For Immediate Release:
July 14, 2015

David W. Schnare
[email protected]

In a brief, harmful opinion straying from well-established precedent, on Monday the U.S. Court of Appeals for the Tenth Circuit in E&E Legal Institute v. Epel condemned the 128,000 poorest families in Colorado, many living well below the federal poverty line, to perpetual Energy Poverty. The Court admitted that its decision allows Colorado to burden its citizens with higher prices for electricity, under a scheme transferring income from Colorado’s poorest to an entrenched lobby; in so doing it punishes those least able to pay for an environmentally harmful policy ostensibly adopted in the name of the environment and human health, but which causes the premature death of 250 Coloradans every year it remains in place.

“The Tenth Circuit decision blatantly misrepresents the law and does so by simply ignoring case after case of precedential Supreme Court and Tenth Circuit jurisprudence,” explained David W. Schnare, PhD, E&E Legal’s General Counsel.

Dr. Schnare refers to the Court’s erroneous claim that there are only three Supreme Court cases that apply the bar on states exporting their policy into other states, an act known as extraterritorial regulation. Such extraterritorial regulation is impermissible under the dormant Commerce Clause and, where found, courts are to strike the state statute without further consideration.

The opinion claims, again in error, that all Supreme Court extraterritoriality cases are restricted only to factual situations involving price controls or price affirmation. They are not, a jurisprudential fact made clear in E&E Legal’s Reply Brief – and a fact that, if acknowledged, would force the Court to overturn Colorado’s energy policies that harm the poor.

The Tenth Circuit ventured beyond the law in justifying its price affirmation argument, ignoring the relevant precedent without explanation. As E&E Legal detailed in its Reply Brief:

E&E Legal reiterates its recitation of cases where the Supreme Court has applied the dormant Commerce Clause’s bar on extraterritorial regulation in a wide variety of contexts. See, e.g., S. Pac. Co. v. Arizona, 325 U.S. 761, 779-84 (1945) (state statute regulating train lengths constitutes unconstitutional extraterritorial regulation where “practical effect of such regulation is to control train operations beyond the boundaries of the state”); BMW of N. Am. v. Gore, 517 U.S. 599 (1996) (invalidating state statute prohibiting selling repainted cars without disclosing that car had been repainted because repainting could have occurred in a different state); Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959) (invalidating state statute requiring certain type of mudguard on semis because other states allowed different mudguards and one state actually required a different type of mudguard); Edgar v. Mite Corp., 457 U.S. 624, 641-43 (1982); see Healy, 491 U.S. at 333-337 & ns. 9 & 14.

In conclusion, Dr. Schnare notes, “It is particularly worrying that this opinion disregarded both Supreme Court and the Tenth Circuit’s own jurisprudence.” Schnare specifically refers to ACLU v. Johnson, 194 F.3d 1149, 1160-1161 (10th Cir 1999) (statute regulating the Internet regulates extraterritorially).

This Tenth Circuit decision creates a split among the Circuits. The Seventh Circuit rejected the price affirmation argument upon which Judge Gorsuch relied. See, Natl Solid Wastes Mgmt. Ass’n v. Meyer, 63 F.3d 652, 659 (7th Cir. 1995) (“Although cases like Healy and Brown-Forman involved price affirmation statutes, the principles set forth in these decisions are not limited to that context .”). This question is also before the Eighth Circuit Court of Appeals in the matter of North Dakota v. Heydinger. In that case, the District Court rejected the price affirmation limitation to the per se bar on extraterritorial regulation. The parties have briefed that case but oral argument has not yet been scheduled.

E&E Legal has not yet decided whether to appeal the Tenth Circuit decision to the Supreme Court.


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.