Industry groups argue at appeals court against anti-coal Minnesota law

The Montana Coal Council and Mountain States Legal Foundation (MSLF) on Jan. 30 filed an amicus curiae brief at the U.S. Court of Appeals for the Eighth Circuit in support of the state of North Dakota, urging the court to affirm the judgment of the District Court that a Minnesota statute that restricts use of coal-fired power in the state violates the dormant Commerce Clause.

The Montana Coal Council is a nonprofit industry association whose membership includes all major coal mine operators in Montana, holders of Montana coal reserves, transporters of coal, utilities using coal, and numerous suppliers and businesses directly and indirectly involved in the coal industry. “Montana Coal Council members have a strong interest in this case because Minn. Stat. § 216H.03 negatively affects the production and transportation of coal from Montana to electricity generators that supply electricity to the regional electricity grid operated by the Midcontinent Independent System Operator (‘MISO’),” the council said.

“This case raises an important constitutional question that will affect many interests, particularly those of the coal and electric power industries. The Montana Coal Council and MSLF believe that their unique free enterprise and legal advocacy perspectives will assist this Court. More specifically, the following amicus curiae brief demonstrates that Minn. Stat. § 216H.03, subd. 3, subsect. (2)– (3) violate the dormant Commerce Clause, because it is precisely the type of legislation that can lead to Balkanization and disrupt the more perfect Union the Framers of the Constitution envisioned.

“The crux of the issue is that Minn. Stat. § 216H.03, specifically subdivision 3, subsections (2)–(3), reach well beyond Minnesota’s borders to regulate any person engaged in activities that may lead to generation, transmission, or wholesale transactions involving coal-generated electricity, even though that electricity may not be consumed in Minnesota. The stated purpose of Minn. Stat. § 216H.03 is to curtail carbon dioxide emissions globally, which it does by directly and discriminately regulating the purported source of carbon dioxide emissions— out-of-state coal-fired power plants.

“Minn. Stat. § 216H.03’s burdens on non-Minnesota entities and their explicit purpose of regulating carbon dioxide emissions wholly outside of Minnesota is clearly excessive. It places non-Minnesota entities in a straightjacket—sacrifice entering into business transactions or investments to satisfy non-Minnesota load to benefit their members/shareholders, or seek regulatory approval in the form of costly offsets from Appellants. This burden is not minor, but rather has major implications—like higher rates for members, especially those outside of Minnesota. Furthermore through its prohibitions and in-state favored offset exceptions, Minnesota will not be bearing the true cost of its regulation.”

The appeals court on Jan. 30 notified the parties that absent the filing of a formal objection within eight days, a motion of the American Public Power Association, National Rural Electric Cooperative Association and the Missouri Joint Municipal Electric Utility Commission for leave to participate as amicus curiae in support of the lawsuit will be deemed as granted.

On Jan. 28, the American Coalition for Clean Coal Electricity and the National Mining Association (which represents major U.S. coal producers) asked the court for leave to file their own amicus curiae brief in support of the plaintiffs.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.