UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


GEORGE E WARREN CORP

v.

EPA


97-1651b

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 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.