Petition for Writ of Certiorari — Korsinsky v. Environmental Protection Agency (No. 06-716)

aris OF THE CLERK

N

| In the

Supreme Court of the United States

GERSH KORSINSKY,

Petitioner,

VS.

U.S. ENVIRONMENTAL PROTECTION AGENCY,

Respondent(s).

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

GERSH KORSINSKY

1236 — 49" Street, Apartment 4B

Brooklyn, New York 11219

(713) 435-1107

Petitioner Pro Se

QUESTIONS PRESENTED

If Very Limited Judicial Power extends to Individual

Controversies Cases to which the United States shall be a

Party, even not concern public health and life high risk, such”

high risk diseases from consume contaminated water, air and

soil agriculture products, and cut off water supply, and nature

catastrophic destruction from global warming, which can be

avoidable, and even opportunity of the court's review of the

merits of the standing, can to satisfy the requirements of the

Article I, Section 8, {1],[18], Article II, Section 2, [3], Section

1 [8]; the Article III, Section [1] [2], Preamble, First

Amendment

If Very Limited Judicial Power extends to only about

1% of Supreme Court Review of the cases that filed each

Term, which take away the judicial power to Justice all

legislative and the executive activities, which created from

political interests which vulnerable to ignoring of the US

Constitutional requirements, can to satisfy of the requirements

of the Article III, Section 2, [1], [2], Preamble; of the Article

If, Section 1,[8], Section 3, First Amendment.

If courts obligate review of the US Government

obligation to promote of new Inventions that make avoidable

high risk to health and life from consume water and air, or

government has the initial burden to presenting evidence or

reasons why would not can be promoted to satisfy

requirements of the Article 1, Section 8 [8],{1],[18]; Art. II

[8], Sec.3

If facts, such plaintiff asserts that he is “ more

vulncrable to diseases —causing consuming contaminated

water, air and soil agriculture products than general

population because allegedly is suffering from sinuses related

diseases pathology and chronic during its entire life (affects

similar to allergic nature, and 70 years old, he developed a

mental sickness from more from 25 years learning of the

danger of contaminated water and air consuming", can be

—

i

courts hears argument and reviewed to confer standing

purposes, can satisfy requirements of the Art. I, Sec.8[1],[18]

First Amendment.

If courts have jurisdictions to order to comply of real

time water testing and exhaustless air pollutant, which is not a

discretional nature, or government has that initial burden to

presenting evidence or reasons why would not can be

complied for judicial review can satisfy requirements of the

Art. 1, Sec. 8{1],[18], Art. III, Sec. 2{1],{2]; Amendment 1.

If facts health and life affection from the

contamination water, air and agriculture consume was and

will be, which government recognized, but was not detectable

or was not preventive warning at real time, can be to plaintiff

to confer standing to satisfy of Art. I, Sec. 8{1],[18]; Art. I,

Sec. 2,{1],[2]; First amendment.

ll

LIST OF PARTIES

A list of all parties to the proceeding in the court whose

judgment is the subject of this petition is as follows:

U.S. ENVIRONMENTAL PROTECTION AGENCY,

NEW YORK STATE DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,

NEW YORK STATE DEPARTMENT OF HEALTH,

U.S. FOOD AND DRUG ADMINISTRATION,

U.S. DEPARTMENT OF HOMELAND SECURITY,

NEW YORK CITY DEPARTMENT OF

ENVIRONMENTAL PROTECTION.

Ll

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment below.

OPINIONS BELOW

The opinions of the United States Court of Appeals

appear at pages A-1 and A-4 of the :ppendix to the petition

and are unpublished.

The opinions of the United States district court appear

at pages A-7 and A-12 of the appendix to the petition and are

unpublished.

JURISDICTION

The dates on which the United States Court of

Appeals decided my cases were: August 04, 2006 (05-5577)

and August 10, 2006 (05-6802).

No petition for rehearing was timely filed in my cases.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

"Preamble: We the People of the United States...

establish Justice, insure domestic Tranquility, provide for

common defence, promote the General Welfare..."

Article [, Section 8, [1]: "The Congress Shall have

Power...provide for the common defence and general Welfare

of the United States..."

