Colo. Renewable Energy Rule Not Unconstitutional: Judge

Source: By David McAfee, Law 360 • Posted: Monday, May 12, 2014

Law360, Los Angeles (May 09, 2014, 8:10 PM ET) — A Colorado federal judge on Friday rejected the plaintiffs’ bid for a declaration that Colorado’s Renewable Energy Standard statute, which requires the state’s utility companies to obtain more electricity from renewable sources, is unconstitutional, saying the plaintiffs failed to show that the rule burdens interstate commerce.

Colorado voters passed Amendment 37, which was intended to promote the development of renewable energy, in 2004. The plaintiffs, including Energy and Environment Legal Institute, sued members of the Colorado Public Utilities Commission and others alleging that the provision violates the Commerce Clause of the United States Constitution.But U.S. District Judge William J. Martinez sided with the defendants on Friday, noting that the U.S. Supreme Court has frequently warned not to “second-guess the empirical judgments of lawmakers concerning the utility of legislation.”“In sum, the court finds that plaintiffs have failed to show a genuine dispute of material fact as to whether the Renewables Quota or the RES in general burdens interstate commerce,” Judge Martinez wrote in the 23-page order dismissing the 2011 lawsuit.

“As plaintiffs have failed to show that the RES burdens interstate commerce at all, much less that any such burden is clearly excessive in relation to the benefits conferred on the state by the RES, the court finds that summary judgment in also appropriate with regard to plaintiffs’ claim,” the judge continued.

Friday’s ruling is a victory for renewable energy companies and organizations and rejects attacks against the RES requirements based on the notion that they interfered with interstate trade because they reduced demand for nonrenewable sources.

Amendment 37 was codified in 2005 as the RES, which would require that Colorado electric utilities provide a portion of their electricity from renewable energy sources. The Colorado Legislature has expanded the RES three times since the voters approved the original RES in 2004, according to Interwest Energy Alliance, which intervened in the suit on the state’s side.

Sarah Propst, executive director of the IEA, said it’s important to protect the vote of the people and their elected representatives.

“Colorado voters and the Colorado General Assembly showed tremendous leadership in passing measures to enhance the state’s economic competitiveness. The court has confirmed that the people and the Legislature can shape their energy future,” Propst said in a statement Friday. “Colorado utility customers are already benefiting from affordable, predictably priced renewable energy. Today’s ruling confirms that Colorado will continue to reap these benefits.”

Judge Martinez on Friday rejected the plaintiffs’ early motion for partial summary judgment and granted the defendants’ and intervenor-defendants’ early motion for summary judgment.

Representatives for other parties didn’t immediately return requests for comment on Friday.

The plaintiffs are represented by David W. Schnare of Free Market Environmental Law Clinic and Michael D. Pepson of Cause of Action.

The defendants are represented by Assistant Attorneys General Todd Lundy, Will V. Allen and Kathleen L. Spalding of Colorado Department of Law.

IEA is represented by John Putnam of Kaplan Kirsch & Rockwell LLP.

The case is Energy and Environment Legal Institute et al. v. Joshua Epel et al., case number1:11-cv-00859, in the United States District Court for the District of Colorado.