Court backs Colorado renewables mandate

OREANDA-NEWS. July 14, 2015. A federal appeals court today upheld Colorado's renewable electricity standard (RES), saying the mandate does not violate the US Constitution.

The US 10th Circuit Court of Appeals in a unanimous ruling upheld a lower court decision that said the RES did not seek to regulate activities outside of Colorado, in violation of the Constitution's commerce clause. The court said the plaintiffs in the case, the Energy and Environment Legal Institute (EELI), failed to show the RES unfairly burdens its members, which include coal producer Alpha Natural Resources.

"To be sure, fossil fuel producers like EELI's member will be hurt. But as far as we know, all fossil fuel producers in the area served by the grid will be hurt equally and all renewable energy producers in the area will be helped equally," the court said.

The Colorado mandate requires investor-owned utilities to meet 30pc of their sales with renewables by 2020, while electric cooperatives and municipal utilities have targets of 10-20pc by 2020, depending on how many customers they serve.

The institute, formerly known as the American Tradition Institute, sued Colorado in 2011, saying the RES violates the Constitution because it seeks to discriminate against out-of-state coal. Last year, a federal district court judge rejected the lawsuit, saying the group had "utterly failed" to show that any burdens caused by the program were excessive in relation to its local benefits.

The appeal focused only on one of three interstate commerce-related arguments rejected by the lower court. The remaining two issues could still be raised again in another lawsuit, the appeals court said.

The institute's lead counsel, David Schnare, said the group is unlikely to ask the US Supreme Court to review the case as it is unlikely the court would grant a petition.

Schnare blamed the 10th Circuit decision on politics, saying the court showed a "political unwillingness to upset what the Colorado legislature has done."