[8}: “To promote the Progress of Science and use ful

Arts, ...”

[18]: “To make all laws which shall be necessary and

proper for carrying into Execution the foregoing

Powers vested by this Constitution in the

Government of the United States, or In any

Department or Officer thereof.”

l

Article II, Section 1,[8]: “ ...and will to the best of my

Ability, preserve, protect and defend the Constitution of the

United States."

Section 3: "...he shall take care that the laws be

faithfully executed, and shall Commission all the Officers of

the United States. "

Article III, Section [2] [1]: " The Judicial Power shall

extend to all Cases, in Law and Equity, arising under this

Constitution, the laws of the United States, and Treaties

made, or shall be made, under their Authority; — to all Cases

affecting Ambassadors, other public Ministers and Consuls; —

to all Cases of admiralty and maritime Jurisdiction; — to

Controversies to which The United States shall be a Party; —

ee

{2} “In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a state shall be a

party, the supreme Court shall have original Jurisdiction, in

all other Cases before mentioned, the Supreme Court shall

have appellate Jurisdiction, both as to Law and fact, with such

Exceptions, and under such Regulations as the Congress shall

make.”

Amendment I: "Congress shall make no law

respecting an establishment of religion or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the

press, or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances."

STATEMENT OF THE CASE

The judgments and decisions of the US District court

for the Southern District of New York (Honorable Denny

Chin, Judge) and (Honorable Naomi Reice Buchwald, Judge)

Affirmed by United States Court of Appeals for the Second

Circuit of New York.

The two judgments are sought to be reviewed on a

writ of certiorari to the same court and involve identical or

closely related questions, as a single petition.

This centers on a narrow in context of a category of

2

actually and progressive treat of contaminating and poisoning

from not tested water supplying, and cut off of the only Water

Supply System from not stocking water during supplying, and

catastrophic increasing contaminating air and soil, which

causes serious risk for difference category health status

individuals for over 10 million people in short terms, and

nature global destroying from "Global Warming" in long

terms. Which is avoidable and can be solved through two

new inventions, published on 31._March 2005 by US Patent

and Trademark Office Inventions.

The importance proper government acting concerns

and recognizes are supported by the Clean Air Act, Clean

Water Act, National Primary Drinking Water Regulations, 40

CFR of EPA, NYS Sanitary Code (LONY CRR), 21 USC 602,

21 USC Federal Food, Drug, and Cosmetics Act ("FFDCA"),

Federal Meat Inspection, etc., and other related Common

Laws and regulations, and-Federal Employers’ Liability Act;

by Michael Baur, et al. v. Veneman et al., 352 F. 3d 625:

2003 US, ete:

Plaintiffs Standing supported by Michael Baur, et al.

v. Veneman et al., 352 F. 3d 625: 2003 US, ctc.; and by Cas

R. Sunsteen, "Standing Injuriens," 1993 SUP. CT. REV. 37,

58 (1994); and Jerry L. Mashaw, "Rights in Federal

Administrative State,” 92 Yale L J. 1129, 1168 (1983); and

NYC Drinking Water Yearly Report, etc.

Contaminated air, water and agriculture products

consuming causes health and life affection from very large

difference sources that affects, which are too broad and which

cannot be learned or experienced, even for same little

judgment, and, therefore, cannot be subjected to

administratively discretionary matters.

Air pollutant exhausting preventing and tested (which

cannot be monitored substituted) water supplying, and

reserving water by cut off water supplying, absolutely cannot

be subjected to administratively discretionary matters.

Governments and courts actions against smoking and water

3

pollutant, recognized of the serious and danger of air

pollution and water pollution, which is sufficient to confer

standing.

Pollution sedimentation causes of air, water and soil

contamination by failure perform of legal duties, subjected to

human life and health high risk, which sufficient to confer

Standing.

REASONS FOR GRANTING THE PETITION

The decisions of the lower court is not concerned the

high risk for people's life and health from not tested and none

stocked water supplying, and not exhaustless air pollutant,

which may be are in conflict with the providing of the

common Defense and general Welfare of the United States

that in conflict with the US Constitution (Art. I, Sec. 8, Cl. 1)

The lower Court decisions not exercise of courts

supervisory power for not tasted and not stocked water

supplying, and not exhaustless pollutant imposing for general

Welfare of the people maybe in conflict with provision (Art.

