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Nebraska v. United States

ELR Citation: 31 ELR 20445
Nos. 00-2410, 238 F.3d 946/(8th Cir., 02/01/2001)

The court affirms a district court dismissal for lack of subject matter jurisdiction of a state and town's suit alleging that the Safe Drinking Water Act (SDWA) is unconstitutional. Under SDWA §1448, a petition for review of an SDWA regulation must be filed in the U.S. Court of Appeals for the D.C. Circuit within 45 days of the challenged regulation's promulgation. The state previously sought review in federal district court of the U.S. Environmental Protection Agency (EPA)-issued SDWA lead and copper regulation, but that court dismissed the suit because it had not been filed in the D.C. Circuit. The state, joined by the town, then sought a declaratory judgment in federal district court that the SDWA is unconstitutional as it is applied to two public water facilities. Again, the district court dismissed for lack of subject matter jurisdiction, and the state and the town appealed. The court first holds that the present suit challenging the constitutionality of the SDWA is not independent of EPA's implementing regulations. Although this action omits all references to the lead and copper rule and casts itself as an "as-applied" challenge to the Act itself, the SDWA is not self-executing, and is applied through the SDWA's regulations. Therefore, the challenge to the Act as applied to the water facilities necessarily implicated the lead and copper regulation, and, thus, triggered SDWA §1448's jurisdictional requirements.

Counsel for Appellant
Lynn Melson, Ass't Attorney General
Attorney General's Office
2115 State Capitol, Lincoln NE 68509
(402) 471-2682

Counsel for Appellees
Sean H. Donahue
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Loren and Battey,1 JJ.