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Energy & Environmental Legal Institute v. Epel

ELR Citation: 45 ELR 20134
Nos. 14-1216, (10th Cir., 07/13/2015)

The Tenth Circuit upheld on constitutional grounds Colorado's mandate that 20% of the electricity that generators sell to Colorado consumers come from renewable sources. A conservative energy group claimed that the renewable energy standard will harm out-of-state coal producers in violation of the Commerce Clause. It argued that because Colorado consumers receive their electricity from an interconnected grid serving 11 states and portions of Canada and Mexico, some out-of-state coal producers will lose business with out-of-state utilities who feed their power onto the grid as a result of the mandate. The group cited Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935), which pertains to price control and price affirmation laws that control "extraterritorial" conduct, to support its dormant Commerce Clause claim. But the law isn't a price control statute, it does not link prices paid in Colorado with those paid out of state, and it does not discriminate against out-of-staters. The group failed to show any disproportionate adverse effect felt by out-of-state producers or any disproportionate advantage enjoyed by in-state producers. To the contrary, 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. The lower court decision was therefore affirmed.