On Friday, Judge John Woodcock held that an ordinance enacted by the City of South Portland, Maine, that prohibited loading crude oil from a pipeline terminating in South Portland onto tankers in South Portland Harbor, in order to prevent certain adverse local impacts, did not violate the Constitution’s Commerce Clause. It’s potentially a very important decision in this area. Congratulations to my partner Jonathan Ettinger and our entire team that worked on the case. … More
Tag Archives: “dormant commerce clause”
State Programs to Encourage Zero-Emitting Generation are Really, Really, Constitutional
Hard on the heels of decision upholding the Illinois “zero-emission credit” program to prop up nuclear plants in that state, Judge Valerie Caproni of the South District of New York has now upheld a similar ZEC program in New York. There’s definitely a trend here. So long as state programs do not directly interfere with wholesale markets, it looks as though they will be affirmed.
(Renewed caveat: This firm represents,… More
State Programs to Encourage Zero-Emitting Generation Are Constitutional
Late last month, the 2nd Circuit Court of appeals rejected a challenge to Connecticut laws intended to encourage use of renewable energy. Earlier this month, Judge Manish Shah, of the Northern District of Illinois, issued a companion decision, rejecting challenges to the Illinois Future Energy Jobs Act, which grants “Zero Emission Credits” to certain facilities, “likely to be two nuclear power plants owned by Exelon in Illinois.”
(Caveat: This firm represents,… More
State Programs to Encourage Renewable Energy Are Constitutional (In Case You Were Worried)
Last week, the 2nd Circuit Court of Appeals affirmed a District Court decision rejecting a challenge to Connecticut statutes intended to encourage renewable energy development in Connecticut. It’s a critical win, not just for Connecticut, but for many renewable energy programs in other states across the country as well.
(Important caveat. These cases are bloody complicated and no blog could possibly summarize them without omitting important details. … More
Minnesota May Not Prohibit Power Sales That Would Increase Statewide CO2 Emissions. Why Not? Pick Your Reason.
If you needed any further proof that energy law is very complicated, Wednesday’s decision in North Dakota v. Heydinger should convince you. The judgment is simple – the 8th Circuit Court of Appeals struck down a Minnesota statute which provides in part that:
no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions;… More
The 10th Circuit Affirms Colorado’s RPS; The Dormant Commerce Clause Remains Dormant
When Colorado enacted a referendum petition strengthening its renewable portfolio standard, the Energy and Environment Legal Institute sued, arguing that the RPS violates the dormant commerce clause, because it harms out-of-state coal producers. The 10th Circuit Court of Appeals, in an opinion by Neil Gorsuch (son of the EPA former administrator), disagreed. Pretty much telegraphing the outcome in the first sentence, Judge Gorsuch framed the question as follows:
Can Colorado’s renewable energy mandate survive an encounter with the most dormant doctrine in dormant commerce clause jurisprudence?… More