State of North Dakota v. Beverly Heydinger

al., DAKOTA, et of NORTH Plaintiffs-Appellees/Cross

Appellants, HEYDINGER, Chair,

Beverly Minneso Commission, al., et

ta Public Utilities Appel

Defendants-Appellants/Cross

lees. Association, Energy

American Wind al., Behalf of

et Amici on

Appellants. for Clean Coal

American Coalition al.,

Electricity, et Amici on Appellees.

Behalf 14-2156, No. 14-2251

No. Appeals, States Court

United

Eighth Circuit. October

Submitted:

Filed: June on presented argument who be-

Cоunsel was appellants/cross-appellees half of the Paul, AAG, Huyser, of Saint Alethea M. attorney appeared also following MN. The AAG, brief; Everson, on this Michael Paul, Saint MN. on presented argument be-

Counsel who appellees/cross-appellants was half of Boyd, Minneapolis, H. MN. Thomas attorney appeared also following brief; Lorentz, Brent A. of Minne- appellee apolis, MN. following attorneys appeared

The on appeared on the brief of Chamber of Com- support amicus briefs in of appellants: merce of the America, United States of IL, Templeton Mark N. of Chicago, ap- The Commerce, Minnesota Chamber of peared on the brief of Steven Gaw and The National Association of Manufactur- Grace, Steven Weissman. Gene American ers, and The American Fuel and Petro- Association, Energy Wind of Washington, chemical Baker, Manufacturers. John M. DC, Umoff, and,Rick Energy Solar Indus- Porter, Erin Sindberg and Karl C. Procac- Association, DC, Washington, tries ap- MN, cini of Minneapolis, Douglas and L. peared on the brief of The American Wind Healy MO, оf Springfield, appeared on the Energy Association and In- Energy Solar brief of American Public Power Associa- dustries Association. Scott R. Strand of St. tion, National Rural Electric Cooperative Paul, MN, appeared on the brief of Minne- Association and Missouri Municipal Joint sota Center for Environmental Advocacy, Utility electric Commission. Energy Fresh and The Izaak Walton LOKEN, MURPHY, Before and League of America—Midwest Office. COLLOTON, Judges. Circuit Francisco, CA, Spalding Joanne of San DC, Sean H. Donahue of Washington, LOKEN, Judge. Circuit IL, Howard A. Chicago, Benja- Lerner of A 2007 Minnesota provides min Longstreth DC, of Washington, and “no person shall ... import or commit Graham G. McCahan and L. Vickie Patton import from outside the power Boulder, appeared CO on the brief of large from a new energy facility that Fund, Environmental Defense Environ- would contribute to statewide sector Center, Policy mental Law and Natural emissions; carbon dioxide enter into Resources Defense Counsel and Sierra long-term a new power purchase agree- Club. ment that would increase statewide The following attorneys appeared on sector carbon dioxide emissions.” Minn. amicus in support briefs of appellees: Pe- §216H.03, and The ter S. Glaser ap- and Patrick F. Hofer Dakota, State of non-profit North three peared on the brief of American Coalition cooperative provide entities that electric for Clean Electricity Coal and National power to rural and municipal utilities Mining Association. Jonathan Wood of Minnesota, and others brought this action Sacramento, appeared CA on the brief of against the Commissioners of the Minneso- Legal Pacific Foundation and National (“MPUC”) ta Public Utilities Commission Federation of Independent Business Small and the Department of Com- Legal Business Center. Steven Lechner J. (“MDOC”) (collectively, merce “the Maegan Lakewood, L. Woita of CO State”). claimed, alia, Plaintiffs inter appeared on the brief of Montana Coal these violate the Commerce Council and Mountain Legal States Foun- Clause. After extensive submissions and Todd, dation. Kate Comerford Sheldon Gil- argument, bert, granted the district court1 Martella, Jr., R. Roger Eric D. Mc- Arthur, plaintiffs summary judgment perma- and a Fougere, Joshua J. Maureen B. Soles, Moskowitz, injunction, concluding Richard nent that the above- Kelly, Linda E. Quentin DC, Riegel Washington, quoted provisions “impermissible ex- Benjamin Paul, MN, L. legislation” Gerber of St. traterritorial and therefore “a (cid:127) Nelson, 1. The Honorable Susan Richard Unit- Minnesota. Judge ed States District for the District of leverage local facilities and to transmission Commerce of the dormant se violation

