Opponents of renewable energy law ask for U.S. Supreme Court hearing

Wed Jun 25, 2014 5:13pm EDT

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(Reuters) - Fuel producers are urging the U.S. Supreme Court to hear a challenge to California's landmark low carbon fuel standard, the first of a series of cases seeking to roll back state renewable energy laws around the country.

The court could decide in the next few days whether to take up a lawsuit brought by a coalition of ethanol and gasoline producers trying to overturn a 2009 California rule mandating cuts to carbon emissions.

The measure, created by an executive order from former Governor Arnold Schwarzenegger, calculates emissions throughout the lifecycle of a fuel by including pollution from production and transportation as well as ultimate use.

Under the regulation, fuel blenders and distributors must reduce the "carbon intensity" of their products by up to 10 percent over the next decade or risk being shut out of California's lucrative vehicle market.

Out-of-state fuel producers claim the standard penalizes their products by calculating long transportation distances as part of their overall carbon footprint.

In an effort led by the Rocky Mountain Farmers Union that grows corn and soybeans for ethanol in western states, the suit argues California is violating the U.S. Constitution by interfering with interstate commerce.

After a loss in the 9th U.S. Circuit Court of Appeals, they hope the Supreme Court will take up the case.

"The California regulation is really cutting into the bottom line of these companies that are producing the exact same product" as California fuel manufacturers, said Ilya Shapiro from the libertarian Cato Institute.

California says the standard is successfully cutting emissions from cars and helping to combat climate change.

The high court's yes or no decision could have implications for cases making similar arguments against renewable energy programs in other states.

In Colorado, a conservative non-profit group called the Energy & Environment Legal Institute sued to repeal a state law limiting the sale of electricity from fossil-fuel-fired power plants by saying it cramped the interstate market for coal.

A federal judge in Colorado dismissed that case in May but the group is appealing to the 10th U.S. Circuit Court of Appeals.

Another suit brought by North Dakota challenged a Minnesota law to cut carbon emissions from electricity generation. A federal court in April found Minnesota's law violated the Commerce Clause of the Constitution. The decision is also being appealed.

The Supreme Court may wait for the outcome of these two appeals before deciding to take up the California case, said Jane Montgomery, an environmental lawyer at Schiff Hardin.

In the meantime, the courts will continue to face these state-by-state disputes in the absence of an overarching federal rule, said law professor Steven Ferrey from Suffolk University.

Ferrey said 29 states and the District of Columbia have renewable programs promoting greener energy sources such as wind and solar.

"States are going to be the primary actors in the near term," said Ferrey. "As the opinions stand today there is mixed guidance."

(Reporting by Mica Rosenberg in New York; Editing by Howard Goller and Grant McCool)

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Comments (1)
NoDogInFight wrote:
Ilya Shapiro, quoted in the article, obviously hasn’t read the Low Carbon Fuel Standard (LCFS), or if he has, he doesn’t understand it. The purpose of the LCFS is to reduce greenhouse gases (GHG) associated with transportation fuels in cars on the roads within the state. This is important in California, which if it were a country, would have the 8th largest economy in the world. 40% of the GHG emitted in California come from transportation fuels. While corn ethanol produced in the mid-west may be the same product chemically as sugarcane ethanol produced in Brazil, it is not the same from the greenhouse gas-producing point of view. Corn ethanol, whether produced in the mid-west or California, produces far more greenhouse gases that sugarcane ethanol, because it requires an additional industrial step to convert the corn into a sugar and requires more fossil fuel. Note that corn ethanol produced in California has approximately the same carbon intensity as corn ethanol produced in the mid-west, so California is not choosing California companies over companies from other states. Also, as a lawyer, I can forcefully say that the Supreme Court should not hear this case because it is not “ripe” yet – the 9th Court of Appeals sent the case back to the District Court to rule on an issue. Since the petitioners may prevail at the District Court level, they have not exhausted their remedies, and therefore the controversy is not “ripe”. (The Supreme Court could not possibly take every case sent to it, so it only takes those where the petitioner has no other remedy available, and the SC does not even take all of those cases where the controversy is ripe.

Jun 25, 2014 7:21pm EDT  --  Report as abuse
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