OCTOBER TERM, 1997
Syllabus
STEEL CO., AKA CHICAGO STEEL & PICKLING CO.
v.
CITIZENS FOR A BETTER ENVIRONMENT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 96-643. Argued October 6, 1997-Decided March 4, 1998
Alleging that petitioner manufacturer had violated the Emergency
Planning and Community Right-To-Know Act of 1986 (EPCRA) by failing
to file timely toxic- and hazardous-chemical storage and emission
reports for past years, respondent environmental protection
organization filed this private enforcement action for declaratory
and injunctive relief under EPCRA's citizen-suit provision, 42 U.
S. C. § 11046(a)(1). The District Court held that, because
petitioner had brought its filings up to date by the time the
complaint was filed, the court lacked jurisdiction to entertain a
suit for a present violation; and that, because EPCRA does not
allow suit for a purely historical violation, respondent's
allegation of untimely filing was not a claim upon which relief
could be granted. The Seventh Circuit reversed, concluding that
EPCRA authorizes citizen suits for purely past violations.
Held: Because none of the relief sought would likely
remedy respondent's alleged injury in fact, respondent lacks
standing to maintain this suit, and this Court and the lower courts
lack jurisdiction to entertain it. Pp.88-110.
(a) The merits issue in this case-whether § 11046(a) permits
citizen suits for purely past violations-is not also
"jurisdictional," and so does not occupy the same status as
standing to sue as a question that must be resolved first. It is
firmly established that a district court's subjectmatter
jurisdiction is not defeated by the absence of a valid (as opposed
to arguable) cause of action, see,
e. g.,
Bell v.
Hood, 327 U.
S. 678, 682. Subject-matter jurisdiction exists if the right to
recover will be sustained under one reading of the Constitution and
laws and defeated under another, id., at 685, unless the claim
clearly appears to be immaterial, wholly insubstantial and
frivolous, or otherwise so devoid of merit as not to involve a
federal controversy, see,
e. g.,
Oneida Indian Nation of
N. Y. v.
County of Oneida, 414 U. S. 661, 666. Here,
respondent wins under one construction of EPCRA and loses under
another, and its claim is not frivolous or immaterial. It is
unreasonable to read § 11046(c)which provides that "[t]he district
court shall have jurisdiction in actions brought under subsection
(a) ... to enforce [an EPCRA] requirement ... and to impose any
civil penalty provided for violation of that requirement"-as making
all the elements of the § 11046(a) cause of ac-
84
tion jurisdictional, rather than as merely specifying the
remedial
powers of the court.
Gwaltney of Smithfield,
Ltd. v.
Chesapeake Bay Foundation, Inc., 484 U. S. 49, as well as
cases deciding a statutory standing question before a
constitutional standing question, distinguished. In no case has
this Court called the existence of a cause of action
"jurisdictional," and decided that question before resolving a
dispute concerning the existence of an Article III case or
controversy. Such a principle would turn every statutory question
in an EPCRA citizen suit into a question of jurisdiction that this
Court would have to consider-indeed, raise
sua sponte-even
if not raised below. Pp. 88-93.
(b) This Court declines to endorse the "doctrine of hypothetical
jurisdiction," under which several Courts of Appeals have found it
proper to proceed immediately to the merits question, despite
jurisdictional objections, at least where (1) the merits question
is more readily resolved, and (2) the prevailing party on the
merits would be the same as the prevailing party were jurisdiction
denied. That doctrine carries the courts beyond the bounds of
authorized judicial action and thus offends fundamental
separation-of-powers principles. In a long and venerable line of
cases, this Court has held that, without proper jurisdiction, a
court cannot proceed at all, but can only note the jurisdictional
defect and dismiss the suit. See,
e. g., Capron v.
Van
Noorden, 2 Cranch 126;
Arizonans for Official English v.
Arizona, 520 U.
S. 43, 73.
Bell v.
Hood, supra; National Railroad
Passenger Corp. v.
National Assn. of Railroad
Passengers, 414
U. S. 453, 465, n. 13;
Norton v.
Mathews,
427 U. S. 524,
531;
Secretary of Navy v.
Avrech, 418 U. S. 676, 678
(per curiam); United States v.
Augenblick, 393 U. S. 348;
Philbrook v.
Glodgett, 421 U. S. 707, 721; and
Chandler v.
Judicial Council of Tenth Circuit,
398 U. S. 74,
86-88, distinguished. For a court to pronounce upon a law's meaning
or constitutionality when it has no jurisdiction to do so is, by
very definition, an ultra vires act. Pp. 93-102.
(c) Respondent lacks standing to sue. Standing is the
"irreducible constitutional minimum" necessary to make a
justiciable "case" or "controversy" under Article III, §2.
Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560.
It contains three requirements: injury in fact to the plaintiff,
causation of that injury by the defendant's complained-of conduct,
and a likelihood that the requested relief will redress that
injury.
E. g., ibid. Even assuming, as respondent asserts,
that petitioner's failure to report EPCRA information in a timely
manner, and the lingering effects of that failure, constitute a
concrete injury in fact to respondent and its members that
satisfies Article III, cf. id., at 578, the complaint nevertheless
fails the redress ability test: None of the specific items of
relief sought-a declaratory judgment that petitioner violated
EPCRA;
85
injunctive relief authorizing respondent to make periodic
inspections of petitioner's facility and records and requiring
petitioner to give respondent copies of its compliance reports; and
orders requiring petitioner to pay EPCRA civil penalties to the
Treasury and to reimburse respondent's litigation expenses-and no
conceivable relief under the complaint's final, general request,
would serve to reimburse respondent for losses caused by
petitioner's late reporting, or to eliminate any effects of that
late reporting upon respondent. Pp. 102-109.
90 F.3d
1237, vacated and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined,
and in which BREYER, J., joined as to Parts I and IV. O'CONNOR, J.,
filed a concurring opinion, in which KENNEDY, J., joined,
post, p. 110. BREYER, J., filed an opinion concurring in
part and concurring in the judgment,
post, p. 111. STEVENS,
J., filed an opinion concurring in the judgment, in which SouTER,
J., joined as to Parts I, III, and IV, and GINSBURG, J., joined as
to Part III,
post, p. 112. GINSBURG, J., filed an opinion
concurring in the judgment,
post, p. 134.
Sanford M. Stein argued the cause for petitioner. With
him on the briefs was
Leo P. Dombrowski.
David A. Strauss argued the cause for respondent. With
him on the brief were
James D. Brusslan and
Stefan A.
Noe.
Irving L. Gornstein argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were Acting
Solicitor General Dellinger, Assistant Attorney General Schiffer,
Deputy Solicitor General Wallace, James A. Feldman, Edward J.
Shawaker, and Mark R. Haag.*
*Briefs of
amici curiae urging reversal were filed for
the American Forest & Paper Association, Inc., et al. by
Jan S.
Amundson and
Quentin Riegel; for the
American Iron & Steel Institute et al. by
Scott M. DuBoff,
Valerie J.
Ughetta, Robin S.
Conrad, and J.
Walker Henry; for the Chemical Manufacturers Association by
James W Conrad, Christina Franz, and
Carter G.
Phillips; for the Clean Air Implementation Project by
William H. Lewis, Jr., and
Michael A. McCord; for the
Mid-America Legal Foundation et al. by
James T. Harrington,
William F.
Moran III, and
Gregory
86
86 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
JUSTICE SCALIA delivered the opinion of the Court.
This is a private enforcement action under the citizen-suit
provision of the Emergency Planning and Community Right-To-Know Act
of 1986 (EPCRA), 100 Stat. 1755, 42 U. S. C. § 1l046(a)(1). The
case presents the merits question, answered in the affirmative by
the United States Court of Appeals for the Seventh Circuit, whether
EPCRA authorizes suits for purely past violations. It also presents
the jurisdictional question whether respondent, plaintiff below,
has standing to bring this action.
I
Respondent, an association of individuals interested in
environmental protection, sued petitioner, a small manufacturing
company in Chicago, for past violations of EPCRA. EPCRA establishes
a framework of state, regional, and local agencies designed to
inform the public about the presence of hazardous and toxic
chemicals, and to provide for emergency response in the event of
health-threatening release. Central to its operation are reporting
requirements compelling users of specified toxic and hazardous
chemicals to file annual
R. McClintock; for the Pacific Legal Foundation by Robin L.
Rivett and M. Reed Hopper; and for the Washington Legal Foundation
by Barry M. Hartman, Daniel J. Popeo, and Paul D. Kamenar.
Briefs of
amici curiae urging affirmance were filed for
the State of New York et al. by
Dennis C.
Vacco,
Attorney General of New York,
Barbara G.
Billet,
Solicitor General,
Peter H. Schiff, Deputy Solicitor
General, and
Maureen F.
Leary, Assistant Attorney
General, and by the Attorneys General for their respective
jurisdictions as follows:
Richard Blumenthal of Connecticut,
M. Jane Brady of Delaware,
Thurbert E. Baker of
Georgia,
Calvin E. Holloway, Sr., of Guam,
Margery S.
Bronster of Hawaii,
Pamela Fanning Carter of Indiana,
Scott Harshbarger of Massachusetts,
Jeremiah W Nixon
of Missouri,
Philip T. McLaughlin of New Hampshire,
Michael F.
Easley of North Carolina,
W A. Drew
Edmondson of Oklahoma,
William H. Sorrell of Vermont,
James S.
Gilmore III of Virginia, and
Darrell V.
McGraw, Jr., of West Virginia; and for the Natural Resources
Defense Council, Inc., et al. by
James M. Hecker.
87
"emergency and hazardous chemical inventory forms" and "toxic
chemical release forms," which contain,
inter alia, the name
and location of the facility, the name and quantity of the chemical
on hand, and, in the case of toxic chemicals, the waste-disposal
method employed and the annual quantity released into each
environmental medium. 42 U. S. C. §§ 11022 and 11023. The
hazardous-chemical inventory forms for any given calendar year are
due the following March 1st, and the toxic-chemical release forms
the following July 1st. §§ 11022(a)(2) and 11023(a).
Enforcement of EPCRA can take place on many fronts.
The Environmental Protection Agency (EPA) has the most powerful
enforcement arsenal: it may seek criminal, civil, or administrative
penalties. § 11045. State and local governments can also seek civil
penalties, as well as injunctive relief. §§ 11046(a)(2) and (c).
For purposes of this case, however, the crucial enforcement
mechanism is the citizen-suit provision, § 11046(a)(1), which
likewise authorizes civil penalties and injunctive relief, see §
11046(c). This provides that "any person may commence a civil
action on his own behalf against ... [a]n owner or operator of a
facility for failure," among other things, to "[c]omplete and
submit an inventory form under section 11022(a) of this title ...
[and] section 11023(a) of this title." § 11046(a)(1). As a
prerequisite to bringing such a suit, the plaintiff must, 60 days
prior to filing his complaint, give notice to the Administrator of
the EPA, the State in which the alleged violation occurs, and the
alleged violator. § 11046(d). The citizen suit may not go forward
if the Administrator "has commenced and is diligently pursuing an
administrative order or civil action to enforce the requirement
concerned or to impose a civil penalty." § 11046(e).
In 1995 respondent sent a notice to petitioner, the
Administrator, and the relevant Illinois authorities,
alleging-accurately, as it turns out-that petitioner had failed
since 1988, the first year of EPCRA's filing deadlines, to complete
and
88
to submit the requisite hazardous-chemical inventory and
toxic-chemical release forms under §§ 11022 and 11023. Upon
receiving the notice, petitioner filed all of the overdue forms
with the relevant agencies. The EPA chose not to bring an action
against petitioner, and when the 60-day waiting period expired,
respondent filed suit in Federal District Court. Petitioner
promptly filed a motion to dismiss under Federal Rules of Civil
Procedure 12(b)(1) and (6), contending that, because its filings
were up to date when the complaint was filed, the court had no
jurisdiction to entertain a suit for a present violation; and that,
because EPCRA does not allow suit for a purely historical
violation, respondent's allegation of untimeliness in filing was
not a claim upon which relief could be granted.
The District Court agreed with petitioner on both points.
App. to Pet. for Cert. A24-A26. The Court of Appeals reversed,
concluding that citizens may seek penalties against EPCRA violators
who file after the statutory deadline and after receiving notice.
90 F.3d
1237 (CA7 1996). We granted certiorari, 519 U. S. 1147
(1997).
II
We granted certiorari in this case to resolve a conflict between
the interpretation of EPCRA adopted by the Seventh Circuit and the
interpretation previously adopted by the Sixth Circuit in
Atlantic States Legal Foundation, Inc. v.
United Musical
Instruments, U. S.
