ELR Citation: ELR 21257
No(s). 94-30714 (5th Cir. Apr 22, 1996)

The court holds that individuals and a citizen group are not entitled to attorney fees they incurred suing the state of Louisiana for violations of Safe Drinking Water Act (SDWA) §1464, which was enacted through the Lead Contamination and Control Act (LCCA). A district court had dismissed plaintiffs' claims as moot because Louisiana had distributed to schools a U.S. Environmental Protection Agency (EPA) fact sheet containing a list of lead-containing drinking-water coolers pursuant to §1464(c) and had implemented a remedial action plan for lead pursuant to §1464(d). The court first holds that the state's distribution of the fact sheet satisfied §1464(c). Although that section requires states to distribute a list of lead-containing coolers "published" by EPA, it does not necessarily require that the list be the one published in the Federal Register. Moreover, the fact sheet listed all of the suspect drinking-water coolers contained in the Federal Register list, and although other models listed on the fact sheet were later determined to have been incorrectly included, dissemination of the overinclusive fact sheet does not defile the purpose of the LCCA. Thus, the group has failed to show that the state violated this requirement, and is therefore not entitled to attorneys fees incurred in pursuing the §1464(c) claim. The court next holds that under New York v. United States, 505 U.S. 144 (1992), §1464(d)'s requirement that each state establish a program to assist local schools in remedying potential lead contamination in their drinking-water systems violates the Tenth Amendment to the U.S. Constitution. The LCCA gives the states no alternative but to enact the federal regulatory plan as prescribed, and such congressional conscription of state legislative functions is clearly prohibited under New York's interpretation of the limits imposed on Congress by the Tenth Amendment. Although states have complete discretion to determine the means employed in achieving the LCCA's goals, §1464(d) deprives states of the option to decline regulating nonlead free drinking-water coolers, and is thus an unconstitutional intrusion upon the state's sovereign prerogative to legislate as it sees fit. Hence, because plaintiffs have failed to establish that Louisiana was in violation of any lawful requirement of the LCCA at the time they commenced this suit, the district court's award of attorney fees to them under SDWA §1449(d) was improper.

[A prior opinion in this litigation is published at 24 ELR 20929.]

Counsel for Plaintiffs
Nathalie M. Walker
Sierra Club Legal Defense Fund
400 Magazine St., Ste. 401, New Orleans LA 70130
(504) 522-1394

Counsel for Defendants
Emile C. Rolfs III
Breazeale, Sachse & Wilson
One American Pl., 23d Fl., Baton Rouge LA 70821
(504) 387-4000

Before GARWOOD, DUHE and PARKER, Circuit Judges.