per Heydinger, increasingly in an buying power 15 members’ Dakota Clause.” North 2014). (D. power market. Three integrated 919 Minn. F.Supp.3d principal are a cooperative entities affirm. these appeals. We case, Coopera- in this Basin Electric focus Background. I. (“Basin”); Coopera- tive Minnkota Power tive, (“Minnkota”); offices, Inc. and Missouri River and heat our homes light and To (“MRES”). Energy Services Headquar- from an generated must be power electric Dakota, tered in North Basin source, and nuclear has 135 rural such as fossil energy wind; high cooperаtive spread over electric fuels, sun, transmitted members and States, including nine in generating lines from across twelve transmission voltage stations; generation Basin its own and deliv- Minnesota. owns facilities to distribution local, over and enters into individual consumers and transmission resources ered to An agreements lines. electric with other voltage power purchase distribution low any all of these engage in transmission utilities. utility may generation and generation and regional activities. Minnkota is a in Dakota utility based North transmission Act, 1935, in Power enacted The Federal mem- to its provides decision Supreme to a Court responded bers, in cooperatives are distribution who Clause bars the States that the Commerce Minnesota, including Dakota and North electrici certain interstate regulating Indian reservations. Located various of R.I. Pub. Util. Comm’n ty transactions. Dakota, provides power MRES South Co., 273 & Elec. v. Attleboro Steam in Minneso- sixty municipalities more than (1927). 294, 83, 89, 71 L.Ed. 549 47 S.Ct. ta and three other States. the Fed gap, Congress granted fill To this Commission, the Federal Power now erаl substantially changed Technology has Regulatory Commission Energy industry since the electric (“FERC”), jurisdiction over “the transmis and reducing generating the cost of in interstate com energy sion of electric enabling transmitting electricity and new ... the sale of electric merce and generating mo challenge entrants to in interstate commerce.” at wholesale Mor of traditional utilities. See nopolies 824(b)(1). Act left to the § The U.S.C. Grp. gan Stanley Capital v. Pub. Util. they traditionally had most matters States 535-36, Dist. No. 554 U.S. utility local electric including regulated, (2008). To 171 L.Ed.2d siting power plants, see rates and competition in the encourage “robust 824(a) (b), subject imposed to limits and market,” FERC en wholesale York v. Clause. See New by the Commerce participating regional utilities couraged FERC, 1, 19-23, 122 S.Ct. independent to create grids transmission Eng. (2002); New Power 152 L.Ed.2d (“ISOs”) regional system operators Hampshire, 340- Co. v. New (“RTOs”), en organizations transmission (1982). 71 L.Ed.2d 188 operational assume tities “would the trans ownership control—but not bring electricity It difficult to proved —of owned its member mission facilities to rural ar- effectively еfficiently and cost access to provide open then [and] utilities eas, municipalities public- that have and to system to all regional transmission systems. To address ly-owned distribution electricity generators at rates established utilities problem, small local formed this applies ... tariff that to all single in a having sufficient large cooperative entities Transmis- eligible users.” Midwest ISO capital captive generation to build efficiently sion Owners v. MISO supply allocates the (D.C. omitted); (quotation power: demand for electric 35.34(a). Today, C.F.R. these re- see 18 obtain [RTOs] orders from LSEs gional organizations control of the most indicating how much electricity they grid. nation’s transmission FERC v. need at various times and bids from — Supply Ass’n, U.S.-, Elec. Power generators specifying how much electric- ity they produce can at those times and how much charge will for it. [RTOs] Basin, Minnkota, and MRES are mem accept generators’ bids order of bers of the Midcontinent Independent (least first) expensive cost until they sat- (“MISO”), System Operator Transmission isfy the LSEs’ total demand. price an ISO established in approved 1998 and of the last unit electricity purchased by as the FERC first RTO 2001. MISO paid then to every supplier whose bid 49,000 controls over miles of transmission accepted, was regardless of its actual lines, States, a grid spans that fifteen in offer; and the total split among cost is Minnesota, cluding parts and of . Canada. proportion the LSEs in to how much ISO, See Midwest 373 F.3d at 1365. Its energy they have ordered. thirty transmission-owning in members Supply, Elec. Power 136 S.Ct. at 768. utilities, public power clude investor-owned generators MISO commit their electricity utilities, independent power producers, and market; to be sold to the buy MISO LSE Minnesota, rural electric In cooperatives. electricity ers take out of the market with utilities, most retail distribution re now regard out generation its source. load-serving ferred to as entities or generators MISO—not individual —con “LSEs,” § 824q(a)(2), see 16 U.S.C. are generation trols which facilities operate at either members of MISO or non-members any given time. Though utilities still enter participate energy who in its markets. into purchase agreements bilateral aas requires approvеd FERC that an RTO req way to meet their capacity reserve operational such as has authority MISO uirements,2 “any electricity that enters for all transmission facilities under its con- grid immediately part becomes a of a trol, only provider be the of transmission pool vast energy constantly that is mov facilities, services over those and have sole York, ing in interstate commerce.” New authority approve or deny requests all 535 U.S. at S.Ct. 1012. “Thus, for transmission service. whatever part The Minnesota statute at issue is structure, utility its once a [makes] Energy the Next Generation Act operational decision to surrender control of n (“NGEA”), a statute intended to reduce [MISO], any its transmission facilities to “statewide power sector carbon dioxide transmissions across those facilities [are] by emissions” prohibiting utilities from subject to the control of Midwest [MISO].” ISO, meeting electricity Supreme 373 F.3d at 1365.The demand Court recently explained generated large energy facility” how RTO such as a “new " 'Capacity' electricity purchase, capacity is not itself but the of sufficient tо meet its ability produce necessary.” it when Conn. peak plus load a reserve. FERC and state (D.C. DPUC v. utility regulators overlapping, at times denied, 2009), cert. conflicting, jurisdiction impose and moni- sys To ensure capacity requirements. tor Id. at 481-84. Ba- reliability, systemwide tem MISO maintains a planning region-wide sin conducts this capacity requires installed reserve and each basis. control, through ownership LSE to have sum, re- Dairyland must meet the contribute to or that will