A., Inc., 61 F.3d
473 (1995)-a case relied on by the District Court, and
acknowledged by the Seventh Circuit to be "factually
indistinguishable," 90 F. 3d, at 1241-1242. Petitioner, however,
both in its petition for certiorari and in its briefs on the
merits, has raised the issue of respondent's standing to maintain
the suit, and hence this Court's jurisdiction to entertain it.
Though there is some dispute on this point, see Part III,
infra, this would normally be considered a threshold
question that must be resolved in respondent's favor before
proceeding to the
89
merits. JUSTICE STEVENS' opinion concurring in the judgment,
however, claims that the question whether § 1l046(a) permits this
cause of action is
also "jurisdictional," and so has
equivalent claim to being resolved first. Whether that is so has
significant implications for this case and for many others, and so
the point warrants extended discussion.
It is firmly established in our cases that the absence of a
valid (as opposed to arguable) cause of action does not implicate
subject-matter jurisdiction, i.
e., the courts' statutory or
constitutional
power to adjudicate the case. See generally
5A C. Wright & A. Miller, Federal Practice and Procedure §
1350, p. 196, n. 8 and cases cited (2d ed. 1990). As we stated in
Bell v.
Hood, 327 U. S. 678, 682
(1946), "[j]urisdiction ... is not defeated ... by the possibility
that the averments might fail to state a cause of action on which
petitioners could actually recover." Rather, the district court has
jurisdiction if "the right of the petitioners to recover under
their complaint will be sustained if the Constitution and laws of
the United States are given one construction and will be defeated
if they are given another," id., at 685, unless the claim "clearly
appears to be immaterial and made solely for the purpose of
obtaining jurisdiction or where such a claim is wholly
insubstantial and frivolous."
Id., at 682-683; see also
Bray v.
Alexandria Women's Health Clinic, 506 U. S. 263,285 (1993);
The Fair v.
Kohler Die &
Specialty Co.,
228 U. S. 22, 25 (1913). Dismissal for lack of subject-matter
jurisdiction because of the inadequacy of the federal claim is
proper only when the claim is "so insubstantial, implausible,
foreclosed by prior decisions of this Court, or otherwise
completely devoid of merit as not to involve a federal
controversy."
Oneida Indian Nation of N.
Y. v.
County of Oneida, 414 U. S. 661, 666
(1974); see also
Romero v.
International Terminal
Operating Co., 358 U. S. 354, 359
(1959). Here, respondent wins under one construction of EPCRA and
loses under another, and JUSTICE STEVENS does not argue that
respondent's claim is frivolous or immaterial-
90
90 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
in fact, acknowledges that the language of the citizen-suit
provision is ambiguous.
Post, at 131.
JUSTICE STEVENS relies on our treatment of a similar issue as
jurisdictional in
Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Foundation, Inc., 484 U. S. 49 (1987).
Post, at 114. The statute at issue in that case, however,
after creating the cause of action, went on to say that "[t]he
district courts shall have jurisdiction,
without regard to the
amount in controversy or the citizenship of the parties," to
provide various forms of relief. 33 U. S. C. § 1365(a) (emphasis
added). The italicized phrase strongly suggested (perhaps
misleadingly) that the provision was addressing genuine
subject-matter jurisdiction. The corresponding provision in the
present case, however, reads as follows:
"The district court shall have jurisdiction in actions brought
under subsection (a) of this section against an owner or operator
of a facility to enforce the requirement concerned and to impose
any civil penalty provided for violation of that requirement." 42
U. S. C. § 11046(c).
It is unreasonable to read this as making all the elements of
the cause of action under subsection (a) jurisdictional, rather
than as merely specifying the remedial
powers of the court,
viz., to enforce the violated requirement and to impose civil
penalties. "Jurisdiction," it has been observed, "is a word of
many, too many, meanings,"
United States v.
Vanness,
85 F.3d
661, 663, n. 2 (CADC 1996), and it is commonplace for the term
to be used as it evidently was here. See,
e. g., 7 U. S. C.
§ 13a-1(d) ("In any action brought under this section, the
Commission may seek and the court shall have jurisdiction to impose
... a civil penalty in the amount of not more than the higher of
$100,000 or triple the monetary gain to the person for each
violation"); 15 U. S. C. § 2622(d) ("In actions brought under this
subsection, the district courts shall have jurisdiction to grant
all appropriate relief,
91
including injunctive relief and compensatory and exemplary
damages"); 42 U. S. C. § 7622(d) ("In actions brought under this
subsection, the district courts shall have jurisdiction to grant
all appropriate relief including, but not limited to, injunctive
relief, compensatory, and exemplary damages").
It is also the case that the
Gwaltney opinion does not
display the slightest awareness that anything
turned upon
whether the existence of a cause of action for past violations was
technically jurisdictional-as indeed nothing of substance did. The
District Court had statutory jurisdiction over the suit in any
event, since continuing violations were also alleged. See 484 U.
S., at 64. It is true, as JUSTICE STEVENS points out, that the
issue of Article III standing which is addressed at the end of the
opinion should technically have been addressed at the outset if the
statutory question was not jurisdictional. But that also did not
really matter, since Article III standing was in any event found.
The short of the matter is that the jurisdictional character of the
elements of the cause of action in
Gwaltney made no
substantive difference (nor even any procedural difference that the
Court seemed aware of), had been assumed by the parties, and was
assumed without discussion by the Court. We have often said that
drive-by jurisdictional rulings of this sort (if
Gwaltney
can even be called a ruling on the point rather than a dictum) have
no precedential effect. See
Lewis v.
Casey, 518 U. S. 343, 352, n. 2
(1996);
Federal Election Comm'n v.
NRA Political Victory
Fund, 513 U. S.
88, 97 (1994);
United States v.
L. A. Tucker Truck
Lines, Inc., 344
U. S. 33, 38 (1952). But even if it is authoritative on the
point as to the distinctive statute there at issue, it is fanciful
to think that
Gwaltney revised our established jurisprudence
that the failure of a cause of action does not automatically
produce a failure of jurisdiction, or adopted the expansive
principle that a statute saying "the district court shall have
jurisdiction to remedy violations [in specified ways]"
92
92 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
renders the existence of a violation necessary for subjectmatter
jurisdiction.
JUSTICE STEVENS' concurrence devotes a large portion of its
discussion to cases in which a statutory standing question was
decided before a question of constitutional standing. See
post, at 115-117. They also are irrelevant here, because it
is not a statutory
standing question that JUSTICE STEVENS
would have us decide first. He wishes to resolve, not whether EPCRA
authorizes this plaintiff to sue (it assuredly does), but whether
the scope of the EPCRA right of action includes past violations.
Such a question, we have held, goes to the merits and not to
statutory standing. See
Northwest Airlines, Inc. v.
County of Kent, 510 U. S. 355, 365 (1994)
("The question whether a federal statute creates a claim for relief
is not jurisdictional");
Romero v.
International Terminal
Operating Co., supra, at 359;
Montana-Dakota Util. Co.
v.
Northwestern Public Service Co.,
341 U. S. 246, 249
(1951).
Though it is replete with extensive case discussions, case
citations, rationalizations, and syllogoids, see
post, at
120, n. 12, and n. 2,
infra, JUSTICE STEVENS' opinion
conspicuously lacks one central feature: a single case in which
this Court has done what he proposes, to wit, call the existence of
a cause of action "jurisdictional," and decide that question before
resolving a dispute concerning the existence of an Article III case
or controversy. Of course, even if there were not solid precedent
contradicting JUSTICE STEVENS' position, the consequences are alone
enough to condemn it. It would turn every statutory question in an
EPCRA citizen suit into a question of jurisdiction. Under JUSTICE
STEVENS' analysis, § 11046(c)'s grant of "jurisdiction in actions
brought
under [§ 11046(a)]" withholds jurisdiction over
claims involving purely past violations if past violations are not
in fact
covered by § 11046(a). By parity of reasoning, if
there is a dispute as to whether the omission of a particular item
constituted a failure to "complete" the form; or as to
93
whether a particular manner of delivery complied in time with
the requirement to "submit" the form; and if the court agreed with
the defendant on the point; the action would not be "brought under
[§ 11046(a)]," and would be dismissed for lack of jurisdiction
rather than decided on the merits. Moreover, those statutory
arguments, since they are "jurisdictional," would have to be
considered by this Court even though not raised earlier in the
litigation-indeed, this Court would have to raise them
sua
sponte. See
Mt. Healthy City Bd. of Ed. v.
Doyle,
429 U. S. 274,
278-279 (1977);
Great Southern Fire Proof Hotel Co. v.
Jones, 177 U.
S. 449, 453 (1900). Congress of course did not create such a
strange scheme. In referring to actions "brought under" § 11046(a),
§ 11046(c) means suits
contending that § 11046(a) contains a
certain requirement. If JUSTICE STEVENS is correct that all
cause-of-action questions may be regarded as jurisdictional
questions, and thus capable of being decided where there is no
genuine case or controversy, it is hard to see what is left of that
limitation in Article III.
III
In addition to its attempt to convert the merits issue in this
case into a jurisdictional one, JUSTICE STEVENS' concurrence
proceeds,
post, at 117-124, to argue the bolder point that
jurisdiction need not be addressed first anyway. Even if the
statutory question is not "fram[ed] ... in terms of
'jurisdiction,'" but is simply "characterize[d] ... as whether
respondent's complaint states a 'cause of action,'" "it is also
clear that we have the power to decide the statutory question
first."
Post, at 117-118. This is essentially the position
embraced by several Courts of Appeals, which find it proper to
proceed immediately to the merits question, despite jurisdictional
objections, at least where (1) the merits question is more readily
resolved, and (2) the prevailing party on the merits would be the
same as the prevailing party were jurisdiction denied. See,
e.
g., SEC v.
American
94
Capital Investments, Inc., 98 F.3d
1133, 1139-1142 (CA9 1996), cert. denied
sub nom.
Shelton v.
Barnes, 520 U. S. 1185
(1997); Smith
v.
Avino, 91 F.3d
105, 108 (CAll 1996);
Clow v.
Department of Housing
and Urban Development, 948 F. 2d 614, 616, n. 2 (CA9 1991);
Cross-Sound Ferry Services, Inc. v.
ICC, 934 F.2d
327, 333 (CADC 1991);
United States v.
Parcel of
Land, 928 F.2d
1,4 (CAl1991);
Browning-Ferris Industries v.
Muszynski, 899 F.2d
151, 154-159 (CA2 1990). The Ninth Circuit has denominated this
practice-which it characterizes as "assuming" jurisdiction for the
purpose of deciding the merits-the "doctrine of hypothetical
jurisdiction." See,
e. g., United States v.
Troescher, 99 F.3d
933, 934, n. 1 (1996).1
We decline to endorse such an approach because it carries the
courts beyond the bounds of authorized judicial action and thus
offends fundamental principles of separation of powers. This
conclusion should come as no surprise, since it is reflected in a
long and venerable line of our cases. "Without jurisdiction the
court cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and
dismissing the cause."
Ex parte McCardle, 7 Wall. 506, 514
(1869). "On every writ of error or appeal, the first and
fundamental question is that of jurisdiction, first, of this court,
and then of the court from which the record comes. This question
the court is bound to ask and answer for itself, even when not
otherwise suggested, and without respect to the relation of the
parties to it."
Great Southern Fire Proof Hotel Co. v.
Jones, supra, at 453. The requirement that jurisdiction be
established as a threshold matter "spring[s] from the nature and
limits of
1 Our disposition makes it appropriate to address the approach
taken by this substantial body of Court of Appeals precedent. The
fact that JusTICE STEVENS' concurrence takes essentially the same
approach makes his contention that this discussion is an
"excursion," and "unnecessary to an explanation" of our decision,
post, at 121, particularly puzzling.
95
the judicial power of the United States" and is "inflexible and
without exception."
Mansfield, C. &
L. M. R. Co.
v.
Swan, 111
U. S. 379, 382 (1884).
This Court's insistence that proper jurisdiction appear begins
at least as early as 1804, when we set aside a judgment for the
defendant at the instance of the losing plaintiff
who had
himself failed to allege the basis for federal jurisdiction.
Capron v.
Van Noorden, 2 Cranch 126 (1804). Just last
Term, we restated this principle in the clearest fashion,
unanimously setting aside the Ninth Circuit's merits decision in a
case that had lost the elements of a justiciable controversy:
"'[E]very federal appellate court has a special obligation to
'satisfy itself not only of its own jurisdiction, but also that of
the lower courts in a cause under review,' even though the parties
are prepared to concede it. Mitchell v. Maurer,
293 U. S. 237,
244 (1934). See Juidice v. Vail, 430 U. S. 327, 331-332
(1977) (standing). 'And if the record discloses that the lower
court was without jurisdiction this court will notice the defect,
although the parties make no contention concerning it. [When the
lower federal court] lack[s] jurisdiction, we have jurisdiction on
appeal, not of the merits but merely for the purpose of correcting
the error of the lower court in entertaining the suit.' United
States v. Corrick, 298 U. S. 435, 440 (1936) (footnotes
omitted).''' Arizonans for Official English v.
