Petition for Writ of Certiorari — George Berka, Petitioner v. Kathy Hochul, Governor of New York

APPENDIX

PETITION FOR A WRIT OF CERTIORARI

George Berka,

Petitioner,

v..

Andrew M. Cuomo,

Respondent.

TABLE OF CONTENTS

2nd Circuit Court’s Denial of Appeal........................

Opinion of the New York District Court at Albany

Plaintiffs Original Complaint..................................

A1

A3

All

1. 2nd Circuit Court’s Denial of Appeal:

Case 21-308. Document44, 06/02/2021, 3112803, Pagel of 2

N.D.N.Y,

20-CV-516

Suddaby, CJ.

Stewart, M.J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the Uni ted States Court of Appeals for the Second

Circuit* held at the Thurgopd Marshall United States Courthouse, 40 Foley Square,

In the City of New York, on the.2nd day of June, two thousand twenty-one.

Present:

Guido Calabresi,

Steven J. Menashi

Circuit Judges,

Denise Cote,

District Judge *

f Judge Denise Cote, of the United States District Court for the Southern D istrict of New York,

sitting by designation.

Page A1 of A14

Case 21-908, Document 44, 06/02/2021,3112803, Page2 of 2

George Berka,

Plaintiff-Appellant,

21-908

v.

Andrew M. Cuomo, both individually and in his official capacity,

Defendant-Appellee,

gHiiiiiiiilpl

on appeal); Knaust v. City ofKingston, 157 F.3d 86, 88 (2d Cir. 1998) (request for mjuncUve relief

moot when it “seeks to enjoin the future occurrence of events that are already in the past ).

Non-parties (which Appellant seeks to add and enjoin) move for leave to file a letter in opposition

to Appellant s requests. This motion has been docketed as a motion for leave to file an amicus

Upon due consideration, it is hereby ORDERED that the motion is GRANTED.

curiae brief.

See Fed. R. App. P. 29(a).

It is further ORDERED that the appeal is DISMISSED as moot, that the district court’s judgment

is VACATED, and the case is REMANDED with instructions to dismiss the action. See United

States v. Williams, 475 F.3d 468, 479 (2d Cir. 2007) (The Court has an “mdependent obligation

■ to consider whether an appeal is moot.); Bragger v. Trinity Capital Enter. Coip., 30 F.3d ,

(2d Cir 1994) (“When a civil case becomes moot while an appeal is pending, it is the gener

practice of an appellate court to vacate the unreviewed judgment granted in the court below and

remand the case to that court with directions to dismiss it.”).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

tf*CERTIFIED COPY ISSUED ON 06/02/2021

Page A2of A14

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

GEORGE BERKA,

Plaintiff,

l:20-cv-0516 (GTS/DJS)

v.

ANDREW M. CUOMO (both individually and in his official capacity),

Defendant.

APPEARANCES:

. GEORGE BERKA Plaintiff, Pro Se

57 Concord Street

Waterbury, CT 06710

OF COUNSEL:

HON. LETITIA A. JAMES

Attorney General for the State of New York

Counsel for Defendant

The Capitol

Albany, NY 12224

JOSHUA M. TALLENT, ESQ.

Assistant Attorney General

GLENN T. SUDDABY, Chief United States District Judge

*■

DECISION and ORDER

Currently before the Court, in this environmental action filed by George Berka ("Plaintiff) against

Andrew M. Cuomo ("Defendant"), is Defendant’s motion to dismiss Plaintiff s Complaint for lack of

subject-matter jurisdiction and failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and (6).

(Dkt. No. 16.) For the reasons set forth below, Defendant’s motion is granted.

I.

RELEVANT BACKGROUND A. Plaintiffs Claims

Generally, liberally construed, Plaintiffs Complaint alleges that, between approximately January 8,

2017, and May 7, 2020, at the Indian Point Nuclear Plant (“Indian Point”) in Buchanan, New York,

Defendant wrongfully refused to grant Indian Point a permit to draw cooling water from the Hudson

River, thus causing the premature and permanent shut down of Units 2 and 3 Indian Point, from which

Plaintiff “likely” receives his power. {See generally Dkt. No. 1 [Plf.’s Compl.].) Based on these

factual allegations, the Complaint asserts two claims: (1) a claim under the National Environmental

Policy Act (“NEPA”), and (2) a claim under the Clean Air Act. {See generally Dkt. No.l [Plf.’s

Compl.].) Familiarity with these claims, and the factual allegations supporting them is assumed in this

Decision and Order, which is intended primarily for review by the parties. {Id.)

Page A3 of A14

B.

