UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-30714

ACORN, ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW;

ILLENE SIPPIO, Individually and as tutrix

of her minor daughters, Terri Sippio and Torey Sippio;

FRANK CROSBY, Individually and as tutor of his minor son,

Devin Crosby,

Plaintiffs-Appellees,

VERSUS

EDWIN EDWARDS, In his official capacity

as Governor of Louisiana; J. CHRISTOPHER PILLEY,

In his official capacity as Secretary of the

Louisiana Department of Health and Hospitals;

T. JAY RAY, In his official capacity as Administrator

of the Safe Drinking Water Program, Louisiana

Department of Health and Hospitals, Office of Public Health,

Defendants-Appellants.

Appeals from the United States District Court

for the Eastern District of Louisiana

April 22, 1996

Before GARWOOD, DUHÉ, and PARKER, Circuit Judges.

DUHÉ, Circuit Judge:

A public interest group and two concerned parent s sued

Louisiana state executive officials, in their official capacities,

to force the State into compliance with the Lead Contamination

Control Act of 1988, Pub. L. No. 100-572, 102 Stat. 2884 (codified

in relevant part at 42 U.S.C. §§ 300j-21 to 300j-26). After the

suit was dismissed as moot, the Plaintiffs successfully moved for1 All drinking water coolers identified on this list as having a

lead-lined tank are considered to be imminently hazardous under the

Consumer Product Safe ty Act, 15 U.S.C. § 2051 et seq., and the

2 attorney’s fees. The Defendant state officials appealed the award.

Because we agree that the Plaintiffs failed to allege a violation

of a lawful requirement of the Act, and thus no basis for an award

of attorney’s fees exists, we reverse and render judgment

dismissing the claim for attorney’s fees.

I. The Lead Contamination Control Act of 1988

In response to concerns that the nation’s children were being

exposed to unsafe levels of lead in their drinking water, Congress

passed the Lead Contamination Control Act of 1988 (“LCCA”). H.R.

Rep. No. 1041, 100th Cong., 2d Sess. at 6-8 (1988), r eprinted in

1988 U.S.C.C.A.N. 3793, 3793-95. The LCCA amended the Safe

Drinking Water Act (“SDWA”) to target what Congress perceived was

a significant source of such lead contamination--electric drinking

water coole rs containing lead solder or lead-lined water tanks

located in schools. I d

. at 7, reprinted in 1988 U.S.C.C.A.N. at

3794-95. Under the LCCA, the Administrator of the Environmental

Protection Agency and the States share responsibility for remedying

this problem.

The Administrator is required to identify each brand and model

of drinking water cooler which is not lead free, including each

brand and model that has a le ad-lined tank. 42 U.S.C. § 300j23(a). A list of the identified drinking water coolers must then

be published, subject to the Administrator’s continuing duty to

update the list as new information becomes available. 1 Id . Theman ufacturer and importer of such coolers is required to repair,

replace, or recall and provide a refund for the coolers by a date

specified in the LCCA. 42 U.S.C. § 300j-22. Additionally, the

LCCA provides criminal and civil penalties for any person who sells

in interstate commerce, or manufactures for s ale in interstate

commerce, any drinking water cooler listed, or any other drinking

water cooler that is not lead free. 42 U.S.C. § 300j-23(b)-(d).

3 Administrator is also required to distribute to the States the list

of non-lead free drinking wat er coolers, as well as to publish a

guidance document and testing protocol aimed at helping local

educational agencies, schools, and day care centers determine the

source and degree of lead contamination in their drinking water

systems and remedy such contamination. 42 U.S.C. § 300j-24(a)-(b).

