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Leland Olds power station near Stanton, North Dakota.
In a 48-page ruling Friday, U.S. District Court Judge Susan Richard Nelson agreed with North Dakota plaintiffs and shot down a part of a 2007 Minnesota law designed to boost renewable energy. Democratic Gov. Mark Dayton has vowed to appeal and fight North Dakota's efforts to sell more coal-fired electricity to Minnesota.

The law at issue is Minnesota's Next Generation Energy Act, a key element of which was to reduce the state's use of fossil fuels by 15 percent of 2005 base levels by 2015, 30 percent by 2025 and 80 percent by 2050. Utilities were not to be allowed to buy more coal-fired electricity unless emissions were completely offset. North Dakota sued in 2011, saying the law violated the Constitution's interstate commerce clause.

Nelson wrote:

If any or every state were to adopt similar legislation (e.g., prohibiting the use of electricity generated by different fuels or requiring compliance with unique, statutorily-mandated exemption programs subject to state approval), the current marketplace for electricity would come to a grinding halt. In an interconnected system like [the Midwest Independent System Operator], entities involved at each step of the process—generation, transmission, and distribution of electricity—would potentially be subject to multiple state laws regardless of whether they were transacting commerce outside of their home state. Such a scenario is “just the kind of competing and interlocking local economic regulation that the Commerce Clause was meant to preclude.”

[...] For these reasons, the Court finds that, while the State of Minnesota’s goals in enacting [the statute] may have been admirable, Minnesota has projected its legislation into other states and directly regulated commerce therein. Accordingly, [the statute] constitutes impermissible extraterritorial legislation and is a per se violation of the dormant Commerce Clause.

North Dakota generates 79 percent of its electricity with coal and plans to build more coal-fired plants without emissions offsets.

At least one environmental advocacy group, Fresh Energy, which promotes renewable energy, isn't majorly upset by Nelson's ruling. The group's executive director, Michael Noble, told Minnesota Public Radio: "The world is moving on from coal now. It's uneconomical, it's impractical. Consumers don't want any more coal." And they won't need it, he said, because installation of wind- and solar-generating facilities will provide all the new electricity that is needed.

North Dakota's Republican Attorney General Wayne Stenehjem doesn't agree with that point of view: "We are continuing to look at the prospect of additional generation here because we're living in a nation that needs it. Most of our electricity does come from coal, and that's likely to be the case for a long time to come," he said.

Stenehjem needs to catch up. The United States generated 39 percent of its total electricity with coal during the 12 months ending in January this year. In 2007, the year Minnesota's Next Generation law was enacted, coal generated 49 percent of the nation's electricity. Minnesota generated 46 percent of its electricity with coal in 2013, 21 percent with nuclear power and 15 percent with wind power.

Originally posted to Meteor Blades on Mon Apr 21, 2014 at 03:02 PM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Scary implications. (6+ / 0-)

    This would mean no state renewable portfolio standards?

    Would probably invalidate states banding together to form cap-and-trade networks?

    "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

    by HeyMikey on Mon Apr 21, 2014 at 03:13:43 PM PDT

    •  There's what a state does with its own money... (3+ / 0-)
      Recommended by:
      annieli, wader, Odysseus

      ...e.g. portfolio standards for what I assume are state-administered public employee retirement funds, and what it mandates non-state entities to do.  As for cap and trade networks, I think cap-and-trade is silly so I don't care either way.

      It's not the side effects of the cocaine/I'm thinking that it must be love

      by Rich in PA on Mon Apr 21, 2014 at 03:31:04 PM PDT

      [ Parent ]

      •  not what RPS is (0+ / 0-)

        The "portfolio" in RPS refers not to investments, but to the collection of sources of electricity provided by each power supplier. Each power seller has a variety of power plants of various types--coal, gas, hydro, nuke, wind, solar, etc., and each also probably buys power from other suppliers at times, without investigating the type of generation source. A Renewable Portfolio Standard says each supplier must get x% of its power from renewable generation--either its own wind-solar-biomass-etc. or renewably-generated power it purchases from other providers.

        The idea is to increase x steadily.

        "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

        by HeyMikey on Tue Apr 22, 2014 at 01:26:46 PM PDT

        [ Parent ]

    •  No, it just means that the state needs to find (3+ / 0-)
      Recommended by:
      ModerateJosh, OrganicChemist, kurt

      different sticks and carrots.  

