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Since its creation in 1977, MSLF has been one of the Nation's leading legal centers fighting to ensure that the federal government remains a limited government and a government of laws and not men and women. MSLF recognizes that the Constitution was written, not to protect the various units or levels of government, but to preserve the liberty of the American people. MSLF is committed to ensuring that they continue to have that freedom and opportunity.

North Dakota v. Heydinger

Legal Question:

Whether a state may regulate an out of state industry that supplies electricity through an interstate network, regardless of whether the electricity supplied reaches that state?

Appellants

Beverly Heydinger, Commissioner and Chair, Minnesota Public Utilities Commission; David C. Boyd, Commissioner, Minnesota Public Utilities Commission; Nancy Lange, Commissioner and Vice Chair, Minnesota Public Utilities Commission; David M. Lipschultz, Commissioner, Minnesota Public Utilities Commission; Betsy Wergin, Commissioner, Minnesota Public Utilities Commission; and Mike Rothman, Commissioner, Minnesota Department of Commerce

Appellees

State of North Dakota; Industrial Commission of North Dakota; Lignite Energy Council; Basin Electric Power Cooperative; The North American Coal Corporation; Great Northern Properties Limited Partnership; Missouri Basin Municipal Power Agency                            d/b/a Missouri River Energy Services; and Minnkota Power Cooperative, Inc.

Amicus Curiae:

Mountain States Legal Foundation filed on behalf of itself and Montana Coal Council.

Court:

U.S. Court of Appeals for the Eighth Circuit
Unknown
In 2007, Minnesota enacted the Next Generation Energy Act (NGEA), which sets Draconian goals for greenhouse gas reductions; establishes one of the nation’s most aggressive array of renewable-energy standards; and provides that “no person” may contribute to or increase “statewide power sector carbon dioxide emissions.”  Thus, the law directly affects the electric power industry, which is regulated by the federal government and operated cooperatively to ensure hourly accuracy as to supply and demand in such a manner that neither the supplier nor the consumer knows the destination or origins of the electricity it generates or uses.

North Dakota and others sued contending that the NGEA violates the “dormant Commerce Clause,” which bars states from unduly burdening interstate commerce.  In April of 2014, a Minnesota federal district court ruled that the law’s “plain language applies to power and capacity transactions occurring wholly outside of Minnesota's borders[,]” and therefore is “a per se violation of the dormant Commerce Clause.”

On May 16, 2014, Minnesota filed a notice of appeal to the United States Court of Appeals for the Eighth Circuit.  On May 29, 2014, North Dakota cross-appealed.  On November 4, 2014, Minnesota filed its opening brief.  On January 20, 2014, North Dakota filed its answer brief.  On January 27, 2015, MSLF filed a friend of the court brief on behalf of the Montana Coal Council and MSLF’s members in support of North Dakota. The Eighth Circuit heard oral argument on October 21, 2015.

On June 15, 2016, the Eighth Circuit issued a decision affirming the district court.  Judge Loken opined that Minn. Stat. § 216H.03 violates the dormant Commerce Clause because it has an extraterritorial reach—controls conduct in other states.  North Dakota v. Heydinger, 825 F.3d 912, 913–23 (8th Cir. 2016).  Judge Murphy wrote separately because she disagreed that Minn. Stat. § 216H.03 has an extraterritorial reach.  Id. at 923–27 (Murphy, J., concurring).  Rather, Judge Murphy opined that the Federal Power Act preempts Minn. Stat. § 216H.03.  Id.  Judge Colloton also opined that Minn. Stat. § 216H.03 is preempted by federal law, i.e., the Federal Power Act and Clean Air Act.  Id. at 927–29 (Colloton, J., concurring)

  • Montana Coal Group Helps Defeat Minnesota’s Interstate Commerce Ban

    Jun 15, 2016
    A Montana nonprofit industry trade association today praised the ruling of the U.S. Court of Appeals for the Eighth Circuit, consistent with its friend of the court brief urging affirmance of the decision of a Minnesota federal district court that a law enacted by Minnesota violates the Commerce Clause.
  • Montana Coal Group Fights Minnesota’s Interstate Commerce Ban

    Jan 27, 2015
    A Montana nonprofit industry trade association today filed a friend of the court brief at the U.S. Court of Appeals for the Eighth Circuit urging the court to affirm the ruling of a federal district court in Minnesota that a law enacted by Minnesota violates the Commerce Clause.


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