Group asks Supreme Court to review Colo. standard

Source: Robin Bravender, E&E reporter • Posted: Monday, October 19, 2015

A conservative legal group is asking the Supreme Court to weigh the constitutionality of Colorado’s renewable energy standard after a lower court upheld the state’s program.

The anti-regulatory nonprofit Energy & Environment Legal Institute has filed a petition asking the high court to examine the decision made by the Denver-based 10th U.S. Circuit Court of Appeals earlier this year, the group announced this week.

A three-judge panel on that court unanimously upheld Colorado’s requirement that 20 percent of all electricity sold in the state come from renewable sources (E&ENews PM, July 13).

Lawyers for Energy & Environment Legal Institute have argued that Colorado’s standard illegally regulated economic activity outside the state’s borders because the state is part of an electric grid that serves 11 states and parts of Mexico and Colorado. Consequently, the group argued that the law discriminated against coal and other fossil fuel generators located outside Colorado.

The Colorado RES “is a classic example of an extraterritorial regulation that independently violates the system as a whole,” the group wrote in its petition to the high court.

“Colorado is not alone in its efforts to tell other states how to regulate,” Energy & Environment Legal Institute said in a statement. “California has the hubris to tell egg producers in Iowa what size chicken pens have to be. They have also told Canada how to make goose liver. Indeed, there is a growing effort for states to try to export their regulations onto other states.”

David Schnare, the group’s general counsel, said “a state may not project its legislation into other states and may not control conduct beyond the boundaries of the state.”

Judge Neil Gorsuch, a Republican appointee, wrote in the 10th Circuit opinion that the challengers had failed to establish that Colorado’s renewable portfolio standard, or RPS, would actually harm out-of-state producers compared to in-state generators.

“[A]s far as we know, all fossil fuel producers in the area served by the grid will be hurt equally and all renewable energy producers in the area will be helped equally,” he wrote. “If there’s any disproportionate adverse effect felt by out-of-state producers or any disproportionate advantage enjoyed by in-state producers, it hasn’t been explained to this court. And it’s far from clear how the mandate might hurt out-of-state consumers either.”

The Colorado case was closely watched by environmental and industry groups as more states have adopted renewable requirements. The 9th U.S. Circuit Court of Appeals in San Francisco in 2013 rejected a similar challenge to California’s low-carbon fuel standard, a central part of the state’s efforts to tackle climate change (E&ENews PM, Sept. 18, 2013).