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 Separation of *1269 Church and State, 454 U.S. 464 , 102 S.Ct. 752, 758 , 70 L.Ed.2d 700 (1982) (Valley Forge), it has emphasized the difference between the two: Congress may discard the prudential standing rules by statute, thus expanding standing to the full extent permitted by Article III, but may not abrogate the minimum requirements of Article III itself. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 , 99 S.Ct. 1601, 1608 , 60 L.Ed.2d 66 (1979) (Gladstone); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 , 41 n. 22, 96 S.Ct. 1917 , 1925 n. 22, 48 L.Ed.2d 450 (1976) (Simon); Warth v. Seldin, supra, 422 U.S. at 501 , 95 S.Ct. at 2206 .

Because the majority fails to analyze the import of this basic distinction in this case, its discussion of the “citizen suit” provisions of the FWPCA (Act) is in several important respects somewhat overbroad. I agree that Gonzales has not met the constitutional prerequisites for standing. Having thus failed to establish a justiciable case or controversy under Article III, Gonzales cannot rely on section 505(a)(2) of the Act, 33 U.S.C. § 1365 (a)(2), to establish his right to challenge the EPA’s conduct. Insofar as the majority implies that congressional intent may alter this conclusion, however, I must respectfully disagree.

Article III is the fundamental limitation on the judicial power of the United States. By restricting the federal courts’ power of judicial review to the resolution of “cases” and “controversies,” Article III ensures that legal questions are decided by the courts only in situations presenting that “concrete adverseness” which sharpens the issues and promotes realistic, informed decisionmaking, see Baker v. Carr, 369 U.S. 186, 204 , 82 S.Ct. 691, 703 , 7 L.Ed.2d 663 (1962), and prevents the courts from overreaching their proper, limited role in our democratic society, see Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 221-27 , 94 S.Ct. 2925, 2932-35 , 41 L.Ed.2d 706 (1974). By prohibiting the exercise of judicial authority merely for “the ventilation of public grievances or the refinement of jurisprudential understanding,” Valley Forge, supra, 102 S.Ct. at 759 , Article III thus defines the essential role assigned to the judiciary among the three coequal branches of our constitutional republic. Id.; Simon, supra, 426 U.S. at 39 , 96 S.Ct. at 1924 ; Flast v. Cohen, 392 U.S. 83, 97 , 88 S.Ct. 1942, 1951 , 20 L.Ed.2d 947 (1968).

The “case or controversy” requirement, of course, does not obviate the duty of the federal courts to vindicate constitutionally-protected individual rights, to protect the allocation of power between the state and national governments which serves as the bedrock for our delicate balance of federalism, and to interpret and enforce acts of Congress insofar as they are consistent with the Constitution. Article III, however, “is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power. . . . ” Valley Forge, supra, 102 S.Ct. at 760 . Where a litigant lacks Article III standing to challenge the action sought to be adjudicated, it is the constitutional obligation of the federal court to dismiss the lawsuit. Where a litigant establishes his standing under Article III, and squarely and properly raises the issue of the legality of governmental conduct, it is the correlative obligation of the judiciary to address his claims on the merits. Either way, there can be no blinking at the consequences.

The irreducible minimum requirements of Article III do not represent mere policies which the federal courts can expand sua sponte in an effort to treat more hospitably the merits of a litigant’s claims, or to reach and affirm the legality of the challenged conduct. Our authority under Article III “exists only to redress or otherwise to protect against” some threatened or actual injury to the complaining party which may fairly be traced to the allegedly unlawful conduct of the defendant. Warth v. Seldin, supra, 422 U.S. at 499 , 95 S.Ct. at 2205 . Where a litigant does not meet these constitutional prerequisites, he may not invoke the judicial power of the United States, nor may the federal courts permit him to do so. Valley Forge, supra, 102 S.Ct. at 760 ; Simon, supra, 426 U.S. at 38 , 96 S.Ct. at 1924 . If we go further than that, we not only *1270 overstep our designated role in the constitutional scheme, but erode the public confidence and respect on which judicial authority ultimately rests in a democratic society. United States v. Richardson, 418 U.S. 166, 188 , 94 S.Ct. 2940, 2952 , 41 L.Ed.2d 678 (1974) (Powell, J., concurring).

