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 RES.
Colorado’s RES was created in 2004 when voters approved Amendment 37. Among other things, the RES requires retail utilities to generate electricity from “eligible energy resources,” which include renewable resources like wind and solar. The RES 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.
In 2011, the Energy and Environment Legal Institute (“EELI”) (formerly known as the American Traditions Institute) filed a complaint challenging the constitutionality of the RES 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 the Colorado RES 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.
On Friday, the federal court issued an order rejecting EELI’s remaining claims. The Court determined that, as a matter of law, EELI’s case must fail. The Court determined the RES acts as a geographically neutral incentive for companies to generate electricity in a manner that complies with the RES and stated “the dormant Commerce Clause does not prevent states from creating incentives structures to attract certain kinds of business.” The Court went on to state EELI had failed to demonstrate that the RES burdens interstate commerce.
The Court’s decision brings this lengthy litigation to a close but also, more importantly, affirms Colorado’s RES is constitutional. Colorado’s RES 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 portfolio standards. More than 30 states have laws similar to Colorado’s RES, and they have increasingly come under legal attack by the fossil fuel industry and its supporters. The Colorado RES litigation is the first 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 Court’s Order granting Summary Judgment HERE.