Parties’ Briefing on Defendant’s Motion

Generally, in support of his motion to dismiss, Defendant asserts the following four arguments: (1) to

the extent that the Complaint asserts claims for prospective injunctive relief against Defendant in his

official capacity, those claims (even if supported by factual allegations plausibly suggesting a viola ion

by Defendant of either NEPA or the Clean Air Act, which they are not) are barred by the Eleventh

Amendment, because the “real, substantial party in interest” in those claims is New York State and

thus the narrow exception provided by Ex Parte Young (for claims for prospective injunctive rehef)

does not apply; (2) to the extent that the Complaint asserts a claim under the Clean Air Act, its failure

to allege facts plausibly suggesting compliance with the Clean Air Act’s pre-suit notice requirement

deprives the Court of subject- matter jurisdiction over that claim; (3) in any event, even if the Court

were to have subject- matter jurisdiction over a claim asserted under NEPA, that claim should be

dismissed for failure to state a claim because NEPA applies only to federal agencies and not to state

agencies or officials; and (4) similarly, even if the Court were to have subject-matter jurisdiction over a

claim asserted under the Clean Air Act, that claim should be dismissed for failure to state a claim

because the Complaint identifies no violation of a concrete emission standard or limitation that is

enforceable in a citizen suit under the Clean Air Act. (See generally Dkt. No. 16, Attach. 2 [Def. s

Generally,'in'response to Defendant’s motion, Plaintiff asserts the following five arguments. (1) under

a Partiyoung, a claim for prospective injunctive relief against an official acting on behalf of a state

is permitted where, as here, the State acts contrary to federal law (and there is a sufficient distinction

alleged between the official’s interest and the state’s interest, which “there may be here); (2) although

it is true that the Complaint does not allege facts plausibly suggesting compliance with the Clean Air

Act’s pre-suit notice requirement, that requirement should be waived by the Court [gjiven the

seriousness of our climate crisis”; (3) even if Plaintiff s claim under NEPA were impermissible, his

claim under the Clean Air Act should still suffice to warrant the relief he requests, or at the very least a

claim would be permissible under New York State’s equivalent to NEPA (New York State

Environmental Quality Review Act or “SEQRA”); (4) Plaintiffs claim under the Clean Air Act is

actionable because it does indeed identify a violation of a concrete emission standard or limitation

under the Clean Air Act, specifically, the twelve-fold increase in carbon emissions that will be

generated in the region by the closure of Indian Point (and the reliance instead

power plants); and (5) regardless of the foregoing, the Court should grant Plaintiff a default judgm

against Defendant, because Plaintiff mailed his motion for default judgment to the Court on June

25, 2020, the day before Defendant filed his appearance (See generally Dkt. No. 18 LFlt. s

Opp’n Memo, of Law].)

333^3=335311=

the State from administering its own laws and regulations); (2) Plaintiff concedes that he failed to

comply with the Clean Air Act’s pre-suit notice requirement, which is jurisdictional (and may not be

waived); (3) to the extent that Plaintiff concedes that NEPA applies only to federal agencies and he

now relies on SEQRA, he may not constructively amend his Complaint by asser“§ a "^0™^

opposition memorandum of law and, even if he could do so, that new claim wouldnotbe ac

because it is subject a four-month limitations period (and here that period expired in May of 2017), and

Page A4 of A14

identify any specific standard or limitation that Defendant allegedly violated. (See generally Dkt. No.

19 [Def.’s Reply Memo, of Law].)

II.

RELEVANT LEGAL STANDARDS

Legal Standard Governing Motions to Dismiss for Lack of Subject-Matter

A.

Jurisdiction

A case is properly dismissed for lack of subject-matter jurisdiction under Fed. R. Civ. P.

12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v.

U.S., 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12[b][l]). It is the burden of the plaintiff

asserting subject-matter jurisdiction to prove, by a preponderance of the evidence, that it exists. Id.

When a court evaluates a motion to dismiss for lack of subject-matter jurisdiction, “all ambiguities

must be resolved and inferences drawn in favor of the plaintiff. Aurecchione v. Schoolman Transp.

Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at 113).

B.

Legal Standard Governing Motions to Dismiss for Failure to State a Claim

It has long been understood that a dismissal for failure to state a claim upon which relief can be

granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a

challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the

legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d

204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo

review).

Because such dismissals are often based on the first ground, some elaboration regarding that ground is

appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain "a

short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P.

8(a)(2) [emphasis added],, In the Court’s view, this tension between permitting a “short and plain

statement” and requiring that the statement “show[]” an entitlement to relief is often at the heart of

misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2).

