                    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   parents   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 for
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), reprinted 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 coolers containing lead solder or lead-lined water tanks

located in schools.      Id. 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 lead-lined tank.                42 U.S.C. § 300j-

23(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.   The

1
   All drinking water coolers identified on this list as having a
lead-lined tank are considered to be imminently hazardous under the
Consumer Product Safety Act, 15 U.S.C. § 2051 et seq., and the

                                    2
Administrator is also required to distribute to the States the list

of non-lead free drinking water 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      agencies,

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 drinking 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

establish   remedial    action    programs    for   the   removal     of   lead

contaminants     from    school    drinking    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 at


manufacturer 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 sale 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
          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 inoperable 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 States 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 Community 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 Health

2
   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 of ACORN and “the children of Frank and Sheryl Crosby,
the children of Illene D. Sippio, and a class of all other
similarly situated children in Louisiana.”

                                4
and Hospitals; and the Administrator of the Safe Drinking Water

Program of the 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 local 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, ACORN5 sued these officials in their official

capacities   (hereinafter   “Defendants”),   alleging   only   that

Defendants had failed to establish a remedial action program as

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

relief.   After concluding that distribution of the EPA Fact Sheet

instead of the final list of non-lead free drinking water coolers

4
  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 and 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
     educational 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
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 § 300j-

8(b)(1) and that ACORN, the organization, lacked standing.                         The

district court denied Defendants’ motion. 6               ACORN 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 judgment motion seeking dismissal of all claims, or

alternatively the claims of the individual plaintiffs and the §

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

judgment    motion       and    Defendants’      motion       to     certify       the

constitutional questions.          Later, however, the district court,


6
    The district court also denied Defendants’ motion seeking
reconsideration. ACORN, 842 F. Supp. at 235.

                                        6
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. Discussion

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 district court, in its Memorandum Opinion and Order of
November 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 accordance 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 reasonable attorney and expert
witness fees) to any party whenever the court determines such an
award is appropriate.”

                                    7
     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 § 300j-24(c) and § 300j-24(d) as

violative of the United States Constitution--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.” County Court of Ulster County v. Allen,

442 U.S. 140, 154 (1979).         See 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).               ACORN, 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) prior


                                        8
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 commenced, and therefore cannot be

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

contrary.

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

requires publication in the Federal Register.              Impliedly, the

district court agreed.       ACORN, 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.




9
  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
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 “publish 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 Defendants may have failed to comply technically

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

suspect drinking water coolers contained 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 models 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

encouraged to be more, rather than less, cautious in determining

which drinking water coolers in their possession posed a health


10
   There has never been any contention by ACORN that the Defendants
failed to properly disseminate the EPA’s guidance document 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
the State in compliance with this requirement were not documents
“published in the Federal Register.”

                                                 10
risk.   ACORN   is    correct   that      Defendants    distributed     a   list

containing erroneous information.11          However, Defendants erred in

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

the LCCA, and we see no reason to penalize 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, sufficient 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 § 300j-

24(c) claim.


11
   ACORN contends that Defendants failure to distribute the Federal
Register list 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.      See 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 republish 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 list 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 non-
lead free coolers contained in the Fact Sheet are directed to the
Federal Register.

                                     11
B. 42 U.S.C. § 300j-24(d)

     Heeding the Supreme Court’s admonition to avoid unnecessary

resolution     of    constitutional     questions,     we   have    foregone

determining 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 memoranda 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 recognize 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 all


                                      12
is retained which has not been surrendered.”       See United States v.

Darby, 312 U.S. 100, 124 (1941).    However, in New 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 the 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.   Id. at __, 112 S.Ct. at 2419-20.          In this case, the

parties concede that Congress may, pursuant to its Commerce Clause

power,   regulate    lead-contaminated      drinking   water   coolers.12

Accordingly, our focus is on whether the method of regulation

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

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

12
     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
States is an appropriate means of regulating such drinking water
coolers.

                                   13
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 low-

level radioactive waste generated within its borders. To encourage

the 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 operating

disposal sites were to be remitted into an escrow account operated

by the Secretary of Energy who would then disburse this fund to

states that complied with statutorily prescribed deadlines; (2)

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

prescribed deadlines could be denied access to disposal sites 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.


                                    14
      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’ instructions.          New 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.”      Id.     “Either    way,   ‘the   Act

commandeers the legislative 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 by the Constitution.”13                    Id.

(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 the Federal Government.         The
      positions occupied by state officials 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.

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. See, 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 influencing state
legislative choices. See, e.g., South Dakota v. Dole, 483 U.S. 203
(1987).   Further, where Congress may regulate pursuant to its
Commerce 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. See, 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
     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, New 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) requires each

State to “establish a program, consistent with this section,” to

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

remedying potential lead 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   plan   as   prescribed       in   §   300j-24(d),    and   such

Congressional   conscription   of    state     legislative   functions    is

clearly prohibited under New York’s interpretation of the limits

imposed upon Congress by the Tenth Amendment.

     Congress 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 States


                                    16
as conduits to the people.        “The allocation of power contained in

the   Commerce   Clause   .   .    .   authorizes   Congress   to   regulate

interstate commerce 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 New York Court explained, the

Constitution 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 New 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.”   New York, __ U.S. at __, 112 S.Ct. at 2429.            Because §

300j-24(d) deprives States of the option to decline regulating non-

lead 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 brought


                                       17
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   was    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 Defendants 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 under § 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.




                                        18
