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FOUNDATION v. WATKINS

February 12, 1990

FOUNDATION ON ECONOMIC TRENDS, et al., Plaintiffs,
v.
JAMES D. WATKINS, et al., Defendants


George H. Revercomb, United States District Judge.


The opinion of the court was delivered by: REVERCOMB

GEORGE H. REVERCOMB, UNITED STATES DISTRICT JUDGE

 The Plaintiffs filed their complaint on May 23, 1989, against the Secretary of Energy, the Secretary of the Interior and the Secretary of Agriculture, seeking this Court "to declare unlawful and enjoin certain actions of the defendants . . . in authorizing, carrying out, approving, funding, or participating in programs that contribute to the 'greenhouse effect' without discussing and evaluating the impacts of those contributions in environmental documentation, review, and decision-making in conformity with the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. ยงยง 4321-4370a (1982)." This matter is before the Court pursuant to the Defendants' Motion to Dismiss. The Defendants support their motion to dismiss on grounds that the Plaintiffs seek an advisory opinion, their claims are not ripe for review, and the Plaintiffs lack standing.

 I. ADVISORY OPINION

 The Defendants contend that the Plaintiffs' complaint does not challenge the adequacy or seek the review of any particular NEPA document but instead asks this Court to rule that as a matter of law federal agencies must consider the greenhouse effect in all NEPA documents. The Defendants argue that such a ruling would constitute an impermissible advisory opinion under the case or controversy requirement of Article III of the United States Constitution. See National Conference of Catholic Bishops v. Smith, 209 U.S. App. D.C. 280, 653 F.2d 535, 539 (D.C.Cir. 1981) (federal courts are "without power . . . to decide abstract, hypothetical or contingent questions"); see also Princeton Univ. v. Schmid, 455 U.S. 100, 102, 70 L. Ed. 2d 855, 102 S. Ct. 867 (1982); Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 243, 97 L. Ed. 291, 73 S. Ct. 236 (1952); Center for Science in the Public Interest v. Regan, 234 U.S. App. D.C. 62, 727 F.2d 1161, 1166 n. 6 (D.C.Cir. 1984).

 Although this Court may not be able to provide all the relief that the Plaintiffs request, *fn1" a fair reading of the Complaint amply demonstrates that the Plaintiffs are challenging specific programs and projects upon which this Court can act; namely, whether particular NEPA documents on particular actions requires discussion of the possibility of global climate change. Not only does the Complaint provide that, inter alia, the Plaintiffs are seeking relief for "certain actions" *fn2" but the Plaintiffs specifically cite those actions which they are challenging. For example, the Plaintiffs are challenging the sufficiency of NEPA documents prepared by the DOE for

 
the conversion of energy producing plants previously using other fuels, such as natural gas, into coal-fired generating plants. The Department of Energy has prepared environmental impact statements on several conversions, including the Mt. Tom generating station and the Brandon Shores generating station. Neither of those environmental impact statements nor any others concerning such conversions discuss the environmental impacts of the conversion in terms of their contribution to the greenhouse effect through increased emissions of CO2.

 Another specific action which the Plaintiffs challenge is the Federal Coal Management Program which is overseen by the Department of Interior's Bureau of Land Management. The complaint provides:

 
Approximately one-third of the nation's coal supply is owned, managed and operated under the BLM's Federal Coal Management Program. This includes about 60% of all Western coal reserves and accounts, through federal leases, for about 18.5% of the country's coal production. In 1986 alone, the sale of six federal coal leasing tracts covering 5,628 acres encompassed approximated 33.9 million tons of recoverable coal reserves. Thus, the BLM's Coal Management Program Activities contribute substantially to the greenhouse effect in that burning coal contributes significantly to the concentration of CO2 in the atmosphere. Environmental impact statements prepared on the program, the leases and the sale of lease tracts, however, have not discussed the impact of these activities on the greenhouse effect.

 In all, the Plaintiffs name 26 programs and actions which they claim do not contain adequate environmental documentation. The Plaintiffs are not required to challenge one federal program or action at a time. See FED.R.CIV.P. 18(a). In light of the specific actions which the Plaintiffs challenge, this Court rules that the complaint cannot be dismissed for seeking an impermissible advisory opinion.

 II. RIPENESS

 The Defendants argue that the Plaintiffs' claims are also not ripe for review because they do not challenge any specific final actions of Defendants but instead seek a ruling from the Court on abstract, remote, and conjectural "actions to be taken" that may never require resolution. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967); NRDC v. EPA, 859 F.2d 156, 165 (D.C.Cir. 1988). Again, the Defendants' argument is misplaced. Although some of the relief which the Plaintiffs seek may not be appropriate, the Plaintiffs' should not be penalized for reaching too far when they in fact do cite final and specific actions of the Defendants upon which they may be entitled to relief upon the merits.

 III. STANDING

 The Defendants contend that the Plaintiffs do not have standing. See Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984); Valley Forge Christian College v. Americans United for Separation of Church & State, ...


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