Nebraska v. EPA

The federal district court for the District of Nebraska dismissed the lawsuit. The court agreed with EPA that Nebraska’s “attempt to short-circuit the administrative rulemaking process runs contrary to basic, well-understood administrative law.” The district court said that there had been no final agency action and that the Clean Air Act provided an adequate remedy—review of any final rule by the D.C. Circuit Court of Appeals.

A week after EPA proposed new source performance standards for greenhouse gas emissions from power plants, the State of Nebraska commenced a lawsuit seeking an order enjoining EPA’s work on the rulemaking and requiring withdrawal of the proposed rule. Nebraska alleged that the proposed rule violated the Energy Policy Act of 2005, which provides that EPA may not base required technologies or emissions reductions levels under section 111 of the CAA solely on the use of technologies by facilities receiving assistance under the Energy Policy Act. Nebraska’s complaint sought a declaration that the proposed rule’s consideration of the federally financed deployment of carbon capture and sequestration (CCS) to support the finding that CCS is “adequately demonstrated” for section 111 purposes was unlawful.