Petition for Writ of Certiorari — Nebraska ex rel. Stenberg v. United States

No. 001628 APR 24 a9

OFFICE

In The tae

Supreme Court of the United States

a

STATE OF NEBRASKA, ex rel. DON STENBERG,

Attorney General of the State of Nebraska,

Petitioner,

CITY OF GRAND ISLAND,

Plaintiff,

UNITED STATES OF AMERICA; ENVIRONMENTAL

PROTECTION AGENCY; CAROL M. BROWNER,

Administrator of the United States

Environmental Protection Agency,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

e

PETITION FOR WRIT OF CERTIORARI

*

- Submitted by:

Don STENBERG, #14023

Attorney General

Counsel of Record

L. StevEN Grasz, #19050

Deputy Attorney General

2115 State Capitol

Lincoln, NE 68509-8920

Tel: (402) 471-2682

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

I. Whether Congress has prohibited a state from

challenging the constitutionality of the Safe Drinking

Water Act in United States District Court?

|

il

LIST OF PARTIES

The Petitioner is the State of Nebraska, ex rel., Don

Stenberg, Attorney General for the State of Nebraska. The

Respondents are the United States of America, the United

States Environmental Protection Agency and Carol M.

Browner, Administrator of the United States Environmen-

tal Protection Agency.

An additional plaintiff in the United States District

Court for the district of Nebraska was the City of Grand

Island, Nebraska.

iii

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVI-

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STATEMENT OF THE CASE............ dakaseeas 3

REASONS FOR GRANTING Se WEE 4 vscasnnaue 5

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TABLE OF AUTHORITIES

Page

Cases

State of Nebraska, et al. v. United States of America, et

Gi, 228 FSG DOG COR Cle, BOGE) ccc cecccwseccsavcce 1

Missouri v. United States, 109 F.3d 440 (8th Cir.

SUP ic us vacdkns Sevendestsosscaeecarashapedadacieans 7

Virginia v. United States, 74 F.3d 517 (4th Cir. 1996) ...7, 8

STATUTES

28 USC. § 1251 (1999) .......0cceccsescccececccses 2,5

28 US.C. § 1254(1) (1993)..........20ccecceeccceecece 1

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28 USC. & 1531 (1998) .... 22 02.ccenccececee’ 2, 4, 6,8

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42 U.S.C. § 300f-300} (2000) ...............20.20000 3

42 U.S.C. § 300}-7 (2000 Supp.)...........0.00- 2, 4,6,7

42 US.C. § 7607 (1995) .............-- eae) 7

CONSTITUTIONAL PROVISIONS

Ce a Se Oe ee el ee dac beara 2,5

1

OPINIONS BELOW

The opinion of the United States Court of Appeals for-

the Eighth Circuit is reported at 238 F.3d 946 (8th Cir.

2001) (App. 1-7). The opinion of the United States District

Court for the District of Nebraska is not reported. (App.

8-10).

JURISDICTION

On February 1, 2001, the United States Court of

Appeals for the Eighth Circuit entered its opinion and

judgment. The jurisdiction of this Court to review the

judgment in question is invoked pursuant to 28 U.S.C.

§ 1254(1).

+

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. A petition for review of -

(1) actions pertaining to the establishment of

national primary drinking water regulations

(including maximum contaminant level goals)

may be filed only in the United States Court of

Appeals for the District of Columbia circuit; and

(2) any other action of the Administrator

under this chapter may be filed in the circuit in

which the petitioner resides or transacts busi-

ness which is directly affected by the action.

Any such petition shall be filed within the 45-day

period beginning on the date of the promulgation of the

regulation or any other final Agency action with respect

to which review is sought or on the date of the deter-

mination with respect to which review is sought. . . .

42 U.S.C. § 300j-7 (2000 Supp.).

2. In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State shall

be Party, the supreme Court shall have original Jurisdic-

tion. In all the other Cases before mentioned, the supreme

Court shall have appellate Jurisdiction, both as to Law

and Fact, with such Exceptions, and under such regula-

tions as the Congress shall make.

U.S. Const., Art. IT], Sec..2, cl. 2.