      For instance, could the state require as a condition of any electric utility construction permit that the utility reduces emissions?  

      Or, make bonds from compliant utilities tax exempt or partially tax exempt?  

      Or, sever its grid in the manner of Texas and enforce its own rules?  

      Or, establish a state bank (in the manner of North Dakota) and use it to reduce the capital costs of green energy projects...

      There are many other things a state can do to persuade corporations to to the right thing.  

      I'm a 4 Freedoms Democrat.

      by DavidMS on Mon Apr 21, 2014 at 06:45:05 PM PDT

      [ Parent ]

      •  I don't think so... (0+ / 0-)

        OK, I haven't read the whole court decision. But the gist seems to be that the regulations in Minnesota were simply different in a way that disadvantaged coal. Not barred coal--simply made it less competitive:

        Utilities were not to be allowed to buy more coal-fired electricity unless emissions were completely offset....

        If any or every state were to adopt similar legislation (e.g., prohibiting the use of electricity generated by different fuels or requiring compliance with unique, statutorily-mandated exemption programs subject to state approval), the current marketplace for electricity would come to a grinding halt. In an interconnected system like [the Midwest Independent System Operator], entities involved at each step of the process—generation, transmission, and distribution of electricity—would potentially be subject to multiple state laws regardless of whether they were transacting commerce outside of their home state. Such a scenario is “just the kind of competing and interlocking local economic regulation that the Commerce Clause was meant to preclude”....

        while the State of Minnesota’s goals in enacting [the statute] may have been admirable, Minnesota has projected its legislation into other states and directly regulated commerce therein. Accordingly, [the statute] constitutes impermissible extraterritorial legislation.

        The key seems to be that the judge is considering the ND suppliers NOT to be engaging in commerce outside ND, even though their electrons are ending up in MN. That could be a route to attack the ruling on appeal.

        "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

        by HeyMikey on Tue Apr 22, 2014 at 01:22:04 PM PDT

        [ Parent ]

        •  I think the gist of it is (0+ / 0-)

          That the court holds that Congress gave the Federal Energy Regulatory Commission "exclusive authority to regulate transmission and sale at wholesale of electric energy in interstate commerce".  FERC established the non-profit regional transmission organization known as the Midcontinent Independent System Operator to cover an operating area that includes Minnesota.  Since MISO can't track the source of electrons, its only way to comply with the Minnesota law would be to abide by its restrictions for all of the electricity that passes through its grid, not just the capacity that serves Minnesota.  That serves as an impermissible extraterritoriality affecting other states because it would affect ND suppliers selling electricity to MISO for states that are not Minnesota.

        •  Electric physics point (0+ / 0-)

          Electrons flow in the opposite direction from the current they produce, so technically it's Minnesota electrons ending up in ND.

    •  My guess would be (0+ / 0-)

      That state renewable portfolio standards would only be applicable to in-state providers of electricity.

  •  Court decision sounds correct (14+ / 0-)

    that is why work needs to be done at the federal level if any changes are going to be made.

    •  Unfortunately, you are correct. The Commerce (5+ / 0-)

      power with respect to interstate commerce is complete.  

      I’ve said before, I will always work with anyone who is willing to make this law work even better. But the debate over repealing this law is over. The Affordable Care Act is here to stay. -- President Barack Obama

      by Its the Supreme Court Stupid on Mon Apr 21, 2014 at 03:26:58 PM PDT

      [ Parent ]

      •  This is actually a far more solid use of it than (0+ / 0-)

        in many other instances, its stretched in some pretty tenuous ways sometimes.

        Join the DeRevolution: We are not trying to take the country, we are trying to take the country back. Get the money out of politics with public financed campaigns so 'Of the People, By the People and For the People' rings true again.

        by fToRrEeEsSt on Wed Apr 23, 2014 at 07:14:37 PM PDT

        [ Parent ]

    •  Excuse me? (3+ / 0-)
      Recommended by:
      JVolvo, Eric Nelson, Odysseus

      The decision is ludicrous. No state should be able to dictate what Minnesota chooses to buy. Or can Washingtonians start demanding folks buy nuclear power so we can create a second or third Hanford site?

