On December 7, 2015, the U.S. Supreme Court denied a petition
for writ of certiorari in Energy & Environment Legal Institute
v. Epel , No. 15-471, which sought to overturn the United States
Court of Appeals for the Tenth Circuit's July13, 2015 opinion,
793 F.3d 1160, affirming a federal district court's judgment
upholding Colorado's Renewable Energy Standards.
Petitioners challenged the constitutionality of a Colorado statute
and related regulations (the "Renewable Energy
Standards") requiring "qualified retail utilities"
to "generate, or cause to be generated," electricity from
Colorado-approved renewable sources in specified minimum amounts.
Specifically, the Renewable Energy Standards require 30 percent of
electricity supplied by investor-owned utilities to be obtained
from Colorado-approved renewable sources by 2020.
Petitioners argued that the Renewable Energy Standards eliminate
competition with other states by requiring a specified amount of
electricity to come from renewable sources and then limiting what
qualifies as a renewable source. One example of in-state favoritism
cited by petitioners is that the Renewable Energy Standards do not
consider ocean thermal and ocean wave electricity
generation—methods that cannot themselves be generated within
Colorado's borders—as approved renewable sources, even
though other states, such as California, do. Petitioners argued the
Renewable Energy Standards thereby favor Colorado over other states
by approving methods of electricity generation that can be
generated within Colorado.
While petitioners argued in their petition for writ of certiorari
that Colorado's Renewable Energy Standards violate the Commerce
Clause, Full Faith and Credit Clause, and Due Process Clauses, the
only issue before the Tenth Circuit was whether the Renewable
Energy Standards violate the dormant Commerce Clause under the line
of cases stemming from Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511
(1935). The Tenth Circuit found that there were only three cases
total in this line: Baldwin; Brown-Forman Distillers Corp. v. New
York State Liquor Authority, 476 U.S. 573 (1986); and Healy v. Beer
Institute, Inc., 491 U.S. 324 (1989). The court explained that the
common thread among these cases is that they involved "(1) a
price control or price affirmation regulation, (2) linking in-state
prices to those charged elsewhere, with (3) the effect of raising
costs for out-of-state consumers or rival businesses." The
Tenth Circuit held that Colorado's statute did not fall within
the bounds of these cases because "it isn't a price
control statute, it doesn't link prices paid in Colorado with
those paid out of state, and it does not discriminate against
out-of-staters." It further noted that the Renewable Energy
Standards equally hurt in-state and out-of-state
fossil fuel producers that provide energy to the grid, while
equally helping in-state and out-of-state renewable energy
producers.
Although the Tenth Circuit upheld Colorado's Renewable Energy
Standards under the Baldwin line of cases—a decision that
will not be reviewed by the Supreme Court—it left the door
open to a challenge under other lines of dormant Commerce Clause
cases, namely Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)
("allowing judges to strike down state laws burdening
interstate commerce when they find insufficient offsetting local
benefits"), and City of Philadelphia v. New Jersey, 437 U.S.
617 (1978) ("appl[ying] to state laws that 'clearly
discriminate' against out-of-staters").
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