As an aspect of Article III, the party invoking the court’s authority must demonstrate “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.” Baker v. Carr, supra, 369 U.S. at 204 , 82 S.Ct. at 703 . This, in turn, involves three separate but interrelated components: 1 First, a “distinct and palpable” injury to the plaintiff, Warth v. Seldin, supra, 422 U.S. at 501 , 95 S.Ct. at 2206 , be it “actual or threatened,” Linda R.S. v. Richard D., 410 U.S. 614, 617 , 93 S.Ct. 1146, 1148 , 35 L.Ed.2d 536 (1973); second, a “fairly traceable causal connection” between that injury and the challenged conduct of the defendant, Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72 , 98 S.Ct. 2620, 2630 , 57 L.Ed.2d 595 (1978) (Duke Power); Simon, supra, 426 U.S. at 41 , 96 S.Ct. at 1925 ; and third, a “substantial likelihood” that the relief requested will redress or prevent the injury. Duke Power, supra, 430 U.S. at 75 n. 20, 98 S.Ct. at 2631 n. 20. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 , 97 S.Ct. 555, 563 , 50 L.Ed.2d 450 (1977). The third element, redressability, is clearly a constitutional aspect of the standing doctrine. See, e.g., Gladstone, supra, 441 U.S. at 100 , 99 S.Ct. at 1608 ; Simon, supra, 426 U.S. at 38, 41, 43-44 , 96 S.Ct. at 1925, 1926-1927 ; id. at 64 , 96 S.Ct. at 1936 (Brennan, J., concurring). The majority concludes that Gonzales has failed to meet this last requirement. With this holding, I agree.

As they have evolved to this date, the prudential aspects of the standing doctrine, like the constitutional aspects, are also three-fold: 2 (1) the plaintiff must assert his own rights, and “cannot rest his claim to relief on the legal rights or interests of third parties,” Warth v. Seldin, supra, 422 U.S. at 499 , 95 S.Ct. at 2205 ; (2) “even where the plaintiff has alleged redressable injury sufficient to meet the requirements of Article III,” Valley Forge, supra, 102 S.Ct. at 760 , if that injury is “shared in substantially equal measure by all or by a large class of citizens” it represents a “generalized grievance” not normally appropriate for a judicial resolution, Warth v. Seldin, supra, 422 U.S. at 499 , 95 S.Ct. at 2205 ; and (3) the plaintiff’s interest must be “within the zone of interests to be protected or regulated” by the statute or constitutional guarantee in question. Gladstone, supra, 441 U.S. at 100 n. 6, 99 S.Ct. at 1608 n. 6; Association of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150, 153 , 90 S.Ct. 827, 829 , 25 L.Ed.2d 184 (1970).

The relation between the constitutional and prudential aspects of standing, as well as the inclusion of both causation and redressability in the constitutional portion of the doctrine, is crucial to this case, which arises under a congressional statute granting standing to any interested “citizen.” Clearly, Congress cannot by statute vest the federal courts with jurisdiction to hear lawsuits that do not present a case or controversy under Article III or that are otherwise not within the limited jurisdiction which Article III grants the federal courts. Congress may, however, “grant an express right of action to persons who otherwise would be barred by prudential standing *1271 rules.” Warth v. Seldin, supra, 422 U.S. at 501 , 95 S.Ct. at 2206 . Congress may by statute create new interests the invasion of which will result in injury to a litigant. See, e.g., Simon, supra, 426 U.S. at 41 n. 22, 96 S.Ct. at 1925 n. 22; Schlesinger v. Reservists Committee to Stop the War, supra, 418 U.S. at 224 n. 14, 94 S.Ct. at 2933 n. 14; Linda R.S. v. Richard D., supra, 410 U.S. at 617 n. 3, 93 S.Ct. at 1148 n. 3. Nonetheless, even “[wjhen Congress has so acted, the requirements of Art. Ill remain. . . . ” Simon, supra, 426 U.S. at 41 n. 22, 96 S.Ct. at 1925 n. 22. As the Court has recently explained:

Gladstone, supra, 441 U.S. at 100 , 99 S.Ct. at 1608 (citations omitted). See generally Bice, Congress’ Power to Confer Standing in the Federal Courts, in Constitutional Government in America 291-303 (R. Collins ed. 1979).