I, Sec. 8, Cl. 1)

The laws that very limits courts supervisory power

over governments activities, even high risk for human's life

and health, such not tested and not stocked water supplying,

and not exhausted pollutant using, even without reasons or

evidences are maybe in conflict with First Amendment:

- "Congress shall make no law...to petition the Government for

a redress of grievances"; and Art. II, Sec. 2, Cl. 1 "The

judicial Power shall extend to all Cases in Law and Equity,

arising under this Constitution.”

Because, in the present Cases public state agencics are

Parties and concerns public Welfare, the Supreme Court shall

have original Jurisdiction, therefore, maybe the Court grants

and hears argument in only about 1% of the cases that are

filed each Term not applied to satisfy constitutional Art. III,

sec. 2, Cl. Z.

The lower Court’s erroneous factual that the present

case is distinguished from other such cases by immediately

4

personal ip sureness or high risk to human life and health;

and plainti ore from other people vulnerable to diseases

because his age and his chronic pathological abnormality; and

because the knowledge of the danger of consuming of

contaminated water, air which developed a mental sickness

caused him to invent technologies for exhaustless pollutant

and tested and stocked water supplying which personalized

grievance for sufficient to confer standing.

The lower Court’s erroneous factual that the present

cases about to promote science related to human health and

life in short terms and environmental protection in long terms

which the Congress obligation under Art. I, Sec 8: "The

Congress Shall Have Power...To promote the progress of

Science..."

The lower Court’s erroneous factual Plaintiff's clear

right that to have defendants impose Exhaustless pollutant

using, and Tested and Stocked water supplying as a plainly

common defined and. courts there exist jurisdiction to compel

agencies actions, or must be proved that cannot be allowed to

be.

The lower Court’s decisions are prevent court's review

of the merits of the case which issues concerned Humans

health and life which such importance to the public, which

take away judicial supervisory power over Government

activities which is in conflict with the First Constitutional

Amendment.

The US Court of Appeals has decided public

important issues, concerned to human's health and life that

has not been, but should be settled by this Court, or has

decided in a way that conflict with Constitutional First

Amendment.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

GERSH KORSINSKY

1236 - 49th STREET, APARTMENT 4B

BROOKLYN, NEW YORK 11219

1-713- 435-1107

PETITIONER, PRO SE

Dated: September 22, 2006

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN

THE FEDERAL REPORTER AND MAY NOT BE CITED

AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE

ATTENTION OF THIS OR ANY OTHER COURT IN A

SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF

COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 4th day of

August, two thousand and six.

PRESENT: HON. DENNIS JACOBS,

HON. ROSEMARY S. POOLER

Circuit Judges,

HON. EDWARD R. KORMAN*,

District Chief Judge.

i ct ne ee xX FILED

AUG 04 2006

GERSH KORSINSKY,

Plaintiff-Appellant,

-V.- 05-5577

USA ENVIRONMENTAL PROTECTION AGENCY,

NYS DEPARTMENT OF ENVIRONMENTAL

CONSERVATION, NYS DEPARTMENT OF HEALTH,

USA FOOD AND DRUG ADMINISTRATION, NYC

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

A-l

HOMELAND SECURITY DEPARTMENT,

Defendants-Appellees.

*The Honorable Edward R. Korman, Chief Judge of the

United States District Court for the Eastern District of New

York, sitting by designation.

APPEARING FOR APPELLANT:

GERSH KORSINSKY, pro se, NY, NY.

APPEARING FOR APPELLEES:

PIERRE G. ARMAND, Assistant United States Attorney

(Michael J. Garcia, United States Attorney for the Southern

District of New York, on the brief), NY, NY.

Appeal from the United States District Court for the

Southern District of New York (Chin, J.).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the

judgment of the district court be AFFIRMED.

Gersh Korsinsky ("Korsinsky") appeals pro se from

the June 13, 2005 order of the United States District Court for

the Southern District of New York (Chin, J.), granting

defendants’ motions to dismiss. Familiarity is assumed as to

the facts, the procedural context, and the specification of

appellate issues.