3. (b) The Supreme Court shall have original but

not exclusive jurisdiction of:

(1) All actions or proceedings to which

ambassadors, other public ministers, consuls, or

vice consuls of foreign states are parties;

(2) All controversies between the United

States and a State;

(3) All actions or proceedings by a State

against the citizens of another State or against

aliens.

28 U.S.C. § 1251(b) (1993).

4. The district courts shall have original jurisdiction

of all civil actions arising under the Constitution, laws, or

treaties of the United States.

28 U.S.C. § 1331 (1993).

*

STATEMENT OF THE CASE

In 1974, Congress enacted the Safe Drinking Water

Act at 42 U.S.C. § 300f-300j (2000). With a few minor

exceptions, every public water system in each state must

comply with the provisions of the Act or risk an enforce-

ment action and civil penalties. The State of Nebraska

owns and operates various public water systems includ-

ing a system which provides water for the Lincoln

Regional Center, a state institution under the supervision

of the Nebraska Department of Health and Human Ser-

vices and located in Lincoln, Nebraska. This public water

system involves only ground water, is located wholly

within state boundaries and does not involve any aspect

of interstate commerce.

On September 14, 1999, the State of Nebraska (here-

inafter Nebraska) and the City of Grand Island, Nebraska

(hereinafter Grand Island), which also owns and operates

a public water system, filed suit in district court against

the respondents seeking a declaration that the Safe Drink-

ing Water Act is unconstitutional as applied to certain

local water supply systems owned by Nebraska and

Grand Island. Nebraska and Grand Island alleged that

the Act exceeds the authority of Congress as it purports

to govern local public water systems located wholly

within state boundaries which do not involve any aspect

of interstate commerce, infringes upon the non-delega-

tion doctrine as Congress has improperly delegated its

legislative authority to the Environmental Protection

Agency, and provides insufficient legislative standards

for the guidance of the Environmental Protection Agency

in designating the contaminants subject to regulation.

Nebraska and Grand Island then requested a declaratory

judgment pursuant to 28 U.S.C. § 2201, finding and deter-

mining that the provisions of the Safe Drinking Water Act

as applied are unconstitutional.

The Respondents, United States of America, Environ-

mental Protection Agency and Carol M. Browner, Admin-

istrator, filed a Motion to Dismiss asserting, among other

grounds, that subject matter jurisdiction was lacking

because exclusive jurisdiction is vested in the United

States Court of Appeals for the District of Columbia

Circuit or other circuits. On April 4, 2000, the United

States District Court for the District of Nebraska, Judge

Kopf presiding, granted Respondents’ Motion to Dismiss

on the basis of 42 U.S.C. § 300j-7 (2000 Supp.), finding

that exclusive jurisdiction was vested in the United States

Court of Appeals.

The Complaint contained absolutely no allegations

with regard to agency regulations or final agency action. -

Rather, the district court was asked to review the actions

and authority of Congress itself in enacting the Safe

Drinking Water Act and to find that the Act itself is

unconstitutional and unenforceable. Notwithstanding the

language of the Complaint and Nebraska’s position that

the district court had jurisdiction over the matter pur-

suant to 28 U.S.C. § 1331, the district court dismissed the

Complaint for lack of subject matter jurisdiction, stating

that Nebraska could not challenge only the constitu-

tionality of the statutory scheme. (App. 10).

An appeal was taken to the Eighth Circuit Court of

Appeals pursuant to 28 U.S.C. § 1291, and on February 1,

2001, that Court affirmed the judgment of the district

court. (App. 1-7).

REASONS FOR GRANTING THE WRIT

The Court should grant certiorari in this case to

resolve an important question of federal law that has not

been, but should be, settled by this Court. The 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 is one of the most important

issues that can be placed before the Supreme Court of the

United Staies.

In fact, Art. Iil, Section 2 of the United States Consti-

tution provides for original jurisdiction in the United

States Supreme Court for only two categories of cases: (1)

“all Cases affecting Ambassadors, other public Ministers

and Consuls;” and (2) “those in which a State shall be

Party.” It is also significant that Congress, in 28 U.S.C.

