George E. Warren Corporation, Petitioner, v. U.S. Environmental Protection Agency and Carol M. Browner,administrator, Respondents.friends of the Earth, et al., Intervenors, 164 F.3d 676 (D.C. Cir. 1999)

O R D E R

Upon consideration of the EPA's Motion To Clarify and Amend the Court's Opinion With Respect to the Issue of Prudential Standing [159 F.3d 616 (1998) ] and of the responsive pleadings filed with respect thereto, it is

ORDERED by the court that the motion is granted, and the opinion is amended as follows:

At pages 620-21: Delete the two paragraphs immediately following the heading "A. Justiciability," as well as the first word of the third paragraph: "Second."

The material now to be omitted was based upon the erroneous belief that the petition for review had been filed under 42 U.S.C. § 7604(a), when in fact it was filed under 42 U.S.C. § 7607(b) (1). We need not, however, revisit the issue whether the Independent Refiners Coalition had prudential standing under the latter provision.

Although Article III precludes us from deciding a matter on the merits before determining that the party presenting it has constitutional standing to do so, see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S. Ct. 1003, 1016, 140 L. Ed. 2d 210 (1998), there is no such barrier to deciding a matter on the merits before determining that the party presenting it has prudential standing. See id. at ----, n. 2, 118 S. Ct. at 1013, n. 2 (citing National Railroad Passenger Corp. v. National Ass'n of Railroad Passengers, 414 U.S. 453, 465 n. 13, 94 S. Ct. 690, 38 L. Ed. 2d 646 (1974)). Having already rejected the IRC's claims on their merits, therefore, we need not now retrospectively decide whether it had prudential standing to bring those claims--though it is unlikely we would have proceeded in this manner going forward. See Busse Broadcasting Corp. v. FCC, 87 F.3d 1456, 1462-63 (D.C. Cir. 1996) (presenting rare case in which appropriate to decide merits before prudential standing).

So ordered.