- U.S. District Judge John Gerrard has dismissed a challenge from the state of Nebraska to the Environmental Protection Agency’s proposed but not yet finalized rules for reducing greenhouse gas emissions at new generation facilities.
- Nebraska charged that the EPA could not require new power plants to implement carbon capture and storage (CCS) technology because it is only “adequately demonstrated” through Department of Energy funding. The Energy Policy Act of 2005, Nebraska argued, prohibits the EPA from requiring technology only demonstrated with federal funding. Nebraska also argued that under the Administrative Procedure Act, it did not have to wait for a finalized rule.
- Gerrard ruled the Clean Air Act, which is the authority under which EPA issued its emissions regulations, does not give federal judges authority over new EPA rules until they are finalized. He also ruled the Administrative Procedure Act does not apply: "The EPA gets first crack at deciding whether the proposed rule should be withdrawn or adopted."
The EPA has proposed three separate sets of emissions regulations, one each for new power plants, modified power plants, and existing power plants.
None of the EPA rules are finalized but each has legal challenges. Nebraska challenged the proposal for new plants. Murray Energy Corp. challenged the existing-plants rule. Gerrard’s rejection of the Nebraska challenge may suggest similar difficulties for the Murray Energy lawsuit.
A case brought by 12 states attempts to avoid the “not-yet-finalized” issue by challenging the 2011 settlement agreement, a finalized action, that allowed the EPA emissions rules. Proponents say it is too late to challenge that settlement.
Judge Gerrard also ruled the Clean Air Act requires challenges of EPA rules to go to the U.S. Court of Appeals for the District of Columbia Circuit.