Tenth Circuit Rejects Challenge To Colorado's Renewable Energy Standards; Supreme Court Denies Cert

On December 7, 2015, the U.S. Supreme Court denied a petition for writ of certiorari in Energy & Environment Legal Institute v. Epel , No. 15-471, which sought to overturn the United States Court of Appeals for the Tenth Circuit's July13, 2015 opinion, 793 F.3d 1160, affirming a federal district court's judgment upholding Colorado's Renewable Energy Standards. Petitioners challenged the constitutionality of a Colorado statute and related regulations (the "Renewable Energy Standards") requiring "qualified retail utilities" to "generate, or cause to be generated," electricity from Colorado-approved renewable sources in specified minimum amounts. Specifically, the Renewable Energy Standards require 30 percent of electricity supplied by investor-owned utilities to be obtained from Colorado-approved renewable sources by 2020. Petitioners argued that the Renewable Energy Standards eliminate competition with other states by requiring a specified amount of electricity to come from renewable sources and then limiting what qualifies as a renewable source. One example of in-state favoritism cited by petitioners is that the Renewable Energy Standards do not consider ocean thermal and ocean wave electricity generation—methods that cannot themselves be generated within Colorado's borders—as approved renewable sources, even though other states, such as California, do. Petitioners argued the Renewable Energy Standards thereby favor Colorado over other states by approving methods of electricity generation that can be generated within Colorado. While petitioners argued in their petition for writ of certiorari that Colorado's Renewable Energy Standards violate the Commerce Clause, Full Faith and Credit Clause, and Due Process Clauses, the only issue before the Tenth Circuit was whether the Renewable Energy Standards violate the dormant Commerce Clause under the line of cases stemming from Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935). The Tenth Circuit found that there were only three cases total in this line: Baldwin; Brown-Forman Distillers...