Federal Judge Dismisses Nebraska Lawsuit Challenging EPA's Power Plant Proposal

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By Andrew Childers

Oct. 7 — A federal judge dismissed as premature Nebraska's lawsuit challenging the Environmental Protection Agency's proposed carbon dioxide performance standards for new power plants.

Judge John Gerrard of the U.S. District Court for the District of Nebraska dismissed the state's lawsuit Oct. 6, noting that the EPA has not yet finalized its proposed carbon dioxide new source performance standards for new power plants.

Nebraska had argued the EPA's proposed rule should be blocked before finalization because it allegedly violated provisions of the Energy Policy Act of 2005.

Notwithstanding the alleged violation, Gerrard said the EPA has not taken final action and still has an opportunity to revise its proposed rule.

“The state has jumped the gun,” Gerrard said. “If Congress had wished to allow immediate, interlocutory appeals of proposed rulemaking under the Clean Air Act, it could have done so. It did not, and for good reason: making environmental regulations is difficult and complicated enough without having federal judges weigh in at every step along the way.”

“We are reviewing the order and exploring our options for appeal,” Nebraska Attorney General Jon Bruning said in an Oct. 7 statement.

The EPA proposed its new source performance standards for carbon dioxide emissions from new fossil fuel-fired power plants Jan. 8. It would limit new gas-fired units to 1,000 pounds of carbon dioxide per megawatt-hour, with a limit of 1,100 pounds of carbon dioxide per megawatt-hour for new coal-fired power plants. The proposed performance standard for new coal-fired units would require the use of carbon capture systems (79 Fed. Reg. 1,430).

Rule Could Be Revised

Nebraska argued the EPA's proposal violates the Energy Policy Act, which prohibits the agency from solely relying on carbon capture projects funded under the act when determining the technology is adequately demonstrated for the purposes of new source performance standards under Section 111 of the Clean Air Act. Three of the four carbon capture projects cited by the EPA in its proposal have received funding from the Energy Department; the fourth is in Canada (12 SED, 1/17/14).

Gerrard noted that the EPA issued a subsequent notice in February seeking comment on the Energy Policy Act concerns. That shows the EPA has not yet taken any final action, he said.

“All of this goes to show that the EPA is still in the process of considering the very aspect of the proposed rule that the state insists is final,” Gerrard said.

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl in Washington at lpearl@bna.com

Judge John Gerrard's order dismissing Nebraska's lawsuit in Nebraska v. EPA is available at http://op.bna.com/env.nsf/r?Open=smiy-9pnqsw.