The majority does not give sufficient attention to this basic and important distinction between constitutional and prudential standing limitations. Congressional legislation can do no more than expand standing to the full extent permitted by Article III. For example, Congress may, in a particular statutory grant of a right of action, permit litigants to sue to enforce the interests of third parties or to act as “private attorneys general” to vindicate the public interest in disputes that would otherwise be considered nonjusticiable “generalized grievances.” Gladstone, supra, 441 U.S. at 100 , 99 S.Ct. at 1608 ; Warth v. Seldin, supra, 422 U.S. at 501 , 95 S.Ct. at 2206 . In addition, Congress may by statute amend the Administrative Procedure Act to eliminate the prudential “zone of interest” test. See Gladstone, supra, 441 U.S. at 100 n. 6, 99 S.Ct. at 1608 n. When, however, Congress purportedly acts to grant standing, there are two clear and separate judicial inquiries: whether Congress intended to dispense with the prudential standards and thus expand standing to the maximum extent permitted by Article III, and whether the particular litigants before the court have sufficiently alleged or established their standing under Article III. See id. at 109 , 115 & n. 31, 99 S.Ct. at 1612 , 1615 & n. 31. 6.

Section 505(a)(2) of the Act, 33 U.S.C. § 1365 (a)(2), permits “any citizen” to bring suit against the Administrator of the EPA for his failure to perform any nondiscretionary act or duty. The majority concludes that this section was intended to grant standing to a “nationwide class” of “citizens who allege[] an interest in clean water.” The majority, however, neglects to add that in section 505(g), 33 U.S.C. § 1365 (g), Congress limited the definition of “citizen” to those persons “having an interest which is or may be adversely affected.” Far removed from the import of this language is the majority’s conclusion that “every citizen [has] a litigable interest in the enforcement of all nondiscretionary acts and duties of the EPA.” The nearly identical language of the Administrative Procedure Act has been construed to grant standing only to persons who satisfy the “injury in fact” requirement of Article III. Association of Data Processing Service Orgs., Inc. v. Camp, supra, 397 U.S. at 152-54 , 90 S.Ct. at 829-30 ; Sierra Club v. Morton, 405 U.S. 727, 732-33 , 92 S.Ct. 1361, 1364-65 , 31 L.Ed.2d 636 (1972). As the Supreme Court observed recently, “it is clear that the citizen-suit provisions [of the FWPCA] apply only to persons who can claim some sort of injury. . . . ” Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1 , 101 S.Ct. 2615, 2624 , 69 L.Ed.2d 435 (1981) (Middlesex County).

Congress, therefore, did not intend in section 505(a)(2) to grant standing to non-injured members of the public. See id.; J.E. Brenneman Co. v. Schramm, 473 F.Supp. 1316, 1319-20 (E.D. Pa. 1979). Rather, as *1272 the legislative history makes clear, Congress intended to expand standing to the full extent permitted by the Court’s interpretation of the Constitution. Under Sierra Club v. Morton, supra, 405 U.S. at 734, 738 , 92 S.Ct. at 1366, 1368 , and United States v. SCRAP, 412 U.S. 669 , 689 n. 14, 93 S.Ct. 2405 , 2416 n. 14, 37 L.Ed.2d 254 (1973), a noneconomic interest in the environment, although admittedly slight, may amount to an injury sufficient under Article III if that interest is “adversely affected” by the governmental conduct challenged. Therefore, an injury sufficient under section 505(a)(2) may consist of environmental damage which adversely affects a plaintiff’s use and enjoyment of the clean waters of the United States. Any contrary construction of section 505(a)(2) would be unconstitutional, as it would allow Congress to “abrogate” the minimum Article III requirement that a plaintiff suffer a “distinct and palpable injury to himself.” Gladstone, supra, 441 U.S. at 100 , 99 S.Ct. at 1608 ; Warth v. Seldin, supra, 422 U.S. at 501 , 95 S.Ct. at 2206 .

