### *Th e Hon. Donald D. Alsop, United States District Judge fo r

the District of Minnesota, sitting by designation. _____________ No. 96-2244EM

_____________ State of Missouri and * Mel Carnahan, Governor of the * State of Missouri, * * Appellants, * * v. * * United States of America; * On Appeal from the United U.S. Environmental Protection * States District Court Agency; United States * for the Eastern District Department of Transportation; * of Missouri. and Carol M. Browner, * Administrator of the * United States Environmental * Protection Agency, in her * official capacity, * * Appellees. *

___________ Submitted: January 13, 1997 Filed: March 20, 1997

___________ Befo re RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and ALSOP, * District Judge.

___________ RICHARD S. ARNOLD, Chief Judge.

In the present action, the state of Missouri challenges certai n actions of the EPA Administrator under the Clean Air Act,

### Section 7607(b)(1) reads, in pertinent part: 1


### Apetition for review of . . . any . . . nationall y applicable regulations promulgated, or final actio n take n, by the Administrator under this chapter may b e filed only in the United State s Court of Appeals for the District of Columbia . . .. A petition for review of th e Administrator's action in approving or promulgating any implementation plan . . . or any other final action of the Administrator under this chapter . . . which i s locally or regionally applicable may be filed only in th e Uni ted States Court of Appeals for the appropriat e circuit. -2- 42 U.S.C. § 7401 et seq. , as well as parts of the Act itself, as violation s of the Tenth Amendmen t and the Spending Clause. Missouri brought suit in the D istrict Court, however, rather than directly in our Court, as th e Clean Air Act requires. The District Court was therefore withou t jurisdiction to hear the case. Accordingly, the judgment of the District Court is vacated, andthe case is remanded with directions to dismiss the complaint.

I.
Section 7607 of the Clean Air Act (" CAA") outlines a detailed scheme of judicial review. 42 U.S.C. § 7607(b)(1). According to that section, final actions of the Administrator of the Environmental Protection Agency ("EPA") are to be reviewed exclusively in the courts of appeals. 1
The Distr ict Court held that § 7607 could not be read so broadly as to divest the district courts of jurisdiction ov er claims like Missouri's, be cause some of the challenges Missouri raised were based on th e Constitution. The District Court reasoned it retained jurisdiction over constitutional claims under 28 U.S.C. § 1331.
The Fourth Circuit recently rejected this reasoning in Virginia v
. United States , 74 F.3d 517 (4th Cir. 1996), and we

### The citation to § 307(b)(1) refers to the CAA itself; it is 2 

### codified at 42 U.S.C. § 7607(b)(1). -3- agr ee. That Court held that "Virginia. . . could have raised it s constitutional challenges under § 307(b)(1) and . . . was confined to that avenue of review." Id. at 525. The CAA makes no distinction betwee n 2 consti tutional challenges and other challenges. To the contrary, i t channels all petitions for review of EPA actions into the courts o f appea ls. We see no reason why constitutional challenges to EPA actio n under the CAA should lie outside that statute's explicit jurisdictiona l command simply because they arise under the Constitution. See Thunde r Basin Coa l Co. v. Reich , 114 S. Ct. 771, 780 (1994) (holding that th e existence of constitutional claims did not exemp t petitioner from judicial review procedure mandated by statute).

On appeal, Missouri makes a slightly different argument in suppor t of the District Court's jurisdiction. It argues that it sought t o challenge only the constitutionality of the CAA's statutory scheme, and no t specific final action s of the EPA. This argument was also pressed by the Commonwealthof Virginia in Virginia . The Fourth Circuit rejected tha t argument as well, and again we agree. We cannot accept the argument that Missouri sought only to cha llenge the co nstitutionality of the statute, completely apart from EPA action
. Missouri begins its c omplaint by explaining that "[the] action arises out of an alleged failure of the State of Missouri to comply . . . with federa l requirements." Appel lant App. 19. That failure was "alleged" by the EPA when it issued "deficiency findings," the action the EPA takes when i t disapproves a state's attempts to comply with the CAA.

Acc ording to the briefs before us, EPA has issued five forma l deficiency findings to Missouri so far under the CAA. See

### -4-

Appellant' s Br. 7-12. Missouri seeks to nullify the effects of thes e actions by having the sanctions they portend declared unconstitutional
. While it is true that Missouri's complaint quest ions the constitutionality of the overall sanctions scheme of the CAA, this challenge is not separate and apart from EPA action. Missouri's brief dis cusses in great detail the sanct ions which will be imposed if it does not remedy the deficiencie s pointed o ut by the EPA. Those sanctions flow directly from EPA action , originating in EPA's declaring the St. Louis area an "ozone nonattainment area." Since Missouri's challenge, as fashioned in its complaint, is to EPA a ctions as well as to the CAA itself, its lawsuit is covered by th e ju risdictional command of § 7607. There is simply no reason th e cons titutional challenges of this lawsuit should be, or even can be , separated from a challenge to final EPA action u nder the CAA. Petition to the Cou rt of Appeals, therefore, is the exclusive avenue available t o Missouri.

II.

We realize this decision produces the seemingly odd result o f requ iring Missouri to re-file its lawsuit before this Court, when i t appears to be before this Court already; in essence, Missouri must leave and come back through a different door. In enacting § 7607, however , Congr ess explicitly required that claims like Missouri's be brough t directly in the courts of appeals. We, and Missouri, have no other choice
.
In so dec iding, we are mindful of the time that has elapsed sinc e Missouri b egan pursuing its claims by another route. Counsel for th e Unit ed States assures us Missouri's claims are not time-barred. Th e limitation Missouri would face is also found in § 7607(b)(1), whic h requires that petitions for review of agency action be filed within 60 day s "fromthe date notice of such . . . action appears in the Federa l Register." Accordingto the United States, none of the EPA actions which Missouri challenges in its

### -5-

current suit has yet been published in the Federal Register. Therefore, no 60-day limitation period can have begun to run. We are satisfied, base d on this information, that Missouri will not be barred from bringing it s claims again should it re-file its lawsuit in our Court.

III.
For the r easons outlined above, we hold that the District Court was without jurisdiction to decide the instant case. We therefore vacate the Distri ct Court's judgment, and remand with directions to dismiss th e complaint for lack of jurisdiction.
A true copy.

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