Arizona, 520 U.
S. 43, 73 (1997), quoting Bender v. Williamsport Area
School Dist., 475
U. S. 534, 541 (1986) (brackets in original).
JUSTICE STEVENS' arguments contradicting all this
jurisprudence-and asserting that a court may decide the cause of
action before resolving Article III jurisdiction-are readily
refuted. First, his concurrence seeks to convert
Bell v.
Hood, 327 U.
S. 678 (1946), into a case in which the causeof-action question
was decided before an Article III stand-
96
ing question.
Post, at 118-119, n. 8.
"Bell,"
JUSTICE STEVENS asserts, "held that we have jurisdiction to decide
[whether the plaintiff has stated a cause of action]
even when
it is unclear whether the plaintiff's injuries can be redressed."
Post, at 118. The italicized phrase (the italics are his own)
invites the reader to believe that Article III redressability was
at issue. Not only is this not true, but the whole
point of
Bell was that it is not true. In
Bell, which was
decided before
Bivens v.
Six Unknown Fed. Narcotics
Agents, 403 U. S.
388 (1971), the District Court had dismissed the case on
jurisdictional grounds because it believed that (what we
would now call) a
Bivens action would not lie. This Court
held that the nonexistence of a cause of action was no proper basis
for a jurisdictional dismissal. Thus, the uncertainty about
"whether the plaintiff's injuries can be redressed" to which
JUSTICE STEVENS refers is simply the uncertainty about whether a
cause of action existed-which is precisely what
Bell holds
not to be an Article III "redressability" question. It would
have been a different matter if the relief
requested by the
plaintiffs in
Bell (money damages) would not have remedied
their injury in fact; but it of course would. JUSTICE STEVENS used
to understand the fundamental distinction between arguing no cause
of action and arguing no Article III redressability, having written
for the Court that the former argument is "not squarely directed at
jurisdiction itself, but rather at the existence of a remedy for
the alleged violation of ... federal rights," which issue is "'not
of the jurisdictional sort which the Court raises on its own
motion.'''
Lake Country Estates, Inc. v.
Tahoe Regional
Planning Agency, 440 U. S. 391, 398 (1979)
(STEVENS, J.), (quoting
Mt. Healthy Bd. of Ed. v.
Doyle, 429 U. S., at 279).
JUSTICE STEVENS also relies on
National Railroad Passenger
Corp. v.
National Assn. of Railroad Passengers, 414 U. S. 453 (1974).
Post, at 119-120. But in that case, we did not determine
whether a cause of action existed before de-
97
termining that the plaintiff had Article III standing; there was
no question of injury in fact or effectiveness of the requested
remedy. Rather,
National Railroad Passenger Corp. determined
whether a statutory cause of action existed before determining
whether (if so) the plaintiff came within the "zone of interests"
for which the cause of action was available. 414 U. S., at 465, n.
13. The latter question is an issue of
statutory standing.
It has nothing to do with whether there is case or controversy
under Article III. 2
2JUSTICE STEVENS thinks it illogical that a merits question can
be given priority over a statutory standing question
(National
Railroad Passenger Corp.) and a statutory standing question can
be given priority over an Article III question (the cases discussed
post, at 115-117), but a merits question cannot be given
priority over an Article III question. See
post, at 120, n.
12. It seems to us no more illogical than many other "broken
circles" that appear in life and the law: that Executive agreements
may displace state law, for example, see
United States v.
Belmont, 301
U. S. 324, 330-331 (1937), and that unilateral Presidential
action (renunciation) may displace Executive agreements, does not
produce the "logical" conclusion that unilateral Presidential
action may displace state law. The reasons for allowing merits
questions to be decided before statutory standing questions do not
support allowing merits questions to be decided before Article III
questions. As
National Railroad Passenger Corp. points out,
the merits inquiry and the statutory standing inquiry often
"overlap," 414 U. S., at 456. The question whether
this
plaintiff has a cause of action under the statute, and the question
whether any plaintiff has a cause of action under the statute are
closely connected-indeed, depending upon the asserted basis for
lack of statutory standing, they are sometimes identical, so that
it would be exceedingly artificial to draw a distinction between
the two. The same cannot be said of the Article III requirement of
remediable injury in fact, which (except with regard to entirely
frivolous claims) has nothing to do with the text of the statute
relied upon. Moreover, deciding whether any cause of action exists
under a particular statute, rather than whether the particular
plaintiff can sue, does not take the court into vast, uncharted
realms of judicial opinion giving; whereas the proposition that the
court can reach a merits question when there is no Article III
jurisdiction opens the door to all sorts of "generalized
grievances,"
Schlesinger v.
Reservists Comm. to Stop the
War, 418 U. S.
208, 217 (1974), that the Constitution leaves for resolution
through the political process.
98
Much more extensive defenses of the practice of deciding the
cause of action before resolving Article III jurisdiction have been
offered by the Courts of Appeals. They rely principally upon two
cases of ours,
Norton v.
Mathews, 427 U. S. 524 (1976), and
Secretary of Navy v.
Avrech, 418 U. S. 676 (1974)
(per curiam). Both are readily explained, we think, by their
extraordinary procedural postures. In
Norton, the case came
to us on direct appeal from a three-judge District Court, and the
jurisdictional question was whether the action was properly brought
in that forum rather than in an ordinary district court. We
declined to decide that jurisdictional question, because the merits
question was decided
in a companion case, Mathews v.
Lucas, 427 U.
S. 495 (1976), with the consequence that the jurisdictional
question could have no effect on the outcome: If the three-judge
court had been properly convened, we would have affirmed, and if
not, we would have vacated and remanded for a fresh decree from
which an appeal could be taken to the Court of Appeals, the outcome
of which was foreordained by
Lucas. Norton v.
Mathews,
supra, at 531. Thus,
Norton did not use the
pretermission of the jurisdictional question as a device for
reaching a question of law that otherwise would have gone
unaddressed. Moreover, the Court seems to have regarded the merits
judgment that it entered on the basis of
Lucas as equivalent
to a jurisdictional dismissal for failure to present a substantial
federal question. The Court said: "This disposition
[Lucas]
renders the merits in the present case a decided issue and thus one
no longer substantial in the jurisdictional sense." 427 U. S., at
530-531. We think it clear that this peculiar case, involving a
merits issue dispositively resolved in a companion case, was not
meant to overrule,
sub silentio, two centuries of
jurisprudence affirming the necessity of determining jurisdiction
before proceeding to the merits. See
Glow, 948 F. 2d, at 627
(O'Scannlain, J., dissenting).
Avrech also involved an instance in which an intervening
Supreme Court decision definitively answered the merits
99
question. The jurisdictional question in the case had been
raised by the Court
sua sponte after oral argument, and
supplemental briefing had been ordered.
Secretary of Navy v.
Avrech, supra, at 677. Before the Court came to a decision,
however, the merits issue in the case had been conclusively
resolved in
Parker v.
Levy, 417 U. S. 733 (1974), a
case argued the same day as
Avrech. The Court was unwilling
to decide the jurisdictional question without oral argument, 418 U.
S., at 677, but acknowledged (with some understatement) that "even
the most diligent and zealous advocate could find his ardor
somewhat dampened in arguing a jurisdictional issue where the
decision on the merits is ... foreordained," id., at 678.
Accordingly, the Court disposed of the case on the basis of the
intervening decision in
Parker, in a minimalist two-page
per curiam opinion. The first thing to be observed about
Avrech is that the supposed jurisdictional issue was
technically not that. The issue was whether a courtmartial judgment
could be attacked collaterally by a suit for backpay. Although
Avrech, like the earlier case of
United States v.
Augenblick, 393 U. S. 348 (1969),
characterized this question as jurisdictional, we later held
squarely that it was not. See
Schlesinger v.
Councilman, 420 U. S. 738, 753
(1975). In any event, the peculiar circumstances of
Avrech
hardly permit it to be cited for the precedent-shattering general
proposition that an "easy" merits question may be decided
on the
assumption of jurisdiction. To the contrary, the fact that the
Court ordered briefing on the jurisdictional question
sua
sponte demonstrates its adherence to traditional and
constitutionally dictated requirements. See
Cross-Sound Ferry
Services, Inc. v.
ICC, 934 F. 2d, at 344345, and n. 10
(Thomas, J., concurring in part and concurring in denial of
petition for review).
Other cases sometimes cited by the lower courts to support
"hypothetical jurisdiction" are similarly distinguishable.
United States v.
Augenblick, as we have discussed,
did not involve a jurisdictional issue. In
Philbrook v.
Glodgett, 421
U. S. 707, 721 (1975), the jurisdictional question was
whether,
100
100 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
in a suit under 28 U. S. C. § 1343(3) against the Commissioner
of the Vermont Department of Social Welfare for deprivation of
federal rights under color of state law by denying payments under a
federally funded welfare program, the plaintiff could join a
similar claim against the Secretary of Health, Education, and
Welfare. The merits issue of statutory construction involved in the
claim against the Secretary was precisely the same as that involved
in the claim against the Commissioner, and the Secretary (while
challenging jurisdiction) assured the Court that he would comply
with any judgment entered against the Commissioner. The Court's
disposition of the case was to dismiss the Secretary's appeal under
what was then this Court's Rule 40(g), for failure to brief the
jurisdictional question adequately. Normally, the Court
acknowledged, its obligation to inquire into the jurisdiction of
the District Court might prevent this disposition. But here, the
Court concluded, "the substantive issue decided by the District
Court would have been decided by that court even if it had
concluded that the Secretary was not properly a party," and "the
only practical difference that resulted ... was that its injunction
was directed against him as well as against [the Commissioner],"
which the Secretary "has [not] properly contended to be wrongful
before this Court." 421 U. S., at 721-722. And finally, in
Chandler v.
Judicial Council of Tenth Circuit,
398 U. S. 74
(1970), we reserved the question whether we had jurisdiction to
issue a writ of prohibition or mandamus because the petitioner had
not exhausted all available avenues before seeking relief under the
All Writs Act, 28 U. S. C. § 1651, and because there was no record
to review. 398 U. S., at 86-88. The exhaustion question
itself was at least arguably jurisdictional, and was clearly
treated as such.
Id., at 86.3
3 JUSTICE STEVENS adds three cases to the list of those that
might support "hypothetical jurisdiction."
Post, at 121-122,
and n. 15. They are all inapposite. In
Moor v.
County of
Alameda, 411 U.
S. 693 (1973), we declined to decide whether a federal court's
pendent jurisdiction extended
101
While some of the above cases must be acknowledged to have
diluted the absolute purity of the rule that Article III
jurisdiction is always an antecedent question, none of them even
approaches approval of a doctrine of "hypothetical jurisdiction"
that enables a court to resolve contested questions of law when its
jurisdiction is in doubt. Hypothetical jurisdiction produces
nothing more than a hypothetical judgment-which comes to the same
thing as an advisory opinion, disapproved by this Court from the
beginning.
Muskrat v.
United States, 219 U. S. 346, 362
(1911);
Hayburn's Case, 2 Dall. 409 (1792). Much more than
legal niceties are at stake here. The statutory and (especially)
constitutional elements of jurisdiction are an essential ingredient
of separation and equilibration of powers, restraining the courts
from acting at certain times, and even restraining them from acting
permanently regarding certain subjects. See
United States v.
Richardson, 418 U. S. 166, 179
(1974);
Schlesinger v.
Reservists Comm. to Stop the
War, 418 U. S.
208, 227 (1974). For a court to pronounce upon the meaning or
the constitutionality of a state or federal law when it has no
ju-
to state-law claims against a new party, because we agreed with
the District Court's discretionary declination of pendent
jurisdiction.
Id., at 715716. Thus, the case decided not a
merits question before a jurisdictional question, but a
discretionary jurisdictional question before a nondiscretionary
jurisdictional question. Similarly in
Ellis v.
Dyson,
421 U. S. 426,
436 (1975), the "authoritative ground of decision" upon which the
District Court relied in lieu of determining whether there was a
case or controversy was
Younger abstention, which we have
treated as jurisdictional. And finally, the issue pretermitted in
Neese v.
Southern R. Co., 350 U. S. 77 (1955)
(per curiam), was not Article III jurisdiction at all, but
the substantive question whether the Seventh Amendment permits an
appellate court to review the district court's denial of a motion
for new trial on the ground that the verdict was excessive. We
declined to consider that question because we agreed with the
District Court's decision to deny the motion on the facts in the
record. The more numerous the look-alikebut-inapposite cases
JUSTICE STEVENS cites, the more strikingly clear it becomes: His
concurrence cannot identify a single opinion of ours deciding the
merits before a disputed question of Article III jurisdiction.