We review de novo a district court's grant of a motion

to dismiss pursuant to Fed. R. Civ. P. 12(b) (6), construing the

complaint in the light most favorable to the plaintiff and

accepting its allegations as true. See Desiano v._ Warner-

Lambert Co., 326 F.3d 339, 347 (2d Cir. 2003); Paine Webber

Inc. v. Bybyk, 81 F.3d 1193, 1197 (2d Cir. 1996). Under this

standard, we affirm the dismissal for the ground stated in the

A-2

district court's Memorandum Decision.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

FOR THE COURT:

ROSEANN B. MACKECHNIE, CLERK

By:

s/

Lucille Carr, Deputy Clerk

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN

THE FEDERAL REPORTER AND MAY NOT BE CITED

AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE

ATTENTION OF THIS OR ANY OTHER COURT IN A

SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF

COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, Foley Square, in the City of New York, on

the 10th day of August, Two thousand and six.

PRESENT:

HON. BARRINGTON D. PARKER,

HON. RICHARD C, WESLEY,

HON. PETER W. HALL,

Circuit Judges.

FILED

AUG 10 2006

GERSH KORSINSKY,

Plaintiff-Appellant,

-V.- SUMMARY ORDER

No. 05-46802-cv

U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA),

N.Y.S. DEPARTMENT OF ENVIRONMENTAL

PROTECTION, N.Y.S. DEPARTMENT OF

ENVIRONMENTAL CONSERVATION,

Defendants-Appellees.

A-4

For Plaintiff-Appellant:

Gersh Korsinsky, pro se, Brooklyn, New York.

For Defendants-Appellees:

Lawrence H. Fogelman, Assistant United States

Attorney for the Southern District of New York, New

York, NY; Simon Wynn, Assistant Attorney General

(Michael Belohlavek, Senior Counsel, Daniel J.

Chepaitis, Assistant Solicitor General, on the brief),

Office of the Attorney General, New York, NY;

Elizabeth S. Natrella, Senior Counsel, Appeals

Division, The City of New York Law Department,

New York, NY.

Appeal from the United States District Court for the

Southern District of New York (Naomi Reice Buchwald,

Judge).

UPON DUE CONSIDERATION WHEREOF, IT

IS HEREBY ORDERED, ADJUDGED AND DECREED

that the judgment of the District Court be and it hereby is

AFFIRMED.

Gersh Korsinsky, pro se, appeals from the district

court's judgment dismissing his suit for lack of subject matter

jurisdiction. We assume the parties’ familiarity with the

factual and procedural history.

Article III, § 2 of the United States Constitution limits

federal courts to deciding only cases or controversies, and,

thus, at a minimum, a plaintiff seeking relief in federal court

must "allege, and ultimately prove, that he has suffered an

injury-in-fact that is fairly traceable to the challenged action

of the defendant, and which is likely to be redressed by the

requested relief." Baur v. Veneman, 352 F.3d 625, 632 (2d

Cir. 2003). "At the pleading stage, general factual allegations

of injury resulting from the defendant's conduct may suffice,

for on a motion to dismiss [it is] presum[ed] that general

A-5

allegations embrace those specific facts that are necessary to

support the claim." Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992) (internal quotation marks omitted).

Nonetheless, the injury must be "actual" or "imminent," rather

than "conjectural" or "hypothetical." /d. at 560 (internal

quotation marks omitted).

Korsinsky's primary claim, that global warming and

. carbon dioxide emissions may cause him a future injury, is

too speculative to establish standing. See Jaghory v. N.Y.

State Dep't of Educ., 131 F.3d 326, 330 (2d Cir. 1997) ("The

keystone for determining injury in fact is the requirement that

it be distinct and palpable....") (internal quotation marks

omitted). Korsinsky does not explain exactly what injury

may be caused by the appellees’ actions, nor does he explain

how the appellees’ actions have increased any possible risk to

his health. Moreover, Korsinsky has failed to sufficiently

allege that his injury is likely to be redressed by any relief the

district court could grant.

For these reasons, the judgment of the district court is

hereby AFFIRMED. The mandate shall issue forthwith.