On the one hand, the Supreme Court has long characterized the “short and plain” pleading standard

under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F. Supp.2d at 212, n.20 (citing

Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the abovedescribed "showing," the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading

contain a statement that "give[s] the defendant fair notice of what the plaintiff s claim is and the

grounds upon which it rests." Jackson, 549 F. Supp.2d at 212, n:l7 (citing Supreme Court cases)

(emphasis added).

:

-

:i

,

The Supreme Court has explained that such, fair notice has,tlieimportant purpose of “enabling] the

adverse party to answer and prepare for trial” and “facilitating] a proper decision on the merits” by the

court. Jackson, 549 F. Supp.2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F.

Supp.2d 203, 213 & n.32 (N.D..N.Y, 20Q9).(Suddaby, J.) (citing Second Circuit cases). For this reason,

as one commentator has correctly observed, the ‘‘liberal” notice pleading standard "has its limits." 2

Moore ’s Federal Practice § 12.34[l][b] at 12-61 (3d ed. 2003). For example, numerous Supreme

Court and Second Circuit decisions exist holding that a pleading has failed to meet the “liberal” notice

Page A5 of A14

pleading standard. Rusyniak, 629 F. Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit

cases); see also Ashcroft v. Iqbal,

129S.CI. 1937, 1949-52(2009).

..

-i ■

.

Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision

holding that a complaint had stated an actionable antitrust claim under 15

„ . r

USC § 1 Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court retire[ ]

the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) thatj’a complaint

should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief." Twombly, 111 S. Ct. at

1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the fair

notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained

while this does not mean that a pleading need "set out in detail the facts upon which [the claim is

that,

based]," it does mean that the pleading must contain at least "some factual allegation^]." Id. at 1965.

More specifically, the "[factual allegations must be enough to raise a right to relief above the

speculative level [to a plausible level]," assuming (of course) that all the allegations m the complaint

3XQ true Id.

As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

129 S Ct 1937, 1949 (2009). “[Determining whether a complaint states a plausible claim for relief..

. [is] a context-specific task that requires the reviewing court to draw on its judicial experience and

common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled

to relief.” Iqbal, 129 S. Ct. at 1950 [internal quotation marks and citations omitted]. However, while ^

the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully,

id., it “does not impose a probability requirement.” Twombly, 550 U.S. at 556

Because of this requirement of factual allegations plausibly suggesting an entitlement to relief , toe

tenet that a court must accept as true all of toe allegations contained in the complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely

conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.

■

...

Similarly a pleading that only “tenders naked assertions devoid of further factual enhancement will

not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands

more than an unadorned, toe-defendant-unlawfully-harmed-me accusation.” Id. (citations omitted).

Finally, a few words are appropriate regarding what documents are considered when a dismissal for

failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed. R.

Civ. P 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside toe four comers of toe

complaint may be considered without triggering the standard governing a motion for summary

judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated

by reference in the complaint (and provided by the parties), (3) documents that, although not

incorporated by reference, are “integral” to the complaint, or (4)

2

y

matter

of

which

the

court

can

take

judicial

notice

for

the

factual

background

of

toe

case.

an

Page A6 of A14

G.

■Legal-Standards Governing Plaintiffs Claims

Because the parties to this action have demonstrated, in their memoranda of law, an accurate

understanding of the relevant points of law contained in the legal standards governing Plaintiff s

claims, the Court will not recite, in their entirety, those legal standards in this Decision and Order,

which (again) is intended primarily for review by the parties.

(See generally Dkt. No. 16, Attach. 2 [Def.’s Memo, of Law]; Dkt. No. 18 [Plf.’s Opp’n Memo, of

Law]; Dkt. No. 19 [Def.’s Opp’n Memo, of Law].)

III.

ANALYSIS

Whether the Court Lacks Subject-Matter Jurisdiction Over Plaintiffs

A.

Claims

.

-

•

■

After carefully considering the matter, the Court answers this question in the affirmative for the

reasons stated in Defendant’s memoranda of law. (Dkt. No. 16, Attach. 2 [Def.’s Memo, of Law]; Dkt.

No. 19 [Def.’s Reply Memo, of Law].) To those reasons, the Court adds only three points.

First, Plaintiff is correct that Ex Parte Young permits an exception to the general bar of federal court

jurisdiction over claims against a State or against a state official acting in his or her official capacity

who is violating or plans to violate federal law. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.

320, 326-27 (2015). However, this exception is narrow and applies only where the relief sought is

prospective and not compensatory or otherwise retrospective. Ex Parte Young, 209 U.S. 123, 155-56

(1908) (explaining that officers of the state “may be enjoined by a Federal court of equity” when

attempting to enforce against parties an “unconstitutional act”). Moreover, applied correctly, Young

would not permit a federal-court action to proceed in every case where prospective declaratory relief is

sought against an official acting in his or her official capacity. See Va. Office for Prot. & Advocacy v.

