Judge Shuts Down Attack On Colorado’s Ambitious Clean Energy Law

Two of 105 solar panels are installed on the roof of a barn Thursday, Aug. 27, 2009, north of Hesperus, Colo. CREDIT: AP PHOTO/JERRY MCBRIDE
Two of 105 solar panels are installed on the roof of a barn Thursday, Aug. 27, 2009, north of Hesperus, Colo. CREDIT: AP PHOTO/JERRY MCBRIDE

Colorado’s ambitious renewable energy standard will remain in place thanks to the 10th Circuit Court of Appeals, which on Monday shielded the law from a legal attack by a right-wing litigation group.

Writing for a three-judge panel, U.S. Circuit Judge Neil Gorsuch affirmed that the clean energy law does not violate the U.S. Constitution, as the plaintiff Energy and Environment Legal Institute had argued. E&E; Legal, formerly called the American Tradition Institute, is a nonprofit that advocates a “free-market approach” to environmentalism. It is the same entity that launched a high-profile lawsuit against climate scientist Michael Mann seeking to view his email communications, an effort which ultimately failed.

The case over Colorado’s renewable energy law was E&E; Legal’s second most high-profile case. The group launched the lawsuit back in 2011, arguing that the clean energy standard — which requires utilities to get 30 percent of the electricity they sell to Colorado customers from renewable sources — violated the Commerce Clause of the U.S. Constitution.

More specifically, the group said that the law unfairly harmed out-of-state businesses. Colorado relies on other states to get a good portion of its electricity, the group argued, and therefore out-of-state coal producers would be disproportionately harmed.


Judge Gorsuch disagreed, saying that while out-of-state coal producers would likely be hurt, it wasn’t disproportionate. Indeed, financial harm to fossil fuel companies would likely be equal across the board.

“To be sure, fossil fuel producers like [E&E; Legal]’s member will be hurt,” Judge Gorsuch wrote. “But as far as we know, all fossil fuel producers in the area served by the grid will be hurt equally and all renewable energy producers in the area will be helped equally. If there’s any disproportionate adverse effect felt by out-of-state producers or any disproportionate advantage enjoyed by in-state producers, it hasn’t been explained to this court.”

Gorsuch also noted that if the mandate raises electricity prices for Colorado residents, that didn’t matter either — because Colorado voters had approved the law in 2004 with “overwhelming support.”

“That’s a cost they are apparently happy to bear,” he wrote.

Colorado is a national leader in clean energy, in part due to the state’s ambitious renewable energy standard. The state is home to the National Renewable Energy Laboratory, which is the federal government’s primary research facility for renewable energy and energy efficiency.


E&E; Legal did not respond to ThinkProgress’ requests for comment on Tuesday. But David Schnare of the Free Market Environmental Law Clinic, which represented the group, told Law360 that it would likely not appeal the case to the U.S. Supreme Court.

Either way, Schare reportedly said they were disappointed in the ruling, and that Judge Gorsuch failed to consider many of their points regarding constitutionality.

“They simply ignored our arguments,” he reportedly said. “They did not cite or mention or discuss any of our arguments or our cases. They had ignored the fact that we had undercut their argument and shown it wasn’t a valid point.”

The ruling was a win not only for the law, but for environmental groups looking to promote renewable energy in Colorado. In a statement, the group Conservation Colorado said the ruling would ensure the protection of public health via cleaner air and continued reduction of greenhouse gases that cause climate change.

“Today is a good day for renewable energy in Colorado and our efforts to clean our air and combat climate change,” Carrie Curtiss, Conservation Colorado’s deputy director said. “It is time for the climate deniers and dirty energy lobby to end their frivolous lawsuits and recognize that clean, renewable energy is here to stay.”


A previous version of this article incorrectly referred to U.S. Circuit Judge Neil Gorsuch as a District judge.