Dismissal with prejudice of a erroneous claim that an earlier decision of a regulatory body relied on a preempted state statute does not deprive the plaintiff of the right subsequently to assert the preemption of the statute as relied upon by another regulatory decision.
Dispute as to two of the parties is now moot, given private settlement of claims, and subsequent procedural steps and the possibility that an allegedly preempted statute might be relied upon in the future is insufficient to preserve a live case or controversy between the parties.
While the voiding of a past agency order is not obtainable under the Ex Parte Young exception to state sovereignty, subsequent enforcement actions in furtherance of such an order do state a claim.
As the suit is seeking a remedy in equity, the non-jurisdictional bar against S1983 claims against political subdivisions does not deprive the court of jurisdiction.
Statutory requirement of utility capability implies an inquiry into nearby infrastructure.
CJ, et al., Concur/Dissent:
Federal statute defining utility service area applies to the degree that federal funds were used to construct the infrastructure.
Concur/Concur with Concur/Dissent:
Fact-bound decision on remand.
Concur:
Where a state law statute creating a private cause of action is preempted, the c/a can arise in equity, and where the claim presents a substantial question of federal law, there is federal jurisdiction.
Concur:
Although, by Bivvens analogy, S1983's exclusion of political subdivisions should extinguish a correlative implied cause of action in equity arising under Ex Parte Young, precedent sufficiently recognizes the validity of an equitable suit for prospective relief against state officials' actions that violate the federal constitution.