Abby L. Harvey
GHG Monitor
10/10/2014
A lawsuit brought against the Environmental Protection Agency’s proposed new source performance standards was thrown out by a U S. District Judge this week in Nebraska. The state’s Attorney General, Jon Bruning, filed suit against the agency in January following the release of an updated version of the proposed standards which would essentially mandate the use of carbon capture and sequestration on all new-build coal-fired power plants under section 111 of the Clean Air Act. The EPA had filed a motion to dismiss the case because the standards have not been finalized and therefor are not subject to judicial review. “As the EPA points out, the State of Nebraska’s attempt to short-circuit the administrative rulemaking process runs contrary to basic, well-understood administrative law. Simply stated, the State cannot sue in federal court to challenge a rule that the EPA has not yet actually made,” District Judge John Gerrard wrote in the Oct. 6 ruling.
In his challenge, Bruning said that the agency’s conclusion that CCS was “adequately demonstrated” was unlawful under the Energy Policy Act of 2005 (EPAct05) because that determination was made using information gathered from federally funded demonstration projects. Bruning referred to a section of the EPAct05 which states that "no technology, or level of emission reduction, solely by reason of the use of the technology, or the achievement of the emission reduction, by one or more facilities receiving assistance under this Act, shall be considered to be … adequately demonstrated for purposes of" section 111 of the Clean Air Act. This challenge is addressed in a footnote to the ruling. “The merits of this claim are not before the Court. But the Court notes that [EPAct05] only forbids the EPA from considering a given technology or level of emission reduction to be adequately demonstrated solely on the basis of federally-funded facilities. In other words, such technology might be adequately demonstrated if that determination is based at least in part on non-federally-funded facilities,” the footnote reads.
Nebraska ‘Jumped The Gun,’ Court Finds
Gerrard also said in his ruling that the suit only further complicated an already complex rulemaking process. “The State has jumped the gun. 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. Instead, as dictated by basic and well-established principles of administrative law, the State must wait for a final agency action.”
Liz Purchia, EPA Press Sectary, support the court’s decision. “We are pleased with this decision dismissing the premature challenge to our proposal for limiting carbon pollution from new power plants and allowing our rulemaking process to proceed,” Purchia said in a statement this week.
