Published United States Court of Appeals For The Fourth Circuit
Published United States Court of Appeals For The Fourth Circuit
OPINION
MICHAEL, Circuit Judge:
The Commonwealth of Virginia brought suit in the Eastern District
of Virginia to challenge the constitutionality of various provisions of
the Clean Air Act (CAA), 42 U.S.C. 7401 et seq. According to Virginia, Title I and Title V of the CAA violate the Constitution's Spending Clause (art. I, 8, cl. 1), Guarantee Clause (art. IV, 4) and Tenth
Amendment. The district court dismissed the case without prejudice
for lack of subject matter jurisdiction on the ground that CAA
307(b)(1), 42 U.S.C. 7607(b)(1), places exclusive jurisdiction
with this court. Because Virginia could have brought its constitutional
claims directly before this court through a petition for review of final
action of the Administrator of the Environmental Protection Agency,
we affirm.
I.
Virginia says, "This action arises out of two major ongoing disputes with EPA regarding the Commonwealth's compliance with the
federal [CAA]." One dispute, according to the complaint, involves
Virginia's "alleged failure to develop and submit to EPA an approvable" vehicle inspection and maintenance (I&M) program and a volatile organic compound (VOC) reduction plan for Northern Virginia
and Richmond. The other dispute involves Virginia's"alleged failure
to develop and submit to EPA an approvable Title V[stationary pollution source] operating permit program." Compl. 1-2. Before we
get to jurisdiction -- the only issue before us today -- some discussion of the pollution targeted here and CAA mechanisms for reducing
that pollution is helpful.
The chief mischief-maker here is ozone, the pollutant that most
often causes a particular region's air to violate federal standards.
Ozone is one of the primary components of smog. In sufficiently high
concentrations, ozone causes chest pains, coughing, nausea, irritation
of the throat and increased susceptibility to respiratory infection.
Clean Air Act Standards: Hearing Before the Subcomm. on Health
and the Environment of the House Comm. on Energy and Commerce
("Clean Air Act Standards Hearing"), 101st Cong., 1st Sess. 14-16
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By 1989 more than 90 of the nation's urban areas were in nonattainment of the NAAQS for ozone, raising a health concern for as
many as 95 million Americans. Clean Air Act Standards Hearing,
supra at 30 (statement of Don Theiler). As a result, Congress in 1990
extensively amended the CAA in an effort to cope with the increasingly severe problem of unhealthy ozone levels throughout the country. See Clean Air Act Amendments of 1990, Pub. L. No. 101-549,
104 Stat. 2399.
The CAA's complex statutory and regulatory scheme calls upon
the states to shoulder a large portion of the difficult task of cleaning
up the nation's air. The 1990 amendments extended deadlines (that
had existed under earlier versions of the CAA) for states to reach full
attainment with respect to ozone levels and set new deadlines for
states to achieve lesser (but still nonattaining) reductions of ozone.
CAA 181-185B, 42 U.S.C. 7511-7511f. The 1990 amendments
also encourage states to design and implement an operating permit
program intended to regulate stationary sources of air pollution, such
as factories and power plants. CAA 501-507, 42 U.S.C. 76617661f.
A.
Under Title I of the CAA, if a state has an area within it that EPA
has classified as being in moderate, serious or severe nonattainment
with respect to ozone, the state must devise and implement a "state
implementation plan" (SIP) that reduces VOC emissions within the
area by 15 percent (a "15% Plan"). CAA 182(b)(1)(A)(i), 182(c)
& 182(d); 42 U.S.C. 7511a(b)(1)(A)(i), 7511a(c) & 7511a(d). The
SIP must include a program of vehicle inspection and maintenance
that will reduce automobile exhaust's contribution to air pollution (an
"I & M Program"). CAA 182(b)(4), 42 U.S.C. 7511a(b)(4).
Title I imposes sanctions on states that fail to comply with its provisions. States may, for example, be prevented from spending federal
highway money in nonattainment areas. See CAA 110(m), 176(c)
& 179(b)(1); 42 U.S.C 7410(m), 7506(c) & 7509(b)(1). This loss
of highway money is automatic and mandatory if the state fails to
implement an adequate SIP within 24 months of EPA's finding that
a proposed SIP is deficient. CAA 179(b)(1), 42 U.S.C.
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The same day, January 9, 1995, that Virginia filed its complaint in
district court, the Commonwealth also filed a petition for review
directly with this court, challenging as arbitrary and capricious EPA's
substantive disapproval of Virginia's proposed Title V program and
challenging the constitutionality of Title V and the CAA's sanctions
provisions. Virginia v. Browner (Virginia II), No. 95-1052. In that
petition Virginia argues that the CAA's sanctions provisions are
unduly coercive, in violation of the Tenth Amendment and the Spending Clause. The Commonwealth also argues in Virginia II that if CAA
502(b)(6) is construed to require states to alter their rules of judicial
standing, the section would unconstitutionally infringe upon a core
element of state sovereignty in violation of the Tenth Amendment.
Virginia thus seeks to pursue many of the same constitutional claims
on two fronts. Virginia II was argued on December 5, 1995, and is
awaiting decision by this court.
III.
