Two nonprofit groups and a Morrison resident on Monday filed a federal lawsuit alleging that Colorado’s 30 percent renewable energy standard is unconstitutional.
The suit, filed in Denver’s U.S. District Court, claims Colorado’s renewable energy mandate discriminates against other energy resources that are “less costly, less polluting, safer and more reliable” both inside and outside the state.
The interstate commerce clause of the U.S. Constitution doesn’t permit a state to impose burdens on the interstate market for electricity, lawsuit backers argue.
The suit says wind energy, in particular, costs more than traditional fuels and creates more pollution because coal or natural gas is needed to generate electricity when the wind doesn’t blow.
Colorado voters first passed a renewable energy standard in 2004, calling for 10 percent of the electricity sold by Colorado’s two major investor-owned utilities, Xcel Energy Inc. and Black Hills Energy, to come from renewable resources by 2015.
The state Legislature raised the goal to 20 percent by 2020 in 2007, and in 2010 raised it again to the current goal of 30 percent by 2020.
“The renewable energy standard creates a barrier to interstate commerce that’s impermissible under the Constitution – only Congress can regulate interstate commerce,” said Kent Holsinger, of Holsinger Law LLC in Denver. Holsinger is the local attorney on the lawsuit.
“Colorado said 30 percent of electricity that’s used in Colorado must be from these so-called renewable sources. That discriminates against other sources of electricity in and outside the state. The standard also creates a preference for renewable sources inside the state. We believe that’s a facial [on its face] violation of the clause,” Holsinger said.
The suit names Gov. John Hickenlooper; Barbara Kelley, director of the Colorado Department of Regulatory Agencies; Doug Dean, the director of the Colorado Public Utilities Commission; and the three Colorado Public Utilities Commission members – Chairman Ron Binz and commissioners James Tarpey and Matt Baker. Binz is expected to step down from the PUC on April 8.
Mike Saccone, spokesman for the Colorado Attorney General’s office, said the state hadn’t been formally served with the suit, “but it’s our position that the law is defensible. We will work with our client [state officials named in the suit] to defend the law.”
Saccone said the AG’s office reviews laws when passed and raises concerns when needed. Colorado’s renewable energy law was reviewed, and no concerns were raised by the office, he said.
The suit was filed by the American Tradition Partnership (ATP) and the American Traditional Institute (ATI) as well as Morrison resident Rod Lueck, president of Techmate Inc., based in Morrison. The company, which does business as C5 Solutions for Broker Dealers, offers back office systems to insurance brokers and dealers.
ATP was formerly known as Western Tradition Partnership, was incorporated in Colorado in 2007. It has offices in Washington, D.C., and Denver, according to Executive Director Donald Ferguson. The group changed its name in January to reflect a national focus.
ATP, according to its website, is a “501(c)(4) grassroots lobbying organization dedicated to fighting environmental extremism and promoting responsible development and management of land, water, and natural resources in the Rocky Mountain West and across the United States.”
ATI, based in Washington with offices in Denver and Garner, N.C., is a nonprofit organization that focuses on environmental issues and a belief that resources should remain in the private sector, rather than governmental, hands, according to its website.
David Schnare, an attorney with ATI, said similar suits have been filed in Maine and Massachusetts, but those were settled before trial.
“None proceeded to trial because the plaintiffs have always been people who wanted to participate in the program, but the state rules didn’t allow it,” Schnare said. “We aren’t asking for anything other than a better environmental quality and lower cost of electricity. Wind on the grid costs more and causes more pollution. A settlement would only arrive if the state agreed that wind isn’t a renewable resource.”