FOR THE COURT:

Roseann B. MacKechnie, Clerk

By: s/

Lucille Carr

A-6

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

GERSH KORSINSKY,

Plaintiff,

-against-

U.S. ENVIRONMENTAL PROTECTION AGENCY et al.,

Defendants.

MEMORANDUM DECISION

05 Civ. 1528 (DC)

APPEARANCES: (See last page)

CHIN, D.J.

Pro se plaintiff Gersh Korsinsky brings this action

against federal, state, and city agencies to compel them to

take steps to ensure "a safe, reliable, sufficient water supply"

and to protect "the health and well-being [of] natural

resources held in trust by New York State." (Compl. 7).

Defendants — the United States Environmental Protection

Agency, the Food and Drug Administration, the Department

of Homeland Security, the New York State Department of

Environmental Conservation, the New York State Department

of Health, and the New York City Department of

Environmental Protection -- move to dismiss the complaint

for lack of subject matter jurisdiction and failure to state a

claim upon which relicf may be granted. For the reasons that

follow, the motion is granted and the complaint is dismissed

in all respects, with prejudice.

A-7

STATEMENT OF THE CASE

A. The Facts

The pro se complaint is difficult to decipher.

Construed liberally, the complaint alleges the following facts:

Plaintiff resides in Brooklyn. (Id. ¥ 1). Defendants

supply to the public water that is contaminated by, inter, alia,

contaminants from animals or humans, microbial

contaminants, inorganic contaminants, pesticides and

herbicides, and radioactive contaminants. The contamination

poses a health risk to plaintiff and to "the public." (Id., J 2, 3,

5, 7). There are available "practical, feasible and

economically viable options," including a "new invention,"

that would ensure a safe, reliable, sufficient, and secure water

supply. (Id. §§ 4, 40-50). Defendants have failed to take

advantage of these options, thereby contributing to the public

health risk. (Id. p. 10).

B. Prior Proceedings

Plaintiff commenced this action on February 4, 2005.

The complaint does not purport to seek money damages, but

requests a permanent injunction enjoining each defendant "to

eliminate its contribution to the public health risk by requiring

it to eliminate the presence of contaminants" in water that

pose a health risk. (Id. p. 10).

The state and city defendants moved to dismiss on

March 15, 2005. The federal defendants moved to dismiss on

April 22, 2005.

DISCUSSION

The motions to dismiss are granted and the complaint

is dismissed, for this Court lacks subject matter jurisdiction

over this action because plaintiff lacks standing.

A-8

The "case or controversy" requirement of Article III of

the Constitution “obligates the federal courts to hear only

suits in which the plaintiff has alleged some actual or

threatened harm to him or herself, as a result of a ‘putatively

illegal action." Leibovitz v. New_York City Transit Auth.,

252 F.3d 179, 184 (2d Cir. 2001) (quoting Linda R.S. v.

Richard D., 410 U.S. 614, 617 (1973)). To meet the

constitutional requirement of standing, a plaintiff must allege

a sufficient personal stake in the outcome of the controversy

"to ensure the presence of ‘that concrete adverseness which

sharpens the presentation of issues upon which the court so

largely depends." Lee v. Bd. of Governors of Fed. Reserve

Sys., 118 F.3d 905, 910 (2d Cir. 1997) (quoting Baker v.

Carr, 369 U.S. 186, 204 (1962)). A plaintiff must allege and

prove (1) injury in fact, 1.e., injury that is concrete and

particularized as well as actual or imminent and not just

conjectural or hypothetical, (2) a causal connection between

the injury and the defendant's wrongful action, and (3) the

likelihood that the requested relief will redress the injury.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

Here, plaintiff has failed to allege any concrete or

particularized injury caused by defendants. Instead, he has

alleged only a generalized harm to public health caused by

defendants' purported failure to provide safe drinking water.

See Warth v. Seldin, 422 U.S. 490, 499 (1975) ("[W]hen the

asserted harm is a ‘generalized grievance’ shared in

substantially equal measure by all or a large class of citizens,

that harm alone normally does not warrant the exercise of

jurisdiction."). Likewise, plaintiff has failed to allege any

causal connection between his alleged injuries and any

alleged wrongful conduct by defendants, nor has he alleged

that his purported injuries are likely to be redressed by any

relief this Court could order. Hence, plaintiff lacks standing to

bring this action.

