Alexander Jury

This Note analyzes whether states can assert their right to a carbon free future via regulation of electric industry greenhouse gas (GHG) emissions. Specifically, the purpose of this Note is to show that, based on the U.S. Supreme Court Commerce Clause jurisprudence surrounding regulation of the energy industry, the District Court’s ruling in North Dakota v. Heydinger[1] was improper. The Eighth Circuit Court of Appeals should reverse, finding Minnesota’s Next Generation Energy Act constitutional.

With Congress gridlocked,[2] states will be on the forefront of pioneering energy regulation to mitigate the adverse effects of climate change.[3] Some states have already instituted various legal means to achieve their desired carbon footprint.[4] Meanwhile, utility companies—especially those generating electricity from fossil fuels—frequently oppose states’ efforts to lower carbon dioxide emissions.[5]

As the states struggle to rein in their GHG emissions, legislation to curb electric industry emissions faces a daunting challenge: the Dormant Commerce Clause. Without specific federal laws controlling electric industry carbon emissions, it is up to the states to figure out how to restrict GHG emissions from electric power plants within their boundaries.[6] However, these in-state power systems “are subject to ‘leakage,’” as a result of the free-flowing nature of electrons.[7] Simply put, “leakage” means that electricity providers may still receive power from “extra-regional” sources that are unregulated due to the interconnected nature of the United States power grid.

One possible solution for the “leakage” issue is for states to “directly or indirectly ban or penalize the purchase of power from other sources” based on the level of carbon emissions associated with producing that power.[8] However, as states implement this solution, other states with differing views on GHG controls are claiming that the regulation is invalid under the Dormant Commerce Clause.[9] Some federal courts are inclined to agree.[10]

James Madison once wrote, “[t]he powers delegated to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”[11] States must assert their right to a carbon free future if the United States is going to seriously curtail its greenhouse gas emissions. To that end, states must assert their role through climate legislation. However, in doing so, states must be careful in drafting statutory language and scope in order to avoid federal interference under the Dormant Commerce Clause.  

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] See North Dakota v. Heydinger, No. 11–cv–3232, 2014 WL 1612331, at *3 (D. Minn. Apr. 18, 2014) (stating that provisions of Minnesota’s Next Generation Energy Act violate the Dormant Commerce Clause).

[2] See Steve Peoples & Erik Schelzig, Joe Biden Calls on Governors to Lead Nation Out of ‘Mess’, Huffington Post (July 11, 2014, 4:57 PM), http://www.huffingtonpost.com/2014/07/11/joe-biden-governors-infrastructure_n_5579177.html (stating that political gridlock is crippling Washington).

[3] See Katherine Bagley, Climate Change Law in New York Bridges Partisan Divide, Inside Climate News (Aug. 5, 2014), http://insideclimatenews.org/news/20140805/climate-change-law-new-york-bridges-partisan-divide (explaining that states must “fend for themselves” where climate legislation is concerned).

[4] Id.

[5] See Anna Carlson, Commerce Clause Challenges and State Climate Policy, Legal Planet (Jan. 6, 2012), http://legal-planet.org/2012/01/06/commerce-clause-challenges-and-state-climate-policy/ (listing various challenges, by utilities, to state climate legislation).

[6] See Joseph Allan MacDougald, Why Climate Law Must Be Federal: The Clash Between Commerce Clause Jurisprudence and State Greenhouse Gas Trading Systems, 40 Conn. L. Rev. 1431, 1432 (2008) (stating there is an absence of federal law “on regulatory responses to greenhouse gas-based climate problems”).

[7] Id.

[8] Id.

[9] Id.

[10] Id; North Dakota v. Heydinger, No. 11–cv–3232, 2014 WL 1612331, at *3 (D. Minn. Apr. 18, 2014).

[11]The federalist No. 45, at 292–93 (Alexander Hamilton) (Clinton Rossiter ed., 1961).