Commerce clause could swing energy cases

Source: By Niina H. Farah, E&E News reporter • Posted: Monday, October 19, 2020

A little-known legal doctrine with important energy implications could face Judge Amy Coney Barrett if she is confirmed to the Supreme Court.

The dormant commerce clause — which prevents states from prioritizing their own interests in interstate commerce — found a moment in the spotlight last week during questioning of Barrett by the Senate Judiciary Committee.

The doctrine is “one of the most important things the federal judiciary does,” said Sen. Mike Lee (R-Utah) in a back-and-forth with Minnesota Democrat and former presidential hopeful Sen. Amy Klobuchar.

The doctrine plays a key role in an energy case that Wyoming and Montana have asked the Supreme Court to take up this term. Officials from the coal-rich states argue that Washington state had violated the dormant commerce clause in its denial of a permit for the Millennium Bulk Terminals coal export project (Energywire, June 10).

“It’s actually a court area of law where, without Congress acting, courts sometimes say what a state is doing is posing too much of a barrier to commerce,” said William Buzbee, a law professor at Georgetown University Law Center.

In the Millennium Bulk Terminals case, the challengers said blocking a key Clean Water Act certification for the project would hurt their opportunities to export coal to Asian markets. Washington state has maintained the project poses real environmental risks.

The Supreme Court has not yet decided whether to take the case, although the high court has invited acting Solicitor General Jeffrey Wall to comment on the federal government’s position on the dispute.

The doctrine also has potential to come up more in federal court cases under a second Trump term, if individual states decide to make bold regulatory actions to cut carbon emissions in a way that affects other states, Buzbee added.

During Barrett’s confirmation hearing, senators debated the potential impacts of adding her to the court, including undoing the Affordable Care Act or the landmark Roe v. Wade decision.

“It’s not some ivory tower where we’re talking, with all due respect to one of my colleagues, about the dormant commerce clause,” Klobuchar said.

“This is about peaceful transition of power and the effect this has on people’s lives.”

Lee countered that the doctrine was significant, noting there were outstanding questions about Congress’ role in potentially drafting legislation on the doctrine or leaving it as a matter for the courts.

“It hasn’t yet become the subject of political tugs of war based on fearmongering, based on fundraising by politicians in both parties, and yet there are a lot of similarities there,” he said. “This is what we’ve reduced the courts to.”

That line of argument was just an effort at distraction, Klobuchar said.

“I have nothing against the dormant commerce clause, Sen. Lee,” she said. “But today, just like you did before, you are bringing it up for a reason, and that’s to make this seem all esoteric and apart from the lives of the American people.”

Reporter Jennifer Hijazi contributed.