PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
COMMONWEALTH OF VIRGINIA; GEORGE
ALLEN, Governor of the
Commonwealth of Virginia,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA;
ENVIRONMENTAL PROTECTION AGENCY;
DEPARTMENT OF TRANSPORTATION;
No. 95-2229
CAROL M. BROWNER, Administrator
of the United States Environmental
Protection Agency, in her official
capacity; FEDERICO F. PENA,
SECRETARY, DEPARTMENT OF
TRANSPORTATION, Secretary of
Transportation, in his official
capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-95-21-3)
Argued: September 28, 1995
Decided: February 2, 1996

Before POWELL,* Associate Justice (Retired), United States

Supreme Court, sitting by designation, and MURNAGHAN and
MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Murnaghan joined.
_________________________________________________________________
COUNSEL
ARGUED: Roger Lewis Chaffe, Senior Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellants. Jeffrey Paul Kehne, Environment & Natural Resources
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: James S. Gilmore, III,
Attorney General of Virginia, John Paul Woodley, Jr., Deputy Attorney General, Mary J. Leugers, Assistant Attorney General, John R.
Butcher, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia; John P. Schmitz, Andrew J. Pincus,
Charles A. Rothfeld, Gregory S. Walden, Thomas Dilenge, Washington, D.C., for Appellants. Lois J. Schiffer, Assistant Attorney General, David J. Kaplan, Albert M. Ferlo, Jr., Environment & Natural
Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Jan M. Tierney, Michael W. Thrift, Office
of the General Counsel, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, Washington, D.C.; Cecil A. Rodrigues,
Office of the Regional Counsel, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Philadelphia, Pennsylvania;
Diane K. Mobley, Office of the Chief Counsel, Federal Highway
Administration, UNITED STATES DEPARTMENT OF TRANSPORTATION, Washington, D.C., for Appellees.
_________________________________________________________________
*Justice Powell heard oral argument but did not participate in the decision of this case. The decision is filed by a quorum of the panel pursuant
to 28 U.S.C. 46(d).
2

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
3

(1989) (statement of Don R. Clay, EPA acting administrator for air

and radiation). Excessive ozone can also damage forests and food
crops. Id. at 16-18.1
Ozone is formed when volatile organic compounds (VOCs) react
with nitrogen oxides in the presence of sunlight and heat. See Joseph
Nordman, What Is Chemistry? A Chemical View of Nature 306
(1974). "VOC is the collective name given to pollutants that [contain
carbon and] are gases at room temperature." Dashefsky, supra at 259.
Automobile exhaust is a VOC source. See Nordman, supra at 315
(table).2 Although most nitrogen oxides are made naturally, automobile exhaust increases atmospheric nitrogen oxide levels. Nordman,
supra at 314. Thus, automobile exhaust, as a source of both VOCs
and nitrogen oxides, is a major cause of increased ozone levels. Clean
Air Act Standards Hearing, supra at 30 (statement of Don Theiler,
President, State and Territorial Air Pollution Program Administrators); Dashefsky, supra at 196. Because by 2010 the number of miles
driven in the United States will increase by an estimated 60 percent,
the nation faces a real potential for ever-increasing amounts of pollution from automobile exhaust. Clean Air Act Standards Hearing,
supra at 2 (statement of Rep. Waxman) ("Gains we have made in the
past may be lost in an expanding cloud of auto exhaust.").
The CAA authorizes the EPA Administrator to promulgate national
ambient air quality standards (NAAQS). CAA #8E8E # 108 & 109, 42
U.S.C. 7408 & 7409. An area that does not meet the minimum
level of air quality mandated by the NAAQS is considered to be a
"nonattainment area." CAA 107(d) & 171(2), 42 U.S.C.
7407(d) & 7501(2). With respect to the pollutant ozone, an area's
degree of nonattainment may be classified as marginal, moderate,
serious, severe or extreme. CAA 181(a), 42 U.S.C. 7511(a).
_________________________________________________________________
1 Although ozone in the lower atmosphere harms ambient (breathable)
air quality, ozone in the stratosphere prevents cancers caused by overexposure to the sun's ultraviolet radiation. Ironically, destruction of stratospheric ozone tends to increase ambient ozone levels by permitting more
ultraviolet radiation to reach the surface of the Earth. See H. Steven
Dashefsky, Environmental Literacy 185-86 (1993).
2 Other VOC sources include household cleaners, solvents, electrical
equipment and certain plastics. Dashefsky, supra at 259.
4

