Gov. Tim Walz signed a bill this past June to fast track the permitting process for wind and solar projects in Minnesota. This was to ensure green energy projects meet the new 100% carbon-free (CF) goal by 2040—passed during the 2023 legislative session. He wanted them “to hit the ground running creating new jobs.” However, this latest initiative has raised an issue that has a nexus to the past and introduces confusion for the future.
Back in 2007, Gov. Tim Pawlenty signed the Next Generation Energy Act (NGEA) that mandated an 80% reduction in greenhouse gases by 2050. One key element of the bill was a moratorium against purchasing electricity produced by coal burning plants from other states. Minnesota needed more electricity than it could produce and bought power from North Dakota—who produced more than they needed. A convenient business arrangement between neighboring states. However, under the NGEA, Minnesota could no longer buy electricity produced by North Dakota’s coal fired plants. This was a noteworthy loss of state revenue and after negotiations failed, North Dakota sued Minnesota in 2011.
Former Minnesota Attorney General Lori Swanson defended the state and ultimately lost the federal case and the appeal. The court ruled that the Minnesota NGEA overstepped state authority by dictating how electricity was produced in another state. Minnesota violated the “commerce clause” of the 8th Amendment in an attempt to control conduct beyond state boundaries. The court emphatically stated (North Dakota v. Heydinger, No. 14-2156, U.S. 8th Circuit Court, 2016) that the NGEA, as it applied to coal, had “extraterritorial reach.” This action, they wrote, cannot be taken by a state, but only by the consent of Congress. Significantly slapped down, the Minnesota Public Utilities Commission and the Minnesota Commerce Department backed away from pursuing the matter to the U.S. Supreme Court.
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