that past suggestions that the District Court has general federal question jurisdiction under 28 U.S.C. § 1331 over [some claims affecting the appellate's court's future statutory review] were in error." Id. at 77 n.30. The court cited National Advertisers as an example of this error, and since National Advertisers was based, inter alia, on constitutional claims, the TRAC decision would appear to apply to cases based on constitutional claims.
Nonetheless, in Ticor Title Insurance Co. v. Federal Trade Commission, 259 U.S. App. D.C. 202, 814 F.2d 731 (D.C. Cir. 1987), the court again split over whether district courts have jurisdiction over constitutional challenges to agency action when jurisdiction is otherwise vested in the court of appeals. All three judges voted to affirm the specific district court holding in Ticor, but each employed different reasoning. In addition, two of the judges took the opportunity to discuss the TRAC decision and the issue of district court jurisdiction over constitutional claims. In what would have been dicta even if the opinion had been for the court, Judge Harry T. Edwards wrote, "Once the constitutional claim was subject to review, it would of course be brought before the court of appeals in conjunction with any nonconstitutional defenses to the final agency action." Id. at 744 (opinion of Edwards, J.). By contrast, District Judge Joyce Hens Green, sitting by designation, concluded that district courts had jurisdiction over constitutional challenges to agency action. Id. at 757-58 (opinion of Green, J.).
It is difficult to know how to proceed in the face of such conflicting signals, but we conclude that whenever jurisdiction is vested in a Court of Appeals, the Court of Appeals has jurisdiction over related constitutional claims as well. Both judges who discussed the issue in Ticor used the TRAC decision as their guide, see id. at 743-44 (opinion of Edwards, J.); id. at 757-58 (opinion of Green, J.), and we will do the same here. To be sure, the decision in TRAC is not exactly parallel to the situation in the present case; we are not considering claims that affect the future Court of Appeals review, see TRAC, 750 F.2d at 77. Yet the language of the TRAC decision does not appear to be limited to the facts of the case. The court stated that "by lodging review of agency action in the Court of Appeals, Congress manifested an intent that the appellate court exercise sole jurisdiction over the class of claims covered by the statutory grant of review power." Id. This "class of claims" would appear to include constitutional claims. Moreover, we see no reason to treat statutory and constitutional claims differently. Generally, section 1331 gives district courts the jurisdiction to consider claims "arising under the Constitution, laws, or treaties of the United States." Nonetheless, it is "well settled," even in the District of Columbia Circuit, that a statute which vests special jurisdiction in a court of appeals cuts off jurisdiction in the district court over related statutory claims, that is, cuts off jurisdiction over claims arising under the "laws" of the United States. See United Transportation Union, 822 F.2d at 1120; TRAC, 750 F.2d at 77; City of Rochester, 603 F.2d at 936. But "laws" lies just to the right of "Constitution" in section 1331, separated by a mere comma; we do not see how a statute can divest this Court of jurisdiction over what is to the right of the comma, but not over what is to the left, at least not without some evidence that this was Congress' intent. We therefore conclude that we do not have jurisdiction over Waste Management's challenges, constitutional or otherwise.
Waste Management advances two other arguments to support a contrary conclusion, but we reject them both. First, Waste Management contends that a settlement agreement entered into by the U.S. EPA in the District of Columbia Circuit supports our jurisdiction. The settlement entered in November 1981 partially resolved a number of challenges against various U.S. EPA regulations, including 40 C.F.R. § 271.19, then codified at 40 C.F.R. § 123.38. Natural Resources Defense Council v. United States Environmental Protection Agency, 673 F.2d 392 (D.C.Cir. 1980) and consolidated cases. Without citing to any particular provision of the agreement, Waste Management argues that the U.S. EPA "concedes . . . . that [40 C.F.R. § 271.19] itself can only be challenged in the district courts, and that such a challenge is beyond the jurisdiction of the D.C. Circuit." Waste Management's Jan. 17, 1989 Brief at 5.
