Nebraska AG Fails in Fight Against Coal Plant Regs

OMAHA (CN) - Nebraska "jumped the gun" in suing the Environmental Protection Agency over greenhouse gas emission limits for new power plants, as the EPA regulations are not yet in place, a federal judge said in dismissing the state's complaint.

"Nebraska's attempt to short-circuit the administrative rulemaking process runs contrary to basic, well-understood administrative law," U.S. District Judge John Gerrard wrote in his Monday ruling." Simply stated, the state cannot sue in federal court to challenge a rule that the EPA has not yet actually made."

In its Jan. 15 lawsuit, Nebraska cited a section of the Energy Policy Act of 2005 that bars the EPA from basing new rules on information from facilities that receive federal assistance.

The Energy Policy Act limited federal financing of such projects to those more efficient and environmentally cleaner than existing facilities. To set the standard of performance, the EPA must look beyond projects that were built under the program, the state claimed.

The proposed EPA rule in question is called "Standards of Performance for Greenhouse Gas Emissions From New Stationary Sources." It concerns new electric power plants and their carbon dioxide emissions.

Nebraska Attorney General Jon Bruning challenged the proposed rules under the Administrative Procedure Act. He claimed the EPA had exceeded its authority and violated federal law by using federally funded energy facilities as the basis of its consideration for rules changes.

The lawsuit cited presently inoperable power plants in Mississippi, Texas and California that received a total of $2.5 billion in federal assistance and whose carbon capture and storage technology was used as the basis of the proposed rule.

But the EPA, in its motion to dismiss, called Nebraska's action "premature" and alluded to "a host of jurisdictional and other dispositive defects" in the complaint.

Judge Gerrard agreed with the EPA.

The dismissal provides guidance for future actions, noting that the framework for obtaining judicial review exists within the Clean Air Act and that the state "should find this remedy adequate."

In any event, Nebraska "will still have to wait until there is a final agency action" before filing suit against the still-proposed changes, 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," Gerrard concluded.

The Clean Coal Power Initiative, a cooperative effort between the government and industry, established in 2002 at President Obama's behest, increased investment in so-called clean coal technology, including large investments in carbon capture and storage devices.

The new EPA rules resulted from a mandate Obama issued on June 25, 2013, calling for EPA Administrator Gina McCarthy to create a proposal for carbon pollution standards at new power plants.

The proposal, released on Sep. 20, 2013, focuses on new natural-gas-fired stationary combustion units and new fossil-fuel-fired utility boilers.

Obama's push for clean coal has been riddled with challenges since then, including scrutiny from the House Committee on Energy and Commerce and a challenge under the Congressional Review Act by Senate Minority Leader Mitch McConnell and his Republican colleagues, according to the Sabin Center for Climate Change Law at Columbia Law School, which tracks the issue.

A coalition of industrial and manufacturing concerns have spent millions of dollars fighting the new emissions standards and other elements of Obama's climate action plan, the Sabin Center notes, principally through the Partnership for a Better Energy Future.

In March this year the House of Representatives passed the "Electricity Security and Affordability Act" to try to restrict the powers of the EPA to regulate emissions.

The Senate has yet to consider this bill and it has little chance of becoming law.

But that the House felt compelled to act illustrates how politically charged the issue remains, particularly for conservatives.

Bruning, the Cornhusker state's Republican attorney general, claimed when he sued that "the impossible standards imposed by the EPA will ensure no new power plants are built in Nebraska."

He added: "This federal agency continues to overstep its authority at the detriment of Nebraska businesses."

This is one of several high-profile conflicts with the federal government Bruning has fought in recent years, including fights over the Affordable Care Act and several spats with the EPA involving air and water quality.

Bruning, who calls himself the "people's lawyer" on his state-sponsored website, touts his history of "opposing the federal Environmental Protection Agency's job-killing greenhouse gas emission regulations."

The January lawsuit followed a letter Bruning sent on behalf of 17 other attorneys general, urging the EPA to cede emissions regulations to the states.

Throughout his tenure as a public figure Bruning has faced allegations of political grandstanding and unashamed aspiration for higher office. His brazen style has often drawn the ire of some constituents in this conservative state. An editorial from the Lincoln Journal Star from 2008 stated that "Bruning would better serve the public by focusing less on attracting attention and more on getting the job done."

Bruning will step away from public office early next year after serving three terms as attorney general and two terms in the Legislature. He failed to secure the Republican nomination for governor this May, finishing second to Pete Ricketts. He lost a Senate bid to Deb Fischer in the 2012 Republican primary.

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