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Nebraska v. United States Environmental Protection Agency

ELR Citation: 44 ELR 20221
Nos. 4:14-CV-3006, (D. Neb., 10/06/2014) (Gerrard, J.)

A district court dismissed Nebraska's lawsuit challenging EPA's proposed standards to limit carbon dioxide emissions from new or modified fossil fuel-fired electric utility generating units. As part of the proposed rule, EPA found that certain technology was "adequately demonstrated" for purposes of CAA §111. In making that determination, EPA relied, in part, on data from facilities receiving assistance under the Energy Policy Act. Nebraska filed suit, claiming that this violated §402(i) of the Energy Policy Act. But EPA has not finalized the standards, and the state cannot sue in federal court to challenge a rule that EPA has not yet actually made. Because there is no final agency action, the court dismissed the case for lack of jurisdiction.