§ 1251, has provided for original jurisdiction in the

United States Supreme Court for only very limited types

of cases, one of which is “[A]ll controversies between the

United States and a State...” 28 U.S.C. § 1251(b)(2). In

this action Nebraska seeks to have the Safe Drinking

Water Act declared unconstitutional because it exceeds

Congress’ power under the Commerce Clause and vio-

lates the non-delegation doctrine and the Tenth Amend-

ment. However, while it is clear that Nebraska could

bring its constitutional complaint against the United

States as an original action, the Eighth Circuit Court of

Appeals has denied Nebraska the opportunity to bring its

eae

complaint in the United States District Court for the

District of Nebraska.

In 28 U.S.C. § 1331, Congress has given all district

courts original jurisdiction of all civil actions “arising

under the Constitution, laws, or treaties of the United

States.” The ability to litigate a constitutional claim con-

cerning an act of Congress in the United States District

Court pursuant to 28 U.S.C. § 1331 should only be denied

where Congress has expressly and unequivocally

removed district court jurisdiction as to that specific act

of Congress. That was not done here.

With regard to the Safe Drinking Water Act, Congress

has removed district court jurisdiction of only two speci-

fic types of questions: (1) “actions pertaining to the estab-

lishment of primary drinking water regulations .. . ” 42

U.S.C. § 300j-7(1); and (2) “any other action of the Admin-

istrator under this Chapter... ” 42 U.S.C. § 300j-7(2).

Nebraska does not raise either of these types of questions

in its Complaint. Instead, Nebraska objects to Congress’

actions and lack of authority in enacting this legislation

so as to apply federal requirements to the Lincoln

Regional Center and other local public water systems.

If 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. However, that does not

appear to us to be the intention of Congress. Congress

clearly gave the United States District Court the jurisdic-

tion to hear Nebraska’s constitutional claim in 28 U.S.C.

§ 1331 and has not expressly and unequivocally with-

drawn district court jurisdiction in 42 U.S.C. § 300j-7.

The Eighth Circuit is the only circuit court to have

ruled that a district court lacks jurisdiction to consider

the constitutionality of the Safe Drinking Water Act. In

reaching its opinion the Eighth Circuit relied upon two

decisions concerning a provision of the Clean Air Act, 42

U.S.C. § 7607(b)(1), which is substantially similar to 42

U.S.C. § 300j-7. (App. 5-7). One such decision was Mis-

souri v. United States, 109 F.3d 440 (8th Cir. 1997). In

Petitioner’s view, the Missouri case may be distinguished

as the State of Missouri specifically alleged that the EPA

had taken final action in issuing several deficiency find-

ings and, therefore, challenged certain actions of the EPA

administrator under the Clean Air Act as well as part of

the Act itself on constitutional grounds. It is the Peti-

tioner’s position that the Eighth Circuit has now gone

beyond its ruling in Missouri v. United States in finding

that § 300j-7 creates a jurisdictional bar to a district

court’s entertaining a constitutional challenge to a federal

statute even before final agency action has occurred.

Nebraska submits that § 300j-7 should not be allowed to

restrict to the circuit courts a constitutional challenge of

the Safe Drinking Water Act in circumstances where no

final agency action has occurred.

Furthermore, we note that the Fourth Circuit has

specifically held that the question which we present here

is an unresolved question. The other case relied upon by

the Eighth Circuit was Virginia_v. United States, 74 F.3d

517 (4th Cir. 1996), in which the Fourth Circuit considered

the jurisdictional provision of the Clean Air Act which

channeled review of final EPA action exclusively to the

Court of Appeals. One of Virginia’s arguments was that

the Court’s construction of the jurisdictional provision of

the Clean Air Act forced the State to wait for hostile

agency action in order to bring a constitutional challenge

to the Clean Air Act. The Fourth Circuit noted that the

situation described by Virginia was not presented in that

case as Virginia filed suit after EPA took actions that were

subject to challenge under the Clean Air Act. “We, there-

fore, 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 question

jurisdiction.” Virginia at 525. The set of circumstances

anticipated by the Fourth Circuit in the Virginia case is

present in this case. Nebraska challenges the constitu-

tionality of an act of Congress, not any rule or adminis-

trative action of the EPA. :

CONCLUSION

The important question of federal law that we ask

this Court to resolve is whether Congress has prohibited

a state from challenging the constitutionality of the Safe

Drinking Water Act in United States District Court. The

United States Court of Appeals for the Eighth Circuit

held that despite 28 U.S.C. § 1331 the United States Dis-

trict Court lacked jurisdiction to consider this constitu-

tional issue. We believe it was not the intention of

Congress to restrict a challenge to the constitutionality of

the Act in that manner. The Petitioner respectfully

requests the Court to grant its Petition for a Writ Of

Certiorari.

