For Immediate Release:
October 14, 2015

Craig Richardson
[email protected]

E&E Legal Petitions the Supreme Court Regarding the Constitutionality of Colorado’s Renewable Energy Standards

Washington, D.C.  – On Friday, The Energy & Environment Legal Institute (E&E Legal) filed a Petition for Certiorari with the United States Supreme Court regarding the suit E&E Legal brought against the State of Colorado concerning the constitutionality of its Renewable Energy Standards (RES).  E&E Legal has now asked the U.S. Supreme Court to review this case and explain once and for all when and why extraterritorial regulation is unconstitutional The case is titled Energy & Environment Legal Institute, et al. v. Joshua Epel.

In April, 2011, E&E Legal sued the State of Colorado due to the unconstitutionality of the state’s renewable energy standard.  As the case was working its way through the 10th Circuit, the Colorado legislature rushed to amend the law in an attempt to fix the most blatant unconstitutional provisions.  They did not, however, cure all the problems.

Dr. David W. Schnare, lead attorney and E&E Legal’s General Counsel, noted at the time the Colorado legislature attempted to correct the RES, “This bill appears to remove some but not all of the unconstitutional elements of the statute.  However, it also mandates new unconstitutional requirements by increasing the renewables standard to levels that, that like the current statute, cannot be justified when balanced against the harm they cause to interstate commerce.”

Specifically, the Legislature kept the sections that authorized Colorado to tell electric generating companies what means they had to use to sell “renewable” energy into Colorado, including companies that operated in other states and in some cases where the electricity they made did not and could not even reach Colorado.  This is known as “extraterritorial regulation” and is prohibited under the Constitution.

Colorado is not alone in its efforts to tell other states how to regulate.  California has the hubris to tell egg producers in Iowa what size chicken pens have to be.  They have also told Canada how to make goose liver.  Indeed, there is a growing effort for states to try to export their regulations onto other states.

Explained Schnare, “a state may not project its legislation into other states and may not control conduct beyond the boundaries of the State.”

While this is the apparent law of the land, the U.S. Court of Appeals for the Tenth Circuit has attempted to restrict this law only to state statutes that control prices or require out-of-state businesses to affirm what their prices will be.

Added Schnare, “There is a split in the Circuit Courts of Appeal.  Some, like the 9th and 10th circuits, apply the law narrowly.  Others, like the 2nd, 4th, 6th and 7th do not restrict the law only to price control cases.”

The major mistake the 10th circuit made was to presume the extraterritorial regulation issue is one rising exclusively out of the Commerce Clause.  It is not.  The fundamental structure of the Constitution as well as the Full Faith and Credit, the Due process and the Commerce clauses all play a part in prohibiting extraterritorial regulation.  E&E Legal is asking the Supreme Court to take this case to clarify this fundamental aspect of our union of states.

E&E Legal has been informed that they can expect several organizations to file amicus briefs in their support.


The Energy & Environment Legal Institute (E&E Legal) is a 501(c)(3) organization engaged in strategic litigation, policy research, and public education on important energy and environmental issues. Primarily through its petition litigation and transparency practice areas, E&E Legal seeks to correct onerous federal and state policies that hinder the economy, increase the cost of energy, eliminate jobs, and do little or nothing to improve the environment.