George E Warren Corp v. EPA, No. 97-1651 (D.C. Cir. 1999)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed January 29, 1999

No. 97-1651

George E. Warren Corporation,

Petitioner

v.

U.S. Environmental Protection Agency and

Carol M. Browner, Administrator,

Respondents

Friends of the Earth, et al.,

Intervenors

Consolidated with

97-1656

On Petitions for Review of an Order of the

Environmental Protection Agency

---------

Before: Ginsburg, Sentelle, and Rogers, Circuit Judges.

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 respon- sive 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. s 7604(a), when in fact it was filed under 42 U.S.C. s 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, 118 S. Ct. 1003, 1016 (1998), there is no such barrier to deciding a matter on the merits before determining that the party presenting it has prudential stand- ing. See id. at 1013 & n.2 (citing National Railroad Passen- ger Corp. v. National Ass'n of Railroad Passengers, 414 U.S. 453, 465 n.13 (1974)). Having already rejected the IRC's claims on their merits, therefore, we need not now retrospec- tively 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 pru- dential standing).

So ordered.