Respectfully submitted,

STATE OF NEBRASKA, ex rel.,

Don StTenserG, Attorney

General for the State

of Nebraska, Petitioner

Don STENBERG, #14023

Attorney General

Counsel of Record

L. Steven Grasz, #19050

Deputy Attorney General

2115 State Capitol

Lincoln, NE 68509-8920

Tel: (402) 471-2682

Counsel for Petitioner

App. 1

United States Court of Appeals,

FOR THE EIGHTH CIRCUIT

No. 00-2410

State of Nebraska, ex rel.

Don Stenberg, Attorney

General of the State of

Nebraska,

Appellant,

City of Grand Island,

er Appeal from the

simu United States District

V. Court for the District

United States of America; of Nebraska.

Environmental Protection

Agency; Carol M. Browner,

Administrator of the United

States Environmental

Protection Agency,

Nee ee ee ee ee ee es lee es

Appellees.

Submitted: December 15, 2000

Filed: February 1, 2001

Before LOKEN and MAGILL, Circuit Judges, and BAT-

TEY,} District Judge.

1 THE HONORABLE RICHARD H. BATTEY, United States

District Judge for the District of South Dakota, sitting by

designation.

App. 2

MAGILL, Circuit Judge.

The State of Nebraska and the City of Grand Island,

Nebraska (together, “Nebraska”), filed suit in districi

court? against the United States, the Environmental Pro-

tection Agency (the “EPA”), and EPA Administrator

Carol M. Browner, seeking a declaration that the Safe

Drinking Water Act (the “Act”), 42 U.S.C. §§ 300f-300j

(2000), is unconstitutional because it exceeds Congress’s

powers under the Commerce Clause and violates the non-

delegation doctrine and the Tenth Amendment. The dis-

trict court dismissed the suit for lack of subject matter

jurisdiction, holding that 42 U.S.C. § 300j-7 requires suits

“pertaining to the establishment of national primary

drinking water regulations” to be filed within forty-five

days of issuance of the regulations in the United States

Court of Appeals for the D.C. Circuit. Nebraska appeals,

and we affirm.

i.

The Safe Drinking Water Act requires the EPA to

adopt regulations to prevent contamination of public

water systems. 42 U.S.C. § 300g-1. The EPA drafts

national primary drinking water regulations that estab-

lish the procedures necessary to treat contaminants that

pose an adverse effect on human health. Id. at § 300f(1);

see also American Water Works Ass’n v. EPA, 40 F.3d 1266,

1269 (D.C. Cir. 1994). At issue in this case are the EPA’s

regulations for lead and copper (the “Lead and Copper

Rule”), which became effective in December 1992. See 40

2 The Honorable Richard G. Kopf, United States District

Judge for the District of Nebraska.

a en |

App. 3

C.F.R. § 141.80-.91 (2000). The Lead and Copper Rule

establishes a treatment technique that requires public

water systems to monitor the levels of lead and copper at

consumers’ taps. If lead and copper levels are too high,

the public water system must treat the water to reduce its

corrosivity, thereby minimizing the lead and copper in

the water. Id. at § 141.81-89.

A. Nebraska I

In July 1998, Nebraska filed suit in district court

against the United States, the EPA, and EPA Administra-

tor Carol M. Browner, seeking a declaration that the Act

and the Lead and Copper Rule violated the Commerce

Clause and the Tenth Amendment. On May 19, 1999, the

district court granted Appellees’ motion to dismiss, hold-

ing that under § 300j-7, the United States Court of

Appeals for the D.C. Circuit has exclusive jurisdiction

over Nebraska’s claims.

