Robert E. Gonzales v. Ann McGill Gorsuch, Administrator of the United States Environmental Protection Agency

688 F.2d 1263 17 ERC 2147 , 13 Envtl. L. Rep. 20 ,072 Robert E. GONZALES, et al., Plaintiffs-Appellants, v. Ann McGill GORSUCH, * Administrator of the United States Environmental Protection Agency, et al., Defendants-Appellees. No. 78-3729. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 12, 1980. Decided Sept. 28, 1982. Robin L. Rivett, Sacramento, Cal., for plaintiffs-appellants. Jacques B. Gelin, Dept. of Justice, Washington, D.C., argued, for defendants-appellees; John Evans, Benner, Harris & Evans, Berkeley, Cal., Francis B. Boone, Asst. U.S. Atty., San Francisco, Cal., on brief. Appeal from the United States District Court for the Northern District of California. Before WALLACE and KENNEDY, Circuit Judges, and BURNS, ** District Judge. KENNEDY, Circuit Judge: 1 This suit challenges the propriety of expenditures approved by the Environmental Protection Agency (EPA) and made by the Association of Bay Area Governments (ABAG). 1 ABAG made the expenditures pursuant to a workplan under section 208 of the Federal Water Pollution Control Act (herein the Clean Water Act), 33 U.S.C. § 1288 (1976). EPA funded the plan through a $4.3 million grant…

This suit challenges the propriety of expenditures approved by the Environmental Protection Agency [EPA] and made by the Association of Bay Area Governments [ABAG]. 1 ABAG made the expenditures pursuant to a workplan under section 208 of the Federal Water Pollution Control Act (herein the Clean Water Act), 33 U.S.C. § 1288 (1976). EPA funded the plan through a $4.3 million grant authorized un *1265 der section 208(f), 33 U.S.C. § 1288 (f) (1976).

After the planning began, but before its completion, Gonzales 2 brought this suit. The theory of the suit was that some of the grant funds used by ABAG were for contracts not related to water pollution. These, it was contended, were improper expenditures under section 208, and' hence could not be legally funded. After finding standing and reaching the merits, the court below denied the requested injunctive and declaratory relief and entered summary judgment for the EPA. Gonzales v. Costle, 463 F.Supp. 335 (N.D. Cal. 1978). Gonzales appeals, and we now affirm.

I.

In 1972, Congress amended the FWPCA. Pub. L. 92-500, 86 Stat. 839 (1972). The amendments provided for a comprehensive state and federal program to improve the nation’s water…

concurring:

I concur in the result reached by the majority. I agree that Gonzales lacks standing to maintain this action. There are, however, parts- of the opinion with which I do not agree. Therefore, I write separately to address this significant issue: congressional power to alter or amend the rules governing standing in the federal courts.

For many years it has been clear that the doctrine of standing embodies both constitutional limitations on federal-court jurisdiction, derived from the “case or controversy” clause of Article III, and prudential considerations of judicial self-restraint governing its exercise. See, e.g., Warth v. Seldin, 422 U.S. 490, 498-501 , 95 S.Ct. 2197, 2204-2206 , 45 L.Ed.2d 343 (1975); Construction Industry Ass’n v. City of Petaluma, 522 F.2d 897, 903-05 (9th Cir. 1975), cert. denied, 424 U.S. 934 , 96 S.Ct. 1148 , 47 L.Ed.2d 342 (1976); Nevin v. Ferdon, 413 F.Supp. 1043 , 1046 n. 5 (N.D. Cal. 1976) (per curiam) (three-judge district court). Although the Supreme Court has not always clearly articulated whether particular aspects of the standing doctrine are constitutional or prudential, see Valley Forge Christian College v. Americans United for…