      GOP 2014 strategy -- Hire clowns, elephants, and a ringmaster and say "a media circus" has emerged and blame Democrats for lack of progress. Have pundits agree that "both sides are to blame" and hope the public will stay home on election day.

      by ontheleftcoast on Mon Apr 21, 2014 at 03:29:23 PM PDT

      [ Parent ]

      •  I had a similar gut reaction and then.. (6+ / 0-)

        ..reconsidered it from the opposite. In fact your statement got me to thinking:

        ..can Washingtonians start demanding folks buy nuclear power...?
        What if California for an example was 100% solar and Nevada or another state controlled by a James Inhofe(ish) legislature and governor wanted a law that banned using any solar generated electricity from entering the grid into that state? That is why Kossack lina's suggestion..
        ..work needs to be done at the federal level..
        ..makes sense

        exerpt of Nelson's ruling:

        ..the Court finds that, while the State of Minnesota’s goals in enacting [the statute] may have been admirable, Minnesota has projected its legislation into other states and directly regulated commerce therein. Accordingly, [the statute] constitutes impermissible extraterritorial legislation and is a per se violation of the dormant Commerce Clause.
        ..We've witnessed what Roberts "states rights" ruling on medicaid expansion has done to RWNJ controlled states. What if climate change deniers had similar clout in cross state energy issues.

        It stinks that it sets back renewable energy advancement, but it does show that we need a national energy policy update big time

        •  States have lead the way to expanding rights (2+ / 0-)
          Recommended by:
          Eric Nelson, Glen The Plumber

          and moving into the future though. Look at issues as diverse as gay marriage, pot, lower voting age, hell -- even women's sufferage. They all started as "states' rights" issues. The same will have to happen with green power because our federal government is stuck in the mud on this issue.

          I get what you're driving at but I see at a different way I guess.

          GOP 2014 strategy -- Hire clowns, elephants, and a ringmaster and say "a media circus" has emerged and blame Democrats for lack of progress. Have pundits agree that "both sides are to blame" and hope the public will stay home on election day.

          by ontheleftcoast on Mon Apr 21, 2014 at 04:12:20 PM PDT

          [ Parent ]

        •  Isn't elecreicity fungible? (0+ / 0-)

          If I buy clean electricity from you, and you buy dirty electricity from Joe, how is that any different from me just buying dirty electricity from Joe? Dollars work in the same way - it's very hard to tell the clean ones from the dirty ones.

          Early to rise and early to bed Makes a man healthy, wealthy, and dead. --Not Benjamin Franklin

          by Boundegar on Thu Apr 24, 2014 at 05:27:03 AM PDT

          [ Parent ]

  •  It is fitting that this coal backing judge (2+ / 0-)
    Recommended by:
    ybruti, JeffW

    wears a coal black robe.

    He is worried about our economy coming to a grinding halt?
    What about the catastrophic impacts of climate change?
    Short sighted conservatives bring doom in the name of progress.

    If cats could blog, they wouldn't

    by crystal eyes on Mon Apr 21, 2014 at 03:26:40 PM PDT

  •  Why Would It Affect Commerce Regardless of (4+ / 0-)

    whether they were engaging in commerce outside their home state?

    Granted they're selling into a grid but they have to know how many customers they have for their watts no? Just because MN doesn't want coal watts doesn't mean ND can't generate coal watts for all the customers that want it.

    ANd no more. Why is ND owed customers? I'm sure as hell not.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Mon Apr 21, 2014 at 04:12:43 PM PDT

    •  You raise questions I am wondering. (2+ / 0-)
      Recommended by:
      Odysseus, Regressive

      What obligations exist stipulating Minnesota must buy any electricity from any other state?

      I'm not arguing the court decision but if Minnesota is clean and green for all their power and their customers in state want clean and green... are they forced to buy into something they do not want?

      Said another way, if North Dakota insists by law women wear burkas, do women in Minnesota within sight of North Dakota have to wear burkas?

      Huey728 "I'm not really big on calling strangers on the phone, but I felt this election was too important to just sit back and watch." Elections are decided exactly this way; every damned election! GOTV counts... the votes!

      by Nebraska68847Dem on Mon Apr 21, 2014 at 04:57:48 PM PDT

      [ Parent ]

      •  The grid complicates things (1+ / 0-)
        Recommended by:
        Regressive

        ND power plants put energy into the regional grid, and Minnesota doesn't get clarity into which power goes where on the grid.