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102 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
risdiction to do so is, by very definition, for a court to act
ultra vires.
IV
Having reached the end of what seems like a long front walk, we
finally arrive at the threshold jurisdictional question: whether
respondent, the plaintiff below, has standing to sue. Article III,
§ 2, of the Constitution extends the "judicial Power" of the United
States only to "Cases" and "Controversies." We have always taken
this to mean cases and controversies of the sort traditionally
amenable to, and resolved by, the judicial process.
Muskrat
v.
United States, supra, at 356-357. Such a meaning is
fairly implied by the text, since otherwise the purported
restriction upon the judicial power would scarcely be a restriction
at all. Every criminal investigation conducted by the Executive is
a "case," and every policy issue resolved by congressional
legislation involves a "controversy." These are not, however, the
sort of cases and controversies that Article III, § 2, refers to,
since "the Constitution's central mechanism of separation of powers
depends largely upon common understanding of what activities are
appropriate to legislatures, to executives, and to courts."
Lujan v.
Defenders of Wildlife, 504 U. S. 555, 559-560
(1992). Standing to sue is part of the common understanding of what
it takes to make a justiciable case.
Whitmore v.
Arkansas, 495
U. S. 149, 155 (1990).4
The "irreducible constitutional minimum of standing" contains
three requirements.
Lujan v.
Defenders of
Wildlife,
4 Our opinion is not motivated, as JUSTICE STEVENS suggests, by
the more specific separation-of-powers concern that this citizen's
suit "somehow interferes with the Executive's power to 'take Care
that the Laws be faithfully executed,' Art. II, § 3,"
post,
at 129. The courts must stay within their constitutionally
prescribed sphere of action, whether or not exceeding that sphere
will harm one of the other two branches. This case calls for
nothing more than a straightforward application of our standing
jurisprudence, which, though it may sometimes have an impact on
Presidential powers, derives from Article III and not Article
II.
103
supra, at 560. First and foremost, there must be alleged
(and ultimately proved) an "injury in fact"-a harm suffered by the
plaintiff that is "concrete" and "actual or imminent, not
'conjectural' or 'hypothetical.' "
Whitmore v.
Arkansas,
supra, at 149, 155 (quoting
Los Angeles v.
Lyons,
461 U. S. 95,
101-102 (1983)). Second, there must be causation-a fairly traceable
connection between the plaintiff's injury and the complained-of
conduct of the defendant.
Simon v.
Eastern Ky. Welfare
Rights Organization, 426 U. S. 26, 41-42
(1976). And third, there must be redressability-a likelihood that
the requested relief will redress the alleged injury.
Id.,
at 45-46; see also
Warth v.
Seldin, 422 U. S. 490, 505
(1975). This triad of injury in fact, causation, and redressability
5 constitutes the core of Article Ill's case-or-
5 Contrary to JUSTICE STEVENS' belief that redressability "is a
judicial creation of the past 25 years,"
post, at 124, the
concept has been ingrained in our jurisprudence from the beginning.
Although we have packaged the requirements of constitutional "case"
or "controversy" somewhat differently in the past 25 years-an era
rich in three-part tests-the point has always been the same:
whether a plaintiff "personally would benefit in a tangible way
from the court's intervention."
Warth, 422 U. S., at 508.
For example, in
Marye v.
Parsons, 114 U. S. 325, 328-329
(1885), we held that a bill in equity should have been dismissed
because it was a clear case of
"damnum absque injuria."
Although the complainant alleged a breach of contract by the State,
the complainant "asks no relief as to that, for there is no remedy
by suit to compel the State to pay its debts .... The bill as
framed, therefore, calls for a declaration of an abstract
character." Because courts do not "si[t] to determine questions of
law
in thesi," we remanded with directions to dismiss the
bill.
Id., at 328-330.
Also contrary to JUSTICE STEVENS' unprecedented suggestion,
post, at 125, redress ability-like the other prongs of the
standing inquiry-does not depend on the defendant's status as a
governmental entity. There is no conceivable reason why it should.
If it is true, as JUSTICE STEVENS claims, that all of the cases in
which the Court has denied standing because of a lack of
redressability happened to involve government action or inaction,
that would be unsurprising. Suits that promise no concrete benefit
to the plaintiff, and that are brought to have us "determine
questions of law
in thesi," Marye, supra, at 330, are most
often inspired by the psychological smart of perceived official
injustice, or by the government-policy
104
104 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
controversy requirement, and the party invoking federal
jurisdiction bears the burden of establishing its existence. See
FW/PBS, Inc. v.
Dallas, 493 U. S. 215, 231
(1990).
We turn now to the particulars of respondent's complaint to see
how it measures up to Article Ill's requirements. This case is on
appeal from a Rule 12(b) motion to dismiss on the pleadings, so we
must presume that the general allegations in the complaint
encompass the specific facts necessary to support those
allegations.
Lujan v.
National Wildlife Federation,
497 U. S. 871,
889 (1990). The complaint contains claims "on behalf of both
[respondent] itself and its members." 6 App.4. It describes
respondent as an organization that seeks, uses, and acquires data
reported under EPCRA. It says that respondent "reports to its
members and the public about storage and releases of toxic
chemicals into the environment, advocates changes in environmental
regulations and statutes, prepares reports for its members and the
public, seeks the reduction of toxic chemicals and further seeks to
promote the effective enforcement of environmentallaws."
Id., at 5. The complaint asserts that respondent's "right to
know about [toxic-chemical] releases and its interests in
protecting and improving the environment and the health of its
members have been, are being, and will be adversely affected by
[petitioner's] actions in failing to provide timely and required
information under EPCRA."
Ibid. The complaint also alleges
that respondent's members, who live in or frequent the area near
petitioner's facility, use the EPCRA-reported information "to learn
about
preferences of political activists. But the principle of redress
ability has broader application than that.
6 EPCRA states that "any person may commence a civil action
on his own behalf .... " 42 U. S. C. § 11046(a)(1) (emphasis
added). "[P]erson" includes an association, see § 11049(7), so it
is arguable that the statute permits respondent to vindicate only
its own interests as an organization, and not the interests of its
individual members. Since it makes no difference to our disposition
of the case, we assume without deciding that the interests of
individual members may be the basis of suit.
105
toxic chemical releases, the use of hazardous substances in
their communities, to plan emergency preparedness in the event of
accidents, and to attempt to reduce the toxic chemicals in areas in
which they live, work and visit."
Ibid. The members'
"safety, health, recreational, economic, aesthetic and
environmental interests" in the information, it is claimed, "have
been, are being, and will be adversely affected by [petitioner's]
actions in failing to file timely and required reports under
EPCRA."
Ibid.
As appears from the above, respondent asserts petitioner's
failure to provide EPCRA information in a timely fashion, and the
lingering effects of that failure, as the injury in fact to itself
and its members. We have not had occasion to decide whether being
deprived of information that is supposed to be disclosed under
EPCRA-or at least being deprived of it when one has a particular
plan for its use-is a concrete injury in fact that satisfies
Article III. Cf. Lujan v.
Defenders of Wildlife, 504 U. S.,
at 578. And we need not reach that question in the present case
because, assuming injury in fact, the complaint fails the third
test of standing, redressability.
The complaint asks for (1) a declaratory judgment that
petitioner violated EPCRA; (2) authorization to inspect
periodically petitioner's facility and records (with costs borne by
petitioner); (3) an order requiring petitioner to provide
respondent copies of all compliance reports submitted to the EPA;
(4) an order requiring petitioner to pay civil penalties of $25,000
per day for each violation of §§ 11022 and 11023; (5) an award of
all respondent's "costs, in connection with the investigation and
prosecution of this matter, including reasonable attorney and
expert witness fees, as authorized by Section 326(f) of [EPCRA]";
and (6) any such further relief as the court deems appropriate.
App. 11. None of the specific items of relief sought, and none that
we can envision as "appropriate" under the general request, would
serve to reimburse respondent for losses caused by the late re-
106
106 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
porting, or to eliminate any effects of that late reporting upon
respondent.7
The first item, the request for a declaratory judgment that
petitioner violated EPCRA, can be disposed of summarily. There
being no controversy over whether petitioner failed to file
reports, or over whether such a failure constitutes a violation,
the declaratory judgment is not only worthless to respondent, it is
seemingly worthless to all the world. See
Lewis v.
Continental Bank Corp., 494 U. S. 472, 479
(1990).
Item (4), the civil penalties authorized by the statute, see §
1l045(c), might be viewed as a sort of compensation or redress to
respondent if they were payable to respondent. But they are not.
These penalties-the only damages authorized by EPCRA-are payable to
the United States Treasury. In requesting them, therefore,
respondent seeks not remediation of its own injury-reimbursement
for the costs it incurred as a result of the late filing-but
vindication of the rule of law-the "undifferentiated public
interest" in faithful execution of EPCRA.
Lujan v.
Defenders of Wildlife, supra, at 577; see also
Fairchild v.
Hughes, 258 U. S. 126, 129-130 (1922).
This does not suffice. JUSTICE STEVENS thinks it is enough that
respondent will be gratified by seeing petitioner punished for its
infractions and that the
7 JUSTICE STEVENS claims that redress ability was found lacking
in our prior cases because the relief required action by a party
not before the Court.
Post, at 125-126. Even if that were
so, it would not prove that redressability is lacking
only
when relief depends on the actions of a third party. But in any
event, JUSTICE STEVENS has overlooked decisions that destroy his
premise. See
Los Angeles v.
Lyons, 461 U. S. 95, 105 (1983);
O'Shea v.
Littleton, 414 U. S. 488, 495-496
(1974). He also seems to suggest that redressability always exists
when the defendant has directly injured the plaintiff. If that were
so, the redressability requirement would be entirely superfluous,
since the causation requirement asks whether the injury is "fairly
... trace[able] to the challenged action of the defendant, and not
... thEe] resul[t] [of] the independent action of some third party
not before the court."
Simon v.
Eastern Ky. Welfare
Rights Organization, 426 U. S. 26, 41-42
(1976).
107
punishment will deter the risk of future harm.
Post, at
127-128. If that were so, our holdings in
Linda R. S. v.
Richard D., 410 U. S. 614 (1973), and
Simon v.
Eastern Ky. Welfare Rights Organization,
426 U. S. 26
(1976), are inexplicable. Obviously, such a principle would make
the redressability requirement vanish. By the mere bringing of his
suit,
every plaintiff demonstrates his belief that a
favorable judgment will make him happier. But although a suitor may
derive great comfort and joy from the fact that the United States
Treasury is not cheated, that a wrongdoer gets his just deserts, or
that the Nation's laws are faithfully enforced, that psychic
satisfaction is not an acceptable Article III remedy because it
does not redress a cognizable Article III injury. See,
e. g.,
Allen v.
Wright, 468 U. S. 737, 754-755
(1984); Valley Forge Christian College v.
Americans
United for Separation of Church and State, Inc., 454 U. S. 464, 482483
(1982). Relief that does not remedy the injury suffered cannot
bootstrap a plaintiff into federal court; that is the very essence
of the redressability requirement.
Item (5), the "investigation and prosecution" costs "as
authorized by Section 326(f)," would assuredly benefit respondent
as opposed to the citizenry at large. Obviously, however, a
plaintiff cannot achieve standing to litigate a substantive issue
by bringing suit for the cost of bringing suit. The litigation must
give the plaintiff some other benefit besides reimbursement of
costs that are a byproduct of the litigation itself. An "interest
in attorney's fees is ... insufficient to create an Article III
case or controversy where none exists on the merits of the
underlying claim."
Lewis v.
Continental Bank Corp.,
supra, at 480 (citing
Diamond v.
Charles,
476 U. S. 54,
70-71 (1986)). Respondent asserts that the "investigation costs" it
seeks were incurred prior to the litigation, in digging up the
emissions and storage information that petitioner should have
filed, and that respondent needed for its own purposes. See Brief
for Respondent 37-38. The recovery of such expenses unrelated
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108 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
to litigation would assuredly support Article III standing, but
the problem is that § 326(f), which is the entitlement to monetary
relief that the complaint invokes, covers only the "costs of
litigation." 8 § 11046(f). Respondent finds itself, in other words,
impaled upon the horns of a dilemma: For the expenses to be
reimbursable under the statute, they must be costs of litigation;
but reimbursement of the costs of litigation cannot alone support
standing.9
The remaining relief respondent seeks (item (2), giving
respondent authority to inspect petitioner's facility and records,
and item (3), compelling petitioner to provide respondent copies of
EPA compliance reports) is injunctive in nature. It cannot
conceivably remedy any past wrong but is aimed at deterring
petitioner from violating EPCRA in the future. See Brief for
Respondent 36. The latter objective can of course be "remedial" for
Article III purposes, when threatened injury is one of the
gravamens of the complaint. If respondent had alleged a continuing
violation or the imminence of a future violation, the injunctive
relief requested would remedy that alleged harm. But there is no
such allegation here-and on the facts of the case, there seems no
basis for it. Nothing supports the requested injunctive relief
except respondent's generalized interest in deterrence,
8 Section 326(f) reads: "The court, in issuing any final order
in any action brought pursuant to this section, may award costs of
litigation (including reasonable attorney and expert witness fees)
to the prevailing or the substantially prevailing party whenever
the court determines such an award is appropriate." 42 U. S. C. §
1l046(f).
