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.