The federal district court in Lincoln, Nebraska, yesterday threw out a lawsuit by that state’s attorney general attacking the Environmental Protection Agency’s proposed standards for carbon pollution from new electric power plants. Judge John M. Gerrard ruled that the attorney general “jumped the gun” by filing suit before EPA has adopted the standards. As Judge Gerrard put it:
[T]he State of Nebraska's attempt to short-circuit the administrative rulemaking process runs contrary to basic, well-understood administrative law. Simply stated, the State cannot sue in federal court to challenge a rule that the EPA has not yet actually made.
The judge added: “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.”
When EPA takes final action, Nebraska will have its day in court, but not in Lincoln. Instead, the court explained, the Clean Air Act requires any such lawsuits to be brought in the Court of Appeals in Washington. (And though he didn’t formally rule on the state’s underlying legal complaint, Judge Gerrard plainly hinted why it’s bound to fail. See this post by my colleague David Hawkins for more on why.)
We’ve seen this movie before. The court of appeals in D.C. tossed another premature challenge to the new source standards in 2012. A colorful coal company and a collection of state attorneys general have tried the same stunt by challenging EPA’s proposed standards for existing power plants, but those suits aren’t going to fare any better.
No surprises here. Jump the gun, lose the race.