Stewart, 563 U.S. 247, 253-54 (2011) (“[Ajbsent waiver or valid abrogation, federal court may not

entertain a private person’s suit against a State.”). The Supreme Court explained that such an action

would undermine the very principle which the Eleventh Amendment relies, which is to impose a “real

limitation” on a federal court’s jurisdiction. Vci. Office for Prot. & Advocacy, 563 U.S. at 270

(Roberts, C.J., dissenting) (quoting Idaho v. Coeur dAlene Tribe of Idaho, 521 U.S. 261, 270 [1997]).

“The general rule is that relief sought nominally against [a State] officer is in fact against the sovereign

if the decree would operate against the latter.” Hawaii v. Gordon, 373 U.S. 57, 58 (1963); accord,

Pennhurst State Sch. v. Halderman, 465 U.S. 89, 101 (1984). In this case, although Plaintiff argues

that “there may be” a sufficient distinction alleged between Defendant’s interest and New York State’s

interest to avoid the application of the Eleventh Amendment, he has failed to allege facts plausibly

suggesting that such a distinction exists here.

. ,

Second, even if the Eleventh Amendment were not to bar the Court from exercising jurisdiction here,

Plaintiffs failure to provide adequate notice as required by the Clean Air Act would prevent the Court

from entertaining that claim. The Clean Air Act’s plain language clearly requires pre-suit notification

by a plaintiff, which must occur sixty days prior to the commencement of any action under the statute.

42 U.S.C. § 7604(b)(l)-(2). The Clean Air Act is not unique in its mandatory pre-suit notification

requirement for citizen-suits; nor is the mandate a flexible one. As the Supreme Court made clear in

Hallstrom v. Tillamook Cty., “Because this language is expressly incorporated by reference ... it acts

Page A7 of A14

as a specific limitation on a citizen’s right to bring suit. Under a literal reading of the statute,

compliance with the.60„

day notice provision is a mandatory, not optional,.condition,precedent for suit. 493 U.S. 20, 26

(1989). “[A] district court may not disregard these requirprnents at its discretion. Hallstrom,

493 U.S. at 31. Although Hallstrom concerned the citizen-suit provision of the Resource Conservation

and Recovery Act, the Clean Air Act expressly includes an identical 60-day notification requirement

that the Supreme Court already declared to be a mandatory condition

precedent that Plaintiff must fulfil before filing this action, Hallstrom, 493 U.S. at 26.

Despite Plaintiffs desire for the Court to make an exception to this requirement, there is no precedent

to support his position that the Court can ignore federal law. Id. at 27. “The equities do not weigh in

favor of modifying statutory requirements when the procedural default is caused by petitioners failure

to take the minimal steps necessary’ to preserve their claims.” Id. The rationale that militates against a

Court-granted waiver of pre-suit notice is to serve the ultimate goals Congress had when it created the

requirement, which is to strike a balance between “encouraging citizen suits and avoiding burdening

the federal courts with excessive numbers of suits” and, most importantly, to allow government

agencies to cure violations without the need for litigation. Id. The Court notes that it has been unable

to find any cases waiving this requirement under the Clean Air Act.3 Furthermore, even if waiver

were permissible, the Court would not find it appropriate here.

In following Hallstrom and its progeny, the Court narrowly construes the notice provisions of

environmental statutes as a jurisdictional prerequisite. Roe v. Wert, 706 F. Supp.

788, 792 (W.D. Okla. 1989). Even in extreme cases, such as those concerning pollution by

hazardous substances, the mandate for requiring pre-suit notification does not falter. 42 U.S.C. §

6972(b)(1)(A) (“[Sjuch action may be brought immediately after such notification”). Because the

requirement is jurisdictional, a plaintiff must plead compliance with the requirement to state a claim.

“[T]he giving of a 60-day notice is not simply a desideratum; it is a jurisdictional necessity. Ctr. For

Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 800 (9th Cir.

2009).

Here, because Plaintiff failed to plead facts plausibly suggesting that he has afforded Defendant the 60day notice required by the plain language of the statute, he has failed to meet a mandatory condition

precedent to maintain a citizen-suit in federal court, and the Court thus lacks subject-matter jurisdiction

over Plaintiffs Clean Air Act claim. Nat'l Parks & Conservation Ass'n, Inc. v. Tennessee Valley Auth.,

502 F.3d 1316, 1329 (11th Cir. 2007); Envtl. Integrity Project v. United States Envtl. Prot. Agency, 160

F. Supp. 3d 50’, 55 (D. D.C. 2015).

......................... ,

, •

u

U1 . ,.

