Generally, liberally construed, Plaintiff's 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.1 [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.)
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 violation 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 relief) 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 Memo. of Law].)
Generally, in response to Defendant's motion, Plaintiff asserts the following five arguments: (1) under Ex Parte Young, 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 "[g]iven 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) Plaintiff's 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 on natural-gas-fired power plants); and (5) regardless of the foregoing, the Court should grant Plaintiff a default judgment 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 [Plf.'s Opp'n Memo. of Law].)
Generally, in reply to Plaintiff's opposition, Defendant asserts the following four arguments: (1) Plaintiff makes no real attempt to dispute Defendant's Eleventh Amendment argument, and he fails to successfully refute Defendant's argument that the State is the real party in interest in Plaintiff's claims because the broad injunctive relief requested would interfere with public administration by preventing 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 asserting a new claim in an opposition memorandum of law and, even if he could do so, that new claim would not be actionable because it is subject a four-month limitations period (and here that period expired in May of 2017); and (4) although Plaintiff cites his allegation of a twelve-fold increase in carbon emissions, he fails to identify any specific standard or limitation that Defendant allegedly violated. (See generally Dkt. No. 19 [Def.'s Reply Memo. of Law].)
