This article returns to the earlier Gwaltney decision, looking both to the text of the Gwaltney opinion, and to internal memoranda demonstrating the debate which occurred among the justices themselves over the nature of the beast with which they were dealing: a confusing mixture of subject matter jurisdiction, substantive cause of action and constitutionally based standing requirements. This review leads to the conclusion that the opinion's lack of analytical clarity, which created substantial confusion for courts and litigants, could have been avoided by a more carefully reasoned work based on the Court's internal discussions. Further, the Court's decision in Steel Company demonstrates a debate within the Court regarding the import of Gwaltney, raising questions as to its future application, as well as the eventual fate of citizen suits under federal environmental statutes.
Ann Powers, Gwaltney of Smithfield Revisited, 23 Wm. & Mary Envtl. L. & Pol'y Rev. 557 (1999), http://digitalcommons.pace.edu/lawfaculty/200/.