Colorado Renewable Portfolio Standard Upheld By Federal Appeals Court

An important decision supporting production of cleaner electricity was issued July 14 by the United States Tenth Circuit Court of Appeals upholding the constitutionality of Colorado’s renewable portfolio standard. The decision means the Colorado RPS does not impose unlawful regulations on out-of-state companies that supply electricity to the state.

The current state law requires electric generators to ensure that a percentage of the electricity they sell to Colorado consumers must come from renewable sources. This law prompted the Energy and Environment Legal Institute (EELI), noted for its longtime alliance with the coal industry, to file suit in federal court, arguing that out-of-state companies were unfairly and adversely impacted by this law.

The Solar Energy Industries Association (SEIA) and the Interwest Energy Alliance, a regional partner of the American Wind Energy Association (AWEA), were two of several key organizations intervening on behalf of the Colorado Public Utilities Commission in support of the state’s RPS.

“Because electricity can go anywhere on the grid and come from anywhere on the grid, and because Colorado is a net importer of electricity, Colorado’s renewable energy mandate became a ‘target’ for people and groups hoping to freeze or rollback RPS programs – not only in Colorado, but also in other states around the nation,” said SEIA President CEO Rhone Resch in a press announcement.  “By ruling on the substance of the issue, we believe the Tenth Circuit Court of Appeals decision sends a clear signal that renewable energy standards are, in fact, legal under the Constitution’s dormant commerce clause. We applaud the court for its clear guidance.”

“This is a landmark day,” added AWEA CEO Tom Kierman.  “This ruling affirms the ability of states to choose their own energy future as part of a national framework and interstate commerce. The nation’s 29 renewable energy standards continue to play a important role in diversifying the country’s electricity portfolio’s in order to advance key public policy interests – including protecting consumers against fuel-price risk, improving overall system reliability and creating significant clean air and water benefits such as reducing carbon pollution and conserving fresh water.”

The decision was not viewed in the same light by EELI officials. “The Tenth Circuit decision blatantly misrepresents the law and does so by simply ignoring case after case of precedential Supreme Court and Tenth Circuit jurisprudence,” said David Schnare, EELI general counsel in the organization’s counter-press announcement. EELI had more fighting qords to add.

In a brief, harmful opinion straying from well-established precedent, on Monday the US Court of Appeals for the Tenth Circuit in E&E Legal Institute v. Epel condemned the 128,000 poorest families in Colorado, many living well below the federal poverty line, to perpetual Energy Poverty. The Court admitted that its decision allows Colorado to burden its citizens with higher prices for electricity, under a scheme transferring income from Colorado’s poorest to an entrenched lobby; in so doing it punishes those least able to pay for an environmentally harmful policy ostensibly adopted in the name of the environment and human health, but which causes the premature death of 250 Coloradans every year it remains in place.

In favor of the RPS ruling, Colorado renewable energy leader Interwest Energy Alliance praised the court’s decision to uphold the law.

“The Court has reaffirmed that Colorado’s renewable energy standard is within the state’s constitutional powers,” said Sarah Propst, Executive Director of the Interwest Energy Alliance. “The wind and solar industries have responded to Colorado’s supportive policy environment by investing over $4.5 billion dollars of private capital in generation projects, manufacturing plants, and supply chain operations. This decision validates Colorado’s move toward clean energy.”

Interwest’s outside counsel — John Putnam of Kaplan Kirsch & Rockwell — argued the case in front of the Tenth Circuit panel with Will Allen of the Colorado Attorney General’s Office, Neil Levine for SEIA, Michael Freeman and Michael Hiatt of Earthjustice and Erin Overturf of Western Resource Advocates.

“The Tenth Circuit was very clear that Colorado’s renewable energy standard is fully consistent with the Constitution,” said John Putnam, an attorney from Kaplan Kirsch & Rockwell who argued the case on behalf of Interwest Energy Alliance. “States have the power under our Constitution to develop renewable standards that benefit the economy and environment.”

Importantly, Colorado was the first state in the US to adopt a renewable energy standard by a popular vote of its citizens. According to the press announcement, this law has “widely benefited the state” as wind power supports up to 7,000 well-paying jobs, including manufacturing jobs at 22 Colorado facilities. In addition, wind has drawn $7.8 billion in capital investment to the state’s economy.

To date, the country’s 29 RPSs have created similar success stories across the US by helping to diversify state energy portfolios that directly save consumers money and provide reliable service, as well as rural economic development, water conservation, and pollution reduction benefits.

For example, Hawaii, California, Nevada, Colorado, Minnesota, Connecticut, and Oregon all have effective RPS requirements of 25% or greater. New wind farms in these states have attracted over $30 billion in private investment, created over 12,000 jobs there, and are now paying farmers, ranchers and other landowners over $45 million a year to lease sites for turbines.  Solar industry growth in those seven states has led to more than 72,000 jobs and over $13 billion invested in solar installations in 2014 alone.

The Texas renewable standard signed into law by then-Governor George W. Bush was increased in 2005 and met seven years ahead of schedule. Six states — California, Michigan, New York, Minnesota, Illinois, and Vermont — are seriously debating an increase in their RPS this year.

This decision supporting renewable electricity will be heard loud and clear nationwide.

Image: Solar wind turbines at sunset via Shutterstock