9JUSTICE STEVENS contends,
post, at 123-124, n. 16, that
this argument involves us in a construction of the statute, and
thus belies our insistence that jurisdictional issues be resolved
first. It involves us in a construction of the statute only to the
extent of rejecting as frivolous the contention that costs incurred
for respondent's own purposes,
not in preparation for
litigation (and hence sufficient to support Article III standing),
are nonetheless "costs of litigation" under the statute. As we have
described earlier, our cases make clear that frivolous claims are
themselves a jurisdictional defect. See supra, at 89.
109
which is insufficient for purposes of Article III. See
Los
Angeles v.
Lyons, 461 U. S., at 111.
The United States, as
amicus curiae, argues that the
injunctive relief does constitute remediation because "there is a
presumption of [future] injury when the defendant has voluntarily
ceased its illegal activity in response to litigation," even if
that occurs before a complaint is filed. Brief for United States as
Amicus Curiae 27-28, and n. 11. This makes a sword out of a
shield. The "presumption" the Government refers to has been applied
to refute the assertion of mootness by a defendant who, when sued
in a complaint that alleges present or threatened injury, ceases
the complained-of activity. See,
e. g., United States v.
W T. Grant Co., 345 U. S. 629, 632
(1953). It is an immense and unacceptable stretch to call the
presumption into service as a substitute for the allegation of
present or threatened injury upon which initial standing must be
based. See
Los Angeles v.
Lyons, supra, at 109. To
accept the Government's view would be to overrule our clear
precedent requiring that the allegations of future injury be
particular and concrete.
O'Shea v.
Littleton,
414 U. S. 488,
496-497 (1974). "Past exposure to illegal conduct does not in
itself show a present case or controversy regarding injunctive
relief ... if unaccompanied by any continuing, present adverse
effects."
Id., at 495-496; see also
Renne v.
Geary, 501 U.
S. 312, 320 (1991) ("[T]he mootness exception for disputes
capable of repetition yet evading review ... will not revive a
dispute which became moot before the action commenced"). Because
respondent alleges only past infractions of EPCRA, and not a
continuing violation or the likelihood of a future violation,
injunctive relief will not redress its injury.
***
Having found that none of the relief sought by respondent would
likely remedy its alleged injury in fact, we must conclude that
respondent lacks standing to maintain this suit,
110
110 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
and that we and the lower courts lack jurisdiction to entertain
it. However desirable prompt resolution of the merits EPCRA
question may be, it is not as important as observing the
constitutional limits set upon courts in our system of separated
powers. EPCRA will have to await another day.
The judgment is vacated, and the case is remanded with
instructions to direct that the complaint be dismissed.
It is so ordered.
JUSTICE O'CONNOR, with whom JUSTICE KENNEDY joins,
concurring.
I join the Court's opinion. I agree that our precedent supports
the Court's holding that respondent lacks Article III standing
because its injuries cannot be redressed by a judgment that would,
in effect, require only the payment of penalties to the United
States Treasury. As the Court notes,
ante, at 108, had
respondent alleged a continuing or imminent violation of the
Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA),
42 U. S. C. § 11046, the requested injunctive relief may well have
redressed the asserted injury.
I also agree with the Court's statement that federal courts
should be certain of their jurisdiction before reaching the merits
of a case. As the Court acknowledges, however, several of our
decisions "have diluted the absolute purity of the rule that
Article III jurisdiction is always an antecedent question."
Ante, at 101. The opinion of the Court adequately describes
why the assumption of jurisdiction was defensible in those cases,
see
ante, at 98-100, and why it is not in this case, see
ante, at 92-93. I write separately to note that, in my view,
the Court's opinion should not be read as cataloging an exhaustive
list of circumstances under which federal courts may exercise
judgment in "reserv[ing] difficult questions of ... jurisdiction
when the case alternatively
111
could be resolved on the merits in favor of the same party,"
Norton v.
Mathews, 427 U. S. 524, 532
(1976).
JUSTICE BREYER, concurring in part and concurring in the
judgment.
I agree with the Court that the respondent in this case lacks
Article III standing. I further agree that federal courts often,
and typically should, decide standing questions at the outset of a
case. That order of decision (first jurisdiction then the merits)
helps better to restrict the use of the federal courts to those
adversarial disputes that Article III defines as the federal
judiciary's business. But my qualifying words "often" and
"typically" are important. The Constitution, in my view, does not
require us to replace those words with the word "always." The
Constitution does not impose a rigid judicial "order of
operations," when doing so would cause serious practical
problems.
This Court has previously made clear that courts may "reserv[e]
difficult questions of ... jurisdiction when the case alternatively
could be resolved on the merits in favor of the same party."
Norton v.
Mathews, 427 U. S. 524, 532
(1976). That rule makes theoretical sense, for the difficulty of
the jurisdictional question makes reasonable the court's
jurisdictional assumption. And that rule makes enormous practical
sense. Whom does it help to have appellate judges spend their time
and energy puzzling over the correct answer to an intractable
jurisdictional matter, when (assuming an easy answer on the
substantive merits) the same party would win or lose regardless?
More importantly, to insist upon a rigid "order of operations" in
today's world of federal-court caseloads that have grown enormously
over a generation means unnecessary delay and consequent added
cost. See L. Mecham, Judicial Business of the United States Courts:
1996 Report of the Director 16, 18, 23; Report of the Proceedings
of the Judicial Conference of the United States
112
112 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
STEVENS, J., concurring in judgment
106, 115, 143 (1971) (indicating that between 1971 and 1996,
annual appellate court caseloads increased from 132 to 311 cases
filed per judgeship, and district court caseloads increased from
341 to 490 cases filed per judgeship). It means a more cumbersome
system. It thereby increases, to at least a small degree, the risk
of the "justice delayed" that means "justice denied."
For this reason, I would not make the ordinary sequence an
absolute requirement. Nor, even though the case before us is
ordinary, not exceptional, would I simply reserve judgment about
the matter.
Ante, at 110-111 (O'CONNOR, J., concurring). I
therefore join only Parts I and IV of the Court's opinion.
JUSTICE STEVENS, with whom JUSTICE SOUTER joins as to Parts I,
III, and IV; and with whom JUSTICE GINSBURG joins as to Part III,
concurring in the judgment.
This case presents two questions: (1) whether the Emergency
Planning and Community Right- To- Know Act of 1986 (EPCRA), 42 U.
S. C. § 11001
et seq., confers federal jurisdiction over
citizen suits for wholly past violations; and (2) if so, whether
respondent has standing under Article III of the Constitution. The
Court has elected to decide the constitutional question first and,
in doing so, has created new constitutionallaw. Because it is
always prudent to avoid passing unnecessarily on an undecided
constitutional question, see
Ashwander v.
TV A,
297 U. S. 288,
345-348 (1936) (Brandeis, J., concurring), the Court should answer
the statutory question first. Moreover, because EPCRA, properly
construed, does not confer jurisdiction over citizen suits for
wholly past violations, the Court should leave the constitutional
question for another day.
I
The statutory issue in this case can be viewed in one of two
ways: whether EPCRA confers "jurisdiction" over citizen suits for
wholly past violations, or whether the statute
113
creates such a "cause of action." Under either analysis, the
Court has the power to answer the statutory question first.
EPCRA frames the question in terms of "jurisdiction."
Section 326(c) states:
"The district court shall have jurisdiction in actions brought
under [§ 326(a)] against an owner or operator of a facility to
enforce the requirement concerned and to impose any civil penalty
provided for violation of that requirement." 42 U. S. C. §
l1046(c).
Thus, if § 326(a) authorizes citizen suits for wholly past
violations, the district court has jurisdiction over these actions;
if it does not, the court lacks jurisdiction.
Given the text of the statute, it is not surprising that the
parties and the District Court framed the question in
jurisdictional terms. Respondent's complaint alleged that the
District Court had "subject matter jurisdiction under Section
326(a) of EPCRA, 42 U. S. C. § l1046(a)." App. 3. The merits
questions that were raised by respondent's complaint were whether
Steel Company violated EPCRA and, if so, what relief should be
granted. The District Court, however, made no ruling on the merits
when it granted Steel Company's motion to dismiss. It held that
dismissal was required because respondent had merely alleged "a
failure to timely file the required reports, a violation of the Act
for which there is no jurisdiction for a citizen suit." App. to
Pet. for Cert. A26.1 Steel Company has also framed the
1 See also
Don't Waste Arizona, Inc. v.
McLane Foods,
Inc., 950 F. Supp. 972, 977-978 (Ariz. 1997) ("[T]his Court has
jurisdiction to hear this citizen suit brought pursuant to 42 U. S.
C. § 11046(a) for a wholly past violation of the EPCRA");
Delaware Valley Toxics Coalition v.
Kurz-Hastings,
813 F. Supp. 1132, 1141 (ED Pa. 1993) ("This court concludes
that 42 U. S. C. § 11046(a)(1) does provide the federal courts with
jurisdiction for wholly past violations of the EPCRA");
Atlantic
States Legal Foundation v.
Whiting Roll-Up Door
Manufacturing Corp., 772 F. Supp. 745, 750 (WDNY 1991) ("The
plain language of EPCRA's reporting, enforcement and civil penalty
provisions, when logically viewed together, compel a con-
114
114 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
STEVENS, J., concurring in judgment
question as a jurisdictional one in its briefs before this
Court.2
The threshold issue concerning the meaning of § 326 is virtually
identical to the question that we decided in
Gwaltney of
Smithfield, Ltd. v.
Chesapeake Bay Foundation, Inc., 484
U. S. 49 (1987). In that case, we considered whether § 505(a) of
the Clean Water Act allows suits for wholly past violations.3 We
unanimously characterized that question as a matter of
"jurisdiction":
"In this case, we must decide whether § 505(a) of the Clean
Water Act, also known as the Federal Water Pollution Control Act,
33 U. S. C. § 1365(a), confers federal jurisdiction over citizen
suits for wholly past violations." Id., at 52.
See also
Block v.
Community Nutrition Institute,
467 U. S. 340,
353, n. 4 (1984) (citing
National Railroad Passenger Corp.
v.
National Assn. of Railroad Passengers, 414 U. S. 453, 456, 465,
n. 13 (1974)). If we resolve the comparable statutory issue in the
same way in this case, federal courts will have no jurisdiction to
address the merits in future similar cases. Thus, this is not a
case in which the choice between resolving the statutory question
or the standing question first is a choice between a merits issue
and a juris-
elusion that EPCRA confers federal jurisdiction over citizen
lawsuits for past violations").
2 Brief for Petitioner 12 ("A statute conferring jurisdiction on
the federal courts should ... be strictly construed, and any doubts
resolved against jurisdiction. Here there are serious doubts that
Congress intended citizens to sue for past EPCRA violations, and
all citizen plaintiffs can highlight is a slight difference in
language and attempt to stretch that difference into federal
jurisdiction"); see also id., at 26, 30.
3 Gwaltney contended that "because its last recorded violation
occurred several weeks before respondents filed their complaint,
the District Court lacked subject-matter jurisdiction over
respondents' action."
Gwaltney, 484 U. S., at 55.
115
dictional issue; rather, it is a choice between two
jurisdictional issues.
We have routinely held that when presented with two
jurisdictional questions, the Court may choose which one to answer
first. In
Sierra Club v.
Morton, 405 U. S. 727 (1972), for
example, we were presented with a choice between a statutory
jurisdictional question and a question of Article III standing. In
that case, the United States, as respondent, argued that petitioner
lacked standing under the Administrative Procedure Act and under
the Constitution.4 Rather than taking up the constitutional issue,
the Court stated:
"Where ... Congress has authorized public officials to perform
certain functions according to law, and has provided by statute for
judicial review of those actions under certain circumstances,
the inquiry as to standing must begin with a determination of
whether the statute in question authorizes review at the behest of
the plaintiff" Id., at 732 (emphasis added).
The Court concluded that petitioner lacked standing under the
statute, id., at 732-741, and, therefore, did not need to
4405 U. S., at 753-755 (App. to opinion of Douglas, J.,
dissenting) (Extract from Oral Argument of the Solicitor General);
Brief for Respondent in
Sierra Club v.
Morton, O. T.
