*The Hon. Donald D. Alsop, United States District Judge for

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

___________

Before 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 certain

actions of the EPA Administrator under the Clean Air Act,
 Section 7607(b)(1) reads, in pertinent part: 1

A petition for review of . . . any . . . nationally

applicable regulations promulgated, or final action

taken, by the Administrator under this chapter may be

filed only in the United States Court of Appeals for the

District of Columbia . . .. A petition for review of the

Administrator's action in approving or promulgating any

implementation plan . . . or any other final action of

the Administrator under this chapter . . . which is

locally or regionally applicable may be filed only in the

United States Court of Appeals for the appropriate

circuit.

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42 U.S.C. § 7401 et seq., as well as parts of the Act itself, as violations

of the Tenth Amendment and the Spending Clause. Missouri brought suit in

the District Court, however, rather than directly in our Court, as the

Clean Air Act requires. The District Court was therefore without

jurisdiction to hear the case. Accordingly, the judgment of the District

Court is vacated, and the 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 District Court held that § 7607 could not be read so broadly as

to divest the district courts of jurisdiction over claims like Missouri's,

because some of the challenges Missouri raised were based on the

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).

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agree. That Court held that "Virginia. . . could have raised its

constitutional challenges under § 307(b)(1) and . . . was confined to that

avenue of review." Id. at 525. The CAA makes no distinction between

2

constitutional challenges and other challenges. To the contrary, it

channels all petitions for review of EPA actions into the courts of

appeals. We see no reason why constitutional challenges to EPA action

under the CAA should lie outside that statute's explicit jurisdictional

command simply because they arise under the Constitution. See Thunder

Basin Coal Co. v. Reich, 114 S. Ct. 771, 780 (1994) (holding that the

existence of constitutional claims did not exempt petitioner from judicial

review procedure mandated by statute).

On appeal, Missouri makes a slightly different argument in support

of the District Court's jurisdiction. It argues that it sought to

challenge only the constitutionality of the CAA's statutory scheme, and not

specific final actions of the EPA. This argument was also pressed by the

Commonwealth of Virginia in Virginia. The Fourth Circuit rejected that

argument as well, and again we agree.

 We cannot accept the argument that Missouri sought only to challenge

the constitutionality of the statute, completely apart from EPA action.

Missouri begins its complaint by explaining that "[the] action arises out

of an alleged failure of the State of Missouri to comply . . . with federal

requirements." Appellant App. 19. That failure was "alleged" by the EPA

when it issued "deficiency findings," the action the EPA takes when it

disapproves a state's attempts to comply with the CAA. 

According to the briefs before us, EPA has issued five formal

deficiency findings to Missouri so far under the CAA. See
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Appellant's Br. 7-12. Missouri seeks to nullify the effects of these

actions by having the sanctions they portend declared unconstitutional.

While it is true that Missouri's complaint questions the constitutionality

of the overall sanctions scheme of the CAA, this challenge is not separate

and apart from EPA action. Missouri's brief discusses in great detail the

sanctions which will be imposed if it does not remedy the deficiencies

pointed out 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 actions as well as to the CAA itself, its lawsuit is covered by the

jurisdictional command of § 7607. There is simply no reason the

constitutional challenges of this lawsuit should be, or even can be,

separated from a challenge to final EPA action under the CAA. Petition to

the Court of Appeals, therefore, is the exclusive avenue available to

Missouri.

II.

We realize this decision produces the seemingly odd result of

requiring Missouri to re-file its lawsuit before this Court, when it

appears to be before this Court already; in essence, Missouri must leave

and come back through a different door. In enacting § 7607, however,

Congress explicitly required that claims like Missouri's be brought

directly in the courts of appeals. We, and Missouri, have no other choice.

In so deciding, we are mindful of the time that has elapsed since

Missouri began pursuing its claims by another route. Counsel for the

United States assures us Missouri's claims are not time-barred. The

limitation Missouri would face is also found in § 7607(b)(1), which

requires that petitions for review of agency action be filed within 60 days

"from the date notice of such . . . action appears in the Federal

Register." According to the United States, none of the EPA actions which

Missouri challenges in its
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current suit has yet been published in the Federal Register. Therefore,

no 60-day limitation period can have begun to run. We are satisfied, based

on this information, that Missouri will not be barred from bringing its

claims again should it re-file its lawsuit in our Court.

III.

For the reasons outlined above, we hold that the District Court was

without jurisdiction to decide the instant case. We therefore vacate the

District Court's judgment, and remand with directions to dismiss the

complaint for lack of jurisdiction.

A true copy.

Attest:

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