A federal judge on Monday dismissed the state of Nebraska’s lawsuit seeking to kill the Environmental Protection Agency’s proposal to limit greenhouse gas emissions from new power plants, saying the state was wrong for trying to sue over a rule that hasn’t even been finalized yet, much less implemented.
U.S. District Judge John Gerrard said Nebraska Attorney General Jon Bruning had “jumped the gun” when he sued the EPA in January, just three months after the agency proposed its carbon pollution standards for new natural gas-fired turbines and coal-fired power plants. Those proposed standards are intended to ensure that all new power plants, the largest stationary contributors to climate change in the United States, use technologies that limit emissions of the carbon pollution that drive it.
In his Monday ruling, Gerrard agreed with the EPA’s argument against the lawsuit, which was that Nebraska must use the regulatory rulemaking process if it wants to dispute the rule. The federal courts, he said, are no place for fighting a rule that is still in such an early stage of being crafted.
“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, explaining that states must wail until final action is taken on the regulation if it wants to sue. “Making environmental regulations is difficult and complicated enough without having federal judges weigh in at every step along the way.”
Judge Gerrard’s dismissal doesn’t mean that Nebraska — or any other entity that has sued over the proposed rule, for that matter — is prevented from filing another lawsuit once final regulatory action is taken by the EPA. But it does mean that current legal challenges to those rules and President Obama’s Clean Power Plan in general could be in jeopardy.
Those challenges include a lawsuit filed in August by twelve states in the D.C. Circuit Court of Appeals seeking to effectively invalidate proposed carbon regulations for existing coal plants, and two similar lawsuits filed in June by coal company Murray Energy, the nation’s largest privately owned coal company.
All of those lawsuit face the same issue of so-called “ripeness,” that is, whether their lawsuit is timely. Because the regulations are not final yet, it’s extremely difficult to successfully allege in court that harm would be done, and proving harm is an essential part of these lawsuits. Still, the 12 states say their suit is ripe because the EPA has declared the rule’s legality, and the states are arguing that the EPA’s attempt to regulate greenhouse gases under the Clean Air Act is not lawful.
If those lawsuits are dismissed, they can file new ones once the rules are finalized in June 2015, and it’s very likely that they will. But even if the lawsuits aren’t dismissed, Michael B. Gerrard of New York Law Journal notes that they would likely take a number of years to complete. Overarching cases heard by the D.C. Circuit, he said, usually take at least two years, and the court is unlikely to put a hold on the finalized rules while it decides. If the decision is appealed to the U.S. Supreme Court, it will likely take another two years for the case to be heard.
Regulating carbon emissions from power plants will be the most significant thing America has ever done to combat climate change. The electricity sector is the largest source of greenhouse gas emissions here, and dropping those 25 percent in six years amounts to a reduction of roughly 300 million tons of CO2 each year.