The States’ responsibilities under the LCCA stem from only two

provisions. Section 300j-24(c) provides that “[e]ach State shall

provide for the dissemination to local educational ag encies,

private nonprofit elementary or secondary schools and to day care

centers of the guidance document and testing protocol published [by

the Administrator], together with the list of drinkin g water

coolers published under section 300j-23(a) of this title.” 42

U.S.C. § 300j-24(c). Further, § 300j-24(d) requires States to

est ablish remedial action programs for the removal of lead

contaminants from school dr i nking water systems. More

particularly, this section states:

(d) Remedial action program

(1) Testing and removing lead contamination

Within 9 months after October 31, 1988, each State

shall establish a program, consistent with this section,

to assist local educational agencies in testing for, and

remedying, lead contamination in drinking water from

coolers and from other sources of lead contamination at2 Section 300j-25(a) mandates that the Administrator “shall make

grants to States to establish and carry out State programs under

section 300j-24.” Section 300j-25(c) authorizes Congress to

appropriate $30,000,000 for each fiscal year from 1989 to 1991 to

fund the Administrator’s efforts. No such appropriations, however,

have been made by Congress, and the Administrator has not awarded

any grants to the States pursuant to its authorization.

3 The letter was sent by the Sierra Club Legal Defense Fund, Inc.,

on behalf o f ACORN and “the children of Frank and Sheryl Crosby,

t h e children of Illene D. Sippio, and a class of all other

similarly situated children in Louisiana.”

4 schools under the jurisdiction of such agencies.

* * *

(3) Coolers

In the case of drinking water coolers, such program

shall include measures for the reduction or elimination

of lead contamination from those water coolers which are located in schools. Such measures shall be adequate to

ensure that within 15 months after October 31, 1988, all

such water coolers in schools under the jurisdiction of

such agencies are repaired, replaced, permanently

removed, or rendered in operable unless the cooler is

tested and found (within the limits of testing accuracy)

not to contribute lead to drinking water.

Section 300j-25 provides that the Administrator shall make grants

to the S tates to assist them in complying with these mandates. 2

Finally, § 300j-8 of the SDWA provides a mechanism by which

“any person may commence a civil action on his own behalf” to force

the Administrator and the States to carry out the mandates of the

LCCA.

II. Procedural Background

Pursuant to the citizen’s suit provision of the SDWA (42

U.S.C. § 300j-8), the Association of Commun ity Organizations for

Reform Now (“ACORN”) 3 sent a “Notice of Intent to File Suit” letter

to Louisiana’s Governor; its Secretary of the Department of Health4 ACORN’s letter, in fact, alleged violation of subsections (d)(1)

and (d)(3) only. Accordingly, to simplify our task, we will refer

to these two subsections collectively as § 300j-24(d). Subsection

(d)(2), which is not at issue an d thus is excluded from our

discussion and conclusions, provides:

A copy of the results of any testing under paragraph (1)

shall be available in the administrative offices of the local

educati onal agency for inspection by the public, including

teachers, other school personnel, and parents. The local

educational agency shall notify parent, teacher, and employee

organizations of the availability of such testing results.

5 Suit was actually filed on behalf of ACORN, Illene Sippio,

individually and as the natural tutrix of her minor daughters, and

Frank Crosby, individually and as the natural tutor of his minor

son. Sippio and Crosby are parents of children attending schools

that did not receive the EPA list timely and that employ drinking

water coolers contained on the list. For simplicity, these

plaintiffs will be referred to throughout the opinion collectively

as “ACORN.”

5 and Hospitals; and the Administrator of the Safe Drinking Water

Program of th e Louisiana Department of Health and Hospitals.

Therein, ACORN alleged violations of § 300j-24(c) (failure to

disseminate the EPA list of non-lead free drinking water coolers)

and § 300j-24(d) 4 (failure to establish a remedial action program).

After receiving this letter, the Department of Health and Hospitals

distributed to lo cal educational agencies, schools, and day care

centers an EPA Fact Sheet that listed non-lead free drinking water

coolers identified as of February 1990.

Thereafter, ACORN 5 sued these officials in their of ficial

capacities (hereinafter “Defendants”), alleging only that

Defendants had failed to establi sh a remedial action program as

required by § 300j-24(d), and seeking dec laratory and injunctive

relief. After concluding that distribution of the EPA Fact Sheet

instead of the final list of non-lead free drinking water coolers6 The district court also denied Defendants’ motion seeking

reconsideration. ACORN , 842 F. Supp. at 235.