Third, even setting aside the two above-described jurisdictional pitfalls, the Court has trouble finding

that Plaintiff has standing, given the speculative nature of his alleged injury. (See, e.g., Dkt. No. 1, at 3

[Plf.’s Compl., alleging that he “likely receives power from the Plant”]; Dkt. No. 18, at 5 [Plf. s Opp n

Memo, of Law, arguing that he is “very likely” a consumer].)

Whether, in the Alternative, Plaintiffs Claims Should Be Dismissed Because

B.

He Failed to State a Claim Upon Which Relief Can Be Granted

After carefully considering the matter, the Court answers this question in the affirmative for the

reasons stated in Defendant’s memoranda of law. (Dkt. No. 16, Attach. 2 [Def.’s Memo, of Law], Dkt.

No. 19 [Def.’s Reply Memo, of Law].) To those reasons, the Court adds only three points.

Page A8 of A14

First.-NEPA- imposes, -environmental obligations on federal agencies, not on the several states or their

executive officers. 42 U.S.C. § 4331(a). Although the statute provides that federal agencies should ■—

seek cooperation from the several states in maintaining environmental standards, such cooperation by

the states is not required by law under NEPA: “[I]t is the continuing responsibility of the Federal

Government... to improve and coordinate Federal plans. ■. . .” Id. at § 4331(b) (emphasis added).

Here, were the Court to find that Plaintiffs Complaint sufficiently alleges a violation under NEPA

(which the Court does not), such a claim could not

,r

be sustained against a state agency or official. Because Plaintiffs Complaint is directed against the

Governor of New York (in both his individual and official capacity), Plaintiff fails to state an

actionable claim under NEPA. Fed. R. Civ. P. 12(b)(6).

Second, despite the fact that Defendants have failed to appreciate the breath of the special solicitude

afforded to pro se civil rights plaintiffs (which permits them to constructively amend their complaint,

in certain circumstances, through an opposition to a motion to dismiss), Plaintiff has nevertheless failed

to state a claim due to his failure to abide by the four-month statute of limitations. Where a plaintiff is

proceeding pro se, factual assertions in the plaintiffs opposition to a motion to dismiss may be

considered and treated as an amendment to the complaint, if those factual assertions are consistent with

those of the complaint. Holmes v. Fresh Direct, 13-CV4657, 2015 WL 4885216, at *3 (E.D.N.Y. Aug. 5, 2015) (citing Rosales v. Kikendall, 605 F. App’x 12,

15 [2d Cir. 2015]). Here, as a threshold matter, the Court has difficulty finding the new factual

allegations even consistent with those of Plaintiffs detailed Complaint. In any event, Plaintiff has

failed to explain, let alone even address, why the four-month statute of limitations period has been

complied with or should be tolled, given the new factual allegations. For these reasons, the Court finds

the defects in Plaintiffs NEPA claim (and proposed SEQRA claim) substantive and not merely formal

such that better pleading would not cure them.

Third, Plaintiffs claim under the Clean Air Act does not cite a specific violation, emission standard or

limitation set by the Clean Air Act. Granted, Plaintiff relies on his allegation of a twelve-fold increase

in carbon emissions that would be generated in the region by the closure of Indian Point (and the

reliance instead on natural-gas-fired power plants). (Dkt. No. 1, at 4.) However, even setting aside the

attenuated causal link between this alleged increase and the closure of Indian Point, Plaintiff fails to

allege any facts plausibly suggesting what particular emissions standard or limitation of the Clean Air

would be violated by the alleged increase (and the Court has trouble identifying one).

Finally, the Court denies Plaintiffs request for. a default judgment for two reasons: (1) that request is

moot, given the Court’s dismissal of his claims, and (2) in any event,; that request was denied on July

13, 2020. (Dkt. No. 15.)

For all of these alternative reasons, the Court finds that Plaintiffs claims are dismissed.

<:'

ACCORDINGLY, it is

ORDERED that Defendant’s motion to dismiss (Dkt. No. 16) is GRANTED: and it is further

ORDERED that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED.

Dated: March 26, 2021

Syracuse, New York

Page A9 of A14

;998W^^

(McAvoy, C.J.).

2

.