If this were really the U.S. EPA's position in the settlement agreement, we would be unsure what effect to give the settlement agreement. On the one hand, an administrative agency cannot enlarge our jurisdiction, see Sonicraft v. NLRB, 814 F.2d 385, 386 (7th Cir. 1987), nor can jurisdiction be created by consent of the parties, see Plaquemines Port, Harbor & Terminal District v. Federal Maritime Commission, 267 U.S. App. D.C. 238, 838 F.2d 536, 542 n.3 (D.C. Cir. 1988). On the other hand, an agency's interpretation of a statute in its area of expertise is entitled to our deference, see, e.g., Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 2405, 91 L. Ed. 2d 49 (1986), and this presumably is true with regard to questions of jurisdiction as well. Moreover, the settlement agreement might be considered to have the imprimatur of the District of Columbia Circuit.
But we need not resolve this question here, because the agreement does not suggest that we have jurisdiction over a challenge to 40 C.F.R. § 271.19. The agreement has two references to section 271.19. The first states:
Issue 21 [concerning section 271.19], insofar as it involves EPA's authority to enforce state program requirements not included in State-issued RCRA permits, is not ripe for review in this litigation and if a permittee who is represented in this litigation later raises this issue. . . EPA will not object on the ground that the issue could have been raised in this litigation.
Settlement, para. 2, pp. 2-3. Clearly, this provision does not address the issue of which court has jurisdiction. The second reference is even less helpful to Waste Management's position. This reference calls for the U.S. EPA to amend the regulation to provide permit applicants an opportunity to respond to a U.S. EPA "comment" that a draft permit did not meet the requirements of state law. The proposed revision also provided that the U.S. EPA's notification to the permittee that it had decided to withdraw or not to withdraw the comment would be deemed final agency action. Agreement, Exh. C, Issue 21b at para. 1(e). However, the agreement also provided for a preamble to section 271.19, "indicating that final agency action is only one of the prerequisites for judicial review and that the last sentence of paragraph (e) does not purport to address other aspects of jurisdiction.. . ." Id. at para. 2 (emphasis added). For reasons that are not clear, the U.S. EPA never amended the regulation as promised, but even an amended regulation would not affect the jurisdiction issue.
Waste Management's second argument in favor of our jurisdiction is based on a district court's expertise in finding facts. Waste Management argues that its sixth claim for relief will require the resolution of various factual issues, and that jurisdiction should therefore be in this Court. While that may be true in ambiguous cases, cf. Indiana & Michigan Electric Co. v. United States Environmental Protection Agency, 733 F.2d 489, 491 (7th Cir. 1984) (jurisdiction was in the court of appeals because there were no additional facts to be found), where Congress has spoken clearly, "it is not our task to determine which would be the ideal forum for judicial review." Harrison v. PPG Industries, Inc., 446 U.S. 578, 593, 100 S. Ct. 1889, 1898, 64 L. Ed. 2d 525 (1980). Moreover, if factfinding is necessary, RCRA section 7006(a)(2) provides that a court may order the U.S. EPA to take evidence and make factual determinations. 42 U.S.C. § 6976(a)(2). Most importantly, there appears to be no need for factfinding. Waste Management's sixth claim for relief asserts that "by imposing . . . conditions not required by . . . the Illinois hazardous waste regulatory program . . . [the U.S. EPA] has acted arbitrarily, capriciously, in abuse of its discretion or otherwise not in accordance with the law." The claim is not that the U.S. EPA's actions are arbitrary or capricious because of certain facts about the hydrogeology of the CID site, a matter outside the normal expertise of the District of Columbia Circuit or, for that matter, of this Court. Rather, the claim is that the U.S. EPA has acted arbitrarily or capriciously in imposing conditions not required by state law. This is a matter of law, and in matters of law, the District of Columbia Circuit is at least as competent as we are.
We conclude, therefore, that jurisdiction does not lie in this Court but in the Court of Appeals for the District of Columbia Circuit.
Waste Management has asked us to transfer the case, rather than dismissing it, "in the interest of justice" pursuant to 28 U.S.C. § 1631. We agree that this is the best course. With the difficult jurisdictional issues involved here, Waste Management's filing in this Court was an "understandable mistake," and "no purpose would be served in dismissing" the claim. Five Flags Pipe Line Co. v. Department of Transportation, 272 U.S. App. D.C. 221, 854 F.2d 1438, 1442 (D.C. Cir. 1988).
For the reasons set forth above, and in the interest of justice, we transfer this case to the United States Court of Appeals for the District of Columbia Circuit. The Clerk of the Court is ordered to transfer the case file to that court ten days after the issuance of this opinion. It is so ordered.