Federal Judge: Michigan Renewable Energy Mandate Unconstitutional
Court cases may deflate wind energy in Michigan
Court battles over the Colorado and Minnesota renewable energy mandates could potentially mark the beginning of the end for similar laws in other states, including Michigan.
In June, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit Court wrote that Michigan's in-state renewable energy mandate violates the Commerce Clause and is therefore unconstitutional. Judge Posner's statement did not have the weight of law because the issue wasn't directly before him. Nonetheless, many received it as a wake-up call and possible harbinger of things to come.
In 2008, the Michigan Legislature passed a law mandating that 10 percent of the state’s energy be produced by in-state renewable energy sources by 2015. This law was supposedly enacted to reduce greenhouse gas emissions. However, aspects of it appear inconsistent with that goal.
The law did not include monitoring requirements to test what effects, if any, the mandate actually has on emissions. Also, although there are several so-called renewable energy sources with wind energy the predominate source used to meet the mandate in Michigan. This has been so in spite of the fact that the federal government says Michigan is not well-suited for wind energy production.
If courts find that in-state renewable energy mandates violate the Commerce Clause, many think it would virtually kill wind energy in Michigan. Such a ruling would force Michigan's wind energy industry to compete on an open market. Wind energy cannot be produced efficiently in Michigan. As a result, without an in-state mandate, Michigan produced wind energy would simply lose out to cheaper energy produced from other sources or even by wind energy from some other states.
At the U.S. District Court in Colorado, the Energy & Environmental Legal Institute (E&E Legal) is arguing the same point Judge Posner made. At issue in the lawsuit, ATI v. Epel, is whether Colorado's 30 percent renewable energy mandate violates the Commerce Clause.
"The case against Colorado demonstrates that nearly every state's renewable energy mandate violates the Constitution's Commerce Clause." said David W. Schnare, general counsel for E&E Legal and lead attorney on the case. "A state may not tell an electric company outside its borders how to make electricity or how to make renewable energy credits.
"Once we prevail in Colorado, the first domino will have fallen and we expect to see state legislatures throughout the nation scrambling to find a Constitutional way to mandate renewables," he said. "They will not succeed, as the only way to do so and still remain within the Commerce Clause is to pass a federal mandate."
Some believe the U.S. District Court in Minnesota could be the first to rule that in-state renewable mandates violate the Commerce Clause. Two years ago, North Dakota filed a lawsuit, The State of North Dakota v. Swanson, over Minnesota's 25 percent renewable energy mandate, which was signed into law in 2007.
The Minnesota mandate law prohibits utilities serving Minnesota from importing energy from other states unless any additional carbon dioxide emissions are offset. North Dakota, which sits on the world's largest deposit of lignite coal, clearly has a great deal at stake in this case.
Attorneys for North Dakota argue that the Minnesota mandate violates the Commerce Clause. According to media accounts, they also claim the Minnesota law is just a "symbolic gesture" against global warming.
Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.
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November 15, 2013, MichiganVotes Weekly Vote Report
Senate Bill 661, Increase political contributions limits and more: Passed 20 to 18 in the Senate
To increase the maximum campaign contributions allowed by state election law, index these to inflation, and require additional finance reports from candidates. The bill would also establish that third party "issue ads" that do not expressly advocate the election of a candidate need not include a disclosure of who paid for the ad, and allow the Republican and Democratic caucuses in the legislature to raise and spend money promoting their preferred candidates in primary elections.
Who Voted "Yes" and Who Voted "No"
Senate Bill 660, Authorize medical marijuana pharmacy sales: Passed 22 to 16 in the Senate
To establish a comprehensive regulatory regime for production and sale by pharmacies of “pharmaceutical-grade cannabis" to individuals with a debilitating medical condition, contingent on the federal government reclassifying marijuana from an illegal drug to a prescription drug. Michigan's voter-initiated medical marijuana law establishes a regulatory framework for patients or authorized caregivers growing their own; companies seeking “commercialized” distribution lobbied for this bill.