See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof

MltwL213?734(2d 3/'June 1, 2011) (explaining that conversion from a motion to dismiss forfailure to state a ^

claim to a motion for summary judgment is not necessary, under Fed. R. Civ. P. 12[d] if the matters outside the plea mgs

in consist of [1] documents attached to the complaint or answer, [2] documents incorporated by reference in the compl l

(and provided by the parties), [3] documents that, although not incorporated by reference, are ‘ integral to the complaint, or

[4] any matter of which the court can take judicial notice fomhejactual

consklering aofdi*smirsTl

background

the case);pursuanTto

DiFolco v.F^^^iv^^^fb^V'may (mn^idM^the^fac^aheg^in|the com^l^nt^docun^^J0^

complaint it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document. It

must also be clear that there exist no material disputed issues of fact regarding *e relevance of the document. )

[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 1 ,,

152 (2d Cir 2009) (‘The complaint is deemed to include any written instrument attached to it as an exhibit or any

statements or documents incorporated in it by reference”) (internal quotation marks and citations omitted); Int l Audiotext

Network Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to

the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complain ,

the court may nevertheless take the document into consideration in deciding [a] defendant s motion to dismiss, without

converting the proceeding to one for summary judgment.”), (internal quotation marks and citations omitted).

3

Although there was a split of authority amongst U.S. Circuit Courts regarding the strictness in which Courts

should construe the pre-suit notice requirements of various environmental statutes, this split was resolved by Hallstrom.

Before Halls from some circuits adopted the “pragmatic/functional doctrine” which found subject-matter jurisdic ion

despite the lack of pre-suit notice by one of three factors: (1) determining not,ce-in-fact; (2) staying

notice time had run; or (3) finding notice was procedural rather than jurisdictional. Proffitt v. Commissioners, 754 F.

504 506 (3rd Cir 1985) (Federal Water Pollution Control Act (“FWPCA”), and RCRA); Hempstead County & Nev County

Project v U.S.E.P.A., 700 F.2d 459, 463 & n. 5 (8th Cir. 1983) (RCRA); Susquehanna Valley Alliance v. Three Mile Island

Nuclear Reactor, 619 F.2d 231, 243 (3rd Cir.1980), cert, denied, 449 U.S.

1096 (1981) (National Environmental Policy Act); Natural Resources Defense Council, Ina v. Callaway, 524 F.2d 79, 8384(2ndCir.1975,

Air Act). However, the

instead

endorsed the jurisdictional prerequisite doctrine, which is the approach taken by the Court here.

Page A10 of A14

doctrine,and

■3^-Blaintif£s Original Complaint:

George Berks

57 Concord St.

Waterbury, CT 06710

(203)681-7035 1

gberka57@comcast.net

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

Case No.: 20-cv-^16

George Berka,

Plaintiff,

PLEADING TITLE ■

vs.

ANDREW M. CUOMO, (BOTH INDIVIDUALLY AND IN HIS ,

' OFICIAL CAPACITY),

Defendant

COMES NOW GEORGE BERKA, pro-se Plaintiff, and for cause of action states, alleges, and complains as follows:

PARTIES

I.

1.1 George Berka, the Plaintiff, resides in Waterbury, New Haven County, Connecticut.

1.2 Governor Andrew M. Cuomo is currently the Governor of the State of New York, with his

office located in Albany, New York.

JURISDICTION AND VENUE

II.

2.1 Jurisdiction and venue are proper in the United States District Court for the Northern

' District of New York, because.the property which is the subject of this action, the,Indian

Point Nuclear Power Plant, is located in New York State, because this action is between a

private citizen and a government entity (the Governor of New York), and because the

parties in this action reside in separate states (Connecticut and New York).

2.2 Nuclear Matters and the Hobbs Act: The Plaintiff is a\A/are of the provision that certain

nuclear matters are generally appealed directly to the Federal Appeals Court, per the

Hobbs Act. However, the Plaintiff believes this rule to apply mainly to "more direct"

nuclear matters, such as appeals from decisions of the Nuclear Regulatory Commission.

This is a dispute between the Governor of the State of New York and a private citizen from

Connecticut, about certain "obstructionist efforts" on the part of the Governor's Office,

such as the denial of water permits from the Hudson River, that helped bring about the

closure of the Plant. (The Nuclear Regulatory Commission is not a party to this action.)

For this reason, the Plaintiff believes that this matter does not belong in the Federal

Appeals Court, and that this Court is the proper jurisdiction and venue.

III.

FACTUAL BACKGROUND

3.1 The Indian Point Nuclear Power Plant, (hereafter known as the "Plant" or as "Indian

Point"), had been in operation since about 1976, and used to supply about 25% of the

Page All of A14

electricity used by New York City and its surrounding area, all of it carbon-free. It is likely

that some of this electricity is also used by homes and businesses in neighboring

Connecticut. .(See S.E.C. Docket 866, Volume 46, No. 11, which states that the "New

England region, as a whole, is more closely connected electrically to New York than to any

other adjoining.state or Canadian province, and that it relies heavily on new York utilities

[and power plants] to provide power directly to New England when it cannot be supplied

by utilities within New England". Power is transferred through a 345 kilovolt

interconnection between Pleasant Valley, New York, and New Milford, Connecticut,

among others.)

