D.C. Circuit Tosses Greenhouse Gas Challenge as Unripe

December 14, 2012

Yesterday, the U.S. Court of Appeals for the District of Columbia Circuit tossed out challenges to the Environmental Protection Agency's proposed new source performance standards for greenhouse gases. The Court concluded in a unpublished order that, because EPA's rules are not yet final, the lawsuits are premature.

The litigation was brought by Las Brisas Energy Center, LLC, which is constructing a 1320-MW generator in Corpus Christi, Texas, that will be fired by petroleum coke. The case was then consolidated with similar challenges brought by a number of other generators. Substantively, the petitions claimed that EPA exceeded its authority under the Clean Air Act by imposing an emissions limit of 1,000 pounds of carbon dioxide per megawatt-hour, regardless of fuel type, without first making the required finding that each generator type makes a "significant contribution" to pollution and without conducting adequate economic analysis.

EPA sought to dismiss the case as premature because the greenhouse gas rules are not yet final. The petitioners argued that the proposed rule had an immediate impact on them because it effectively imposed specific limits on their ability to construct generators going forward, even if not finalized. Yesterday's order rejects this argument. But it is hardly the last word. Similar challenges, and many others, are almost certain to be lodged once EPA issues its final greenhouse gas rules.

If you have any questions about the D.C. Circuit's decision, the regulation of electric generators, or other matters related to the utility industry or environmental law, please contact a member of GTH's Energy, Telecommunications and Utilities practice group or Environment & Natural Resources practice group. Both groups are consistently rated as among the best in the Pacific Northwest.