Nebraska Sues US EPA Over New Carbon Limits for Utilities

Nebraska has brought the first law suit against U.S. Environmental Protection Agency’s proposed new carbon limits for power plants [see January 15, 2014 blog article], saying that the proposed rules are based on commercially unviable emission control technology.  Nebraska’s Attorney General is demanding that the EPA withdraw its proposal to cap carbon dioxide emissions from new coal-fired plants claiming the standards make it impossible for any  new power plants to be built in that state. 

The proposed rules rely, in part, on carbon capture and storage to meet the objective of reducing carbon dioxide emissions.  Yet, according to the complaint, the Energy Policy Act of 2005 forbids tying new source performance standards to pollution reduction technology developed with federal assistance. According to Nebraska’s complaint, in deciding to base its carbon limits on the potential emissions savings from carbon capture and storage, the EPA considered three facilities under construction, all of which are slated to employ CCS, and all of which purportedly received hundreds of millions of dollars in grants from the Department of Energy and also millions of dollars in credits from the IRS.  The complaint also seeks an injunction to prohibit EPA from future consideration of carbon capture and storage technology from these federally funded facilities as “adequate demonstration” of the technology.

The case is State of Nebraska v. United States Environmental Protection Agency, case number 4:14-cv-03006, in the U.S. District Court for the District of Nebraska.

Kathy Milenkovski is an energy and environmental lawyer. She helps clients comply with complex state and federal regulatory programs and represents clients in litigation, appearing in administrative, state and federal courts.
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