Why North Dakota Could Sue Minnesota Over Clean Energy

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In early February, Minnesota lawmakers pass the law Requiring state power utilities to provide customers with 100 percent clean electricity by 2040—one of the most ambitious clean energy standards in the United States. Democrats, who wrested control of the state legislature in last year’s midterm elections, were elated. But not everyone in the area is excited about Minnesota’s clean energy future. The state may soon face a legal challenge from its next door neighbor, North Dakota.

Not long after the Minnesota governor signed the bill into law, the North Dakota Industrial Commission, the three-member body that oversees North Dakota’s utilities, unanimously agreed to consider a lawsuit challenging the new legislation. North Dakota regulators said the law violates North Dakota’s rights under the US Constitution’s idle trade clause by limiting the types of energy it can contribute to Minnesota’s energy market.

“This isn’t about the environment. This is about state sovereignty,” North Dakota Gov. Doug Burgum, chair of the Industry Commission, said. He said. Minnesota Gov. Tim Walz, a staunch supporter of clean energy legislation, was quick to respond. “I am confident that this law is strong,” he said to reporters. “I trust it will hold up because it was written to do exactly that.”

The potential showdown illuminates an underappreciated obstacle to the energy transition: interstate beef. Disagreements among neighboring countries threaten to make the difficult task of weaning regional energy grids off fossil fuels more complex and costly.

North Dakota hasn’t filed a lawsuit yet, but the industry commission has requested $3 million from the state legislature for legal fees on top of the $1 million the commission has already earmarked for efforts from the “Lignite Research Program” — an initiative funded by taxes on fossil fuel revenues that Researches and develops new coal projects in the state.

It’s no mystery why North Dakota was so quick on offense. Most of the state’s energy comes from coal, and it sells about 50 percent of the electricity it generates to neighboring states. Its largest customer is Minnesota. A new Minnesota law mandates that all electricity sold in the state come from renewable sources on a set schedule — 80 percent carbon-neutral by 2030, 90 percent by 2035, and 100 percent by 2040. That means energy Coal-generated in North Dakota will be out of the Minnesota electricity market.

North Dakota regulators are confident they will prevail in a legal dispute, but Burgum said the state is waiting to see if Minnesota amends its law before taking the dispute to court. “This is something that if they make a small change we can avoid the certainty of a lawsuit that would likely have a certain outcome to it,” the governor said in early February. The state successfully sued Minnesota over a 2007 law that sought to ban coal imports into the state from new sources. But outside legal experts aren’t so sure the plaintiffs will prevail this time around.

“Minnesota is not legally required to subsidize power plants in North Dakota,” Michael Gerrard, founder of the Sabine Center for Climate Change Law at Columbia University, told Grist. He said that the state will find itself in legal trouble if it distinguishes between power plants inside and outside the country. For example, if Minnesota law accepted coal-fired power from plants within its borders but banned coal power from North Dakota, that would almost certainly violate federal interstate commerce law. But that’s not what Minnesota suggested. The country requires clean energy in all areas, from within the country and external sources.

Gerrard referred to a similar case in 2015 in Colorado. A fossil fuel industry group has sued the state over the renewable energy standard it passed in 2004 — the first clean energy standard to pass by popular vote in the United States. The group argued that the standard exceeded Colorado’s authority under the US Constitution, a similar argument that North Dakota threatens to make. But a federal court standard supported. The decision was written by Neil Gorsuch, who is now one of the more conservative justices on the US Supreme Court.

“We have a conservative Supreme Court justice who says the state standard for clean energy is good,” Gerrard said. “So I think the expectation is, if this case reaches the Supreme Court, it will be in favor of the state of Minnesota.”

This is important, especially from a climate perspective. With the Republicans in control of the US House of Representatives, the chances of new climate legislation being passed in that Congress are slim. Girard said that looking into the future, progress being made in combating climate change will likely happen at the state level. “Movements by some blue nations to do more on climate change will certainly be some of the central elements of climate action over the next two years,” he said. He predicts that red states and the fossil fuel industry will continue to file lawsuits to try to block clean energy mandates. “The industry will fight back,” he said.

This article originally appeared in grist in https://grist.org/politics/why-north-dakota-is-preparing-to-sue-minnesota-over-clean-energy/. Grist is an independent, non-profit media organization dedicated to telling stories of climate solutions and just futures. Learn more through grist.org


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