6 published by the EPA in the January 18, 1990 Federal Register did

not satisfy § 300j-24(c), ACORN amended its complaint to add a

cause of action for violation of this provision of the LCCA.

Defendants moved for dismissal for lack of subject matter

jurisdiction or, alternatively, summary judgment. Defendants

claimed that ACORN did not give the notice required under § 300j8(b)(1) and that ACORN, the organiza tion, lacked standing. The

district court denied Defendants’ motion. 6 A CORN v. Edwards

, 842

F. Supp. 227 (E.D. La. 1993). Thereafter, Defendants answered

ACORN’s complaint reasserting inadequate notice and lack of subject

matter jurisdiction, and alleging that ACORN’s claims were barred

by the Eleventh Amendment, that ACORN failed to join certain

indispensable parties--i.e., the EPA and local educational

agencies, and that the provisions of the LCCA at issue are

unconstitutional. Defendants filed a Motion to Certify

Constitutional Questions to the Attorney General of the United

States.

ACORN moved for summary judgment on the issue that Defendants

were in violation of § 300j-24(d)(3). Defendants then filed their

own summary j udgment motion seeking dismissal of all claims, or

alternatively the claims of the individual plainti ffs and the §

300j-24(c) claim. The district court denied ACORN’s summary

judgment motion and Defe ndants’ motion to certify the

constitutional ques tions. Later, however, the district court,7 The record indicates that ACORN submitted to Defendants a motion

to dismiss under Federal Rule of Civil Procedure 41(a)(2) believing

that the State was now complying with the LCCA. Defendants

declined to consent to the dismissal. After the telephone status

conference, during which ACORN expressed a desire to redirect its

resources from litigation to monitoring the LCCA program,

Defendants filed the summary judgment motion that was granted.

The d istrict court, in its Memorandum Opinion and Order of

N ovember 14, 1994, recognized that ACORN’s claims were mooted by

the State’s compliance with §§ 300j-24(c) and (d). On February 21,

1994, the State distributed the January 1990 Federal Register list.

Further, during the pendency of this litigation, the State

completed inspection of all of the suspect drinking water coolers

located in participating schools in a ccordance with the State’s

remedial action plan--i.e., Louisiana’s Implementation of the

federal Lead Contamination Control Act of 1988

. The cover page of

this plan indicates it was produced by the State’s LCCA Program

Director in 1989.

8 Section 300j-8(d) provides that “[t]he court, in issuing any

final order in any action brought under [300j-8](a), may award

costs of litigation (including re a sonable attorney and expert

witness fees) to any party whenever the court determines such an award is appropriate.”

7 after a telephone status conference with all parties, granted

Defendants’ motion for summary judgment and dismissed all claims as

moot. 7 The district court’s ruling specifically reserved the

parties’ rights to litigate whether attorney’s fees may be due.

ACORN then moved for an award of attorney’s fees and other

expenses pursuant to § 300j-8(d). 8 Defendants opposed this motion

on numerous grounds; most notably that the provisions of the LCCA

sought to be enforced are unconstitutional. The district court

reaffirmed that all claims in this suit were dismissed as moot and

ordered Defendants to pay attorney’s fees and expenses of

$41,181.25 to ACORN for payment by it in the same amount to its

attorneys. Defendants timely appealed.

III. Discussion8

On appeal, Defendants raise numerous alleged errors attacking

the district court’s award of attorney’s fees. After wading

through this morass, we elect to resolve Defendants’ claims as

follows.

A. 42 U.S.C. § 300j-24(c)

Defendants challenge both § 300 j-24(c) and § 300j-24(d) as

violative of the United States Const itution--in particular, the

Tenth Amendment. We are mindful, however, that “[federal courts]

have [a]

. . . duty to avoid constitutional issues that need not be

resolved in order to determine the rights of the parties to the

case under consideration.” C ounty Court of Ulster County v. Allen

,

442 U.S. 140, 154 (1979). S ee also Ysleta Del Sur Pueblo v. Texas

,

36 F.3d 1325, 1332 (5th Cir. 1994), certs. denied

,

__ U.S.

__, __,

115 S.Ct. 1358, 1358 (1995); Louisiana v. Public Investors, Inc.

,

35 F.3d 216, 219-20 (5th Cir. 1994).

ACORN’s original complaint alleged only that the State was in

violation of § 300j-24(d). ACORN explained to the district court

that, at the time suit was filed, it was not sure whether

Defendants’ earlier dissemination of the EPA Fact Sheet, in lieu of

the list published by the EPA in the January 18, 1990 Federal

Register, constituted compliance with § 300j-24(c). A CORN

, 842 F.