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.
5

 7509(b)(1). Even before this two-year period expires, EPA may

(after first going through a notice-and-comment rulemaking proceeding) block the state from spending federal highway funds in nonattainment areas. CAA 110(m), 42 U.S.C. 7410(m). However,
highway money may not be blocked -- under either the mandatory
or the discretionary sanction provisions -- for projects that "likely
will result in a significant reduction in, or avoidance of, accidents."
CAA 179(b)(1)(A), 42 U.S.C. 7509(b)(1)(A). Nor may money be
blocked if it is to be spent on transportation projects that would
encourage conservation and that would tend to result in less pollution
from automobiles, i.e., public transit programs, development of parkand-ride facilities, construction of high-occupancy vehicle lanes and
the like. CAA 179(b)(1)(B), 42 U.S.C. 7509(b)(1)(B).
A state's failure to submit a valid SIP also causes the EPA to subject private industry to more stringent permitting requirements. CAA
179(b)(2), 42 U.S.C. 7509(b)(2). 3 This sanction is mandatory after
18 months and (as with the highway sanction) is discretionary at any
time after EPA has found a proposed SIP to be inadequate. See CAA
110(m), 42 U.S.C. 7410(m).
Finally, if two years pass after a SIP is first found to be deficient
or the state's submission of a proposed SIP to EPA is found to be
administratively incomplete, EPA must impose a "federal implementation program" (FIP) on those areas of a state that are in nonattainment. CAA 110(c), 42 U.S.C. 7410(c)."The FIP provides an
additional incentive for state compliance because it rescinds state
authority to make the many sensitive technical and political choices
that a pollution control regime demands." Natural Resources Defense
Council v. Browner, 57 F.3d 1122, 1124 (D.C. Cir. 1995).
B.
Title V of the CAA requires states to administer permitting programs intended to regulate stationary sources of air pollution. CAA
_________________________________________________________________
3 New polluting sources would not be allowed to be built and existing
ones would not be allowed to be modified, unless 200 tons of pollution
from existing sources were reduced for every 100 new tons of pollution
allowed.
6

 501-507, 42 U.S.C. 7661-7761f. A state Title V Program must

allow a full opportunity for judicial review of permitting decisions.
See CAA 502(b)(6), 42 U.S.C. 7661a(b)(6). EPA cannot approve
a state's Title V Program unless it provides
an opportunity for judicial review in State court of the final
permit action by the applicant, any person who participated
in the public participation process . . . and any other person
who could obtain judicial review of such [decisions] under
State laws.
40 C.F.R. 70.4(b)(3)(x). EPA has said that states must allow permitting decision challenges to be brought in state court by anyone who
would have Article III standing in a federal case. 59 Fed. Reg. 62324,
62325 (Dec. 5, 1994).
Once EPA rejects a proposed Title V permitting program, the state
has 18 months to correct any problems EPA has with the proposed
plan. If the state does not correct the problems within 18 months, EPA
must impose either the highway sanction or the permitting sanction
described above. CAA 502(d)(2), 42 U.S.C. 7661a(d)(2). Six
months later, if the problems remain uncorrected, EPA must impose
the remaining sanction. Id. In addition, EPA may impose these sanctions earlier, but (as in the Title I context) it first must go through a
notice-and-comment rulemaking proceeding. Id. Finally, if EPA has
not approved a state's Title V Program by November 15, 1995 (five
years after enactment of the 1990 Amendments), EPA must promulgate and administer a federal Title V permitting program (a FIP)
within the state. CAA 502(d)(3), 42 U.S.C. 7661a(d)(3).
II.
Because the Northern Virginia area has been in "serious" nonattainment with respect to ozone levels, and because the Richmond area has
been in "moderate" nonattainment, Virginia is subject to Title I. Virginia is also subject to Title V.
EPA took final action by letter on January 20, 1994, finding that
Virginia's Title I (I & M and 15% Plan) submissions were incom7

