Acorn v. Edwards

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
Barb. 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