Supp. at 228 n.2. After deciding that it did not, ACORN amended

its complaint to allege a violation of § 300j-24(c). Some nine

months after suit commenced, Defendants disseminated the Federal

Register list.

Defendants contend they fully complied with § 300j-24(c) prior9 A comparison of the EPA Fact Sheet distributed by the State with

the list published by the Administrator in the January 18, 1990

Federal Register, which ACORN alleges was the list the LCCA

requires to be disseminated, reveals that the Fact Sheet contains

all of the brands and models listed in the Federal Register, plus

seven others.

9 to ACORN’s institution of suit by distributing to the proper

entities the February 1990 EPA Fact Sheet. 9 Accordingly,

Defendants argue they were not in violation of this requirement of

the LCCA at the time suit was commenc ed, and therefore cannot be

liable for attorney’s fees incurred in pressing a claim to the

contrary.

ACORN argues that “publ ish” in §§ 300j-23(a) and -24(c)

requires publication in the Federal Register. Impliedly, the

district court agreed. A CORN

, 842 F. Supp. at 229, 235 n.26.

Because the Fact Sheet was not so published, ACORN contends,

Defendants did not comply with § 300j-24(c) until over nine months

after suit was filed, when they finally disseminated the EPA “final

list” of non-lead free drinking water coolers contained in the

January 18, 1990 Federal Register. As such, ACORN continues, the

lawsuit was the catalyst for Defendants’ compliance, and thus ACORN

is entitled to the fees it incurred in pursuing this claim.

Section 300j-24(c) provides:

Each State shall provide for the dissemination to local

educational agencies, private nonprofit elementary or

secondary schools and to day care centers of the guidance

document and testing protocol published under subsection (b)

of this section, together with the list of drinking water

coolers published under section 300j-23(a) of this title.10 There has never been any contention by ACORN that the Defendants

failed to properly disseminate the EPA’s guidance docum ent and

testing protocol. Notably, though, § 300j-24(b) provides that the

Administrator “shall publish a guidance document and a testing

protocol.” (Emphasis added.). The Administrator, having generated

these documents, has never published more than a notice of their

availability in the Federal Register. See, e.g. , Notice, 54 Fed.

Reg. 14,316 (1989). Thus, the “published” documents distributed by

t he State in compliance with this requirement were not docume nts

“published in the Federal Register.”

10 42 U.S.C. § 300j-24(c) (emphasis added). 10 Section 300j-23(a) calls

upon the Administrator to “identify each brand and model of

drinking water cooler which is not lead free” and to “ p ublish a

list of each brand and model of drinking water cooler [so]

identified.” 42 U.S.C. § 300j-23(a) (emphasis added). Neither

provision unambiguously establishes how or where publication is to

be made, nor do we think we need attempt to do so.

Assuming arguendo “publish” equates to “publish in the Federal

Register,” that Defendant s may have failed to comply t echnically

with the statute is unpersuasive. The Fact Sheet listed all of the

suspect drinking water coolers co ntained in the Federal Register

list. In addition, the Fact Sheet listed seven other models

originally thought to be non-lead free. Albeit these seven

additional mo dels were later determined to have been incorrectly

included by the Administrator on the Fact Sheet, dissemination of

the over-inclusive Fact Sheet does not defile the purpose of the

LCCA. The error, if any, on the part of Defendants was

inconsequential, in that the entities receiving the Fact Sheet were

e ncouraged to be more, rather than less, cautious in determining

which drinkin g water coolers in their possession posed a health11 ACORN contends that Defendants failure to distribute the Federal

Register li st is not harmless because the Federal Register

contained additional information and an advisory with a toll free

number regarding Halsey Taylor water coolers with lead-lined tanks.