in a transaction system needs of its whole. [a] sector carbon source increase “statewide analysis regulates Regardless of whether The statute emissions.” dioxide purchases, into account MISO of carbon diox- takes annual emissions “the total sales, constraints, Dairyland electricity dispatch, or generation of with- ide from the separately plan for its Minneso- all of carbon does in the state and emissions 1) Thus, all of ta and load. Wisconsin generation dioxide from the Dairyland’s generation dispatched is for of the state and imported from outside Dairyland’s entire mem- the benefit of in Minnesota.” Minn. Stаt. consumed ‍‌‌​​‌‌‌​‌‌‌‌​​​​‌‌​​‌​​​‌​‌​‌​‌‌​​‌‌​‌​‌‌‌​‌​​‌​‍2) in the bership, all members will share 216H.03, challenged prohibi- 2. The subd. sales, any of MISO benefits tions in responsibility all members will bear and MDOC. When ei- enforced MPUC In other any purchases. MISO “any person determines that agency ther 216H.03], words, Dairyland’s all members are violating [§ or about to violate attorney system. of the same part the matter to the may it refer legal appropriate shall take general who nearly year pro- of enforcement After Id., action.” subd. 8. ceedings, MPUC concluded Weston exemption the NGEA for new fell within enactment, Since NGEA MDOC large facilities that were under MPUC clarify declined to how these MPUC have April 2007. See consideration before electricity to transmit- prohibitions apply 7(1). 216H.03, § subd. the district ted MISO’s control. As under Heydinger, (ii) explained, F.Supp.3d court early In Basin notified the 899-903, plaintiffs transmitting electricity at submitted extensive that it was describing impact prohibi- Forks,” the the Wyoming evidence a coal-fired “Dry obligations on their to meet tions have to meet increased demand in the plant, region-wide power: demand for electriс booming patch,” Dakota “oil a North brought transmission that (i)Dairyland Cooperative Power Interconnection and sub- into the Eastern generation a (“Dairyland”) is Wisconsin ject to control. MDOC asked Basin MISO’s cooperative that sells and transmission analysis provision for of “whether that electricity through the MISO wholesale power to MISO was violation Minneso- market to LSE members scattered across §216H.03.” ta After Basin re- Statutes states, including Dairy- several Minnesota. neither nor MDOC an- sponded, MPUC plant, part-owner land is coal-fired request for confirmation swered Basin’s in Weston located central Wisconsin. violated whether this transmission proceeding, a 2011 administrative MDOC §216H.03, subd. 3. Plaintiffs submitted urging groups at the of environmental took that by declarations Basin officers Basin is Dairy- § position the that 216H.03 restricts entering long- into apprehensive about ability rely electricity generat- land’s to to serve power purchase agreements term by ed 4 to serve its Minnesota Weston 216H.03, § non-Minnesota load due Dairyland noted that MISO was members. ability Basin’s which interferes with responsible dispatching all investment decisions such as its make generates. nonetheless Dairyland MDOC plant a coal-fired planned development of position that 4 is a “new took Weston Dakota. Selby, in South facility” subject large energy to the NGEA (iii) increasing surplus ca- ex- Minnkota exemption applied. unless an MDOC has coal-fired pacity partially-owned from its plained: denied, 2006), in plant North Dakota. Concerned that cert. enforcement, trigger