Who Voted "Yes" and Who Voted "No"
House Bill 4633, Mandate license plate replacement after 10 years: Passed 21 to 17 in the Senate
To mandate that vehicle owners must replace their license plate after 10 years, even if it is still legible. Under current law the state imposes a $5 extra charge to replace a plate.
Who Voted "Yes" and Who Voted "No"
Senate Bill 2, Expand nurse "scope of practice": Passed 20 to 18 in the Senate
To revise nursing licensure regulations to provide a wider "scope of practice" for "advanced practice registered nurses," potentially allowing these health care professionals to provide some services that current law only permits physicians to perform, subject to numerous restrictions and specific requirements.
Who Voted "Yes" and Who Voted "No"
House Bill 5070, Authorize criminal penalties on residential property “squatters”: Passed 91 to 19 in the House
To authorize criminal penalties for a “squatter” who illegally occupies a residence, including up to five years in prison and a $10,000 fine for second and subsequent violations. “Squatter” is defined by the bill as someone who “at any time during that period of occupancy, occupied the property with the owner's consent for an agreed-upon consideration” but not a “guest or a family member of the owner or a tenant.”
Who Voted "Yes" and Who Voted "No"
House Bill 5046, Allow customer’s wine in restaurants: Passed 105 to 5 in the House
To allow a customer to bring his or her own bottle of wine to a restaurant that has a liquor license, and let the restaurant set and charge a fee for this.
Who Voted "Yes" and Who Voted "No"
House Bill 4546, Increase marketing “assessments” imposed on potato growers: Passed 73 to 37 in the House
To increase the maximum "assessment" that can be levied on growers under a government potato marketing scheme, with exceptions for smaller growers; revise the constituents represented on the board of political appointees authorized to determine the level of assessments; and revise details of a potato grower referendum on assessments.
Who Voted "Yes" and Who Voted "No"
Senate Bill 35, Authorize criminal penalties for nonpayment of “administrative hearing bureau” fines: Passed 105 to 5 in the House
To authorize criminal penalties for failing to pay fines imposed by “administrative hearing bureaus” that most cities are allowed to create for enforcing "blight violations" under a 2003 law, with some exceptions. Under that law, cities already have the power to place a lien against the property. The bill would authorize additional fines of $500, 93 days in jail for a second offense, and up to a year for a third offense.
Who Voted "Yes" and Who Voted "No"
Senate Bill 38, Authorize wage garnishment for nonpayment of “administrative hearing bureau” fines: Passed 95 to 15 in the House
To allow a local government to garnish the wages of a property owner who has failed to pay fines imposed by “administrative hearing bureaus” that most cities are allowed to create for enforcing "blight violations" under a 2003 law.
Who Voted "Yes" and Who Voted "No"
House Bill 4782, Expand a corporate/developer subsidy regime: Passed 87 to 23 in the House
To authorize creation of a sixth “Next Michigan Development Corporation,” which is a government agency that gives tax breaks and subsidies to particular corporations or developers selected by political appointees on the entity's board for projects meeting extremely broad "multi-modal commerce" criteria (basically, any form of goods-related commerce). The new entity would be in the Upper Peninsula.
Who Voted "Yes" and Who Voted "No"
House Bill 4688, Repeal licensure mandate on dietitians and nutritionists: Passed 71 to 39 in the House
To repeal a law that imposes a licensure mandate on dietitians and nutritionists. The mandate has not been enforced since it was authorized in 2006 because the state licensure agency was unable to devise acceptable credentialing and education requirements.
Who Voted "Yes" and Who Voted "No"
SOURCE: MichiganVotes.org, a free, non-partisan website created by the Mackinac Center for Public Policy, providing concise, non-partisan, plain-English descriptions of every bill and vote in the Michigan House and Senate. Please visit https://www.michiganvotes.org.
Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.
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