We are not swayed for two reasons. Although this information may

be useful, it is not information which the LCCA requires the

Administrator to compile and include in the list of non-lead free

drinking water coolers. S ee 42 U.S.C. § 300j-23(a) (“[T]he

Administrator shall publish a list of each brand and model of

drinking water cooler identified under this subsection. Such list

shall separately identify each brand and model of cooler which has

a lead-lined tank. The Administrator shall continue to gather

information regarding lead in drinking water coolers and shall

revise and republi sh the list from time to time as may be

appropriate as new information or analysis becomes available

. . . .”). Further, review of the EPA Fact Sheet reveals that the

bottom, right-hand corner contains the following disclaimer:

Note: A number of water coolers have been deleted from the

proposed lis t identifying them as not lead free. For

information about these water coolers and others, refer to the

January 18, 1990 Federal Register notice.

Thus, persons seeking information in addition to the list of nonlead free coolers contained in the Fact Sheet are directed to the

Federal Register.

11 risk. ACORN is correct that Defendants distributed a list

containing erroneo us information. 1 1 However, Defendants erred in

favor of the State’s school children, the ultimate beneficiaries of

the LCCA, and we see no reason to pen alize the State for such an

innocuous transgression. Accordingly, regardless of how we define

“publish,” as used in the LCCA, we find Defendants’ distribution of

the EPA Fact Sheet, in this case, su fficient to bring the State

into compliance with § 300j-24(c) prior to ACORN filing suit. As

such, we conclude that ACORN failed to show that Defendants

violated this requirement of the LCCA, and that ACORN is therefore

not entitled to attorney’s fees incurred in pursuing its § 300j24(c) claim.12

B. 42 U.S.C. § 300j-24(d)

Heeding the Supreme Court ’s admonition to avoid unnecessary

resolution of constitutional questions, we have foregone

det ermining whether § 300j-24(c) breaches the Tenth Amendment.

Section 300j-24(d), however, does not escape such inquiry.

In the course of oral argument, we asked the parties to submit

post-argument mem oranda on whether the provisions of the LCCA at

issue violated the Tenth Amendment. Subsequent to these

submissions, we permitted the United States to intervene to assert

its views. Much of the arguments focus on whether the teachings of

New York v. United States , __ U.S. __, 112 S.Ct. 2408 (1992), are

controlling. ACORN contends that if Congress acts legitimately

under an Article I power to regulate activity, the Tenth Amendment

has no sway. On the other hand, Defendants argue New York stands

for the proposition that Congress cannot impose any requirement on

the States pursuant to the exercise of its Commerce Clause power.

Although we agree that New York is an appropriate starting point

for our analysis, we recogniz e that neither ACORN nor Defendants

properly grasp the interplay between Congress’ exercise of its

Article I powers and the Tenth Amendment, as that interplay was

described by the New York Court.

1. The Tenth Amendment

The Tenth Amendment provides: “The powers not delegated to the

United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to the people.”

It has been said that “[t]he amendment states but a truism that all12 Defendants argue that, while regulating lead-contaminated

drinking water coolers is within Congress’ Commerce Clause power,

requiring States to develop testing programs and to distribute EPA

lists are not. We agree with the United States that the better

approach is to focus on whether requiring such actions of the

S tates is an appropriate means of regulating such drinking wa ter

coolers.

13 is retained which has not been surrendered.” S ee United States v.

Darby

, 312 U.S. 100, 124 (1941). However, in N ew York

, the Supreme

Court elucidated the broader effect of this amendment:

The Tenth Amendment

. . . restrains the power of Congress, but

this limit is not derived from the text of the Tenth Amendment

itself, which

. . . is essentially a tautology. Instead, the

Tenth Amendment confirms that the power of th e Federal

Government is subject to limits that may, in a given instance,

reserve power to the States. The Tenth Amendment thus directs

us to determine

. . . whether an incident of state sovereignty

is protected by a limitation on an Article I power.