this will NGEA two (2007), LSE members Minnesota have declined Bureau, quoting S.D. Farm Inc. v. Hazel long-term purchase to enter into agree- tine, 2003), cert. (iv) ments with Minnkota. MRES declined denied, purchase capacity from a facil- coal-fired The district court de ity after determining Wisconsin termined that at least plaintiffs three have by transaction would be viewed the State MRES, standing Basin, and Minnkota. — violating the NGEA. Heydinger, 15 at F.Supp.3d 905-06 & 8.n. (i) court district concluded that Plaintiffs meet Article III standing plaintiffs standing to challenge Minn. requirement conclude, we reviewing if 3(2) 216H.03, (3), subd. and under novo, issue de that at least one of these Clause, the Commerce and the issue is Jones, plaintiffs standing has to sue. See (ii) review; ripe for judicial the court would 470 deciding abstain from the Commerce concluded, As the district court the sum- (iii) issue; Clause the Commerce Clause mary judgment record clearly establishes extraterritoriality doctrine is not limited to §216H.03, subd. (iv) statutes; price-control and 3(2) (3), interfering with Basin’s unambiguously apply to ability to transmit and enter into transactions outside place Minnesota that power purchase agreements en- occurring energy in the MISO market and therefore tirely outside Minnesota. Basin’s concern unconstitutionally compel out-of-state co prohibit statute will or sharply operatives to conduct their out-of-state curtail according business its out-of-state terms transactions is Minnesota’s well- because cannot grounded ensure that out-of- in the statute’s plain text coal-generated electricity they inject position reinforced taken MDOC into the grid MISO will not be used to Dairyland the proceeding by and MPUC Heyding serve their Minnesota members. questioning Dry Basin’s whether Forks er, 15 F.Supp.3d at 904-18. On appeal, the transfer 216H.03 violated and then inten- supporting State and its amici challenge tionally leaving question the unanswered. each of rulings. those This probable injury resulting is economic governmental from action that satisfies Ar- II. Standing Ripeness. ticle injury-in-fact requirement. Ill’s See Standing. A. Article III of the Constitu- York, 417, 433, Clinton v. 524 New U.S. jurisdiction tion the limits federal courts (1998). 2091, 141 118 S.Ct. On and “Controversies.” “Cases” To estab- record, this the State’s assertion that there lish an III controversy, Article case or a no is real threat of enforcement because plaintiff show it has an inju- must suffered MDOC and do not intend to MPUC en- ry fairly challenged fact traceable to the force the on based transac- likely conduct that will be by redressed tions the markets is not MISO credible. Lujan decision. v. favorable See Defs. of Ripeness. argues B. The State the dis- Wildlife, 555, 560, 504 112 U.S. in concluding plain- trict court erred (1992). 119 351 L.Ed.2d When is judicial ripe tiffs’ claims for review. are alleged Clause, to violate the Commerce Heydinger, F.Supp.3d 15 at 906. The plaintiffs if standing the “has a law ripeness is aimed preventing doctrine at negative borrowing direct effect on their courts, through “premature adju- federal power, strength, plan- financial and fiscal Gale, dication, ning.” v. entangling Jones 470 F.3d 1267 themselves in exercising juris- court refrain from Labs. v. eral Abbott disagreements.” abstract Gardner, potentially the involves a diction when case (1967). party seeking A 18 L.Ed.2d that is un- controlling issue of state law must show “the fitness review federal clear, this issue and the decision of and the judicial for decision the issues materially avoid or alter state courts could withholding parties to the hardship for a decision on federal constitu- the need Id. at consideration.” court Brookings Cty., grounds.” Moe v. tional at least must exist “to 1507. Both factors (8th 1981). F.2d Cir. Dist. degree.” Neb. Pub. Power a minimal because court declined to abstain district Energy Co., 234 F.3d MidAm. v. sufficiently §216H.03 “Minn. 2000). (8th Cir. possi- no ambiguous, and because there is novo, agree we Reviewing this issue de determination will bility that the state law plaintiffs’ court with the district question.” moot the federal constitutional judicial for review. See ripe claims are Heydinger, at re- F.Supp.3d 907. We Dayton, 761 F.3d Parrish v. of discretion. ruling this abuse view review). 2014) (standard of The chal Inc, Corp., City Lines, Nat’l LLC Seе because the issues is fit for review lenge 1982) (stan- chal legal, and the predominately are review). dard of causing currently lenged prohibitions pro- argues that whether The State ability hardship by interfering with §in hibitions in, plan, as Basin to invest plaintiffs such in MISO apply to transactions operations. their business De and conduct unclear, “it and therefore would markets is force these laying judicial resolution would so that appropriate to abstain be gamble millions of dollars plaintiffs “to interpretation a formal Pub. MPUC can issue legal foundation.” Neb. an uncertain Power, It also harm administrative proceeding.” risks But part of an region all in the served here, citizens rea- in the context this is insufficient discouraging by preventing MISO court to decline son for the district its power capacity development of unflagging obligation” to exer- “virtually Pac. needed to meet their demands. See jurisdiction. cise federal Colo. River Water Energy Res. Gas & Elec. Co. v. State States, 424 Dist. v. United Conservation Comm’n, 461 U.S. & Dev. Conservation 800, 817, 96 S.Ct. 47 L.Ed.2d 190,201-02, 103 75 L.Ed.2d has place, In the first (1983). view, given potentially In our this years interрreta- “issue a formal had to uncertainty the re impact,” “disastrous intentionally not so. tion” and has done will en garding how MDOC and MPUC opine even MDOC declined to rule or prohibitions confirms the force these that constitutionality in the the 216H.03 for review. v. Toi ripe claims are Gardner failed to Dairyland proceeding, and MPUC Ass’n, 167, 172, 87 S.Ct. let Goods 387 U.S. request ruling for a wheth- answer Basin’s (1967). 1526, 18L.Ed.2d 704 applied the to Basin’s transfer of er Dry plant the Forks into III. Abstention. the MISO markets. argues The the district court State the has equal significance, Of State to decide this case should have declined in- plausible limiting forth a put failed to established under the abstention doctrine 216H.03, §of subd. terpretation Pull in Railroad Commission of Texas v. Co., that “moot the federal constitu- 643, would 496, 312 61 S.Ct. 85 man U.S. (1941). repeated The assertions question.” a tional requires L.Ed. 971 “Pullman fed-

919 generally in the that the weighs State’s briefs its local benefits. See Ha apply zeltine, do not “to the MISO short-term 593; 340 F.3d at Cotto Waxo Co. v. contrary markets” are plain Williams, (8th 790, 1995). 46 F.3d Cir. statute; moreover, meaning of the do Supreme The Court applied has the ex- not answer whether the statute nonethe traterritoriality in relatively doctrine few impacts less transactions out-of-state cases. The “critical inquiry is whether the adequate MISO members to obtain practical effect of regulation is to con- power capacity region. for the this situ beyond trol conduct the boundaries of the ation, obviously the statute is not sus “[i]f Healy, 336, State.” 491 U.S. at 109 S.Ct. construction, ceptible limiting of a then (quotation omitted); and citations see even if the statute has never been inter Corp. Brown-Forman Distillers v. N.Y. preted a state tribunal it is duty Liquor Auth., 573, 582, U.S. properly federal court to exercise its Edgar 2080, (1986); 90 L.Ed.2d 552 City jurisdiction.” invoked of Houston v. Corp., 624, 643, MITE 457 U.S. 102 S.Ct. Hill, 451, 468, 2502, 482 U.S. 107 S.Ct. v, 2629, (1982); 73 L.Ed.2d 269 Baldwin L.Ed.2d 398 (quotation and altera Seelig, Inc., G.A.F. omitted); Energy, tion Middle S. see Inc. (1935). 79 L.Ed. 1032 A state Comm’n, v. Ark. Pub. Serv. 772 F.2d statute has undue extraterritorial reach ‍‌‌​​‌‌‌​‌‌‌‌​​​​‌‌​​‌​​​‌​‌​‌​‌‌​​‌‌​‌​‌‌‌​‌​​‌​‍denied, 1985), cert. per and “is se “requires invalid” when it (1986).