plete, in part because Virginia only submitted draft regulations to

EPA instead of final, permanent regulations. On December 5, 1994,
EPA took final action disapproving on substantive grounds Virginia's
Title V Program, see 59 Fed. Reg. 62324 (Dec. 5, 1994), in part
because Virginia limited judicial review of permitting decisions to
those litigants who could prove that they had a"pecuniary and substantial interest" in the outcome of the litigation. See Va. Code 10.11318(B).
EPA's actions prompted Virginia to file on January 9, 1995, under
28 U.S.C. 1331, a three-count complaint against EPA in the United
States District Court for the Eastern District of Virginia, asking that
certain CAA provisions be declared unconstitutional on their face. In
Counts One and Two Virginia alleges that the CAA 182 (Title I)
requirements for VOC reduction plans and I&M programs for ozone
nonattainment areas and the CAA 502(b)(6) (Title V) requirement
for access to state courts violate the Tenth Amendment and the Guarantee Clause (U.S. Const. art. IV, 4). According to Virginia, the federal government through these requirements has violated the Tenth
Amendment by "commandeer[ing] the processes" of Virginia's legislature and courts and has violated the Constitution's guarantee of a
republican form of government. In Count Three Virginia alleges that
the sanction of loss of highway funds when a state fails to adopt specified air quality programs is not "rationally related" to the proper "objective of federal highway funding." This sanction, Virginia says, is
"impermissible [ ] coercion" that violates implied limitations on Congressional authority under the Spending Clause (U.S. Const. art. I,
8, cl. 1). The district court dismissed Virginia's complaint on June
12, 1995, for lack of subject matter jurisdiction, and Virginia's appeal
from that dismissal is now before us.4
_________________________________________________________________
4 EPA found Virginia's Title I submission to be administratively complete in July 1995, one month after Virginia's complaint in the district
court was dismissed and six months after it was filed. Discretionary sanctions, then, are no longer available to force compliance with Title I. Furthermore, the mandatory sanctions clock for noncompliance with Title I
is stopped and reset to zero. See Browner, 57 F.3d at 1126. However,
EPA's earlier finding that Virginia's Title I SIP was incomplete remains
relevant, even though there has been a superseding finding of administrative completeness. The earlier finding of incompleteness started the two8

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
_________________________________________________________________
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.
9

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
10

Constitution. See Natural Resources Defense Council v. Reilly, 788 F.

Supp. 268, 274 (E.D. Va. 1992) ("The reversing of a final action . . .
is the type of relief obtained in a court of appeals, not a district
court.") There is simply no impediment to the adjudication of constitutional issues through petitions for direct review of final agency
action in the circuit courts. See, e.g. , Thunder Basin Coal Co. v.
Reich, 114 S. Ct. 771, 780 (1994).
Virginia ultimately concedes that constitutional challenges may "be
brought by petition for review in the courts of appeals." Br. of Appellant at 14. But Virginia makes a second argument that "Congress did
not intend 307(b)(1) to encompass all claims that `necessarily implicate' a final agency action." Br. of Appellant at 9. In other words,
according to Virginia, jurisdiction is not exclusively limited to the circuit courts, particularly when the Constitution is invoked. This issue,
however, has been firmly decided against Virginia.
It is settled that "when Congress has chosen to provide the circuit
courts with exclusive jurisdiction over appeals from agency [actions],
the district courts are without jurisdiction over the legal issues pertaining to final [actions] -- whether or not those issues arise from the
statutes that authorized the agency action in the first place." Palumbo
v. Waste Technologies Indus., 989 F.2d 156, 161 (4th Cir. 1993).
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. See, e.g., Greater Detroit Resource Recovery Auth. v. U.S.
E.P.A., 916 F.2d 317, 321-23 (6th Cir. 1990). See also Monongahela
Power Co. v. Reilly, 980 F.2d 272, 275 (4th Cir. 1992) ("Because
[ 307(b)(1)] embodies a grant of exclusive jurisdiction, it appears
that if the District of Columbia [Circuit] has jurisdiction over the
present action, the district court does not.") (quoting Environmental
Defense Fund v. Thomas, 870 F.2d 892, 896-97 (2d Cir.), cert.
denied, 493 U.S. 991 (1989)).
Virginia makes several points in contending that 307(b)(1) does
not, or at least should not be allowed to, restrict final action review
to the circuit courts.
First, Virginia suggests that the exclusivity of appeals court jurisdiction under 307(b)(1) is undermined by the CAA's "citizen suit"
11

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
12

under this chapter, except as provided in this section [i.e.,

307].
See 42 U.S.C. 7607(e) (emphasis added). See also Oljato Chapter
of the Navajo Tribe v. Train, 515 F.2d 654, 660-61 & n.7 (D.C. Cir.
1975) ( 307 takes precedence over other CAA jurisdictional provisions); Center for Auto Safety v. EPA, 558 F. Supp. 103, 104-05
(D.D.C. 1983) (same).
Third, Virginia argues that we should ignore the plain command of
307(b)(1) because Virginia's constitutional claims cannot receive
"meaningful judicial review," see McNary v. Haitian Refugee Ctr.,
Inc., 498 U.S. 479, 496 (1991), unless it can develop a factual record
in the district court. This argument has no merit. A count-by-count
review of Virginia's facial constitutional claims establishes that none
requires the type of factual development that Virginia advocates. In
any event, this argument overlooks the fact that circuit courts are
empowered to remand direct review cases to the agency for any necessary factual development. See CAA 307(c), 42 U.S.C. 7607(c).
Count One alleges that Congress, in enacting the Title V program,
which requires broad access to state courts, and 182, which imposes
requirements for VOC reduction plans and I&M programs for ozone
nonattainment areas, has "commandeered the processes" of Virginia's
legislature and courts, in violation of the Tenth Amendment. Compl.
101. This claim appears to call for a purely textual analysis without
the need for a record.
Count Two alleges that the CAA sanctions provisions at issue here
violate the Guarantee Clause "because they are unlawful coercive and
punitive measures used to force States like the Commonwealth to
comply with these unconstitutional provisions." Id. 106. As the district court noted, any justiciable claim under Count Two will focus on
"whether the language of the CAA `offers the States a legitimate
choice rather than . . . an unavoidable command'" to enact and
enforce the CAA's regulatory program. J.A. at 73 (quoting New York
v. United States, 112 S. Ct. 2408, 2433 (1992)). Again, we believe
that this claim can be determined without administrative fact-finding.
13