New York , __ U.S. at __, 112 S.Ct. at 2418. The Tenth Amendment,

therefore, incorporates extra-textual limitations upon Congress’

exercise of its Article I powers. Thus, when an Act of Congress is

challenged under the Tenth Amendment, we must be concerned not only

with whether Congress has the power under Article I to regulate the

activity in question, but also with whether the method by which

Congress has chosen to regulate the activity pursuant to that power

invades that province of state sovereignty protected by the Tenth

Amendment. I d

. at

__, 112 S .Ct. at 2419-20. In this case, the

parties concede that Congress may, pursuant to its Commerce Clause

power, regulat e lead-contaminated drinking water coolers. 1 2

Accordingly, our focus is on whe ther the method of regulation

chosen by Congress in § 300j- 24(d) impermissibly intrudes upon

state sovereignty. To answer this question, we begin by reviewing14

New York

.

2. The Tenth Amendment and New York v. United States

In New York

, the Supreme Court faced a challenge by the State

of New York and two of its counties to the three-tiered incentive

system contained in the Low-Level Radioactive Waste Policy

Amendments Act of 1985, Pub. L. No. 99-240, 99 Stat. 1842 (codified

at 42 U.S.C. § 2021b et seq. ). The purpose of the Act was to place

on each state responsibility to provide for the disposal of lowlevel radioactive waste generated within its borders. To encourage

t he States to comply with this statutory responsibility, the Act

provided three types of incentives: (1) monetary incentives--i.e.,

a portion of surcharges received by states currently operat ing

disposal sites were to be remitted into an escrow account operated

by the Secretary of Energy who would then d isburse this fund to

states that compl ied with statutorily prescribed deadlines; (2)

access incentives--i.e., states that failed to meet st atutorily

prescribed deadlines could be denied access to disposal s ites in

other states or regions; and (3) a take title provision--i.e., any

state that fails to provide for disposal of waste generated within

its borders by January 1, 1996, must take title to the waste, is

obligated to take possession of the waste, and bears liability for

all damages incurred by a generator or owner of such waste incurred

as a consequence of the State’s failure to take possession. The

State of New York opposed all three incentive provisions, asserting

inter alia that the incentives were unconstitutional violations of

the Tenth Amendment.13 Justice O’Connor did recognize that Congress has several ways

of influencing the actions of the States that comply with our notions of federalism. For example, Congress can subject state

governments to laws of general applicability--i.e., laws that apply

equally to the States as to private parties. S ee, e.g.

, Garcia v.

San Antonio Metro. Transit Auth.

, 469 U.S. 528 (1985). Also, under

its spending power, Congress may attach to the receipt of federal

funds conditions that have the affect of influenc ing state

legislative choices. S ee, e.g.

, South Dakota v. Dole

, 483 U.S. 203

(1987 ). Further, where Congress may regulate pursuant to its

Commerc e Clause power, it also has the power to offer States a

choice of legislating according to Congressional instruction or

having state law preempted by federal regulation. S ee, e.g.

, FERC

v. Mississippi

, 456 U.S. 742 (1982); Hodel v. Virginia Surface

Mining & Reclamation Ass’n, Inc. , 452 U.S. 264 (1981).

15 The Supreme Court, speaking through Justice O’Connor, held

only the take title provision unconstitutional. In reaching this

conclusion, Justice O’Connor deduced that the take title provision

offered state governments a “choice” of either accepting ownership

of and liability for waste or regulating its disposal according to

Congress’ instruc tions. N ew York

,

__ U.S. at

__, 112 S.Ct. at

2428. Finding both options, standing alone, to be outside

Congress’ authority, she determined that a choice between them was,

in fact, “no choice at all.” I d

. “Either way, ‘the Act

commandeers the legis lative processes of the States by directly

compelling them to enact and enforce a federal regulatory program,’

an outcome that has never been understood to lie within the

authority conferred upon Congress b y the Constitution.” 1 3 I d

.