people or businesses to conduct their out- The IV. Commerce Clause Merits. of-state way.” commerce in a certain Cotto Waxo, 46 F.3d at 793. argues The State grants Commerce Clause to Con ruling district court erred gress “regulate Commerce “§ among 3(2) (3), ... the several States.” U.S. Const. violates the ex- — I, 8,§ art. cl. 3. Although the Clause does traterritoriality per doctrine and is se in- expressly limit ability Heydinger, the States’ valid.” 15 F.Supp.3d at commerce, regulate Supreme Court 916-19. We review this issue of law de “ interpreted has it including ‘dor novo. See S. Union Co. v. Mo. Pub. Serv. mant’ limitation on the authority of the Comm’n, 2002). legislation States to enact affecting inter supporting 1. The State and its amici Healy Inst., state commerce.” v. Beer argue only price-control price- 326 n. affirmation laws can violate the extraterri A state statute that doctrine, toriality an argument that would against discriminates interstate commerce seemingly all prohi insulate environmental in favor of usually in-state commerce is bitions from this Commerce Clause scruti per se violation of this constitutional limi ny. categorical approach This to the Com Likewise, tation. a statute that has the contrary merce would Clause be well- practical effect exerting extraterritorial Supreme established Court jurisprudence. place contrоl over “commerce that takes Inc, Lynn Creamery, Healy, See W. v. 512 wholly outside of the State’s borders” is 186, 201, 2205, 114 129 U.S. S.Ct. L.Ed.2d likely 336, to be per invalid se. Id. at 109 (1994) (“Our juris 157 Commerce Clause limitations, Beyond 2491. S.Ct. those a prudence rigid is not so as to be controlled statute will run afoul of the Commerce by the form a barri which State erects Clause as construed in Pike v. Bruce Church, Inc., commerce.”); ers to Ill. cf. Commerce 844, 397 90 U.S. S.Ct. 25 (7th (1970), Comm’n v. 721 F.3d 776 imposes L.Ed.2d 174 if it an undue — denied, 2013), U.S.-, on burden interstate commerce that out- Cir. cert. 134 920 (“Michi- scrutiny under the Pike Commerce Clause L.Ed.2d 298 188

S.Ct. test, balancing or “for traces of discrimina- cannot, violating the com- without gan commerce, in favor of in-state but against out- tion” ... discriminate merce clause con- they do not warrant “near automatic energy”). of-state renewable extraterritoriality under the demnation” correctly noted the court The district at a state stat- doctrine. Id. 1173. Whether limited the has never so Supreme Court ute with extraterritorial effect should be doctrine, applied has it more and indeed invalid,” be ana- “per deemed se or should Heydinger, F.Supp.3d 15 at 911. broadly. test, balancing is a lyzed under the Pike Corp., Edgar the invali In v. MITE Court ad- previously difficult issue we have not Act; Take-Over Illinois Business dated the In this case the State has not dressed. in part ruled the Act invalid plurality a argued that the district erred .court “sweeping extraterritorial because of its standard, applying per opposed the se as 624, 642, U.S. S.Ct. effect.” 457 balancing Pike test.4 to the (1982).3 have twice We 73 L.Ed.2d primarily argues that price-con 2. The State applied the doctrine outside Union, 507; §in at subd. S. 289 F.3d trol context. See Waxo, apply to the “MISO short-term at 793-94. Our sister do Cotto do not vio- variety energy a markets” and therefore have considered whether circuits extraterritoriality doctrine. The unconstitutionally late the non-price of laws were See, e.g., Beverage regulates contends that the statute Am. extraterritorial. (6th Snyder, only “contracts or other commitments 735 F.3d Ass’n v. — denied, U.S.-, electricity in the future” and the Cir.), import cert. (2013); generating who contract with a “persons Am. Booksellers 187 L.Ed.2d Dean, facility import electricity 103-04 into Minnesota 342 F.3d Found. Mgmt. (2d By con- 2003); for use Minnesota customers.” Nat’l Solid Wastes Meyer, trast, are for 659-60 the MISO markets short- Ass’n v. denied, 1995), implicate 116 term and thus do not cert. ( 1996). prohibition long-term power L.Ed.2d 520 NGEA Thus, purchase agreements. the statute as recently panel A of the Tenth Circuit read it leaves non- the State would us contrary in En position took somewhat entities free to transact busi- ergy Legal Institute v. & Environment ness with other non-Minnesota entities. Epel, Cir.), cert. F.3d 1169 de —nied, -, court The district concluded that this (2015). contrary to the lan- plain At issue was the validi contention is Heydinger, of statute. ty requiring guage “elec of a Colorado F.Supp.3d that at 908-10. Subdivision tricity generators to ensure 20% expressly con 216H.03 defines “statewide electricity sell Colorado power sector carbon dioxide emissions” as comes from renewable sources.” sumers law, including generation from the upholding the court emissions Id. 1170. “imported that from outside “non-price prod that standards ruled consumed in Minnesota.” may be amenable to the state and ucts sold in-state” Epel— Edgar alleged in Though portion plurali- 4. The extraterritorial effect was Healy ty opinion, majority producers described ... will "some out-of-state coal Edgar "significantly business,” a decision illumi- 793 F.3d at 1171— [Colorado] lose prohi- nates the contours of the constitutional than the effect that invalidates is different legislation.” 491 bition on extraterritorial §216H.03, 3(2) and Minn. Stat. n.9, U.S. at 333 109 S.Ct. 2491. provides of subdivision 3 that not imported Clause be into and consumed in “no shall or commit person” “import to Minnesota. As MDOC observed in the large from a import” energy Dairyland new proceeding, impossible “it is state,” facility located a “outside com determine that no electrons from a genera- plainly encompassing present mand both tion unit reach particular a end-use cus- tomer, prohib and future transactions.5 Clause generation unless the resource and entering a long-term power its into new end-use customer are completely discon- agreement purchase “that would increase nected physically.” Thus, from each other from an generating generators Basin, Minnkota, emissions” out-of-state such as facility, whether presently existing оr not. prevent energy MRES cannot they place prohibitions These plainly broad encom in the grid MISO to serve non-Minnesota pass non-Minnesota entities and transac customers being imported into Minnesota, tions. The presumption against extraterri and a Minnesota LSE cannot toriality does not apply when the statute’s do business with those genera- out-of-state Waxo, text is clear. Cotto 46 F.3d at 792- “importing” tors without electrons from their coal-fired facilities. only challenged Not do the persons Like post who information on an utilities, apply to non-Minnesota they reg- website, out-of-state internet out-of-state activity ulate taking place transactions utilities entering purchases into and sales wholly outside of Minnesota. the re- of electricity in the MISO transmission gional MISO a grid, person transmission grid prevent “cannot [electricity users in “imports” electricity who does not know from accessing Minnesota] the [electrons].” Booksellers, origin receives, of the electrons it Am. 342 F.3d at 103. And the pursuant whether or not the transaction is provides that all participants MISO a long-term purchase agreement comply with must challenged prohibi generator. out-of-state As a any State ex- tions time enter into a transac market, pert described the agreement may tion or “import” elec path” importer tricity “contract between the into Minnesota. To avoid this direct generator dollars, “represents a flow of not impact on activities and transactions that a grid, flow electrons.” In the entirely MISO are otherwise out-of-state com merce, freely regard electrons flow without integrated regional utilities like Ba borders, entirely under MISO’s con- sin must unplug either from MISO or seek Thus, generat- trol. when a regulatory approval non-Minnesota from MDOC and utility injects ing electricity into the “Forcing regu MISO MPUC. a merchant to seek grid to latory approval meet its commitments to non- in one State before under customers, taking it cannot ensure directly transaction in another that those electrons regulates will flow into and interstate commerce.” Brown- Forman, Likewise, be consumed in Minnesota. non- аt S.Ct. 2080. reason, Minnesota utilities that into power correctly enter For this the district court purchase agreements to challenged prohibitions serve non-Minne- concluded that the sota guarantee practical members cannot have “the effect controlling electricity eventually beyond bid into the conduct MISO the boundaries of’ Minne Waxo, pursuant agreements markets to those will sota. Cotto 793.6 “import” bring regulat- 5. The word means "to in from 6. This case is unlike cases where the physical ability foreign ed out-of-state had the or external entities source: introduce from segregate products regulat- bound for the without.” Webster's Third New International ing products State from bound for other Dictionary Rocky States. See Mountain Farmers Union 922 regulatory grid, Minnesota merely “§ that 216H.03 absent argues

