Cite as: 523 U. S. 83 (1998)
Stevens, J., concurring in judgment
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
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