(citation omitted). Indeed, she elaborated:

States are not mere political subdivisions of the United

States. State governments are neither regional offices nor

administrative agencies of t he Federal Government. The

positions occupied by state offi cials appear nowhere on the

Federal Government’s most detailed organizational chart. The

Constitution instead “leaves to the several States a residuary

and inviolable sovereignty,” The Federalist No. 39, p. 245 (C.16

Rossiter ed. 1961), reserved explicitly to the States by the

Tenth Amendment.

Whatever the outer limits of that sovereignty may be, one thing is clear: The Federal Government may not compel the

States to enact or administer a federal regulatory program.

Id . at __, 112 S.Ct. at 2434-35.

3. The Tenth Amendment, N ew York v. United States

, and §

300j-24(d)

Few Congressional enactments fall as squarely within the ambit

of New York as does § 300j-24(d). Section 300j-24(d) r equires each

State to “establish a pro gram, consistent with this section,” to

assist local educational agencies, schools, and day care centers in

remedying potential l ead contamination in their drinking water

systems. Failure or refusal to establish the mandated program

subjects the States to civil enforcement proceedings. 42 U.S.C. §

300j-8(a). The States thus face a choice between succumbing to

Congressional direction and regulating according to Congressional

instruction, or being forced to do so through civil action in the

federal courts. In actuality, this “is no choice at all.” The

LCCA gives the States no alternative but to enact the federal

regulatory pl an as prescribed in § 300j-24(d), and such

Congressional conscription of state legislative functions is

clearly p rohibited under N ew York ’s interpretation of the limits

imposed upon Congress by the Tenth Amendment.

C ongress is free, pursuant to its Commerce Clause power, to

combat lead contamination in drinking water by regulating drinking

water coolers that move in interstate commerce. Such regulation,

however, must operate directly upon the people, and not the States17

as conduits to the people. “The allocation of power contained in

the Commerce Clause

. . . authorizes Congress to regulate

interstate com

merce directly; it does not authorize Congress to

regulate state governments’ regulation of interstate commerce.”

New York

,

__ U.S. at

__, 112 S.Ct. at 2423. Section 300j-24(d) is

an attempt by Congress to force States to regulate according to

Congressional direction. As the N ew York Court explained, the

Constituti on does not permit Congress to so control the States’

legislative processes.

ACORN and the United States argue § 300j-24(d) is a valid

exercise of Congress’ Commerce Clause power because it affords the

States complete discretion to determine the means employed in

achieving the LCCA’s goals. The N ew York Court addressed an

identical argument and rejected it stating: “This line of reasoning

. . . only underscores the critical alternative a State lacks: A

State may not decline to administer the federal program. No matter

which path the State chooses, it must follow the direction of

Congress.” N ew York

,

__ U.S. at

__, 112 S.Ct. at 2429. Because §

300j-24(d) deprives States of the option to decline regulating nonlead free drinking water coolers, we likewise find no merit to this

argument and conclude that § 300j-24(d) is an unconstitutional

intrusion upon the States’ sovereign prerogative to legislate as it

sees fit.

IV. Conclusion

Section 300j-8(d) allows the district court to award

attorney’s fees “in issuing any final order in any action brought18

under [§ 300j-8(a)].” Section 300j-8(a)(1), in turn, allows suits

against governmental instrumentalities only when the

instrumentality is alleged to be in violation of a requirement of

the SDWA. We hold that Defendants distribution of the EPA Fact

Sheet w as sufficient to bring the State of Louisiana into

compliance with the LCCA. As such, Defendants were not in

violation of the requirement imposed by § 300j-24(c) at the time

ACORN commenced this litigation. Further, we hold that the

requirements imposed by Congress upon the States under § 300j-24(d)

violate the Tenth Amendment and are unconstitutional. Hence,

because ACORN has failed to establish that Defe ndants were in

violation of any lawful requirement of the LCCA at the time it

commenced this suit, the district court’s award of attorney’s fees

to ACORN un der § 300j-8(d) was improper. The judgment of the

district court awarding attorney’s fees to ACORN, for payment by

them to their attorneys, is therefore REVERSED, and ACORN’s claims

are DISMISSED.