1970, No. 70-34, p. 18 ("The irreducible minimum requirement of
standing reflects the constitutional limitation of judicial power
to 'Cases' and 'Controversies' -'whether the party invoking federal
court jurisdiction has "a personal stake in the outcome of the
controversy" ... and whether the dispute touches upon the "legal
relations of parties having adverse legal interests." ,
Flast v.
Cohen, 392 U. S. 83, 101
[(1968)]"); see also Brief for County of Tulare as
Amicus
Curiae in
Sierra Club v.
Morton, O. T. 1970, No.
70-34, pp. 13-14 ("This Court long ago held that to have standing
... a party must show he has sustained or is immediately in danger
of sustaining some direct injury ... and not merely that he suffers
in some indefinite way in common with people generally. This is an
outgrowth of Article III of the Constitution which limits the
jurisdiction of federal courts to cases and controversies. U. S.
Const., art. III, § 2" (citation and internal quotation marks
omitted)).
116
116 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
STEVENS, J., concurring in judgment
decide whether petitioner had suffered a sufficient injury under
Article III.
Similarly, in
Block v.
Community Nutrition Institute,
467 U. S. 340 (1984), the Court was faced with a choice between
a statutory jurisdictional issue and a question of Article III
standing. The Court of Appeals had held that the respondents had
standing under both the statute and the Constitution.
698 F.2d
1239, 1244-1252 (CADC 1983). On writ of certiorari to this
Court, the United States, as petitioner, argued both issues: that
the respondents did not come within the "zone of interests" of the
statute, and that they did not have standing under Article III of
the Constitution.5 A unanimous Court bypassed the constitutional
standing question in order to decide the statutory question. It
therefore construed the statute, and concluded that respondents
could not bring suit under the statute. The only mention of the
constitutional question came in a footnote at the end of the
opinion: "Since congressional preclusion of judicial review is in
effect jurisdictional, we need not address the standing issue
decided by the Court of Appeals in this case."
Block, 467 U.
S., at 353, n. 4 (citing
National Railroad Passenger Corp.,
414 U. S., at 456, 465, and n. 13).
Finally, in
Gladstone, Realtors v.
Village of
Bellwood, 441 U.
S. 91 (1979), we were also faced with a choice between a
statutory and constitutional jurisdictional question.
Id.,
at 93 ("This case presents both statutory and constitutional
questions concerning standing to sue under Title VIII"). The
statutory question was whether respondents had standing to sue
under § 812 of the Fair Housing Act. The Court,
5 Brief for Petitioners in
Block v.
Community
Nutrition Institute, O. T. 1983, No. 83-458, pp. 32-50 (arguing
that respondents failed to meet the injury-in-fact and
redressability requirements of Article III); see also Brief for
Respondents in
Block v.
Community Nutrition
Institute, O. T. 1983, No. 83-458, pp. 17-28; Reply Brief for
Petitioners in
Block v.
Community Nutrition
Institute, O. T. 1983, No. 83-458, pp. 15-17.
117
reluctant to address the constitutional question, opted to
decide the statutory question first so as to avoid the
constitutional question if possible:
"The issue [of the meaning of § 812] is a critical one, for if
the District Court correctly understood and applied § 812 [in
denying respondents standing under the statute], we do not reach
the question whether the minimum requirements of Art. III have been
satisfied. If the Court of Appeals is correct [in holding that
respondents have statutory standing], however, then the
constitutional question is squarely presented." Id., at
101.
See also
Bennett v.
Spear, 520 U. S. 154, 164 (1997)
(footnote omitted) (opinion of SCALIA, J.) (stating that "[t]he
first question in the present case is whether the [Endangered
Species Act's] citizen-suit provision ... negates the
zone-of-interests test," and turning to the constitutional standing
question only after determining that standing existed under the
statute);
Food and Commercial Workers v.
Brown Group,
Inc., 517 U. S.
544, 548-550 (1996) (analyzing the statutory question before
turning to the constitutional standing question);
Cross-Sound
Ferry Services, Inc. v.
ICC, 934 F.2d
327, 341 (CADC 1991) (Thomas, J., concurring in part and
concurring in denial of petition for review) (courts exceed the
scope of their power "only if the ground passed over is
jurisdictional and the ground rested upon is non-jurisdictional,
for courts properly rest on one jurisdictional ground instead of
another"). Thus, our precedents clearly support the proposition
that, given a choice between two jurisdictional questions-one
statutory and the other constitutional-the Court has the power to
answer the statutory question first.
Rather than framing the question in terms of "jurisdiction," it
is also possible to characterize the statutory issue in this case
as whether respondent's complaint states a "cause
118
118 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
STEVENS, J., concurring in judgment
of action." 6 Framed this way, it is also clear that we have the
power to decide the statutory question first. As our holding in
Bell v.
Hood, 327 U. S. 678, 681-685
(1946), demonstrates, just as a court always has jurisdiction to
determine its own jurisdiction,
United States v.
Mine
Workers, 330 U.
S. 258,290 (1947), a federal court also has jurisdiction to
decide whether a plaintiff who alleges that she has been injured by
a violation of federal law has stated a cause of action.7 Indeed,
Bell held that we have jurisdiction to decide this question
even when it is unclear whether the plaintiff's injuries can be
redressed.s Thus,
Bell demonstrates that the Court
6 As Justice Cardozo stated, '" "cause of action" may mean one
thing for one purpose and something different for another.'''
Davis v.
Passman, 442 U. S. 228, 237 (1979)
(quoting
United States v.
Memphis Cotton Oil Co.,
288 U. S. 62,
67-68 (1933)). Under one meaning of the term, it is clear that
citizens have a "cause of action" to sue under the statute. Under
that meaning, "cause of action is a question of whether a
particular plaintiff is a member of the class of litigants that
may, as a matter of law, appropriately invoke the power of the
court."
Davis, 442 U. S., at 240, and n. 18 (emphasis
deleted); see also id., at 239 ("The concept of a 'cause of action'
is employed specifically to determine
who may judicially
enforce the statutory rights or obligations" (emphasis added)).
Since EPCRA expressly gives citizens the right to sue, 42 U. S. C.
§ 11046(a)(1), there is no question that citizens are "member[s] of
the class of litigants that may, as a matter of law, appropriately
invoke the power of the court,"
Davis, 442 U. S., at 240,
and n. 18.
7"Jurisdiction ... is not defeated ... by the possibility that
the averments might fail to state a cause of action on which
petitioners could actually recover."
Bell, 327 U. S., at
682.
8 In
Bell, a precursor to
Bivens v.
Six Unknown
Fed. Narcotics Agents, 403 U. S. 388 (1971),
petitioners brought suit in federal court "to recover damages in
excess of $3,000 from ... agents of the Federal Bureau of
Investigation" for allegedly violating their Fourth and Fifth
Amendment rights. 327 U. S., at 679. The question whether
petitioners' injuries were redressable-"whether federal courts can
grant money recovery for damages said to have been suffered as a
result of federal officers violating the Fourth and Fifth
Amendments"-was an open one, id., at 684 (which the Court did not
decide until
Bivens, 403 U. S., at 389). Nonetheless,
119
has the power to decide whether a cause of action exists even
when it is unclear whether the plaintiff has standing.9
National Railroad Passenger Corp. also makes it clear
that we have the power to decide this question before addressing
other threshold issues. In that case, we were faced with the
interrelated questions of "whether the Amtrak Act can be read to
create a private right of action to enforce compliance with its
provisions; whether a federal district court has jurisdiction under
the terms of the Act to entertain such a suit [under 28 U. s. C. §
13371°]; and whether respondent has [statutory] standing to bring
such a suit." 414 U. S., at 455-456. In choosing its method of
analysis, the Court stated:
even though it was unclear whether there was a remedy, the Court
held that federal courts have jurisdiction to determine whether a
cause of action exists. 327 U. S., at 685.
9 The Court incorrectly states that I "used to understand the
fundamental distinction between arguing no cause of action and
arguing no Article III redressability,"
ante, at 96. The
Court gives me too much credit. I have never understood any
fundamental difference between arguing: (1) plaintiff's complaint
does not allege a cause of action because the law does "not provide
a remedy" for the plaintiff's injury; and (2) plaintiff's injury is
"not redressable." In
Lake Country Estates, Inc. v.
Tahoe
Regional Planning Agency, 440 U. S. 391, 398
(1979), we stated that the absence of a remedy, i.
e., the
lack of redress ability, was not the sort of jurisdictional issue
that the Court raises on its own motion. That was the law when that
case was decided, and it would still be the law today if the Court
had not supplemented the standing analysis set forth in
Baker v.
Carr, 369 U. S. 186, 204 (1962), with its
current fascination with "redressability." What has changed is not
the admittedly imperfect state of my understanding, but rather the
state of the Court's standing doctrine.
10 Section 1337 states, in relevant part: "[D]istrict courts
shall have original jurisdiction of any civil action or proceeding
arising under any Act of Congress regulating commerce or protecting
trade and commerce against restraints and monopolies." 28 U. S. C.
§ 1337(a); see also
Potomac Passengers Assn. v.
Chesapeake &
Ohio R. Co., 475
F.2d 325, 339 (CADC 1973), rev'd on other grounds,
National
Railroad Passenger Corp. v.
National Assn. of Railroad
Passengers, 414
U. S. 453 (1974).
120
120 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
STEVENS, J., concurring in judgment
"[H]owever phrased, the threshold question clearly is
whether the Amtrak Act or any other provision of law creates a
cause of action whereby a private party such as the respondent
can enforce duties and obligations imposed by the Act; for it is
only if such a right of action exists that we need consider whether
the respondent had standing to bring the action and whether the
District Court had jurisdiction to entertain it." Id., at
456 (emphasis added).l1
After determining that there was no cause of action under the
statute, the Court concluded: "Since we hold that no right of
action exists, questions of standing and jurisdiction become
immaterial."
Id., at 465, n. 13.12
Thus, regardless of whether we characterize this issue in terms
of "jurisdiction" or "causes of action," the Court clearly has the
power to address the statutory question first.
Gwaltney
itself powerfully demonstrates this point. As noted, that case
involved a statutory question virtually identical to the one
presented here-whether the statute permitted citizens to sue for
wholly past violations. While the Court framed the question as one
of "jurisdiction,"
supra, at 114, it could also be said that
the case presented the question whether the plaintiffs had a "cause
of action." Regardless of the label, the Court resolved the
statutory question without pausing to consider whether the
plaintiffs had standing
11 The Court distinguished this "threshold question" from
respondent's claim "on the merits," id., at 455, n. 3.
12 In insisting that the Article III standing question must be
answered first, the Court finds itself in a logical dilemma. For if
"A" (whether a cause of action exists) can be decided before
"B" (whether there is statutory standing), id., at 456, 465, n. 13;
and if "B" (whether there is statutory standing) can be decided
before
"C" (whether there is Article III standing),
e. g.,
Block v.
Community Nutrition Institute,
467 U. S. 340,
353, n. 4 (1984); then logic dictates that
"A" (whether a
cause of action exists) can be decided before
"C" (whether
there is Article III standing)-precisely the issue of this
case.
121
to sue for wholly past violations.13 Of course, the fact that we
did not discuss standing in Gwaltney does not establish that the
plaintiffs had standing there. Nonetheless, it supports the
proposition that-regardless of how the issue is characterized-the
Court has the power to address the virtually identical statutory
question in this case as well.
The Court disagrees, arguing that the standing question must be
addressed first. Ironically, however, before "first" addressing
standing, the Court takes a long excursion that entirely loses
sight of the basic reason why standing is a matter of such
importance to the proper functioning of the judicial process. The
"gist of the question of standing" is whether plaintiffs have
"alleged such a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination
of difficult constitutional questions." 14 The Court completely
disregards this core purpose of standing in its discussion of
"hypothetical jurisdiction." Not only is that portion of the
Court's opinion pure dictum because it is entirely unnecessary to
an explanation of the Court's decision; it is also not informed by
any adversary submission by either party. Neither the topic of
"hypothetical jurisdiction," nor any of the cases analyzed,
distinguished, and criticized in Part III, was the subject of any
comment in any of the briefs submitted by the parties or their
amici. It therefore did not benefit from the "concrete
adverseness" that the standing doctrine is meant to ensure. The
discussion, in short, "comes
13 In
Gwaltney, in addition to answering the question
whether the statute confers jurisdiction over citizen suits for
wholly past violations, we considered whether the allegation of
ongoing injury sufficed to support jurisdiction. The fact that we
discussed "standing" in connection with that secondary issue, 484
U. S., at 65-66, adds significance to the omission of even a
passing reference to any standing issue in connection with the
principal holding.
14 Baker v.
Carr, 369 U. S., at 204.
122
122 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
STEVENS, J., concurring in judgment
to the same thing as an advisory opinion, disapproved by this
Court from the beginning."