The State dismantling of the federal- or the approval in an area of traditional regulates Minnesota question, encouraged approved MISO trans- authority.” ly and Without long regulated the system. may other States This Minnesota not and mission construction, of elec- operation and siting, Congress. approval of do without located within facilities generating tric Remaining Issues. V. 216B.243, §§ Minn. Stat. borders. See their Union, 216B.24; F.3d at 507. Minne- 289 S. enjoined defen court The district authority regulatory to broad sota “retains enforcing Minn. officials “from dant state safety of its citizens and the health protect 3(2)-(3).” Heyding §216H.03, subd. natural resources.” of its integrity er, argues F.Supp.3d at 919. The State 15 Taylor, 131, 151, 106 477 U.S. v. Maine plain injunction improper was because 2440, Consis- 91 L.Ed.2d S.Ct. not “establish that no set of cir tiffs did did not authority, plaintiffs tent with that the Act exists under which cumstances not district court did challenge, and the Salerno, be valid.” United States v. would §216H.03, subd. enjoin, enforcement of 2095, 3(1), constructing within prohibits which (1987). But this standard does facility that large energy a new challenges un to extraterritorial apply not to statewide carbon diox- would contribute has der the Commerce Clause. ide emissions. Supreme apply not Court decision cited (2) (1), Clauses But unlike Clause standard to a facial Com ing the Salerno (3) 3, 216H.03, seek to reduce subd. Healy, challenge. And in merce Clause outside Minnesota that occur еmissions extraterritoriality challenge, Salerno facial originate out- prohibiting transactions majority, in the was not even cited Court’s practical And their effect Minnesota. side concurring, dissenting opinions. taking place wholly activities is to control 324-49, 109 at U.S. determining Minnesota. wheth- outside argues that the in- The State further reach, extraterritorial er a law has junction “should have been limited what has instructed us to con- Supreme Court necessary supposed to cure the extra- was in- challenged may sider “how the to put territorial reach.” But the State fails regulatory re- legitimate with the teract injunction. more alternative forth a limited Healy, of other gimes States.” prohibitions the overbroad Given 2491. Other States 109 S.Ct. it would be adopted Minneso- region have MISO nar- inappropriate speculate as what increasing the cost of electric- ta’s policy im- would be free of rower currently of the most ity by restricting use yet effect would proper extraterritorial generating capaci- cost-efficient sources significant part of the statute’s achieve a challenged impose statute will ty. Yet the circumstances, purpose. In these apparent neighboring by pre- policy States court not abuse its discre- the district did adding ca- members from venting MISO enjoining anywhere by simply tion enforcement prohibited sources pacity Elec, Sorrell, Corey, (9th 272 F.3d Cir. Nat’l Mfrs. Ass'n 730 F.3d 1102-03 denied, denied, U.S. -, (2d 2001), 2013), Cir. cert. - cert. (ethanol); 153 L.Ed.2d 180 Int'l Feedlot, Nixon, Hampton Dairy Boggs, (lamps); Inc. v. F.3d Ass'n v. Foods 2001) (livestock); 2010) Cot (dairy products); Cir. 646-47 Waxo, Blumenthal, SPGGC, (petroleum-based 46 F.3d at 793 LLC v. cards); (2d sweeping compounds). ‍‌‌​​‌‌‌​‌‌‌‌​​​​‌‌​​‌​​​‌​‌​‌​‌‌​​‌‌​‌​‌‌‌​‌​​‌​‍(prepaid gift 195-96 §216H.03, the two invalid subsections of regulate wholesale sales and the transmis- 3, leaving Minnesota to craft an al- sion of electric in interstate com- ternative. merce. See New York v. 535 U.S. 1, 6-7, 1012, 122 S.Ct. 152 L.Ed.2d 47 order,