B. Nebraska II

In September 1999, Nebraska, now joined by the City

of Grand Island, again sought a declaratory judgment,

this time alleging that the Act is unconstitutional as

applied to two public water facilities in Nebraska, the

Lincoln Regional Center and the City of Grand Island,

because it exceeds Congress’s powers under the Com-

merce Clause and violates the non-delegation doctrine

and the Tenth Amendment. On April 4, 2000, the district

court granted Appellees’ motion to dismiss, holding that

§ 300j-7 requires suits “pertaining to the establishment of

national primary drinking water regulations” to be filed

App. 4

within forty-five days of issuance of the regulations in the

D.C. Circuit. The court stated:

Stripping the complaint of references to the

EPA’s implementing regulations does not

change the result. A plaintiff bringing an ‘as

applied’ challenge contends that the statute

would be unconstitutional under the circum-

stances in which the plaintiff has acted or pro-

posed to act. Because the [Act] is not self-

implementing, Plaintiffs’ ‘as-applied’ challenge

necessarily implicates the EPA regulations or

other final agency action. Plaintiffs cannot chal-

lenge only the constitutionality of the statutory

scheme. (citations omitted).

Nebraska appeals the district court’s April 4 decision.

II.

The district court’s ruling is reviewed de novo. Gil-

bert v. Monsanto Co., 216 F.3d 695, 699 (8th Cir. 2000).

Nebraska argues that the district court erred in holding

that § 300j-7 restricts jurisdiction over this case to the

United States Court of Appeals for the D.C. Circuit. Sec-

tion 300j-7 provides:

A petition for review of -

(1) actions pertaining to the establishment

of national primary drinking water regula-

tions (including maximum contaminant

level goals) may be filed only in the United

States Court of Appeals for the District of

Columbia circuit; and

App. 5

(2) any other action of the Administrator

under this chapter may be filed in the cir-

cuit in which the petitioner resides or trans-

acts business which is directly affected by

the action.

Any such petition shall be filed within the 45-

day period beginning on the date of the pro-

mulgation of the regulation or any other final

Agency action with respect to which review is

sought or on the date of the determination with

respect to which review is sought.

Nebraska claims that it is only attacking the Act and is

not attacking a “final Agency action” under § 300j-7.

Therefore, Nebraska argues, it should be able to proceed

in a Nebraska federal district court under general federal

question jurisdiction.

In holding that it was without jurisdiction to hear

Nebraska’s claim, the district court relied on Virginia v.

United States, 74 F3d 517 (4th Cir. 1996), and Missouri v.

United States, 109 F.3d 440 (8th Cir. 1997). In Virginia, the

Fourth Circuit held that the Clean Air Act precluded the

district court from exercising jurisdiction over a com-

plaint filed by Virginia that challenged the constitu-

tionality of various provisions of the Clean Air Act. The

Clean Air Act's judicial review provision provides that a

petition for review of any “final action of the [EPA]

Administrator . . . may be filed only in the United States

Court of Appeals for the appropriate circuit.” 42 U.S.C.

§ 7607(b)(1). Despite this provision, Virginia sought to

proceed in district court under general federal question

jurisdiction, arguing that its action was directed at the

Clean Air Act itself rather than any final EPA action. See

App. 6

Virginia, 74 F.3d at 522. The Fourth Circuit rejected Vir-

ginia’s attempt to cast its complaint as being directed

solely against the constitutionality of the Clean Air Act

and not against the Act’s implementing regulations, stat-

ing that “although [Virginia] seeks a ruling that certain

parts of the (Clean Air Act] are unconstitutional, the

practical objective of the complaint is to nullify final

actions of [the] EPA.” Id. at 523. Thus, the court’s holding

prevented Virginia from evading the Act’s requirement

that challenges to “final Agency action” be brought

directly to a federal court of appeals.