        On the other hand, there's nothing saying the various customers on the grid can't figure out total capacity and say "this portion comes from renewable energy and that's what we're buying". There has to be some way for Minnesota to tell North Dakota "you can't force me to take your dirty power, because it violates our environmental standards." The logical extension of this ruling is that California has to take cars and gas not rated for California's environmental laws because some other state has produced cars that might get distributed around the country, and California needs more cars than were manufactured under CA standards.

        Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

        by Phoenix Rising on Mon Apr 21, 2014 at 06:29:05 PM PDT

        [ Parent ]

        •  The decision mentions a California case (0+ / 0-)

          Rocky Mountain Farmers Union v Corey (2013) which upheld a California fuel standard requiring transportation fuels to be blended to keep average carbon intensity under a certain limit.  The standard was upheld by the Ninth Circuit since it did not affect ethanol that was produced and sold outside of California.  The gas (and cars) designated for California can be segregated.  The Minnesota case holds that the nature of the electrical grid means that electricity from different sources cannot be segregated in a similar fashion because power from "clean" and "dirty" sources are dumped into a "reservoir" where they become indistinguishable, so regulations in one state may affect another state beyond what is permitted by the Constitution.

  •  Oh MB, You Are Funny - (1+ / 0-)
    Recommended by:
    Regressive

    You take Stenehjem to task for his numbers but not Noble.

    Although coal may not be used to produce the majority of electricity - i.e. 50+% - it remains the largest portion and has been inching up above 40% with natural gas price increases. (Note Dec 2012-Jan 2013 vs Dec 2013-Jan 2014)

    The really hilarious statement was Noble's - when wind is 4% and solar a whopping .25% of total production for a combined total of 4.25%.

    Let's see - -
    40% vs 4.25%.
    Hmmmm, that's a tough one.

    •  Compare wind and solar in 2007.. (0+ / 0-)

      ...and 2014 with coal in 2007 and 2014. That tells a very different story than renewables-will-take-a-hundred-years-to-replace-coal BS.

      Based on added installations in the past few years, Sun Day predicts that solar will be at 1.37% and wind at 5.5% by 2016. Still a relatively small amount, to be sure, but the EIA reported in 2005 that wind would not be at the level it is now—or actually was in 2012—until 2030.

      Don't tell me what you believe, show me what you do and I will tell you what you believe.

      by Meteor Blades on Mon Apr 21, 2014 at 07:13:31 PM PDT

      [ Parent ]

      •  Just Shy of 6% - (1+ / 0-)
        Recommended by:
        Regressive

        Yeah, right.
        Let's shut down all coal-fired plants and, maybe, natural gas ones, too.
        And watch electricity prices skyrocket.

        Sometimes I really wonder who is working hand-in-hand with whom. You do know that skyrocketing energy prices are a right-wing issue in Europe? Prices have eased in Germany of late - but throughout Europe they have increased anywhere from 2x to 4x in the past decade.

        Mega-wind is hardly the answer.
        New photovoltaics are incredibly promising -
        But they will take a long time to come on line effectively.
        To pretend otherwise is to give a ticket to the Goppers.

        NB - Labor has been defeated/trounced all over Australia in the past few years - climate policy is not the only issue, but one of them.

      •  And You Do Realize - (2+ / 0-)
        Recommended by:
        Regressive, OrganicChemist

        That many of the tactics used against Keystone will be used against future wind projects as opposition mounts and becomes better organized. Not only did the wind industry have significant governmental subsidies in the past five years worldwide, but it also has picked the low-hanging fruit.

        Photovoltaic solar is promising - concentrated solar is ridiculously expensive and an environmental disaster.

      •  Sun and wind are already cost-effective, but... (0+ / 0-)

        there is a hole in the system with regard to energy storage.

        Still -- makes sense to grow the production and let storage technology (not to mention smart grids) fill in the gaps as it can as technology becomes available and affordable.

        Real investments need to anticipate need, not merely react to it.  New and replacement generation needs to be sustainable.
        Simple finances dictate that you don't build capacity 1 year only to throw it out the next.