Ante, at 101; see also
Muskrat v.
United States, 219 U. S. 346, 362 (1911)
(stressing that Article III limits federal courts to "deciding
cases or controversies arising between opposing parties").15
15 The Court boldly distinguishes away no fewer than five of our
precedents. In each of these five cases, the Court avoided deciding
a jurisdictional issue by assuming that jurisdiction existed for
the purpose of that case. In
Norton v.
Mathews,
427 U. S. 524,
532 (1976), for example, we stated:
"It ... is evident that, whichever disposition we undertake, the
effect is the same. It follows that there is no need to decide the
theoretical question of jurisdiction in this case. In the past, we
similarly have reserved difficult questions of our jurisdiction
when the case alternatively could be resolved on the merits in
favor of the same party. See
Secretary of the Navy v.
Avrech, 418 U.
S. 676 (1974). The Court has done this even when the original
reason for granting certiorari was to resolve the jurisdictional
issue. See
United States v.
Augenblick, 393 U. S. 348,349352
(1969) .... Making the assumption, then, without deciding, that our
jurisdiction in this cause is established, we affirm the judgment
in favor of the Secretary .... "
See also
Philbrook v.
Glodgett, 421 U. S. 707, 720-722
(1975) (opinion of REHNQUIST, J.) (declining to reach "subtle and
complex" jurisdictional issue and assuming that jurisdiction
existed);
Secretary of Navy v.
Avrech, 418 U. S. 676, 677-678
(1974)
(per curiam) ("[a]ssuming,
arguendo, that the
District Court had jurisdiction"; leaving "to a future case the
resolution of the jurisdictional issue");
Chandler v.
Judicial Council of Tenth Circuit, 398 U. S. 74,89 (1970)
(''Whether the Council's action was administrative action not
reviewable in this Court, or whether it is reviewable here, plainly
petitioner has not made a case for the extraordinary relief of
mandamus or prohibition");
United States v.
Augenblick, 393 U. S. 348, 351-352
(1969) (assuming,
arguendo, that jurisdiction existed).
Moreover, in addition to the five cases that the Court
distinguishes, there are other cases that support the notion that a
court can assume jurisdiction. See,
e. g., Moor v.
County
of Alameda, 411
U. S. 693, 715 (1973) (''Whether there exists judicial power to
hear the state law claims against the County is, in short, a subtle
and complex question with farreaching implications. But we do not
consider it appropriate to resolve this difficult issue in the
present case, for we have concluded that even assuming,
arguendo, the existence of power to hear the claim, the
District Court [did not err]");
Neese v.
Southern R.
Co., 350 U. S.
77 (1955)
(per
123
The doctrine of "hypothetical jurisdiction" is irrelevant
because this case presents us with a choice between two threshold
questions that are intricately interrelated-as there is only a
standing problem if the statute confers jurisdiction over suits for
wholly past violations. The Court's opinion reflects this fact, as
its analysis of the standing issue is predicated on the hypothesis
that § 326 may be read to confer jurisdiction over citizen suits
for wholly past violations. If, as I think it should, the Court
were to reject that hypothesis and construe § 326,16 the standing
discussion
curiam) ("We reverse the judgment of the Court of Appeals
without reaching the constitutional challenge to that court's
jurisdiction .... Even assuming such appellate power to exist ... ,
[the Court of Appeals erred]"); see also
Ellis v.
Dyson, 421 U.
S. 426, 436 (1975) (REHNQUIST, J., concurring) ("While it would
have been more in keeping with conventional adjudication had [the
District Court] first inquired as to the existence of a case or
controversy, ... I cannot fault the District Court for disposing of
the case on what it quite properly regarded at that time as an
authoritative ground of decision. Indeed, this Court has on
occasion followed essentially the same practice").
Because this case involves a choice between two threshold
questions that are intricately interrelated, I do not take a
position on the propriety of courts assuming jurisdiction.
Nonetheless, I strongly disagree with the Court's decision to reach
out and decide this question, especially in light of the fact that
we have not had the benefit of briefing and argument. See
Philbrook, 421 U. S., at 721 (opinion of REHNQUIST, J.)
(declining to answer a "complex question of federal jurisdiction"
because of "the absence of substantial aid from the briefs of
either of the parties");
Avrech, 418 U. S., at 677 ("Without
the benefit of further oral argument, we are unwilling to decide
the difficult jurisdictional issue which the parties have
briefed");
ante, at 99 (noting that the
Avrech Court
"was unwilling to decide the jurisdictional question without oral
argument" and emphasizing the importance of zealous advocacy to
sharpen issues).
16 Indeed, the Court acknowledges-as it must-that the Court has
the power to construe the statute, as it is impossible to resolve
the standing issue without construing some provisions of EPCRA.
Thus, in order to determine whether respondent's investigation and
prosecution costs are sufficient to confer standing, the Court
construes § 326(f) of EPCRA, which authorizes the district court to
"award costs of litigation" to the prevailing party.
Ante,
at 107-108. Yet if §326(f) were construed to
124
124 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
STEVENS, J., concurring in judgment
would be entirely unnecessary. Thus, ironically, the Court is
engaged in a version of the "hypothetical jurisdiction" that it has
taken pains to condemn at some length.
II
There is an important reason for addressing the statutory
question first: to avoid unnecessarily passing on an undecided
constitutional question.
New York Transit Authority v.
Beazer, 440 U.
S. 568, 582-583 (1979);
Ashwander v.
TV A,
297 U. S. 288,
345-348 (1936) (Brandeis, J., concurring).17 Whether correct or
incorrect, the Court's constitutional holding represents a
significant extension of prior case law.
The Court's conclusion that respondent does not have standing
comes from a mechanistic application of the "redressability" aspect
of our standing doctrine. "Redressability," of course, does not
appear anywhere in the text of the Constitution. Instead, it is a
judicial creation of the past 25 years, see
Simon v.
Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 38, 41-46
(1976);
Linda R. S. v.
Richard D., 410 U. S. 614, 617-618
(1973)-a judicial interpretation of the "Case" requirement of
Article III,
Lujan v.
Defenders of Wildlife, 504 U. S. 555, 559-561
(1992).18
cover the cost of the investigation that preceded the filing of
respondent's complaint, even under the Court's reasoning respondent
would have alleged a "redress able" injury and would have standing.
See ibid.
17There are two other reasons that counsel in favor of answering
the statutory question first. First, it is the statutory question
that has divided the courts of appeals and that we granted
certiorari to resolve. See Pet. for Cert. i. Second, the meaning of
the statute is a matter of general and national importance, whereas
the Court's answer to the constitutional question depends largely
on a construction of the allegations of this particular complaint,
ante, at 104 ("We turn now to the particulars of
respondent's complaint to see how it measures up to Article Ill's
requirements").
18 In an attempt to demonstrate that redressability has always
been a component of the standing doctrine, the Court cites our
decision in
Marye v.
Parsons, 114 U. S. 325 (1885), a
case in which neither the word "standing" nor the word
"redressability" appears.
125
In every previous case in which the Court has denied standing
because of a lack of redressability, the plaintiff was challenging
some governmental action or inaction.
Leeke v.
Timmerman, 454
U. S. 83, 85-87 (1981)
(per curiam) (suit against
Director of the Department of Corrections and another prison
official);
Simon, 426 U. S., at 28 (suit against the
Secretary of the Treasury and the Commissioner of Internal
Revenue);
Warth v.
Seldin, 422 U. S. 490, 493 (1975)
(suit against the town of Penfield and members of Penfield's
Zoning, Planning, and Town Boards);
Linda R. S., 410 U. S.,
at 615-616, 619 (suit against prosecutor); see also
Renne v.
Geary, 501 U.
S. 312, 314 (1991) (suit against the city and County of San
Francisco, its board of supervisors, and other localofficials).19
None of these cases involved an attempt by one private party to
impose a statutory sanction on another private party.20
In addition, in every other case in which this Court has held
that there is no standing because of a lack of redressability, the
injury to the plaintiff by the defendant was
indirect (e.
g., dependent on the action of a third party). This is true in
the two cases that the Court cites for the "redressability" prong,
ante, at 103; see also
Simon, 426 U. S., at 40-46
("[T]he 'case or controversy' limitation of Art. III ... requires
that a federal court act only to redress injury that fairly can be
traced to the challenged action of the defendant,
19 Although the Court discussed redressability,
Renne did
not in fact turn on that issue. While the Court stated that
"[t]here is reason to doubt ... that the injury alleged ... can be
redressed" by the relief sought, 501 U. S., at 319, it then went on
to hold that the claims were nonjusticiable because "respondents
have not demonstrated a live controversy ripe for resolution by the
federal courts," id., at 315, 320-324.
20 This distinction is significant, as our standing doctrine is
rooted in separation-of-powers concerns.
E. g., Lujan v.
Defenders of Wildlife, 504 U. S. 555, 573-578
(1992);
Allen v.
Wright, 468 U. S. 737, 750
(1984); see also
infra, at 129-130.
126
126 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
STEVENS, J., concurring in judgment
and not injury that results from the independent action of
some third party not before the court" (emphasis added));
Warth, 422 U. S., at 504-508 (stating that "the indirectness
of the injury ... may make it substantially more difficult to meet
the minimum requirement of Art. III," and holding that the injury
at issue was too indirect to be redressable), as well as in every
other case in which the Court denied standing because of a lack of
redressability,
Leeke, 454 U. S., at 86-87 (injury indirect
because it turned on the action of a prosecutor, a party not before
the Court);
Linda R. S., 410 U. S., at 617-618 (stating that
"[t]he party who invokes [judicial] power must be able to show ...
that he has sustained or is immediately in danger of sustaining
some
direct injury" (emphasis in original) (internal
quotation marks omitted); injury indirect because it turned on the
action of the father, a party not before the Court); see also 3 K.
Davis & R. Pierce, Administrative Law Treatise 30 (3d ed.
1994).21 Thus, as far as I am aware, the Court has never held-until
today-that a plaintiff who is
directly injured 22 by a
defendant lacks standing to sue because of a lack of
redressability.23
21 "It is an established principle that to entitle a private
individual to invoke the judicial power to determine the validity
of executive or legislative action he must show that he has
sustained or is immediately in danger of sustaining a direct injury
as the result of that action .... "
Ex parte Levitt, 302 U.
S. 633, 634 (1937).
22 Assuming that EPCRA authorizes suits for wholly past
violations, then Congress has created a legal right in having EPCRA
reports filed on time. Although this is not a traditional
injury:
"[W]e must be sensitive to the articulation of new rights of
action that do not have clear analogs in our common-law tradition
.... Congress has the power to define injuries and articulate
chains of causation that will give rise to a case or controversy
where none existed before .... "
Lujan v.
Defenders of
Wildlife, 504 U. S., at 580 (KENNEDY, J., concurring in part
and concurring in judgment); see also
Havens Realty Corp. v.
Coleman, 455
U. S. 363, 373-374 (1982);
Warth v.
Seldin,
422 U. S. 490,
500 (1975).
23 In another context, the Court has specified that there is a
critical distinction between whether a defendant is directly or
indirectly harmed. In
Lujan v.
Defenders of Wildlife,
a case involving a challenge to Executive action, the Court
stated:
127
The Court acknowledges that respondent would have had standing
if Congress had authorized some payment to respondent.
Ante,
at 106 ("[T]he civil penalties authorized by the statute ... might
be viewed as a sort of compensation or redress to respondent if
they were payable to respondent"). Yet the Court fails to specify
why payment to respondenteven if only a peppercorn-would redress
respondent's injuries, while payment to the Treasury does not.
Respondent clearly believes that the punishment of Steel Company,
along with future deterrence of Steel Company and others, redresses
its injury, and there is no basis in our previous standing holdings
to suggest otherwise.
When one private party is injured by another, the injury can be
redressed in at least two ways: by awarding compensatory damages or
by imposing a sanction on the wrongdoer that will minimize the risk
that the harm-causing conduct will be repeated. Thus, in some cases
a tort is redressed by an award of punitive damages; even when such
damages are payable to the sovereign, they provide a form of
redress for the individual as well.
History supports the proposition that punishment or deterrence
can redress an injury. In past centuries in England,24 in the
American Colonies, and in the United
''When the suit is one challenging the legality of government
action or inaction, the nature and extent of facts that must be
averred (at the summary judgment stage) or proved (at the trial
stage) in order to establish standing depends considerably upon
whether the plaintiff is himself an object of the action (or
forgone action) at issue. If he is, there is ordinarily little
question that the action or inaction has caused him injury, and
that a judgment preventing or requiring the action will redress it.
When, however, as in this case, a plaintiff's asserted injury
arises from the government's allegedly unlawful regulation (or lack
of regulation) of
someone else, much more is needed. In that
circumstance, causation and redressability ordinarily hinge on the
response of the regulated (or regulable) third party to the
government action or inaction-and perhaps on the response of others
as well." 504 U. S., at 561-562 (emphasis in original).
