dissenting.
At the risk of oversimplification, perhaps a perilous course to choose in an area of law beset with a maze of confusing, complex, often confounding, and sometimes contradictory statutes and regulations, I am of the opinion that this is an appeal which should be disposed of by this court reaching the merits and deciding that the regulation imposing an antidegradation policy requirement is wholly without statutory authority, and is therefore without any legal force or effect. Accordingly, I respectfully dissent, which dissent is, by necessity, based in part on my belief that the Congress, and not an administrative agency, is the legislative body of our government.
In its initial brief filed in this court on November 18, 1977, the appellants observed:
This case was filed in 1975. Partly because of two transfers among members of the [district] court and partly because the government waited seven months to file its motion urging a lack of ripeness, it is already an old case. [Emphasis added.]
*488At that time, the appellants were fearful that EPA’s antidegradation regulation, which the appellants contended was illegal, could well accomplish its objective because of states’ adopting the policy of the regulation before any final ruling could be made in this litigation. Now, almost two years after the above words were written, the appellants find themselves no closer to a solution of what appears to be a very real problem, both the district court and this court having declined on the technical ground of ripeness to address the merits of the problem.1
Clear guidelines as to whether either ripeness or standing exist are not easy of pronouncement and indeed the questing reader often could come to the opinion that a dominant motive might be whether a particular court desired to entertain a particular case. In any event, I see no purpose to be served by my endeavoring to expand substantially the literature on the subject as the majority of this panel has now spoken and my undertaking of further expansion would merely contribute to the additional venerability of this case.
The substantive issue here is whether the statute gave EPA general authority to create restrictions on the use of waters which are of better quality than is required for fishing and swimming. Either the Congress did give the EPA such authority or it did not. If it did not give the authority, the appellants, in the mid-1970s when the energy crisis was already manifesting itself, were confronted with the possibility of interminable multi-state litigation with regard to standards which were the sequelae of the guidelines of an assertedly unauthorized regulation. The resolution of the substantive issue is simply a matter of law with no need for factual development. The majority opinion itself concedes that this subsequent state-by-state review may never be a real possibility and that the utilities may never be able to challenge the regulation they seek here to challenge. I cannot agree that the utilities would not be affected by the EPA Regulation because the state standards appear to me to be the direct by-product of the challenged regulation.
The regulation mandates the adoption of an antidegradation provision containing a set of precise criteria. The full-blown anti-degradation requirement in the regulation cannot other than seriously harm the utilities by creating a regime which renders the use of their unlicensed plants under construction prima facie unlawful.
As to ripeness, it appears to me that the trilogy of cases of Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) and its two companion cases liberalized the law of ripeness sufficiently that upon the facts asserted in the present case ripeness does exist. What we are really dealing with is that this is not a situation where the court is being called upon to give an advisory opinion but is an area where there is a constitutional case or controversy demanding judicial attention.
With regard to standing this, of course, has to do with whether a plaintiff has a sufficient personal stake in a controversy so that the litigation is conducted between real adversaries. The fact that this regulation is, in form, directed toward the states does not deprive these plaintiffs of their personal stake. That proposition was settled long ago in Columbia Broadcasting System v. United States, 316 U.S. 407, 422, 62 S.Ct. 1194, 1203, 86 L.Ed. 1563 (1942):
Appellant’s standing to maintain the present suit in equity is unaffected by the fact that the regulations are not directed to appellant and do not in terms compel action by it or impose penalties upon it because of its action or failure to act.
That proposition was recently reaffirmed in Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977):
*489The injury may be indirect, see United States v. SCRAP, 412 U.S. 669, 688 [, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254] (1973), but the complaint must indicate that the injury is indeed fairly traceable to the defendant’s acts or omissions.
Standing seeks only to insure that review occurs between parties who are actually adverse because the acts of one will cause injury to the other. That criterion seems to me surely satisfied here.
Finally, assuming ripeness and standing, I see no need for a remand to determine the legal question of whether the statute provides authority for the regulation. A remand would mean only that the district court would then have to consider the brief on the merits which the appellants have presented to us and the case then would presumably come back to this court on the same briefs. That exercise should not be necessary.
This Court’s right to hear the merits was reaffirmed a few years ago in Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976):
The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. We announce no general rule. Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt, see Turner v. City of Memphis, 369 U.S. 350 [82 S.Ct. 805, 7 L.Ed.2d 762] (1962), or where “injustice might otherwise result.” Hormel v. Helvering, 312 U.S. [552], at 557 [61 S.Ct. 719 at 721, 83 L.Ed. 1037.]
To avoid further prolongation of this dissent with regard to an issue which had not been addressed by the district court, this court, or the EPA itself in its brief, the following points I think are well-established in the appellants’ brief: (a) the anti-degradation requirement is not authorized by §§ 208 or 303, the purported authority for these regulations; (b) the regulatory programs of the Act are inconsistent with an antidegradation policy; and (c) the legislative history of the Act contains no authority for an antidegradation policy.
I add only in conclusion a note of regret that in this period of energy crisis in our country, the resolution of controversies bearing directly upon possible solutions, at least in part, to that crisis have to wend their way along a tortuous technicality-ridden, seemingly endless path before any definitive determination can be reached.
. In the district court, almost as an afterthought, there was a one line reference to plaintiffs’ having failed to demonstrate sufficient injury to give them standing for the suit. The majority opinion in this court rests only on ripeness but recognizes that it is a case in which the concepts of standing and ripeness merge.