By David Shaffer
Clean-energy interests on Monday jumped into a Minnesota-North Dakota appellate court battle, hoping to reverse a federal court ruling that tossed out a 2007 Minnesota ban on new coal-fired electricity generation.
Nine environmental and renewable energy groups and two energy experts filed four friend-of-the court briefs with the Eighth U.S. Circuit Court of Appeals challenging U.S. District Judge Susan Richard Nelson’s decision to strike down part of the Next Generation Energy Act.
In April, the judge sided with North Dakota’s attorney general and coal and utility interests to declare unconstitutional the law’s restrictions on new imports of coal-generated power. She said Minnesota violated the U.S. Constitution’s commerce clause by regulating business activities of out-of-state utilities.
Minnesota appealed, and has argued that the judge got it wrong, partly because regulators haven’t applied the 2007 law to utilities, including those complaining from North Dakota, a coal-mining state that relies on that fuel for nearly 80 percent of its electricity.
Although Midwest environmental groups earlier took part in the two-year-old legal fray, the ruling and the appeal have attracted national organizations. The American Wind Energy Association and the Solar Energy Industries Association, both Washington, D.C.-based trade groups, jointly filed a brief taking Minnesota’s side.
…Mark Templeton, an assistant law professor at the University of Chicago Law School, said the ruling, if upheld, could threaten a broad set of energy laws, including renewable energy portfolio standards that most states have enacted. Under such laws, utilities must get a certain percentage of electricity from renewable sources such as wind farms or solar projects.
Templeton said the utility industry is built on contracts to buy and sell power, a key issue raised in the Minnesota-North Dakota case. He said courts have long recognized states’ powers to regulate such transactions. He filed court papers on behalf of two energy experts, including Steven Gaw, the former head of the Missouri Public Service Commission who is now a consultant.
“We feel this really was a significantly different take on pretty well established law,” Templeton said in an interview.
“It could have a broad consequence or a narrow one, and we hope the court of appeals will overturn the ruling and uphold the law,” added Sean Donahue, an attorney representing the Sierra Club and other environmental groups that filed another supportive brief…
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