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Wed Apr 23, 2014 at 11:46:12 PM PDT

        [ Parent ]

  •  My first thought was but we in CO can choose (0+ / 0-)

    to buy a certain portion of our electricity via renewables, but I guess that's within the state.

    I also understand that with the grid the electricity gets shifted in one direction or another depending on where it's needed more or produced more.

    I wish there were someone commenting who understood our national grid and how utilities purchase.

    “Conservation… is a positive exercise of skill and insight, not merely a negative exercise of abstinence and caution…” Aldo Leopold

    by ban nock on Mon Apr 21, 2014 at 07:42:42 PM PDT

  •  I wish there were more people commenting (1+ / 0-)
    Recommended by:
    dinotrac

    who understood the Interstate Commerce Clause of the Constitution (I am not directing this comment at you specifically).

    As long as Minnesota continues to produce electricity from coal intrastate (about 46% in 2013) it cannot constitutionally ban the interstate purchase of coal-fired electricity. What I'm less sure of is whether the state could ban the production of electricity from gerbils running on exercise wheels within the state and the purchase of electricity from furry rodents from out of state since the product itself is indistinguishable from that produced from other sources. It would be like banning cane sugar from being sold in the state and only allowing the sale of beet sugar (which I'm sure Minnesota's sugar beet farmers would not mind).

  •  that caveman AG has his head buried in the prairie (0+ / 0-)
  •  This seems flawed... (0+ / 0-)

    If they had barred out of state coal I could agree with the Judge's ruling as a correct interpretation of the Commerce Clause. But if the bar all coal, or simply set a numeric coal limit and no restrictions of where it comes from - then its a neutral, non-prejudicial statute impacting interstate commerce indirectly. I forget the terminology for that - but that seems perfectly valid from what I recall.

    Minnesota should appeal this one.

    OMG, like, gag them with a multi-colored spoon. Like, ya know.

    by Jyotai on Wed Apr 23, 2014 at 07:09:17 PM PDT

  •  It just boggles my mind that they would be buildin (2+ / 0-)
    Recommended by:
    bear83, Teiresias70

    MORE coal plants. I could at least understand not wanting to remove what is there but to add in the face of global warming is insane.

    Join the DeRevolution: We are not trying to take the country, we are trying to take the country back. Get the money out of politics with public financed campaigns so 'Of the People, By the People and For the People' rings true again.

    by fToRrEeEsSt on Wed Apr 23, 2014 at 07:12:03 PM PDT

  •  this is insane giving ND gas boom (0+ / 0-)

    I mean they get gas for free. ~20% is wasted

  •  Note, this is the DORMANT Commerce Clause (0+ / 0-)

    The Dormant Commerce Clause (DCC) is a an inference based on a negative implications from the Commerce Power granted to Congress in Article 1, Section 8 of the Constitution. It cannot be found anywhere in the text of the Constitution, but exists solely on the idea that by granting Congress the Commerce Power, the Framers also forbid the states from regulating commerce. On the current Supreme Court, at least Justices Scalia and Thomas reject the entire doctrine.

    The general rule of the DCC is that state and local laws are unconstitutional if the law places an undue burden on interstate commerce. In DCC situations, Congress generally has taken no action, express or implied, indicating its own policy on the subject matter.

    Here is the Wikipedia article on the DCC, it is fairly helpful in understanding the basic concept. http://en.wikipedia.org/...

    After skimming the court's opinion, it appears that the statute very clearly is not limited to only actors and actions within the Minnesota. The statute said "no person shall," which includes all persons - including those outside the state - "import or commit to import" or "enter into a new long-term power purchase agreement that would increase statewide power sector carbon dioxide emissions." Without any limiting language, and with the nature of how power is distributed through the power grids (which is explained fairly well in the opinion), the statute could force contracting parties to comply with the law when conducting business outside of Minnesota and the law is therefore invalid.

  •  This breaks my brain. The commerce clause (0+ / 0-)

    means that Minnesota HAS to buy electricity from North Dakota?  That North Dakota has some kind of special right to force Minnesota into taking its electricity?

    That can't be right.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Wed Apr 23, 2014 at 11:36:42 PM PDT

  •  Not sure that this will have much of an effect. (0+ / 0-)

    Minnesota is already in front regarding the exporting of wind power. And we're looking to create more.

    You could say that North Dakota is "tilting at windmills".

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