Defendants have raised other meritorious arguments in

support of their motions to dismiss. In light of plaintiff's lack

of standing, I do not discuss them.

CONCLUSION

Defendants' motions are granted and the complaint is

dismissed in its entirety, with prejudice.

SO ORDERED.

Dated: New York, New York

June 13, 2005

—_

DENNY CHIN

United States District Judge

APPEARANCES

For Plaintiff:

GERSH KORSINSKY

Plaintiff, Pro Se

1236 49th Street, Apt. 4B

Brooklyn, New York 11219

For New York State and New York City agency defendants:

ELIOT SPITZER

Attorney General of the State of New York

By: Simon Wynn, Esq.

Assistant Attorney General

Environmental Protection Bureau

120 Broadway

New York, New York 10271

A-10

MICHAEL A. CARDOZO

Corporation Counsel of the City of New York

By: Tracy Triplett, Esq.

100 Church Street, Room 6-133

New York, New York 10007

For Federal Defendants:

DAVID N. KELLEY

United States Attorney for the

Southern District of New York

By: Allison D. Penn, Esq.

Assistant United States Attorney

86 Chambers Street

New York, New York 10007

A-1]

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

GERSH KORSINSKY,

Plaintiff,

-against - MEMORANDUM AND ORDER

05 Civ. 859 (NRB)

U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA);

N.Y.S. DEPARTMENT OF ENVIRONMENTAL

CONSERVATION; N.Y.C. DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Defendants. |

NAOMI REICE BUCHWALD

UNITED STATES DISTRICT JUDGE

Pro se plaintiff Gersh Korsinsky, a New York

resident, has brought this action against the United States

Environmental Protection Agency ("EPA"), the New York

State Department of Environmental Conservation

("NYSDEC") and the New York City Department of

Environmental Protection ("NYCDEP") (collectively,

"defendants"), alleging "public nuisance" and seeking

injunctive relief. Defendants now move to dismiss all of

plaintiff's claims. For the reasons set forth herein, defendants’

motions to dismiss are granted.

BACKGROUND!

On January 25, 2005, plaintiff filed his complaint in

this action, seeking relief under the federal common law of

' The following facts are drawn from plaintiff's complaint

and, as is appropriate on a motion to dismiss under Fed. R.

Civ. P. 12 (b) (6), are assumed herein to be true.

A-12

public nuisance, or alternatively under state law of public

nuisance, for the phenomenon of global warming.” Plaintiff

alleges that defendants have contributed to global warming

both by annually emitting "approximately 6,500 million tons

of carbon dioxide" and by failing to implement "practical,

feasible and economically viable options for eliminate [sic]

carbon dioxide emissions." Compl. 4 2, 5. The only such

option identified in the complaint is plaintiff's own invention,

for which he apparently has sought a patent, and which he

asserts will "eliminate carbon dioxide emissions without

significantly increasing the cost of process activities." Id. at 5.

Plaintiff seeks an order holding defendants jointly and

severally liable for their contributions to global warming. He

also requests an order enjoining each defendant from

contributing further to global warming by eliminating its

emissions of carbon dioxide. Finally, plaintiff appears to

request an order requiring defendants to implement his

invention. Defendants NYSDEC and NYSDEP (collectively,

"New York defendants") moved to dismiss the complaint on

March 16, 2005, after which the EPA moved to dismiss the

complaint on May 12, 2005. Defendants have moved to -

dismiss the complaint in its entirety on the grounds of lack of

subject matter jurisdiction and failure to state a claim “upon

which relief can be granted.’

? The complaint contains a lengthy recitation of the harms of

global warming. Ironically, the vast majority of this

discussion appears to have been copied verbatim from the

complaint in a separate case brought by the New York

defendants and others against companies that allegedly are

among the nation's five largest emitters of carbon dioxide.

* The EPA has also moved to dismiss under Fed. R. Civ. P. 8.

We do not consider this argument in light of our conclusion

that subject matter jurisdiction is lacking in this case.

