Bill Opalka | Apr 26, 2011

 

A new front has been opened in the war on renewable energy, this time in federal court in Colorado. A group has challenged the constitutionality of a state renewable energy standard, which was passed by referendum in 2004 and twice increased by the state legislature since.

A lawsuit was recently filed by the American Tradition Institute challenging the constitutionality of Colorado's Renewable Energy Standard (RES). “The heart of the lawsuit addresses both the uneconomical and environmentally harmful nature of wind-generated energy,” the ATI says.

The suit relies on the Interstate Commerce clause of the U.S. Constitution. “The purpose of requiring retail utilities to generate, or cause to be generated, electricity from renewable sources in order to fully utilize Colorado's renewable energy resources is facially discriminatory to electricity generators operating outside of Colorado,” the suit says. The effect is higher costs for consumers and dubious environmental benefits, ATI adds.

The suit also relies on the hotly disputed claims that wind energy’s intermittency drives up costs and actually increased carbon emissions by forcing fossil fuel generation to operate inefficiently. It disputes the economic benefits of renewable energy that proponents of the resource continually espouse and adds reliability, alleged adverse health effects and wildlife impacts into the argument.

The American Wind Energy Association responds that the complaint is full of the “greatest hits of misinformation” that wind energy confronts nationally.

“Any legal attempt to eliminate the Colorado RES goes against the will of the people of Colorado, who have repeatedly said ‘yes’ to renewable energy,” AWEA says.

Colorado voters first passed the RES in 2004, establishing a requirement that 10 percent of the electricity sold by the state's two major utilities come from renewable resources by 2015.

AWEA said that subsequent studies by state regulators showed that costs in Colorado have been lowered by wind and that that the incumbent utility, Xcel Energy exceeded the lower mandates and supported increase targets. It also cites the creation of a wind turbine supply chain within the state, including the decision by industry leader Vestas to open three manufacturing plants in Colorado.

"As the Colorado Attorney General's office has already publicly stated, this law is completely defensible; it is constitutional because the state has a legitimate interest in promoting renewable energy generation as an important policy choice with multiple benefits for its residents," said Gene Grace, Senior Counsel for the American Wind Energy Association.

The Stoel Rives law firm produced an analysis that puts the issue in perspective.

“The outcome … could have far-reaching effects on other state’s RESs and renewable portfolio goals (RPGs). If the plaintiffs are successful with their claims, then the states with RESs and RPGs may have to modify their standards so they are not discriminating against out-of-state renewable energy generators. As we have noted before, the RESs with regional preferences may not be as much at risk. A key question that the courts have yet to answer is whether the RESs and RPGs create protectionist barriers to interstate trade.”

With the rationale for most state standards partly favoring in-state clean energy sources, the stakes are pretty high.

Bill Opalka is editor of RenewablesBiz Daily