Last Monday, the Tenth Circuit Court of Appeals issued a decision upholding the Colorado Renewable Energy Standard in the face of a constitutional challenge.  Four conservation groups—Conservation Colorado Education Fund, Environment Colorado, Sierra Club and The Wilderness Society, all represented by Earthjustice and Western Resource Advocates— intervened to defend the Renewable Energy Standard.

Colorado’s Renewable Energy Standard Requirements Established in 2004
Colorado’s Renewable Energy Standard was created in 2004 when voters approved Amendment 37.  Among other things, the Renewable Energy Standard requires retail utilities to generate electricity from “eligible energy resources,” which include renewable resources like wind and solar.  The Renewable Energy Standard has been amended three times since it was first adopted in 2004.  In its existing form, it requires investor-owned utilities to obtain 30% of their retail electricity sales from qualifying renewable sources by 2020.  Cooperative electric associations are also required to obtain minimum amounts of renewable energy, based on their size.

Coal-Promoting Organization Challenges Wind Power and Renewable Energy Standard
In 2011, the Energy and Environment Legal Institute (“EELI”) (formerly known as the American Traditions Institute) filed a complaint challenging the constitutionality of the Renewable Energy Standard in federal court.  EELI is a non-profit organization that promotes coal energy and believes it is unclear whether human activities are causing climate change.

When it filed the case, EELI stated that its goal was to “put wind energy on trial.”  EELI argued that the Colorado Renewable Energy Standard violated the dormant commerce clause of the federal Constitution.  The dormant commerce clause prohibits states from enacting laws that discriminate against interstate commerce in favor of local goods or services.  A state statute can violate the dormant commerce clause if it: (1) clearly discriminates against out of state interests; (2) has the practical effect of controlling out-of-state commerce; or (3) imposes a burden on interstate commerce that is not commensurate with the local benefits of the state action.

Appellate Court Rejects Claims and Calls EELI Legal Arguments “Audacious”
In 2013, a federal district court rejected EELI’s claims.  EELI then appealed to the Tenth Circuit Court of Appeals.

On Monday the appellate court issued an order affirming the lower court’s decision rejecting EELI’s remaining claims.  The Court stated EELI “offers no story suggesting how Colorado’s mandate disproportionately harms out-of-state businesses.”  The Court acknowledged EELI’s arguments “would also risk serious problems of overinclusion,” as EELI’s rationale would also require courts to invalidate many state health and safety regulations.  The Court described EELI’s legal arguments as “audacious.”

Victory Helps Numerous State Renewable Energy Standards
The decision brings this lengthy litigation to a close but also, more importantly, affirms that Colorado’s Renewable Energy Standard is constitutional. Colorado’s Renewable Energy Standard has successfully reduced air pollution, addressed climate change, and fostered a clean energy economy within the state.  The victory reaches beyond Colorado, setting legal precedent that may affect numerous other state renewable energy standards.  More than 30 states have laws similar to Colorado’s Renewable Energy Standard, and they have increasingly come under legal attack by the fossil fuel industry and its supporters.  The Colorado Renewable Energy Standard litigation is the first appellate court decision squarely addressing the constitutionality of this type of state law, and it affirms the authority of state governments to adopt such laws.

You can read the Tenth Circuit Court of Appeals’ decision HERE.

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