.

3.2 One of the Plant's two reactors shut down at the end of April of 2020, with the other

reactor scheduled to close within a year. After the Plant ceases operations, its output is

expected to replaced primarily by natural gas fired generation, which will cause local and

regional carbon emissions to increase.

3.3 Next, since the Plant is able to operate reliably in cold temperatures, and to maintain an

extended fuel supply on site, the Plant helps to protect New York and New England home

owner's from extreme weather events, such as the polar vortex. During events of extreme

cold such as this, natural gas is often prioritized for home heating, leading to a reduction in

its availability for electrical generation.. Not only does this cause the price of electricity to

spike, but the negative impacts of this can be more than economic, and may even put New

York and New England home owners at risk. During the 2016 polar vortex, for example,

certain oil supplies had to be delivered by truck and barge to supply the oil-fired peaker

power plants in New England. Frozen rivers made oil delivery by barge problematic in

some cases, leaving trucks as the only viable option. In areas where roads where obscured

by ice, snow, or accidents, a few plants actually came perilously close to running out of

fuel, which could have resulted in power outages. During prolonged periods of such

extreme cold, power outages may even be life-threatening, since many home heating

systems also need electricity to operate. This is just one example of how having a power

plant such as Indian Point on line helps guard against exactly these types of events; it's

2060- megawatt, continuous electrical output helps ensure a steady supply of electricity,

freeing up natural gas to be used primarily for home heating, without fear of creating

power outages. Hence, it may be reasonably argued that the loss of Indian Point will make

not only the local and regional electrical grid, but also the local and regional energy supply

in general, less reliable, and less tolerant of extreme weather events.

3.4 Standing. The.plaintiff believes that he has standing in this matter because, as a New

England home owner, he is a potential end user of Indian Point's power; i.e., some of the

power from Indian Point flows to the Plaintiff's home through the shared electrical grid

between New York and New England. Also, since it is not fueled by natural gas, Indian

Point helps to protect the Plaintiff during extreme weather events, such as the Polar

Vortex,

IV.

AGRUMENT

4.1 Nature of Relief Requested: The Plaintiff hereby seeks to give Entergy, the current owner

of Indian Poipt, or any future owner, a free and unobstructed opportunity to continue

operating the-Plant, as it. has done in the past. The,Plaintiff seeks to have Mr. Andrew

Cuomo, the Governor of the State of New York, and his Office, along with any future

governors, enjoined from interfering with the continued operation of Indian Point, for a

period of twenty-five calendar years from the date of this Complaint. Interference in

this context may be interpreted as, (but not limited to), any number of actions seeking to

Page A12 of A14

______ thwart or halt the continued operation of the Plant, such as the denial of a permit to draw

cooling water foFThe~Pta'nt-from-the-HudsQn-£i.v£r. In short, the Plaintiff seeks to have the

Plant be solely under the jurisdiction and authority of the Nuclear Regulatory Lommissisnr

as it has. been. If the N.R.C. approves the extension of the Plant's operating license, the

Plant should be permitted to continue to operate, free from local interference and

obstructionism.

4.2 Applicable Law: The Plaintiff brings his Claim in accordance with the National

Environmental Policy Act, U.S. Code Title 42, Chapter 55,. Paragraph 4321. In genere I,

when a nuclear power reactor closes, it is typically replaced with natural gas fired

electrical generation, which produces much higher air pollution and carbon dioxide

emissions than the nuclear source that it replaced: This situation runs counter to the

spirit and intent of Paragraph 4321, which aims to: "declare a national policy which

will encourage productive and enjoyable harmony between man and his environmet t; to

promote efforts which will prevent or eliminate damage to the environment and

biosphere and stimulate the health and welfaredf man." Given the fact that the carbon

dioxide emissions of this new natural gas plant are about 60% of those of an equivalent

coal plant, (up from the mere 5% or so that the nuclear plant used to generate),

replacing shuttered nuclear plants with natural gas fired plants is definitely a step

backwards from a climate standpoint. Also* in light of the now well - understood link

between carbon emissions and global warming, the importance of Paragraph 4321 takes

on a whole new meaning; lowering carbon dioxide levels in the atmosphere (not ra sing

them) is a necessary step to "prevent or eliminate damage to the environment and

biosphere and stimulate the health and welfare of man". Keeping the ultra - clean, and

virtually carbon - free, nuclear generating stations on - line is one way to help

accomplish this step. In addition to Paragraph 4321 above, the Plaintiff also cites the

Clean Air Act, U.S. Code Title 42, Chapter 85, Subchapter I, Part A, Paragraph 7401.

