Harvey Reiter Writes for Law360 on Colorado's Renewable Energy Standard.

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Stinson Leonard Street LLP attorney Harvey Reiter published an article recently in Law360.

The column explores a recent decision by the 10th Circuit Court of Appeals rejecting a challenge to Colorado's renewable energy standard. The case involved a claim that, by favoring renewable energy sources over electric generation fueled by coal or natural gas, Colorado had violated the Commerce Clause of the United States Constitution.

Reiter says that in reading the decision as a general endorsement of the many state laws that have adopted “renewable portfolio standards,” some renewable energy advocates have overstated the reach of the decision. While the Constitution allows states to favor renewable energy over electricity produced from coal, oil or other fossil fuels, he explains, it still forbids states from preferring in-state over out-of-state renewable energy producers. That’s a problem, he adds, because many of the state laws that promote renewable energy also contain explicit preferences for renewable energy produced in-state.

The U.S. Supreme Court has concluded many times over that the Commerce Clause was designed to protect consumers against the protectionist instincts of state and local legislators. By requiring utility companies to utilize often in-state renewable energy sources when less costly renewable generation is available from foreign suppliers and suppliers in other states, he adds, states are unnecessarily driving up the cost of electricity to consumers.

"As the costs of meeting renewable portfolio goals and standards climb, consumers and state legislators may find common ground: By removing barriers to out-of-state competition that the legislators know are vulnerable to constitutional challenge anyway, they may make it easier — and cheaper — to promote the development of renewable resources," Reiter writes.

Read the full story: "Think 10th Circ. Endorses State RPS? Think Again"

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