Similarly, in Missouri, the state of Missouri brought

suit in district court, arguing that the Clean Air Act and

certain actions of the EPA Administrator interpreting the

Clean Air Act were unconstitutional. 109 F.3d at 441. This

Court, following the Fourth Circuit’s decision in Virginia,

rejected Missouri’s reasoning that it could proceed in

district court because it sought to challenge the constitu-

tionality of the Clean Air Act and not just the actions of

the EPA. See id. at 442. We instead ruled that Missouri’s

challenge to the Clean Air Act could not be completely

separated from the EPA’s actions, thereby preventing

Missouri from evading the Clean Air Act's jurisdictional

requirement that lawsuits challenging “final Agency

action” be brought directly to the court of appeals. See id.

As in Virginia and Missouri, Nebraska’s suit challeng-

ing 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 jurisdic-

tion, Nebraska filed suit again, only this time omitting

references to the EPA’s implementing regulations and

a eee

App. 7

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.

III.

We AFFIRM the district court’s dismissal of

Nebraska’s suit because § 300j-7 required Nebraska to

bring its suit in the United States Court of Appeals for the

D.C. Circuit.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

App. 8

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

STATE OF NEBRASKA, ex ) 4:99CV3252

rel. Don Stenberg, Attorney

General of the State of

Nebraska, and CITY OF

GRAND ISLAND,

NEBRASKA,

Plaintiffs, MEMORANDUM

AND ORDER

(Filed April 4, 2000)

Vs.

UNITED STATES OF

AMERICA, UNITED STATES

ENVIRONMENTAL

PROTECTION AGENCY and

CAROL M. BROWNER,

Administrator of the United

States Environmental

Protection Agency,

Nee eee ee ee ee”

Defendants.

This matter is before the court on Defendants’ motion

to dismiss (filing 15), filed pursuant to Fed. R. Civ. P.

12(b)(1). Defendants argue that subject matter jurisdiction

is lacking because: (1) under provisions of the Safe Drink-

ing Water Act (“SDWA”), 42 U.S.C. § 300j-7, exclusive

jurisdiction is vested in the United States Court of

Appeals for the District of Columbia Circuit (with respect

to “actions pertaining to the establishment of national

primary drinking water regulations”) or other circuits

(with respect to_“any other final action of the [EPA]

Administrator”); (2) Defendants’ sovereign immunity has_ -

not been waived; (3) Plaintiffs lack standing; and (4)

App. 9

Plaintiffs’ claims are not ripe for review. I shall grant

Defendants’ motion on the basis of SDWA § 300j-7.

Plaintiffs, the State of Nebraska and the City of

Grand Island, Nebraska, seek a declaratory judgment that

the provisions of the SDWA, as applied to regulate the

water supply systems at the Lincoln Regional Center (a

tate-owned facility) and within the City, are unconstitu-

tional because they exceed the authority granted to Con-

gress by the Commerce Clause, violate the Tenth

Amendment, and improperly delegate legislative author-

ity to the Environmental Protection Agency. Plaintiffs

purport to challenge only the Act itself, and not any EPA

regulations or actions.

In a related case that was filed in this court on July 6,

1998, State ex rel. Stenberg v. United States Environmental

Protection Agency, et al., Case No. 4:98CV3226, the State

sought a declaratory judgment that the SDWA, and the

regulations that were promulgated by the EPA to imple-

ment the Act, violated the Commerce Clause and Tenth

Amendment. That action was ordered dismissed for lack

of jurisdiction on May 19, 1999.

Stripping the complaint of references to the EPA's

implementing regulations does not change the result. A

plaintiff bringing an “as-applied” challenge contends that

the statute would be unconstitutional under the circum-

stances in which the plaintiff has acted or proposed to

act. See Olmer v. City of Lincoln, 23 F.Supp.2d 1091, 1104

(D.Neb. 1998), aff'd, 192 F.3d 1176 (8th Cir. 1999). Because

, “4

the SDWA is not self-implementing, Plaintiffs’ “as-

App. 10

applied” challenge necessarily implicates the EPA regula-

tions or other final agency action. Plaintiffs cannot chal-

lenge 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).

IT IS ORDERED that Defendants’ motion to dismiss

(filing 15) is granted and Plaintiffs’ complaint is dis-

missed for lack of subject matter jurisdiction.

DATED this 4th day of April, 2000.

BY THE COURT,

/s/ Richard G. Kopf

Richard G. Kopf

Chief United States District

Judge