North Dakota sues Minnesota over emissions regulations

[JURIST] North Dakota Wednesday filed suit in US District Court for the District of Minnesota [official website] against Minnesota Attorney General Lori Swanson [official website] and other state officials over Minnesota's restrictions on emissions from out-of-state electricity generation. North Dakota's lawsuit [complaint, PDF] against its neighbor state seeks declaratory and injunctive relief against provisions of Minnesota's Next Generation Energy Act of 2007 (NGEA) [materials], which prohibits "the importation into [the state] of power from any 'new large energy facility' that 'would contribute to statewide power sector carbon dioxide emissions,'" and the creation of any subsequent purchase agreements. The suit charges Minnesota officials with regulating beyond state borders and so interfering with the free flow of goods and service in an unconstitutional contravention of the Commerce Clause [LII backgrounder]:

These prohibitions on the importation of power from new large energy facilities from outside Minnesota and new long-term power purchase agreements for power generated outside of Minnesota imposed by the NGEA are facially discriminatory and have been discriminatory as applied. . . . In practical effect, through the implementation and application of these statutes, Defendants have subjected energy projects located outside of Minnesota and/or in which Minnesota-based entities have no interests to onerous regulatory burdens.
North Dakota Attorney General Wayne Stenehjem [official website] faulted [press release, PDF] Minnesota Governor Mark Dayton for the necessity of the lawsuit, as earlier this year Dayton vetoed a successful bi-partisan move in the Minnesota Legislature [official websites] to repeal the NGEA. The vetoed measure was passed after four years of lobbying by North Dakota. North Dakota power plants export most of their generated power to other states, including Minnesota.

Power stations in Minnesota generate approximately sixty percent of their electricity from coal, all of which is imported, and Minnesota imports electricity directly from other states like North Dakota. The NGEA was signed into law [JURIST report] by former governor Tim Pawlenty, and was intended to reduce greenhouse gas emissions while promoting renewable energy sources and greater energy efficiency. Such measures have traditionally met strong resistance from existing electricity producers and other industries and areas of business, as legislation of this kind is often accompanied by increased energy costs. Last month a federal court ruled that the US is not required to reduce emissions [JURIST report] to protect polar bears. That decision was handed down about a week after another federal judge ruled against [JURIST report] the US Environmental Protection Agency (EPA) [official website] regarding stricter guidelines passed in 2009 for its process of granting permits used by coal companies for mountaintop removal mining in Appalachia. In September the US House of Representatives [official website] passed a bill [JURIST report] that would effectively block a number of proposed EPA regulations aimed at reducing emissions. Earlier in September, President Obama requested the withdrawal of national smog standards [JURIST report] proposed by the EPA. The stricter smog standards, proposed by the EPA in January 2010 [JURIST report], would have replaced the Bush administration's broader 2008 national smog regulations [text], complying with scientific recommendations. In his statement, Obama recognized recent efforts to improve environmental protection, but emphasized the need to trim down regulations in light of the economic downturn.

 

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