The question before us in this case is whether Virginia, by framing
its complaint as a constitutional challenge to the CAA, may circumvent direct review in the circuit court under CAA 307(b)(1) and litigate in the district court under 28 U.S.C. 1331. We hold that the
district court is without jurisdiction in this case because review was
available in the circuit court under 307(b)(1) and that review is
exclusive.
Our holding depends on the scope of the portion of CAA
307(b)(1) that says, "A petition for review of any . . . final action
of the [EPA] Administrator under this chapter . . . which is locally or
regionally applicable may be filed only in the United States Court of
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year countdown toward EPA's promulgation of a FIP. See CAA
110(c)(1), 42 U.S.C. 7410(c)(1); Browner, 57 F.3d at 1126 & n.7.
This countdown stops only when EPA approves Virginia's proposed SIP.
See id. That approval has not been given. Accordingly, Virginia's challenge to Title I is not moot. Furthermore, the threat of sanctions under
Title V remains because Virginia did not gain approval for its SIP before
the November 15, 1995, deadline set by CAA 502(d)(3), 42 U.S.C.
7661a(d)(3), so the challenge to Title V is not moot either.
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Appeals for the appropriate circuit." 42 U.S.C. 7607(b)(1) (emphasis added). Virginia argues first that it "does not seek a review of any
final EPA action"; rather, it says, its "constitutional challenge is
directed to the statute itself." Br. of Appellant at 7. Second, Virginia
claims that in no event are constitutional challenges that would implicate final EPA action limited to review in the circuit courts. Virginia
is wrong on both counts.
We turn first to whether Virginia targets final EPA action in its
complaint filed in district court. A review of the complaint reveals
that, although it seeks a ruling that certain parts of the CAA are
unconstitutional, the practical objective of the complaint is to nullify
final actions of EPA.
Virginia's complaint begins by acknowledging, "This action arises
out of two major ongoing disputes with EPA regarding the Commonwealth's compliance with the federal [CAA]." Compl. 1. The complaint recognizes that one dispute came to a head when EPA took
final action on January 20, 1994, and on February 5, 1994, finding
that Virginia's Title I (I&M and 15% Plan) submissions were incomplete. Id. 66, 75. The complaint also concedes that the second dispute came to a head "[o]n December 5, 1994,[when] EPA took final
action to disapprove the Commonwealth's Title V program . . . , with
the main reason being the alleged defect in the judicial review provision." Id. 58. The complaint alleges that these final EPA actions will
trigger various sanctions, including loss of federal highway money,
more stringent permitting requirements for stationary sources of air
pollution, and eventual federal takeover of air quality regulations. Id.
39-53 & 84-93. According to Virginia, the CAA sanctions scheme,
triggered by the EPA final action here, violates the Tenth Amendment, the Guarantee Clause and the Spending Clause. Id. 96-113.
Finally, in its prayer for relief Virginia seeks a declaration that the relevant provisions of the CAA are unconstitutional and requests a preliminary and permanent injunction preventing EPA from enforcing
sanctions provisions against Virginia.
A reading of the complaint thus leaves no doubt that Virginia seeks
to reverse final EPA action. Because jurisdiction under 307(b)(1)
turns on whether final agency action is the target of the challenger's
claim, it is of no consequence that Virginia has armed itself with the
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provision, 304(a)(2), 42 U.S.C. 7604(a)(2), which gives the district courts jurisdiction over claims that the EPA Administrator has
failed to perform a nondiscretionary act or duty. Although Virginia
could not file under 304(a)(2) here, it argues that 304(a)(2)'s presence means that Congress did not intend that 307(b)(1) be given an
"expansive reach." Br. of Appellant at 10. Virginia's idea has been
rejected. Courts have held that if 307(b)(1) review becomes available in the circuit court, the district court loses jurisdiction under
304(a)(2). In Indiana & Mich. Elec. Co. v. EPA, 733 F.2d 489 (7th
Cir. 1984), for example, the Seventh Circuit found that it alone had
jurisdiction to adjudicate challenges to an EPA decision approving a
SIP revision. The court of appeals' exclusive jurisdiction under
307(b)(1) displaced the district court's citizen suit jurisdiction over
a related claim. Id. at 490-91. City of Seabrook v. Costle, 659 F.2d
1371 (5th Cir. 1981), reached the same result. There, the Fifth Circuit
found that even if the district court's jurisdiction under 304(a)(2)
could have been invoked before EPA took final action, once the "Administrator had issued his `final rule' . . . plaintiffs could seek review,
as they did, only in the court of appeals." 659 F.2d at 1373. Accord
Natural Resources Defense Council v. Reilly, 788 F. Supp. at 273-74.
Second, Virginia cites CAA 304(e) as further evidence that Congress intended for district courts to retain concurrent jurisdiction over
claims within the scope of 307(b)(1). Section 304(e) provides in
part:
Nothing in this section [i.e., 304] shall restrict any right
which any person . . . may have under any statute or common law to seek enforcement . . . or to seek any other relief
....
42 U.S.C. 7604(e) (emphasis added). This section only means that
the citizen suit provision does not preempt any other available remedies. It has no bearing on whether Congress intended for appeals court
review under 307(b)(1), where available, to be exclusive. Moreover,
307(e), which specifically addresses the exclusivity of 307 review,
states:
Nothing in [the CAA] shall be construed to authorize judicial review of regulations or orders of the Administrator
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