In summary judgment its the dis (2002). trict declined to plaintiffs court award at Heydinger,

torneys’ fees. 15 F.Supp.3d at I. cross-appealed

919. Plaintiffs ruling. While cross-appeal pending, their was the The gives Constitution Congress the district court ruled that entitled power regulate “[t]o Commerce to recover fees but did not determine among the several States.” U.S. Const. amount to be awarded. North Dakota v. I, 8,§ Art. powеr cl. 3. That also has a Heydinger, 11-CCV-3232, No. 2014 WL “negative or dormant implication,” which (D. at *1-2 & n. 1 Minn. Dec. “prohibits taxation regulation 2014). Accordingly, we dismiss the cross- unduly discriminates or burdens interstate Rodriquez, appeal moot. as See re commerce thereby impedes pri free (“If, while an vate trade in the national marketplace.” appeal pending, an event occurs that Corp. Tracy, Gen. Motors v. 519 U.S. ability eliminates the court’s provide (1997) 117 S.Ct. any whatever, effectual relief appeal (citations omitted). Under the dormant moot.”). must be dismissed Clause, Commerce a statute faces strict judgment The of the district court is scrutiny and always is almost invalid if it affirmed. against “discriminates interstate commerce.” pt. Ky. Davis, De of Revenue of MURPHY, Judge, Circuit concurring in 328, 338, 128 S.Ct. part concurring judgment. (2008). If the law is nondis- I respectfully disagree Judge with Lo- eriminatory “regulates even-handedly ken’s extraterritoriality analysis. The chal- legitimate effectuate a public local in lenged provisions in the Next Generation terest, and its effects on interstate com Energy Act would regulate еntities outside only incidental, merce are it will be upheld only Minnesota if those “import” entities unless the imposed burden on such com into Minnesota or enter into clearly merce is excessive in relation to power purchase agreements that result in putative local benefits.” Pike v. Bruce power being imported into Minnesota. Church, Inc., provisions These would regulate com- (1970). L.Ed.2d One line of merce place wholly “that takes outside of Supreme Court cases has invalidated stat borders.” For [Minnesota’s] reasons these utes which an impermissible have extra disagree I Judge Loken’s conclusion territorial “controlling effect commer that the provisions have unconstitution- cial activity occurring wholly outside Healy al effect. extraterritorial See v. Beer Healy, boundary of State.” U.S. Inst., 324, 336-37, 337, 109 2491. The inquiry critical L.Ed.2d these practical cases “is whether the effect The injunction district court’s should regulation of the is to control conduct be nonetheless be affirmed because both of yond the of the boundaries State.” Id. at challenged statutory provisions are preempted by the Federal Power Act. That act gives the Federal statute at Energy Regula- issue before us tory jurisdiction Commission exclusive provides person that “no shall:” out, however, that pointed Experts the state new within construct drops like of water facility that would contrib- do not behave electrons

large energy carbon power sector for this “is not how through pipe, to statewide flowing ute emissions; Engi- dioxide of Electrical electricity works.” Brief import Supporting or commit al. as Amici Curiae import neers et (No. from a new the state v. FERC 00- outside New York Respondents, contrib- facility that would energy (“Brief large *6 568), 605124 at 2001 WL carbon power sector to statewide York, ute cited in New Engineers”), Electrical emissions; or dioxide 5,n. 1012. “Water at 7 (3) power long-term a new into enter the transmission of metaphors for pipe that would increase agreement purchase misleading.” Id. electricity popular, are but sector carbon dioxide power statewide (citation omitted). emissions. system, In the transmission phrase subd. 3. The Minn. Stat. actually “flow” individual electrons do dioxide power sector carbon “statewide pipe. in Id. at in as water the same sense total carbon defined as the emissions” is Rather, in the electrons oscillate *6-7. generation “from dioxide emissions it which is place, and is electric “from the the state” and electricity within propagation of an through transmitted from electricity imported generation of Electricity on electromagnetic wave. Id. in Minne- and consumed outside the state the laws of grid according behaves to sota.” Id. subd. from dispatched and it cannot be physics, statutory provisions challenged The two at *8-9. particular place to another. Id. one in engaged which are companies apply grid ener- “Energy flowing power onto a enters into Minnesota. which commerce then gizes grid, the entire and consumers “import” to entities that applies Clause energy from that undifferentiated draw the state.” Id. subd. 3. “from outside

