                                  _____________

                                  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,




     *The Hon. Donald D. Alsop, United States District Judge for
the District of Minnesota, sitting by designation.
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




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

        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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agree.     That Court held that "Virginia. . . could have raised its
constitutional challenges under § 307(b)(1) and . . . was confined to that
avenue of review."2     Id. at 525.    The CAA makes no distinction between
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




     2
      The citation to § 307(b)(1) refers to the CAA itself; it is
codified at 42 U.S.C. § 7607(b)(1).

                                       -3-
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




                                        -4-
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.




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