24 "Several scholars have attempted to trace the historical
origins of private prosecution in the United States. Without
exception, these scholars have determined that the notion of
private prosecutions originated in
128
128 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
STEVENS, J., concurring in judgment
States,25 private persons regularly prosecuted criminal cases.
The interest in punishing the defendant and deterring violations of
law by the defendant and others was sufficient to support the
"standing" of the private prosecutor even if the only remedy was
the sentencing of the defendant to jail or to the gallows. Given
this history, the Framers of Article III surely would have
considered such proceedings to be "Cases" that would "redress" an
injury even though the party bringing suit did not receive any
monetary compensation.26
The Court's expanded interpretation of the redressability
requirement has another consequence. Under EPCRA,
early common law England, where the legal system primarily
relied upon the victim or the victim's relatives or friends to
bring a criminal to justice. According to these historians, private
prosecutions developed in England as a means of facilitating
private vengeance." Bessler, The Public Interest and the
Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511,
515 (1994) (footnotes omitted).
25 "American citizens continued to privately prosecute criminal
cases in many locales during the nineteenth century. In
Philadelphia, for example, all types of cases were privately
prosecuted, with assault and battery prosecutions being the most
common. However, domestic disputes short of assault also came
before the court. Thus, 'parents of young women prosecuted men for
seduction; husbands prosecuted their wives' paramours for adultery;
wives prosecuted their husbands for desertion.' Although many state
courts continued to sanction the practice of private prosecutions
without significant scrutiny during the nineteenth century, a few
state courts outlawed the practice."
Id., at 518-519
(footnotes omitted); A. Steinberg, The Transformation of Criminal
Justice: Philadelphia, 1800-1880, p. 5 (1989) ("Private prosecution
and the minor judiciary were firmly rooted in Philadelphia's
colonial past. Both were examples of the creative American
adaptation of the English common law. By the 17th century, private
prosecution was a fundamental part of English common law"); see
also F. Goodnow, Principles of the Administrative Law of the United
States 412-413 (1905).
26 When such a party obtains a judgment that imposes sanctions
on the wrongdoer, it is proper to presume that the wrongdoer will
be less likely to repeat the injurious conduct that prompted the
litigation. The lessening of the risk of future harm is a concrete
benefit.
129
Congress gave enforcement power to state and local governments.
42 U. S. C. § 1l046(a)(2). Under the Court's reasoning, however,
state and local governments would not have standing to sue for past
violations, as a payment to the Treasury would no more "redress"
the injury of these governments than it would redress respondent's
injury. This would be true
even if Congress explicitly granted
state and local governments this power. Such a conclusion is
unprecedented.
It could be argued that the Court's decision is rooted in
another separation-of-powers concern: that this citizen suit
somehow interferes with the Executive's power to "take Care that
the Laws be faithfully executed," Art. II, § 3. It is hard to see,
however, how EPCRA's citizen-suit provision impinges on the power
of the Executive. As an initial matter, this is not a case in which
respondent merely possesses the" 'undifferentiated public
interest'" in seeing EPCRA enforced.
Ante, at 106; see also
Lujan v.
Defenders of Wildlife, 504 U. S., at 577.
Here, respondent-whose members live near Steel Company-has alleged
a sufficiently particularized injury under our precedents. App. 5
(complaint alleges that respondent's members "reside, own property,
engage in recreational activities, breathe the air, and/or use
areas near [Steel Company's] facility").
Moreover, under the Court's own reasoning, respondent would have
had standing if Congress had authorized some payment to respondent.
Ante, at 106 ("[T]he civil penalties authorized by the
statute ... might be viewed as a sort of compensation or redress to
respondent if they were payable to respondent"). This conclusion is
unexceptional given that respondent has a more particularized
interest than a plaintiff in a
qui tam suit, an action that
is deeply rooted in our history.
United States ex rel.
Marcus v.
Hess, 317 U. S. 537, 541, n. 4
(1943) (" 'Statutes providing for actions by a common informer, who
himself has no interest whatever in the controversy other than that
given by statute, have been in
130
130 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
STEVENS, J., concurring in judgment
existence for hundreds of years in England, and in this country
ever since the foundation of our Government'" (quoting
Marvin v.
Trout, 199 U. S. 212, 225
(1905));
Adams v.
Woods, 2 Cranch 336, 341 (1805)
(opinion of Marshall, C. J.) ("Almost every fine or forfeiture
under a penal statute, may be recovered by an action of debt
[qui tam] as well as by information [by a public
prosecutor]"); 3 W. Blackstone, Commentaries 160 (1768); Caminker,
The Constitutionality of
Qui Tam Actions, 99 Yale L. J. 341,
342, and n. 3 (1989) (describing
qui tam actions authorized
by First Congress); see also
Lujan v.
Defenders of
Wildlife, 504 U. S., at 572-573.
Yet it is unclear why the separation-of-powers question should
turn on whether the plaintiff receives monetary compensation. In
either instance, a private citizen is enforcing the law. If
separation of powers does not preclude standing when Congress
creates a legal right that authorizes compensation to the
plaintiff, it is unclear why separation of powers should dictate a
contrary result when Congress has created a legal right but has
directed that payment be made to the Federal Treasury.
Indeed, in this case (assuming for present purposes that
respondent correctly reads the statute) not only has Congress
authorized standing, but the Executive Branch has also endorsed its
interpretation of Article III. Brief for United States as
Amicus
Curiae 7-30. It is this Court's decision, not anything that
Congress or the Executive has done, that encroaches on the domain
of other branches of the Federal GovernmentP
27 Ironically, although the Court insists that the standing
question must be answered first, it relies on the merits when it
answers the standing question. Proof that Steel Company repeatedly
violated the law by failing to file EPCRA reports for eight years
should suffice to establish the District Court's power to impose
sanctions, or at least to decide what sanction, if any, is
appropriate. Evidence that Steel Company was ignorant of the law
and has taken steps to avoid future violations is highly relevant
to the merits of the question whether any remedy is necessary, but
surely does not deprive the District Court of the power to decide
the
131
It is thus quite clear that the Court's holding today represents
a significant new development in our constitutional jurisprudence.
Moreover, it is equally clear that the Court has the power to
answer the statutory question first. It is, therefore, not
necessary to reject the Court's resolution of the standing issue in
order to conclude that it would be prudent to answer the question
of statutory construction before announcing new constitutional
doctrine.
III
EPCRA's citizen-suit provision states, in relevant part: "[A]ny
person may commence a civil action on his own behalf against ...
[a]n owner or operator of a facility for failure to do any of the
following: ... Complete and submit an inventory form under section
11 022 (a) of this title ... [or] [c]omplete and submit a toxic
chemical release form under section 11023(a) of this title." 42 U.
S. C. §§ 11046(a)(1)(A)(iii)-(iv).
Unfortunately, this language is ambiguous. It could mean, as the
Sixth Circuit has held, that a citizen only has the right to sue
for a "failure ... to complete and submit" the required forms.
Under this reading, once the owner or operator has filed the forms,
the district court no longer has jurisdiction.
Atlantic States
Legal Foundation v.
United Musical, 61 F.3d
473, 475 (1995). Alternatively, it could be, as the Seventh
Circuit held, that the phrases "under section 11022(a)" and "under
section 11023(a)" incorporate the requirements of those sections,
including the requirement that the reports be filed by particular
dates.
90 F.3d
1237, 1243 (1996).
remedy issue. Cf.
United States v.
W T. Grant Co.,
345 U. S. 629,
633 (1953) ("Here the defendants told the court that the interlocks
no longer existed and disclaimed any intention to revive them. Such
a profession does not suffice to make a case moot although it is
one of the factors to be considered in determining the
appropriateness of granting an injunction against the
now-discontinued acts").
132
132 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
STEVENS, J., concurring in judgment
Although the language of the citizen-suit provision is
ambiguous, other sections of EPCRA indicate that Congress did not
intend to confer jurisdiction over citizen suits for wholly past
violations. First, EPCRA requires the private litigant to give the
alleged violator notice at least 60 days before bringing suit. 42
U. S. C. § 1l046(d)(1).28 In
Gwaltney, we considered the
import of a substantially identical notice requirement, and
concluded that it indicated a congressional intent to allow suit
only for ongoing and future violations:
"[T]he purpose of notice to the alleged violator is to give it
an opportunity to bring itself into complete compliance with the
Act and thus likewise render unnecessary a citizen suit. If we
assume, as respondents urge, that citizen suits may target wholly
past violations, the requirement of notice to the alleged violator
becomes gratuitous. Indeed, respondents, in propounding their
interpretation of the Act, can think of no reason for Congress to
require such notice other than that 'it seemed right' to inform an
alleged violator that it was about to be sued. Brief for
Respondents 14." 484 U. S., at 60.
Second, EPCRA places a ban on citizen suits once EPA has
commenced an enforcement action. 42 U. S C. § 1l046(e).29 In
Gwaltney, we considered a similar provision and concluded
that it indicated a congressional intent to prohibit citizen suits
for wholly past violations:
28"No action may be commenced under subsection (a)(1)(A) of this
section prior to 60 days after the plaintiff has given notice of
the alleged violation to the Administrator, the State in which the
alleged violation occurs, and the alleged violator. Notice under
this paragraph shall be given in such manner as the Administrator
shall prescribe by regulation."
29"No action may be commenced under subsection (a) of this
section against an owner or operator of a facility if the
Administrator has commenced and is diligently pursuing an
administrative order or civil action to enforce the requirement
concerned or to impose a civil penalty under this Act with respect
to the violation of the requirement."
133
"The bar on citizen suits when governmental enforcement action
is under way suggests that the citizen suit is meant to supplement
rather than supplant governmental action .... Permitting citizen
suits for wholly past violations of the Act could undermine the
supplementary role envisioned for the citizen suit. This danger is
best illustrated by an example. Suppose that the Administrator
identified a violator of the Act and issued a compliance order ....
Suppose further that the Administrator agreed not to assess or
otherwise seek civil penalties on the condition that the violator
take some extreme corrective action, such as to install
particularly effective but expensive machinery, that it otherwise
would not be obliged to take. If citizens could file suit, months
or years later, in order to seek the civil penalties that the
Administrator chose to forgo, then the Administrator's discretion
to enforce the Act in the public interest would be curtailed
considerably. The same might be said of the discretion of state
enforcement authorities. Respondents' interpretation of the scope
of the citizen suit would change the nature of the citizens' role
from interstitial to potentially intrusive." 484 U. S., at
60-61.
Finally, even if these two provisions did not resolve the issue,
our settled policy of adopting acceptable constructions of
statutory provisions in order to avoid the unnecessary adjudication
of constitutional questions-here, the unresolved standing
question-strongly supports a construction of the statute that does
not authorize suits for wholly past violations. As we stated in
Edward J.
DeBartolo Corp. v.
Florida Gulf Coast
Building &
Constr. Trades Council, 485 U. S. 568, 575
(1988): "This cardinal principle has its roots in Chief Justice
Marshall's opinion for the Court in
Murray v.
Schooner
Charming Betsy, 2 Cranch 64, 118 (1804), and has for so long
been applied by this Court that it is beyond debate." See also
NLRB v.
Catholic Bishop of Chicago, 440 U. S. 490,
134
134 STEEL CO.
v. CITIZENS FOR BETTER ENVIRONMENT
GINSBURG, J., concurring in judgment
500-501 (1979);
Machinists v.
Street, 367 U. S. 740, 749-750
(1961); Crowell v.
Benson, 285 U. S. 22, 62 (1932);
Lucas v.
Alexander, 279 U. S. 573, 577
(1929);
Panama R. Co. v.
Johnson, 264 U. S. 375, 390
(1924);
United States ex rel. Attorney General v.
Delaware &
Hudson Co., 213 U. S. 366,407-408
(1909); Parsons v.
Bedford, 3 Pet. 433, 448-449
(1830) (opinion of Story, J.).
IV
For these reasons, I concur in the Court's judgment, but do not
join its opinion.
JUSTICE GINSBURG, concurring in the judgment. Congress has
authorized citizen suits to enforce the Emergency Planning and
Community Right- To- Know Act of 1986, 42 U. S. C. § 11001
et
seq. Does that authorization, as Congress designed it, permit
citizen suits for wholly past violations? For the reasons stated by
JUSTICE STEVENS in Part III of his opinion, I agree that the answer
is "No." I would follow the path this Court marked in
Gwaltney
of Smithfield, Ltd. v.
Chesapeake Bay Foundation, Inc.,
484 U. S. 49,
60-61 (1987), and resist expounding or offering advice on the
constitutionality of what Congress might have done, but did not
do.
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