A-13

DISCUSSION

in considering a motion to dismiss for lack of subject

matter jurisdiction or for failure to state a claim, the Court

must accept as true all material factual allegations in the

complaint. Levy ex rel. Immunogen Inc. v. Southbrook Int'l

Invs., Ltd., 263 F.3d 10, 14 (2d Cir. 2001); Shipping Fin.

Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir..1998)

(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). In

addition, "the complaint of a pro se litigant should be liberally

construed in his favor." Salahuddin v. Cuomo, 861 F.2d 40,

42-43 (2d Cir. 1988) (citation omitted). However,

"{cJonclusory allegations or legal conclusions masquerading

as factual conclusions will not suffice to prevent a motion to

dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d

236, 240 (2d Cir. 2002) (quoting Gebhardt v. Allspect, Inc.,

96 F. Supp. 2d 331, 333 (S.D.N.Y. 2000)). A motion to

dismiss may be granted only where "it appears beyond doubt

that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” Still v. DeBuono,

101 F3d 888, 891 (2d Cir. 1996) (quoting Conley v. Gibson,

355 U.S. 41, 45-46 (1957)).

Defendants argue that plaintiff's complaint must be

dismissed for several reasons. Because we find that subject

matter jurisdiction is lacking in this case, we need not

consider any of defendants’ additional arguments. See Rhulen

Agency, Inc. v. Alabama Guar. Ass'n, 896 F.2d 674, 678 (2d

Cir. 1990).

I. Standing

The issue of standing is "the threshold question in

every federal case, determining the power of the court to

entertain the suit." Warth v. Seldin, 422 U.S. 490, 498-99,

(1975); see also Elk Grove Unified School Dist. v. Newdow,

542 U.S. 1, 14-15 (2004) ("In every federal case, the party

bringing the suit must establish standing to prosecute the

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action."). At a minimum, plaintiff must satisfy three elements

in order to establish standing: 1) an injury in fact that is (a)

concrete and particularized and (b) actual or imminent rather

than conjectural or hypothetical; 2) a causal connection

between the injury and the alleged conduct; and 3) likelihood

that the injury will be redressed by a favorable decision. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992);

Heldman v. Sobol, 962 F.2d 148, 154 (2d Cir. 1992). "At the

pleading stage, general factual allegations of injury resulting

from the defendant’s conduct may suffice,” Lujan v. National

Wildlife Federation, 497 U.S. 871, 889 (1990).

After alleging no injury in his complaint, plaintiff

alleges for the first time in his memorandum of law that he

has been, or will be, injured in two ways.’ First, plaintiff

asserts that he is “more vulnerable to disease-causing

environmental pollution that general [sic] population”

because he allegedly is “suffering from sinuses related

diseases [sic] pathology and chronic during its entire life

(affects [sic] similar to allergic nature).” Op. At 3. Second,

plaintiff claims that he “developed a mental sickness”

learning of the danger of pollution. Id. at 4-5. Neither of

these alleged injuries is sufficient to confer standing.

While the Second Circuit has held that enhanced risk

may in some circumstances qualify as sufficient injury to

confer standing, see Baur v. Veneman, 352 F.3d 625, 634 (2d

Cir. 2003), the enhanced risk of illness alleged in this case is

*In light of plaintiff's pro se status, such allegations are

appropriately considered. See Burgess v. Goord, 1999 WL

33458, at *1 nl (S.D.N.Y. Jan. 26, 1999) ("The policy

reasons favoring liberal construction of pro se pleadings

warrant the Court's consideration of the allegations contained

in plaintiffs’ memorandum of law, at least where those

allegations are consistent with the allegations in the

complaint." (citing Donahue v. United States Dep't of Justice,

751 F.Supp. 45, 49 (S.D.N.Y. 1990))).

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insufficient.” Plaintiff alleges that over time, global warming

will enhance the risk of contaminated drinking water. Plaintiff

alleges that he is more vulnerable to environmental pollution

generally and also cites a report stating that some people may

be more vulnerable to microorganisms in drinking water.

