Colorado Renewable Standard Upheld, Good News For Renewable Standards Elsewhere

Jul 14, 2015

The 10th Circuit Court of Appeals has upheld Colorado’s renewable energy standard, a decision that has renewable energy advocates cheering.

The decision in Energy and Environment Legal Institute v. Epel is also encouraging news for other states with renewable energy standards, said environmental advocates. A number of lawsuits have been filed that challenge state-level renewable energy standards, but this is the first to be decided, said Erin Overturf, an attorney with Western Resource Advocates who worked on the case.

“I know a lot of people around the country have been watching this case to see what was going to happen," he said.

The decision could be seen as a bellwether for which way other, similar cases might be decided, said Overturf.

It also allows the state to move forward with its standard. Although the case could be appealed for another hearing by all judges of the 10th District Court or even up to the federal Supreme Court, that is probably unlikely, especially since a lower court already upheld the state’s standard, Overturf said.

Colorado’s standard requires utilities to source 30 percent of their energy from renewable power sources by 2020. This requirement, first passed by voters in 2004, was challenged in court by the Energy and Environment Legal Institute. That group, formerly the American Tradition Institute, is perhaps best known for seeking the correspondence of famed climate scientist Michael Mann.

David Schnare, EELI’s attorney, said in a statement that this decision ignores “case after case of precedential Supreme Court and Tenth Circuit jurisprudence.”

The three 10th District Court judges who heard the case disagreed. The standard would violate the U.S. Constitution’s Commerce Clause if it placed more of a burden on out-of-state fossil fuel energy producers than in-state ones, but that isn’t the case, the court wrote.

“If there’s any disproportionate adverse effect felt by out-of-state producers or any disproportionate advantage enjoyed by in-state producers, it hasn’t been explained to this court,” the decision reads.

You can read the full decision here [.pdf].