In Count Three Virginia claims that the CAA's highway funding

sanctions violate federalism-based limits on Congress's spending
power. See U.S. Const., art. I 8, cl. 1 (Spending Clause). To establish this count, Virginia says it needs to "assemble a record" to show,
among other things, the impact of the sanctions on Virginia's highway budget and construction program and "the macroeconomic effect
sanctions have throughout . . . Virginia." Br. of Appellant at 22. Analysis of state economies and state budgets and operations has not been
thought necessary to the resolution of Spending Clause claims in the
past. See South Dakota v. Dole, 483 U.S. 203, 210-11 (1987). However, if we were to find this information relevant, on direct review we
could remand to EPA to allow the information to be placed into the
administrative record.5 Indeed, this option applies to all constitutional
claims raised in a petition for review, because the CAA permits us to
remand to EPA for the development of whatever record we need to
decide the issues before us on direct review. CAA 307(c), 42 U.S.C.
7607(c). See also FCC v. ITT World Communications, Inc., 466
U.S. 463, 469 (1984); Harrison, 446 U.S. at 593-54.
Fourth, Virginia argues that channeling of constitutional disputes
into the courts of appeals under 307(b)(1) puts states in a "jurisdictional straitjacket" that can only be loosened by allowing concurrent
jurisdiction in the district courts. Br. of Appellant at 15. Virginia
argues that our construction of 307(b)(1) forces a state to provoke
hostile agency action (through EPA disapproval of state plans) in
order for the state to bring a constitutional challenge. A state should
not be required, according to Virginia, to elicit adverse EPA final
action, thereby incurring risks such as highway funding restrictions,
emission offset sanctions, promulgation of a FIP and discretionary
sanctions in order to test its claims that these measures are unconstitutional. The dilemma that Virginia describes, however, is not presented
in this case. Virginia filed suit after EPA took actions that were subject to challenge under 307(b)(1). We, therefore, have no occasion
to consider whether, in the absence of those final actions, Virginia
could have obtained review under the district court's general federal
_________________________________________________________________
5 Although EPA cannot decide the constitutional questions, there is
nothing to prevent it from receiving evidence that would be relevant to
constitutional review in the courts of appeals. See Thunder Basin, 114 S.
Ct. at 780.
14

question jurisdiction. We hold only that Virginia, in the circumstances

presented, could have raised its constitutional challenges under
307(b)(1) and that it was therefore confined to that avenue of
review.
Finally, we disagree with Virginia's argument that the policy reasons supporting direct review do not apply to a constitutional challenge. Because Congress wanted prompt and conclusive review in air
quality controversies, it channeled (to the courts of appeals) all challenges, regardless of their basis, of EPA rules and final actions. See
Palumbo, 989 F.2d at 162 ("exclusive jurisdiction in the court of
appeals avoids duplicative review and the attendant delay and
expense involved") (quoting General Elec. Uranium Mgmt. Corp. v.
U.S. Dep't of Energy, 764 F.2d 896, 903 (D.C. Cir. 1985)).
At bottom, Virginia argues that because it can frame a constitutional claim it should be allowed to proceed on two fronts at the same
time by pursuing a complaint in district court and a separate petition
for review in this court. But allowing Virginia to pursue such a strategy would undercut a major "basis for the CAA's jurisdictional
scheme[:] the concern for judicial economy; to wit, the risk of duplicative or piecemeal litigation, and the risk of contradictory decisions."
Natural Resources Defense Council v. Reilly, 788 F. Supp. at 273. We
repeat, Congress wanted speedy review of EPA rules and final actions
in a single court. See Adamo Wrecking Co. v. United States, 434 U.S.
275, 284 (1978). Thus, 307(b)(1) displaces district court jurisdiction
under 28 U.S.C. 1331 as to claims, including constitutional claims,
that can be taken directly to a court of appeals.
Accordingly, we hold to the established meaning of 307(b)(1)
and affirm the district court's dismissal of Virginia's complaint for
lack of jurisdiction.
AFFIRMED
15