This post was originally published by Legal Planet. Reprinted with permission.
The headline news is that Minnesota has adopted a 2040 deadline for a carbon-free grid. The headline is accurate, but the law in question contains a lot of other interesting features that deserve attention.
Despite the law’s extremely unglamorous name (“Senate File 4”), this is a big step forward for the state, as well as evidence of how much difference it makes to have unified party control of state government. I’ll begin by describing those features and then turn to possible legal challenges, including a lawsuit by North Dakota to protect its coal generators.
Key Features of the Law
The first thing to note about the law is that it actually contains two sets of targets. One target is for utilities to get 90 percent of their power from carbon-free sources by 2035 (and 100 percent by 2040). The other target is for utilities to procure 55 percent of their power from “eligible” sources by 2035.
If you’re wondering how these are different, the answer seems to be that nuclear counts toward the more ambitious target, but only renewables count toward the other one. Another way of putting it is that by 2040, utilities must get all their power from zero-emission sources, with no more than 45 percent from nuclear. It’s also worth noting that utilities are allowed to buy clean energy credits to fulfill these obligations.
The bill also contains several other features that are worth noting:
Possible Litigation
What about litigation? North Dakota is definitely going to sue. It won a lawsuit against a previous Minnesota law limiting coal power, but I don’t think that ruling is going to help it much. That ruling from the Eighth Circuit came from a badly fractured panel. One judge thought the previous law banned interstate commerce, in part because the judge didn’t understand the basic physics of the electrical system. Another judge thought it was preempted because it regulated power purchases, and the third judge dissented.
The new law is much more carefully drafted to focus on the procurement decisions made by Minnesota utilities. A state commission had also given the earlier law an interpretation that made it more legally vulnerable. Overall, I don’t think the earlier precedent is going to do much to help North Dakota this time around.
Putting aside the earlier precedent, the state’s law seems to follow very much the same parameters as renewable energy programs across the country. Maybe a few details are subject to attack, but it seems unlikely that the courts will overturn the core provisions of the law.
Showing 2,818 results
Daniel Farber | March 2, 2023
The headline news is that Minnesota has adopted a 2040 deadline for a carbon-free grid. The headline is accurate, but the law in question contains a lot of other interesting features that deserve attention.
Daniel Farber | March 1, 2023
Last December, the Biden administration issued a rule defining the scope of the federal government’s authority over streams and wetlands. Congressional Republicans vowed to overturn the rule, using a procedure created by the Congressional Review Act. If Congress is going to repeal something, it should be the Congressional Review Act rather than the Biden rule.
Richard Pierce, Jr. | February 28, 2023
I recently accepted an invitation from Georgetown Journal of Law and Public Policy and the Pacific Legal Foundation to contribute to a symposium on “Ensuring Democratic Responsibility in the Administrative State.” I decided to begin with ideas that I borrowed from former U.S. Supreme Court Chief Justice William Howard Taft and former Justice Stephen Breyer.
James Goodwin | February 28, 2023
In today's "point" post on this blog, Member Scholar Richard Pierce described how centralized regulatory review conducted by the White House Office of Information and Regulatory Affairs (OIRA) is effective in ensuring the democratic accountability of the administrative state. In this companion post, I’ll offer a competing view of whether centralized review fulfills this objective in practice and what that means for the standards and safeguards designed to protect our health, safety, and lives.
Richard Pierce, Jr. | February 28, 2023
At the request of Senior Policy Analyst James Goodwin, I posted a brief summary of an essay in which I described the advantages that I see in expanding the scope of the White House Office of Information and Regulatory Affairs (OIRA) and combining its use of cost-benefit analysis with some doctrines that the U.S. Supreme Court has already adopted. I did so, and Goodwin suggested pairing it with a "counterpoint" post he subsequently prepared and also gave me the opportunity to rebut that counterpoint. I do so here.
Katlyn Schmitt | February 27, 2023
Everyone should have a fair chance to live the healthiest life possible, but that’s not always the case for many of our communities. That's particularly true of overburdened communities that bear the brunt of pollution and toxic chemical exposures. But help may be on the way in Maryland in the form of the Climate, Labor, and Environmental Equity Act of 2023, and I testified in strong support of the bill on February 23.
Marcha Chaudry | February 16, 2023
February started with news that's all too familiar in the United States: An incident involving highly toxic industrial chemicals sparked a large fire, threatening an explosion, forcing evacuations, and putting workers and community members directly in harm's way. In this case, the danger came from a derailed train in Ohio that was hauling cancer-causing vinyl chloride, used to make certain types of plastic; toxic phosgene, an industrial chemical that was also used as a chemical weapon in World War I; and other substances. But extreme, acute threats like the Ohio derailment aren't the only toxic chemical dangers facing workers and surrounding communities.
James Goodwin | February 15, 2023
Last week, the Biden administration took the next step on its important initiative to “broaden public engagement in the federal regulatory process,” announcing a set of proposed reforms and asking for more public feedback. As the announcement explains, these proposals reflect input the administration received during a public listening session and an open comment period it conducted last November — both of which I participated in along with several members of the public interest community. I was pleased to find that many of our recommendations were reflected in the proposals.
James Goodwin | February 9, 2023
On February 8, conservatives in the U.S. House of Representatives began their assault on the Clean Water Act with a hearing aimed at attacking the Biden administration’s rule to more clearly define the law's scope of protections. Center for Progressive Reform Member Scholar Dave Owen, a law professor at the University of California College of the Law in San Francisco, was the only witness invited to fend off these dangerous attacks.