States have broad rights to regulate their energy mix based on the factors that they see as relevant. Environmental factors (including GHG), jobs, price, security of supply, safety etc are all valid reasons by which a source of generation may be selected.

To change that, you'd have to pass a law such as that which governs nuclear.

If that's the case, it doesn't inspire confidence considering all the conservatives sitting on that bench.

I don't think it would ever get there. But if it did, there is a pro-states' right argument for the conservatives and an environmental aspect to please the sane side of the table.

You never know until its over, of course.

The cases on this subject relates to Prohibition in the days BEFORE Federal Prohibition (Federal Prohibition only started in 1919). Prior to the passing of Federal Prohibition, various states had passed STATE Prohibition, The problem was the Federal Courts, staring with the US Supreme Court, ruled that while State could prohibit the use, possession, consumption, shortage and sale of Alcohol, that same state could NOT prohibit importation of such illegal alcohol on the ground that such a prohibition was a violation of the interstate Commerce Clause of the US Constitution.

This is still good law (except as to Alcohol, see below), a State can NOT prohibit the importation of anything unless Congress does so, even if possession of such item is illegal in that state.

Alcohol is the big exception for when Prohibition was repealed, Congress added Section 2 to Amendment to repeal Prohibition. Section 2 reversed those Federal Court decisions as to the importation of Alcohol into a state. While the Section 2 of the 21st Amendment did reverse those decisions as to Alcohol, those Decisions are still viewed as good law as to other restrictions a State may put on what can be imported into that state.

AMENDMENT XXI
Passed by Congress February 20, 1933. Ratified December 5, 1933.

Section 1.
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 2 was adopted to permit States to regulate what and how Alcohol could be shipped into their State. This is based on an 1890 case that killed off State efforts at Prohibition and forced people who wanted to restrict or even regulate Alcohol to go Federal Prohibition for it was the only way to get around the US Supreme Court Decision.

More on the 21st Amendment, and the effect of Section 2 has today:
http://www.centerforalcoholpolicy.org/wp-content/uploads/2012/03/Ashley_Watkins_3.pdf
http://www.greenbag.org/v8n2/v8n2_articles_agarwal_zywicki.pdf

Here is the actual 1890 Case the set up this system, i.e. the State could BAN alcohol, but could NOT ban its importation:
https://supreme.justia.com/cases/federal/us/135/100/case.html

The doctrine now firmly established is, as stated by MR. JUSTICE FIELD, in Bowman v. Chicago &c. Railway Co., 125 U. S. 507,"that where the subject upon which Congress can act under its commercial power is local in its nature or sphere of operation, such as harbor pilotage, the improvement of harbors, the establishment of beacons and buoys to guide vessels in and out of port, the construction of bridges over navigable rivers, the erection of wharves, piers, and docks, and the like, which can be properly regulated only by special provisions adapted to their localities, the state can act until Congress interferes and supersedes its authority; but where the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the states, such as transportation between the states, including the importation of goods from one state into another, Congress can alone act upon it, and provide the needed regulations. The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free. Thus the absence of regulations as to interstate commerce with reference to any particular subject is taken as a declaration that the importation of that article into the states shall be unrestricted. It is only after the importation is completed and the property imported is mingled with and becomes a part of the general property of the state that its regulations can act upon it, except so far as may be necessary to insure safety in the disposition of the import until thus mingled."

The energy regulatory structure is designed IAW with long standing precedent under federal and state laws. I don't think your alcohol example is applicable, but I'm not going to research it because ultimately the court will decide without our help. Since the Federal Energy Regulatory Commission (FERC) is the federal administrative agency with the most jurisdiction, I'd steer you there if you want to dig into it deeper.

Thus the sentence I underline is still effective, the lack of regulation means that such a ban violated the Commerce Clause of the US Constitution.

Federal law in the duties of the FERC:
http://www.law.cornell.edu/uscode/text/16/chapter-12/subchapter-II

16 USC § 824 (b) (1) contains the following lines:

The Commission shall have jurisdiction over all facilities for such transmission or sale of electric energy, but shall not have jurisdiction, except as specifically provided in this subchapter and subchapter III of this chapter, over facilities used for the generation of electric energy or over facilities used in local distribution or only for the transmission of electric energy in intrastate commerce, or over facilities for the transmission of electric energy consumed wholly by the transmitter.

The only thing I saw in Subchapter 111 was that the FERC had a duty to distribute power from US Army controlled Hydro dams as it saw fit. Thus from what I have read, the FERC has no authority to permit such a ban, for Congress has NOT given the FERC the authority to ban the interstate shipment of electricity if it was produced by coal. All Congress has said, as to actual production of electricity, is the FERC can handle the distribution of any "Excess" power from US Army dams. Nothing else is mentioned and as I cited above, the lack of any rule set by Congress indicates that Congress intends no rule.

Is that seriously your claim?

We are Stuck with the law as it is written, not as we would like it to be. Right now, FERC can regulate who gets what power when and at what rates (FERC's regulation is as to other power distributors, NOT to individuals). Congress gave the FERC the power to do so, but that delegation of power is restricted to how much power gave to the FERC. What Power Congress gave the FERC is set by the underlying Federal law cited. The FERC has limited power as to how power is regulated, the power of the FERC is to distribute power among various states, and unless Congress gave it the right to also regulate HOW power is produced (and it looks like Congress did NOT), the FERC has to follow the rules set by the US Supreme Court, i.e. the lack of a restrictions, means Congress intended no restriction.

Last edited Mon Oct 21, 2013, 02:05 AM - Edit history (1)

The matrix of laws and regulations that are in question make a large body of literature. If you've something specific you are referring to perhaps you could share the reference with specificity??

