Judge dismisses suit against EPA climate rule

A federal judge in Nebraska has dismissed a challenge to the Environmental Protection Agency’s (EPA) proposed carbon limits for new power plants.

District Judge John Gerrard ruled that since the rule, proposed in January, has not been finalized, it cannot be considered by a court.


Nebraska Attorney General Jon Bruning had brought the lawsuit shortly after the rule was formally proposed.

“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,” Gerrard wrote in his ruling late Monday.

“Simply stated, the state cannot sue in federal court to challenge a rule that the EPA has not yet actually made,” he said, dismissing the lawsuit.

The proposal, published months after it was first unveiled, seeks to set limits on carbon dioxide pollution from newly built coal and natural gas power plants based on the energy they produce. It is a separate rule from the June proposal to reduce carbon from the entire power generation sector.

States and at least one coal producer have filed lawsuits against the proposal as well.

The January proposal would require that coal plants use carbon capture technology or reduce their carbon output to a comparable level.

Nebraska charged that the EPA cannot do that, since it based its data on the commercial availability of carbon capture upon projects that receive federal funding, in violation of a 2005 law.

Gerrard’s ruling did not decide the merits of that argument, since Nebraska would have to bring a new lawsuit when the rule is finalized.

EPA spokeswoman Liz Purchia welcomed the 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,” she said in a statement.