Gonzales, along with the identical complaints of all other plaintiffs, asserts that his use and enjoyment of the Bay has been diminished by the diversion of water-planning funds to other purposes, since the waters of the Bay are not as clean as they would have been had the EPA grant been properly spent only for water planning. This is sufficient to establish an interest “adversely affected” under section 505(a)(2) and injury in fact under Article III because Gonzales asserts that he is “among the injured.” United States v. SCRAP, supra, 412 U.S. at 687 , 93 S.Ct. at 2416 ; Montgomery Environmental Coalition v. Costle, 646 F.2d 568, 578 (D.C. Cir. 1980). Normally, however, this sort of injury might be considered a nonjusticiable generalized grievance, as it is shared in substantially equal measure by all residents of the Bay Area. Yet since it is clear that Congress enacted section 505(a)(2) in order to permit any injured citizen to enforce the Act as a private attorney general, Middlesex County, supra, 101 S.Ct. at 2624 , the prudential limitation denying standing to those presenting generalized grievances is inapplicable. So long as they suffer a distinct and palpable injury to themselves, “persons to whom Congress has granted a right of action, either expressly or by clear implication, .. . may invoke the general public interest in support of their claim.” Warth v. Seldin, supra, 422 U.S. at 501 , 95 S.Ct. at 2206 .

The importance of the constitutional/prudential distinction in this case now becomes more clear. The citizen-suit provisions of the Act dispense with the prudential limitations by expanding standing to the full extent permitted by Article III. Such a suit cannot be dismissed on the ground that the plaintiff is asserting the rights of third parties or is attempting to adjudicate a generalized grievance. I would not read the senatorial colloquy quoted in the majority opinion as an attempt to codify citizen standing under the terms of Sierra Club . Nor would I read this legislative history as an attempt to confer standing on every citizen, whether or not such a citizen can demonstrate direct injury within the Article III requirement; rather, because congressional enactments enjoy a presumption of constitutionality, I would read the legislative history as conferring standing to anyone who meets the Court’s Article III test, whether developed before or after Sierra Club .

I therefore would hold that a citizen has standing to sue as such under section 505(a)(2) if he demonstrates injury in fact, causation, and a substantial likelihood of redressability. In other words, I would avoid any conflict between section 505(a)(2) and Article III by holding that Congress intended to permit any citizen who could establish a “case or controversy” to sue in federal court on behalf of the public interest in clean water, but that Congress did not intend to abrogate the second and third elements of the tripartite doctrine of Article III standing. In order to prevail in this appeal, therefore, Gonzales must establish that his injury is fairly traceable to the challenged misappropriation of water planning funds and that there is a substantial likelihood that judicial relief could redress *1273 that injury. It is the latter of these upon which he stumbles. And despite the implications to the contrary in the majority opinion, this is a stumbling block imposed by Article III itself, and as such is beyond the power of Congress to remove or modify even if Congress had clearly intended to do so by enacting section 505(a)(2).

. See generally Valley Forge, supra, 102 S.Ct. at 758 59; Larson v. Valente, ----U.S.----, 102 S.Ct. 1673 , 1676 & n. 5, 72 L.Ed.2d 33 (1982) (Rehnquist, J., dissenting); Pacific Legal Foundation v. State Energy Resources & Development Commit, 659 F.2d 903, 910-11 (9th Cir. 1981); Chadha v. INS, 634 F.2d 408, 418 (9th Cir. 1980), cert. granted, 454 U.S. 812 , 102 S.Ct. 87 , 70 L.Ed.2d 80 (1981); Legal Aid Society v. Brennan, 608 F.2d 1319, 1333 (9th Cir. 1979), cert. denied, 447 U.S. 921 , 100 S.Ct. 3010 , 65 L.Ed.2d 1112 (1980); Boating Industry Ass’ns v. Marshall, 601 F.2d 1376 , 1380-81 (9th Cir. 1979); Bowker v. Morton, 541 F.2d 1347, 1349 (9th Cir. 1976).

. See generally Valley Forge, supra, 102 S.Ct. at 759-60; Legal Aid Society v. Brennan, supra, 608 F.2d at 1336 & n. 31.