Harvey Reiter Writes Article for on State Renewable Energy Standards


Over the last several decades nearly two-thirds of states in the United States have enacted renewable portfolio standards (RPS) obligating utilities to meet at least a portion of their energy needs with renewable resources.

As Stinson Leonard Street partner Harvey Reiter explains in a recent article for the Energy Law Journal, the RPS laws in many states have given preference to local renewable energy companies over their out-of-state competitors. Reiter calls these practices protectionism under the guise of environmentalism.

Whether states place limits on the amount of out-of-state renewable energy that can be used or ban the use of it completely, these practices are unconstitutional under the dormant Commerce Clause and fertile ground for lawsuits. Giving preference to home grown energy also hurts local economies and ultimately undermines the environmental goals of the renewable portfolio standards, Reiter argues. The piece, entitled “Removing Unconstitutional Barriers to Out-of-State and Foreign Competition from State Renewable Portfolio Standards: Why the Dormant Commerce Clause Provides Important Protections for Consumers and Environmentalists", was published in the May issue of the Journal.

The Commerce Clause is not, as some authors have argued, “an obstacle to the development of renewable energy; it is an asset in the consumer’s tool kit.” It prohibits states from erecting unfair trade barriers to other states and foreign nations, and allows instead for the free flow of commerce among the states.

“One might say it was the nation’s first North American Free Trade Agreement,” Reiter wrote.

The full article is available here.

Reiter is a partner in the firm’s Washington, DC office. He represents clients in the natural gas, electric utility and communications industries, primarily before the Federal Energy Regulatory Commission (FERC), the Federal Communications Commission and the federal appellate courts. Prior to entering private practice, Reiter was a staff attorney and then later Special Assistant to the Deputy General Counsel for Litigation with FERC.

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