Such allegations fall more within the realm of the

hypothetical and conjectural than the actual or imminent and

therefore are insufficient for purposes of standing. See

Defenders of Wildlife, 504 U.S. at 564 n.2 ("Although

imminence is concededly a somewhat elastic concept, it

cannot be stretched beyond its purpose, which is to ensure

that the alleged injury is not too speculative for Article III

purposes--that the injury is certainly impending.” (internal

quotations omitted)).

Plaintiff's second assertion, that he has developed

some form of mental illness from knowledge of the dangers

of pollution over the years, is also insufficient to confer

standing. If we interpret plaintiff's allegation to mean that he

has some continuing apprehension from the dangers of

> We note that this case is distinguishable from Baur because

the holding of that case was limited to "the specific context of

food and drug safety suits." Baur, 352 F.3d at 634. Regardless

of whether such a distinction is meaningful, plaintiff's alleged

increase in risk fails to satisfy the analysis under Baur. The

court in Baur noted that "the probability of harm which a

plaintiff must demonstrate in order to allege a cognizable

injury-in-fact logically varies with the severity of the probable

harm." Id. at 637. There, the risk at issue was transmission of

a "deadly disease with no known cure or treatment." Id. at

637. Therefore, the court concluded that even a "moderate

increase" in the risk of transmitting such a disease would be

sufficient to confer standing. Id. at 637. Here, by contrast,

plaintiff alleges nothing more than an increase in risk over a

long period of time of aggravating a chronic condition similar

to allergies.

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pollution, then it is clearly a generalized grievance, which is

insufficient to confer standing. See Defenders of Wildlife,

504 U.S. at 575. If plaintiffs allegation were interpreted to

mean that he actually has developed some form of mentai

illness from the knowledge of the danger, it nonetheless

would not confer standing because the requested relief would

not redress the alleged injury. See Baur, 352 F.3d at 632 ("To

establish Article III standing, a plaintiff must therefore allege,

and ultimately prove, that he has suffered an injury-in-fact

that is fairly traceable to the challenged action of the

defendant, and which is likely to be redressed by the

requested relief." (citing Bennett v. Spear, 520 U.S. 154, 162,

(1997))). The requested relief in this case -- that defendants

be held liable for contributions to global.warming, enjoined

from contributing further and required to use plaintiff's

invention -- simply would not redress plaintiff's alleged

mental injury stemming from knowledge of the general

dangers of pollution.

Conclusion

For the reasons set forth above, defendants' motions to

dismiss are granted in their entirety, and all claims against

defendants are dismissed.

SO ORDERED.

Dated: New York, New York

September 28, 2005

s/

NAOMI REICE BUCHWALD

UNITED STATES DISTRICT ILUIDGE

Copies of the foregoing Memorandum and Order have

been mailed on this date to the following:

Plaintiff

Gersh Korsinsky

1236 4%h Street, Apt. 4B

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Brooklyn, NY 11219

Counsel for Defendant United States

Environmental Protection Agency

Lawrence H. Fogelman, Esq.

Assistant United States Attorney

Office of the United States Attorney

Southern District of New York

86 Chambers Street

New York, NY 10007

Counsel for Defendant New York State

Department of Environmental Conservation

Simon Wynn, Esq.

Assistant Attorney General

State of New York

120 Broadway

New York, NY 10271

Counsel for Defendant New York City Department

of Environmental Protection

Michael Burger, Esq.

Assistant Corporation Counsel

City of New York

Law Department

100 Church Street

New York, NY 10007

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

GERSH KORSINSKY, 05 CIVIL 0859 (NRB)

Plaintiff.

JUDGMENT

-against-

U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA);

et al.

Defendants.

Defendants having moved to dismiss, and the matter

having come before the Honorable Naomi Reice Buchwald,

United States District Judge, and the Court, on September 28,

2005, having rendered its Memorandum and Order granting

defendants’ motions to dismiss in their entirety and dismissing

all claims against defendants, it is,

ORDERED, ADJUDGED AND DECREED: That

for the rcasons stated in the Court's Memorandum and Order

dated September 28, 2005, defendants’ motions to dismiss are

granted and all claims against defendants are dismissed.

Dated: New York, New York

September 30, 2005

J. MICHAEL McMAHON

Clerk of Court

By: s/

Deputy Clerk

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