Neb. lawsuit seen as first of many challenges to EPA power plant rule

Source: Jean Chemnick, E&E reporter • Posted: Saturday, January 18, 2014

Opponents of U.S. EPA’s carbon regulations are praising Nebraska Attorney General Jon Bruning for the lawsuit he filed this week to stop the agency’s new power plants proposal.

The Republican filed the suit Wednesday in U.S. District Court for the District of Nebraska and alleges that EPA’s proposal violates the 2005 Energy Policy Act, which bars the agency from requiring the use of pollution-control technology based on its being demonstrated by government-backed projects.

The power plant proposal points to three carbon capture and sequestration projects backed by the Department of Energy, saying the technology has been adequately demonstrated to be required for new coal-fired power plants.

Sen. David Vitter (R-La.) raised that point yesterday at a Senate hearing with EPA Administrator Gina McCarthy. The EPA chief said the agency was looking into it but did not believe it would scuttle the rule (Greenwire, Jan. 16).

Bruning is the first to test in court what EPA foes see as the rule’s Achilles’ heel. He said in a statement Wednesday the rule would threaten the Cornhusker State’s power supply.

“The impossible standards imposed by the EPA will ensure no new power plants are built in Nebraska,” Bruning said in a statement.

Laura Sheehan, senior vice president at the American Coalition for Clean Coal Electricity, in a statement yesterday applauded Bruning’s challenge.

“The lawsuit filed by Nebraska is just a preview of the protracted legal fight facing this administration which continues to exceed its authority through unachievable regulations in pursuit of a misguided environmental campaign,” she said.

But David Doniger of the Natural Resources Defense Council dismissed the lawsuit as “grandstanding” and a “publicity stunt.”

“They’re suing at the wrong time and in the wrong court,” said Doniger, who handles Clean Air Act litigation for NRDC.

Proposed rules cannot be challenged in court until they are finalized, something that will not happen in this case until much later in the year. Moreover, he said, all Clean Air Act cases of national significance must be challenged in the U.S. Court of Appeals for the District of Columbia Circuit.

“They’re asking the ref for a review of the play before the ball has even been snapped,” he said.

McCarthy and environmentalists also say that while the energy law prohibits EPA from basing a standard solely on technology demonstrated at taxpayer-funded facilities, it does not bar the agency from pointing to those projects together with other evidence. In this case, that includes studies by the Energy Department and projects moving forward in other sectors that are not funded by DOE.