Sections (a)(2) and (c) of this paragraph also apply; "the growth in the amount and

complexity of air pollution brought about by urbanization, industrial development, and

the increasing use of motor vehicles, has resulted in mounting dangers to the public

health and welfare, including injury to agricultural crops and livestock, damage to and

the deterioration of property, and hazards to air and ground transportation." This does

apply to the rising levels of carbon dioxide in the atmosphere, which are likely to

endanger public health and welfare, injure agricultural crops and livestock, and damage

property, through rising air temperatures, which will likely cause melting ice sheets,

rising ocean levels and coastal flooding, along with more severe wild fires, hurricanes,

and droughts. We have witnessed many of these events first hand in recent years.

Next, Section (c) also applies; i.e., "Aprimary goal Of this chapter is to encourage or

otherwise promote reasonable Federal,State, and local governmental actions, consistent

with the provisions of this chapter, for pollution prevention." Promoting the continued

operation of nuclear generating stations would certainly constitute an action that

would help prevent pollution.

4.3 Likelihood of Success on the Merits: There is now a well understood and generally

accepted causal link between carbon emissions and global warming, which is projected to

threaten the existence and well-being of man;through events such as more severe

droughts, vyild fires and hurricanes, as well as rising sed levels, fresh water shortages,

habitat destruction, the extinction of endangered sjaecies, and reduced crop yields, among

others. We have recently witnessed many of these events first hand, such as Hurricane

Page A13 of A14

Sandy, which flooded parts of Manhattan and New Jersey. All of our existing assets should

be utilized to combat the threat of climate change and global warming.

4.4 Due to their unique ability to consistently provide large quantities of carbon-free

electricity, around the clock, for months and even years at a time, existing nuclear power

plants are some of our most potent tools in our struggle against climate change. Keeping

existing nuclear power plants in service, and perhaps even returning previously shuttered plants into service, may be significantly more economical than building new

nuclear plants, or attempting to replace the lost capacity with renewable sources, such as

wind and solar. It may take less time to accomplish in certain cases as well.

4.5 Prematurely shutting down carbon-free electrical power sources, such as nuclear power

plants, and replacing them with carbon-emitting electrical power sources, such as natural

gas fired power plants may be considered "a step backwards from a climate standpoint,

and should be' avoided. It also runs counter to the National Environmental Policy Act, U.S.

Code Titie 42, Chapter 55, Paragraph 4321, as mentioned above.

4.6 Irreparable Harm: If global temperatures continue to rise, they may place the Plaintiff and

his fellow New Englanders in increased risk of losing his home to extreme weather events

such as hurricanes. Next, for the reasons explained in Paragraph 3.3 above, the Plaintiff

and his fellow New Yorkers and New Englanders may be endangered by an over-reliance

on natural gas fired electrical generation in a region.prone to prolonged periods of

extreme cold, such as the Polar Vortex. Finally, it should also be mentioned that shutting

down a reliable electrical generator in the middle of a national health emergency such as

the corona virus epidemic is not wise, may needlessly endanger patients' lives, and should

be avoided.

4.7 Balancing of the Equities: In cases such as these, the Court should exercise its discretion in

favor of the party "most likely to be injured". The party "most likely to be injured" in this

is the Plaintiff, along with thousands of his fellow home owners across the New York

C3S6

City and New England region, who depend on the Plant's continued, reliable power . The

Governor of the State of New York, however, is not likely to be injured at all by having his

efforts to close the Plant over-ridden. Moreover, preservation of this Plant will result in

the return of a valuable, income-generating asset which will benefit the Town of Buchanan

and the local community.

V.

CONCLUSION

In light of the above, the Plaintiff hereby respectfully requests this Court to over-ride any

of Governor Cuomo's actions to close the Indian Point Nuclear Power Plant, and to permit

this Plant'to continue operating in an unobstructed manner for the next 25 calendar years.

Dated this 30th Day of April, 2020

.

George Berka

Plaintiff, Pro-Se

Page A14 of A14

Case 21-908, Document 59, 07/06/2021, 3132232, Pagel of 1

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on

the 6th day of July, two thousand twenty-one,

Present:

Guido Calabresi,

Steven J. Menashi,

Circuit Judges,

Denise Cote,

District Judge.*

ORDER

Docket No. 21-908

George Berka,

Plaintiff - Appellant,

v.

Andrew M. Cuomo, both individually and in his official

capacity,

Defendant - Appellee.

Appellant George Berka filed a motion for reconsideration and the panel that determined

the motion has considered the request.

IT IS HEREBY ORDERED, that the motion is denied.

For The Court:

Catherine O'Hagan Wolfe,

Clerk of Court

* Judge Denise Cote, of the United States District Court for the Southern District of New York,

sitting by designation.