January 27, 2015 – DENVER, CO. A Montana nonprofit industry trade association today filed a friend of the court brief at the U.S. Court of Appeals for the Eighth Circuit urging the court to affirm the ruling of a federal district court in Minnesota that a law enacted by Minnesota violates the Commerce Clause. The Montana Coal Council’s membership includes all major coal mine operators in Montana, holders of Montana coal reserves, transporters of coal, utilities using coal, and numerous suppliers and businesses both directly and indirectly involved in the coal industry. The Montana group is represented by Mountain States Legal Foundation (MSLF), a nonprofit, public-interest legal foundation, which joined in the brief. At issue is the constitutionality of a Minnesota law that limits importation of electricity as part of the state’s plan to reduce greenhouse gases and avert climate change. In a lawsuit brought by North Dakota and others, a Minnesota federal district court ruled, in April of 2014, the law’s “plain language applies to power and capacity transactions occurring wholly outside of Minnesota's borders[,]” and therefore is “a per se violation of the dormant Commerce Clause.”

“The mischief in which Minnesota is engaged is what the Founding Fathers sought to prevent,” said William Perry Pendley, president of MSLF.

In 2007, Minnesota enacted the Next Generation Energy Act (NGEA), which sets Draconian goals for greenhouse gas reductions; establishes one of the nation’s most aggressive array of renewable-energy standards; and also provides that “no person” may contribute to or increase “statewide power sector carbon dioxide emissions.” Thus, the law directly affects the electric power industry, which is regulated by the federal government and operated cooperatively to ensure hourly accuracy as to supply and demand in such a manner that neither the supplier nor the consumer knows the destination or origins of the electricity it generates or uses.

The Constitution grants Congress power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]” Implicit (dormant) in that grant are limits on state power to affect interstate commerce. The Supreme Court, while ratifying a state’s right to engage in “novel social and economic experiments,” interpreted the dormant Commerce Clause to bar state laws that “discriminates against or unduly burdens inter-state commerce and thereby ‘imped[es] free private trade in the national market place….’” When “legislation nominally of local concern is in point of fact aimed at interstate commerce, or by its necessary operation is a means of gaining a local benefit by throwing the attendant burdens on those without the state[,]” it runs afoul of the dormant Commerce Clause.


Diane L. Patrick
Assistant to the President
MOUNTAIN STATES LEGAL FOUNDATION
2596 S. Lewis Way
Lakewood, CO 80227
303/292-2021, Ext. 27
mountainstateslegal.org

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Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.