Potential Trump nominee helps sink Minn. emissions law

Source: Robin Bravender, E&E reporter • Posted: Thursday, June 16, 2016

One of Donald Trump’s Supreme Court short-listers joined in a court ruling today knocking down a Minnesota climate change law.

Judge Steven Colloton, one of the 11 judges the presumptive Republican presidential nominee has said he would consider for the high court, joined two of his colleagues on a federal appeals court in the decision rejecting a 2007 state law that aims to limit carbon dioxide emissions from the power sector.

The three-judge panel affirmed a lower court’s opinion that struck down a 2007 Minnesota climate law that bars importing power into the state from “a new large energy facility that would contribute to statewide power sector carbon dioxide emissions.” It also prohibits long-term power purchase agreements that would increase statewide power sector carbon dioxide emissions.

North Dakota, nonprofit power-cooperatives and others sued over the Minnesota law, arguing that it violated the Constitution’s Commerce Clause — which gives the federal government power to regulate interstate commerce — by restricting the purchase of carbon-intensive energy from other states.

A federal judge ruled in 2014 that the law did indeed violate the Commerce Clause, and that it was “impermissible extraterritorial legislation” (Greenwire, April 21, 2014).

Loken determined that the law had extraterritorial reach because it had the effect of controlling activities taking place entirely outside of Minnesota.

Murphy disagreed with Loken’s conclusion that the provisions have an “unconstitutional extraterritorial effect,” she wrote. However, she agreed that the state law was pre-empted by the Federal Power Act, which gives “the Federal Energy Regulatory Commission exclusive jurisdiction to regulate wholesale sales and the transmission of electric energy in interstate commerce.”

Colloton, writing separately, agreed with Murphy that the state law is pre-empted by the Federal Power Act, but steered clear of the constitutional challenge. “If federal law preempts the Minnesota statute, then it is unnecessary to address whether the statute violates a dormant limitation implied from the Commerce Clause,” Colloton wrote.