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,
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"
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.