Standing as a potential model for future constitutional disputes, the Tenth Circuit Court of Appeals has endorsed the constitutionality of Colorado’s renewable portfolio standard (RPS), noting that the state’s RPS does not set down harmful regulations on out-of-state companies.
According to the court’s written opinion, Colorado’s RPS would do little to harm interstate commerce.
Per the current state laws in Colorado, electricity producers must ensure that a percentage of the power they sell off to Colorado customers must come from renewable energy sources. As a result, the Energy and Environment Legal Institute (EELI) — which has ties to the coal industry — filed a suit in federal court, arguing that this law would hamper out-of-state companies.
SEIA and the Interwest Energy Alliance — a partner of the American Wind Energy Association (AWEA) — interceded into the situation on behalf of the Colorado Public Utilities Commission.
Rhone Resch, president and CEO of SEIA, said: “Because electricity can go anywhere on the grid and come from anywhere on the grid, and because Colorado is a net importer of electricity, Colorado’s renewable energy mandate became a ‘target’ for people and groups hoping to freeze or rollback RPS programs – not only in Colorado, but also in other states around the nation.
“By ruling on the substance of the issue, we believe the Tenth Circuit Court of Appeals decision sends a clear signal that renewable energy standards are, in fact, legal under the Constitution’s dormant commerce clause. We applaud the court for its clear guidance.”
Tom Kiernan, CEO of AWEA, added: “This is a landmark day. This ruling affirms the ability of states to choose their own energy future as part of a national framework and interstate commerce.
“The nation’s 29 renewable energy standards continue to play a important role in diversifying the country’s electricity portfolio’s in order to advance key public policy interests – including protecting consumers against fuel-price risk, improving overall system reliability and creating significant clean air and water benefits such as reducing carbon pollution and conserving fresh water.”
John Putnam of Kaplan Kirsch & Rockwell — standing as Interwest’s outside counsel — argued the case in front of the Tenth Circuit panel with Will Allen of the Colorado Attorney General’s Office, Neil Levine of SEIA, Michael Freeman and Michael Hiatt of Earthjustice and Erin Overturf from Western Resource Advocates.
Sarah Propst, executive director of the Interwest Energy Alliance, said: "The Court has reaffirmed that Colorado's renewable energy standard is within the state’s constitutional powers. The wind and solar industries have responded to Colorado's supportive policy environment by investing over $4.5 billion dollars of private capital in generation projects, manufacturing plants, and supply chain operations. This decision validates Colorado's move toward clean energy."
Colorado stands as the first US state to approve a renewable energy standard by way of a popular vote from its citizens.