a particularly
poor vehicle to consider whether, or in what circumstances, a district court
may have jurisdiction to entertain an action brought by a State challenging
the constitutionality of the SDWA. 4 Petitioner states (Pet. 6) that, "[i]f the only way Nebraska can
directly challenge the constitutionality of the Safe Drinking Water Act
is an original action in the Supreme Court of the United States, then we
are prepared to do so." Petitioner does not, however, point to any
applicable waiver of the sovereign immunity of the United States from such
a suit. In any event, the only question presented here is whether Section
300j-7 of the SDWA precludes the litigation of this action in district court.
Pet. i. For the reasons we have explained, that question does not warrant
this Court's review.
Acting Solicitor General
Counsel of Record
JOHN C. CRUDEN
Acting Assistant Attorney
General
GREER S. GOLDMAN
MICHELE L. WALTER
SEAN H. DONAHUE
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
ATTORNEY GENERAL OF NEBRASKA, PETITIONER
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
IN OPPOSITION
Acting Solicitor General
JOHN C. CRUDEN
Acting Assistant Attorney
General
GREER S. GOLDMAN
MICHELE L. WALTER
SEAN H. DONAHUE
Attorneys