What a Shock?! Nebraska’s Early Challenge to EPA’s Clean Power Plan Is Dismissed

Opponents of EPA’s Clean Power Plan have not been willing to wait until a final rule has been promulgated before challenging EPA’s authority. On Monday, Nebraska’s challenged was dismissed – not surprisingly – as premature.

Nebraska’s claim was simple – the Clean Power Plan relies in part on technology demonstrated with funding pursuant to the Energy Policy Act of 2005. However, that statute precludes EPA from finding that technologies have been adequately demonstrated for the purposes of § 111 of the Clean Air Act based “solely” on use of the technologies by facilities funded under the Energy Policy Act.

The Court’s response was equally simple.  EPA has not yet made any final decision to rely on technologies demonstrated with help from Energy Policy Act funding.  If it does, Nebraska can challenge the final rule when promulgated as being in violation of the Energy Policy Act. Of course, it did not help Nebraska’s case that, far from finally deciding the issue, EPA explicitly asked for comment on the extent to which it can or should rely on technology demonstrations at facilities funded under the Energy Policy Act.

While the other suits filed in advance of the final rule rely on different arguments, I don’t expect them to fare any better. As the Court here noted:

The State has jumped the gun. 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. Instead, as dictated by basic and well-established principles of administrative law, the State must wait for a final agency action.

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