Victory for Healthy Air: Court Rejects Nebraska Attorney General’s Attempt to “Short-Circuit” the Law in Challenge to Carbon Pollution Standards

Nebraska Attorney General Jon Bruning’s attempt to block the U.S. Environmental Protection Agency’s (EPA) efforts to limit carbon pollution from power plants failed yesterday.

The federal district court in Nebraska dismissed the Attorney General’s lawsuit challenging EPA’s proposed Carbon Pollution Standards for new fossil fuel power plants.

The court held that:

[the Attorney General’s] attempt to short-circuit the administrative rulemaking process runs contrary to basic, well-understood administrative law. (Decision, Page 1)

The Attorney General’s challenge was flawed because it was filed only one week after EPA published proposed carbon emission standards for new power plants, in January 2014.

But the law is this case is clear and anchored in common sense.

As the court explained, legal challenges may only be brought against final standards:

Simply stated, the State cannot sue in federal court to challenge a rule that EPA has not yet actually made. (Decision, Page 1)

EPA’s proposed action is still in draft form and has been the subject of extensive public comment.

In December 2012, the D.C. Circuit rejected a similar challenge to EPA’s original proposal for the very same reason — that the standards had yet to be finalized.

This latest attempt at an end run around the Clean Air Act would have deprived the public of a chance to comment on a proposed rule and present its diverse viewpoints to the agency.  Moreover, for a court to review standards that are still being developed would be a waste of judicial resources and Americans’ tax dollars.

The court also noted a defect in the Nebraska Attorney General’s central legal claim.

The Attorney General argued that EPA’s reliance, in part, on data from facilities receiving federal assistance was unlawful.

The court explained:

The merits of this claim are not before the Court. But the Court notes that [Energy Policy Act section] 402(i) only forbids the EPA from considering a given technology or level of emission reduction to be adequately demonstrated solely on the basis of federally-funded facilities. 42 U.S.C. [section] 15962(i). In other words, such technology might be adequately demonstrated if that determination is based at least in part on non-federally-funded facilities. (Decision, Footnote 1, Page 5)

EDF previously examined the flaws with the Nebraska Attorney General’s legal claim in a detailed white paper. (You can read my blog about the white paper here)

Unfortunately for the citizens of Nebraska, Attorney General Bruning is devoting precious taxpayer resources to misguided legal attacks.

It’s not the only way in which Nebraska’s taxpayer dollars are being deployed to block vital clean air progress for our nation.

The Guardian reported that Bruning, on a conference call organized by the American Legislative Exchange Council (ALEC), told other state attorneys general that Nebraska has challenged EPA authority more than 30 times and will keep on doing so.

Yet the Carbon Pollution Standards for new power plants have won broad public support from millions of Americans — including public health associations, Moms Clean Air Force, faith-based organizations, the League of United Latin American Citizens, and leading power companies.

Nebraska’s failed lawsuit is just one more misguided attempt to prevent vital limitations on the carbon pollution emitted by power plants from moving forward.

According to the Guardian, Bruning claims that:

EPA continues to try and ‘fix things’ that are not broken.

Tell that to the millions of Americans who are experiencing the harmful impacts of climate change.

While EPA takes steps to address carbon pollution from the single largest source in the country, Attorney General Bruning is devoting Nebraska’s tax dollars to flawed lawsuits.

Fortunately, millions of Americans in red and blue states alike are working together to forge solutions for our families, our communities and our nation.