Judge rejects Neb.’s challenge of EPA power plant rules

Source: By Jeremy P. Jacobs, E&E reporter • Posted: Thursday, October 9, 2014

A federal judge has dismissed Nebraska’s challenge to U.S. EPA’s proposed greenhouse gas standards for new or modified power plants.

Judge John Gerrard of the federal district court in Nebraska said the state’s challenge was premature because EPA has yet to finalize the limits.

“The state has jumped the gun,” Gerrard wrote.

Nebraska’s case was the first of what is expected to be several challenges to EPA’s new efforts to address climate change by regulating new and existing power plants.

The state claimed EPA’s proposal violated the Energy Policy Act of 2005. The agency justified the Clean Air Act’s requirement that carbon capture and sequestration had been “adequately demonstrated” by relying largely on facilities where the government funded the use of the technology through that 2005 law.

Gerrard said “the federal government cannot subsidize construction of facilities with the Energy Policy Act and then claim that the facilities for which it paid demonstrate, for Clean Air Act purposes, that the technology is viable.”

However, Gerrard added that Nebraska’s challenge was a long way from ripe for judicial review because EPA has not finalized the standards. The agency is expected to finish the rule either this year or next.

In particular, Gerrard noted that EPA is still reviewing public comments on the subject of Nebraska’s challenge — carbon capture and sequestration.

“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.

Gerrard also said that when EPA finalizes the rule, challenges should be brought in the U.S. Court of Appeals for the District of Columbia Circuit, not his district court.

A separate lawsuit brought by Murray Energy Corp. and other industry groups challenging EPA’s proposed standards for existing plants is still pending at the D.C. Circuit (Greenwire, Sept. 19).

Click here for the court’s order.