This Article will focus specifically on potential challenges to state energy policy based on the “extraterritoriality doctrine” of the dormant Commerce Clause. In doing so, it considers two recent lawsuits involving dormant Commerce Clause challenges to state energy policy. The first is the lawsuit against the State of California over its Low Carbon Fuels Standard (LCFS) program on grounds that it discriminates against Midwest ethanol producers in favor of California ethanol producers and regulates extraterritorially in violation of the dormant Commerce Clause. The second is the lawsuit by the State of North Dakota, the North Dakota lignite coal industry, and regional electric cooperatives against the State of Minnesota over provisions of its Next Generation Energy Act (NGEA). The NGEA prohibits new coal-fired electricity generation in the state and prohibits imports of new coal-fired generation from outside the state without accompanying CO2 offsets. In that case the plaintiffs allege, among other things, that the law discriminates against out-of-state coal interests and regulates extraterritorially in violation of the dormant Commerce Clause. This Article will discuss both of the cases in detail to highlight the potential challenges associated with state efforts to use energy policy to address climate change, and to suggest how to place those cases in today’s dormant Commerce Clause jurisprudence.
Alexandra B. Klass & Elizabeth Henley,
Energy Policy, Extraterritoriality, the Dormant Commerce Clause,
San Diego Journal of Climate & Energy Law.
Available at: http://digital.sandiego.edu/jcel/vol5/iss1/6