Wednesday, July 20, 2016

We thought 'dormant clause' described Santa in summer

To win a point in some now forgotten environmental discussion, a friend referred to the "dormant clause." You know what that is, don't you? he asked with a devilish grin. Of course, I replied weakly before recalling an engagement requiring my  attendance.


Dormant clause, what the hell is that, I wondered. Summertime for Santa?

Well, now I know. And for the rest of you who also did not go to law school, three attorneys at K&L Gates explain what the dormant clause is and how it has become a key point in court challenges over how far states can go to regulate green house gas (GHG).

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Ankur K. Tohan, Alyssa A. Moir and Gabrielle E. Thompson
set up their article with the following four pellucid paragraphs before diving deeper into the legal thicket.


"Many states have enacted their own laws to regulate greenhouse gas (“GHG”) emission reductions.  Although the specific requirements of each state law differ, many of the laws incentivize the use of renewable energy and discourage, or even prohibit, the use of non-renewable energy.
"As these laws have been passed, several state-imposed renewable energy standards have been challenged on the ground that they impermissibly limit interstate commerce.  These legal challenges, which raise complicated issues of federalism, have had mixed results.  Nonetheless, these cases ask a question that is becoming increasingly pressing: what are the limitations on a state’s authority to regulate GHGs?
"Recently the Eighth Circuit Court of Appeals weighed in on that issue in North Dakota v. Heydinger.[1]  In Heydinger, North Dakota, along with electric power cooperatives and coal companies, filed suit against Minnesota challenging the constitutionality of certain provisions of Minnesota’s 2007 Next Generation Energy Act (“NGEA”), a statute that regulates aspects of the use and generation of electric energy.[2]  The challenged provisions prohibited any person from importing or committing to import power from an out-of-state, new large energy facility, or from entering into a new long-term power purchase agreement that would increase Minnesota’s statewide carbon dioxide emissions.[3]  If an entity could demonstrate to the Minnesota Public Utility Commission’s satisfaction that it would offset prohibited carbon dioxide emissions, it could be exempted from the prohibitions.[4]  The plaintiffs in Heydinger argued that the GHG provisions of the NGEA violated the dormant Commerce Clause of the U.S. Constitution.[5] 
"The Commerce Clause authorizes Congress to “regulate Commerce with foreign Nations, and among the several States.”[6]  Although the Commerce Clause does not expressly limit authority of states to regulate interstate commerce, the United State Supreme Court has interpreted the Commerce Clause to contain an implicit limitation on state authority.[7]  This implicit limitation is known as the dormant Commerce Clause, which prohibits states from passing laws that unduly interfere with interstate commerce.[8] "
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