Otherwise, the case on its face seems fairly simple. North Dakota doesn't buy into the need or the right of other states to consider GHG emissions or their potential costs as a factor in any state's rule-making that directs the purchasing decisions of their public utilities. There is a standard body of law that supports the use of any number of considerations related to protecting the current and future financial interests of consumers of that state - including but not limited to anything affecting the future cost of the specific commodity used to produce the electricity.

The fact is not only the political system but also Federal rule-making recognizes the high probability of future costs associated with the need to mitigate GHG emissions. The only thing the Minnesota law stipulates is that those potential future costs (along with a list of other nondisputed criteria) be considered when making long term purchasing decisions regarding electric supply. They grandfathered an exemption for several coal plant projects underway in order to not 'change the rules in the middle of the game', and all but the one in ND eventually were shelved. So contrary to the claim that they have been prejudiced against ND, the fact is ND has been the lone state to receive actual preferential treatment for their investments in coal technology.

And frankly, when you write things like this, it is very difficult to give credence to your position:

import and use of toxic substances injurious to public health and well being, not to mention the future of the planet? Someone should put carbon on trial in court. If I ever hit the power ball I'd be happy to do it.

The Court tends to be expansive as to the Commerce Clause. i.e. the states can NOT refuse to permit the importation of what another states produce UNLESS Congress does so itself. Thus it would be a waste of time and money to challenge this law in the courts, you would be better hiring a lobbyist and getting Congress to pass a law permitting such a ban, if a state wants to ban the importation of Carbon (or any other substance).

PR people, thinkers, writers, scientific organizations, environmental groups, friendly politicians, TV and radio time...you can get a lot done with $350 million. i'd raise hell and prop it up with a rock

but don't prop it up with a rock. Some redneck is sure to topple it for the good of the children.

But I don't believe they can ban it's import altogether so long as it's legal to own.

I think cigarettes might be a good example. States are free to regulate and tax the fuck out of them, once they've been imported into their state.

However, I have yet to see anyone make a compelling legal case that it would be permissible to entirely BAN the importation of cigarettes, so long as their use is legal.

Also, putting carbon on trial would surely raise the question of oil and gasoline imports, the carbon elephant in the room. I can see all sorts of shitstorms brewing if that issue were ever seriously raised.

Let's put coal on trial and adjudicate the facts. This belongs in the Hague, really. Every citizen of the Earth and all their potential progeny are being placed at risk by our feckless abuse of this toxic substance. Burning coal is not just wrong, or destructive. It's evil. It's an offense against nature and/or the diety of your choice. Godless Communists burn coal.

Not just coal, but oil, gas from fracking, deforestation, open-pit mining, over-fishing, etc, etc.

I'm with you; I'd love to see most of these things placed on trial and banned. But with their bans, you'd see most of the world's economies grind to a halt.

And as we all know, NOTHING must stand in the way of economic growth, future damage be damned.

The world's economies are going to have to figure out a new way to sustain themselves. I focus on coal because it's the poster child for CO2 emissions. It's India's chief energy source. China derives 80% of it's energy from coal. Japan is switching to coal. Germany seems to be substituting coal for nukes and it's neighbor Poland burns vast quantities of coal. We, of course, are the kings of coal and have plans to ship 139 billion tons of it from Wyoming to China. That simply cannot be allowed to happen, no matter how many jobs it costs.

The constitution clearly states:

Now, the case I cite is 1890, 29 years before the adoption of FEDERAL PROHIBITION in 1919, but was a case involving a State that banned the sale, distribution, use, shortage and consumption of Alcohol. The US Supreme Court ruled such a ban was constitutional, but until the bottle was actually opened, if the alcohol was made in another state, the Commerce Clause forbade the State from regulating it (once the bottle was opened, then the State could do as it pleased, but not before then).

The Dissent in the case pointed out that the ruling made it legal to import something that was illegal in that state to possess., In fact, the state could close down all the makers of one thing in that state if the State thought that was in the best interest of that state, but then that ban could NOT be extended to people who just imported in the banned substance (Whatever that substances may be, in the 1890 Case alcohol, in this case Electricity, which the courts have long viewed as a "Good" for purposes of the Interstate Commerce Clause). In effect this view of the Commerce Clause would undo the power of the State to do anything in regard to something it wanted to ban. Given the existing Case Law, the States could the use of coal to produce electricity, but NOT ban the importation of electricity produced by coal.

Thank you for your contribution to this thread.

This sure sounds like "Interstate Commerce" to me.

When a State is not regulating within its borders; but instead is regulating ACROSS its borders; then that is Interstate Commerce.

The US Constitution states that Interstate Commerce is the sole province of Congress.

Since regulation of Interstate Commerce is a power explicitly given to Congress and the federal government; the 10th Amendment doesn't reserve it to the State. The power to regulate is explicitly given to Congress.

Therefore Article VI Section 2; called the "Supremacy Clause" would therefore have federal law trumping State law and INVALIDATING any attempt of a State to regulate Interstate Commerce.

The State would be PREEMPTED by the federal prerogative.

The good thing about science is that it is true, whether or not you believe in it.
--Neil deGrasse Tyson

PamW

Any state that tries to enact regulations limiting carbon emissions from power plants, like Minnesota tried to do, could see their attempt undercut if the power companies simply find a neighboring state that is coal-friendly, build coal-fired plants just across the border, and export the electricity back across the state line.

It's a big fucking loophole, and if this case establishes precedent, could really hamstring local attempts at cutting CO2 emissions in the future.