power at *9. grid.” Id. provision agreement power purchase The actually impоr- is grid How the works to entities which enter applies in clause interpreting in a Minnesota tant because increase Minnesota’s agreements that into presume legislature that the did statute we electricity genera- emissions from carbon absurd, impos- “not intend a result that generation of in Minnesota or from tion execution, unreasonable.” Minn. sible of from outside the electricity “imported 645.17(1). if a coal example, For See id. consumed Minnesota.” state and in Arkansas were to bid its power plant do not allow provisions 2-3. These subds. and be generation into the MISO market that oc- regulate transactions Minnesota power, generate MISO to requested “wholly outside” the state. cur inject plant would not electrons that coal assump- relies on incorrect Judge Loken and be con- grid to “flow into into operates that the statute tions to conclude suggested in Minnesota” as sumed it to all extraterritorially applies because Loken, utili- though even Minnesota Judge anywhere on the MISO occurring events simultaneously drawing power werе ties (Midcontinent System Independent grid power actual flows of grid. from the regu- Operator). In his view the uncontrollable, unt- unpredictable, a generat- because lates flows electrons Engineers at Brief of Electrical raceable. Minnesota “in- which ing facility outside *2, energized grid be- 15-16. Because the grid ... jects electricity into the MISO electromag- as an undifferentiated haves will not cannot ensure that those electrons wave, way trace and there is no netic consumed in Minnesota.” flow into be Ltd., grid the flows of electric on the Australia Bank generators to local distribution sub- (2010); In re Thus, Pratt, impossible stations. it would be 219 Minn. 18 N.W.2d Attorney the Minnesota General to enforce Judge the statute as Loken envisions. See Judge Loken contends that pre- id. The State concedes as much its brief sumption against extraterritoriality does it it

where states that “could not enforce” not apply here because the statute’s text import provision against transactions clearly provides for extraterritorial appli- in the term energy MISO short markets. disagree. cations. I Although the statute Interpreting import provision apply power plants covers outside (or to all new plants MISO else- which enter into contracts with utilities contend) appellees where as is therefore state, within the that does not mean it not reasonable. controls commerce occurring wholly out- A reading sounder of the text is that the side the A may subject state. state out of in import provision applies the statute to state companies to its laws when en- in bilateral contracts which a Minnesota ter into commerce within the state without utility agrees purchase power from a violating any extraterritoriality principle. large energy facility new out of state. The See, e.g., Pharm. Research & Mfrs. of Am. in language supports the statute this inter- Walsh, 644, 669-70, v. 538 U.S. pretation exemptions because it creates 155 L.Ed.2d (rejecting 889 certain entered into “contracts]” before extraterritoriality challenge to Maine’s purchase power “to ap- [an prescription program rebate brought by proved] largе energy facility” new and for manufacturers). out of drug state power purchase agreements “between a Williams, In Cotto Waxo Co. v. 46 F.3d utility approved] and [an new (8th 1995), explained Cir. our court large energy facility located outside distinction wholly between extraterritorial § Minnesota.” Minn. Stat. 7(2) (3). regulation regulations apply which interpretation This making avoids — out of companies entering into “impossible the statute com- execution.” See 645.17(1). Waxo, Minn. merce within state. Cotto out of state manufacturer was forced to sure, To be ambiguous statute is stop selling products its in Minnesota after exactly “import” which actions would legislature the latter’s issued a ban on duty from outside the state. Our in company them. The contended that adopt such a situation is to a reasonable Minnesota law was invalid it pre- because construction of the statute which avoids “an vented out-of-state manufacturer from problems the constitutional in the statuto- selling product its to out-of-state retailers ry interpretation by appellants. See explained and end users.” Id. at 793. We Dep’t Pac. R.R. v. Union Co. had “misapprehend[ed] Cotto Waxo Sec., Homeland 738 F.3d 892-93 reach,” meaning of extraterritorial 2013). presume leg- We the Minnesota “necessarily which refers to statutes that islature did not intend its statute to be require[ out-of-state commerce to be con- ] interpreted in a manner which raises seri- according ducted to in-state terms.” Id. at questions.

ous constitutional See v. Clark Martinez, 371, 381-82, Although 793-94. the Minnesota law 543 U.S. (2005). “[c]learly ... partic- affected Cotto Waxo’s pre- We also commerce,” ipation in interstate apply sume that Minnesota laws do not its effect extraterritorially. unconstitutionally See Morrison v. Nat’l was not extraterritorial (FPA). Ashwander occur- al Power Act See v. “indifferent to sales

because it was Valley Auth., was Tenn. Cotto Waxo ring out-of-state” (Brandéis, re- S.Ct. 80 L.Ed. 688 purchasers to out-of-state to sell “able J., concurring). gives The FPA exclusive relationship to Minnesota.” gardless [its] Energy Regula- to the jurisdiction Federal Id. at 794. (FERC) “the tory Commission over trans- Waxo, like in Cotto the text In this ease in energy mission of еlectric interstate provision bars contracts import of the be and “the sale of electric commerce” in Minneso generators and utilities tween commerce.” at wholesale New interstate ta, generators to contract but allows the York, 1012; 6-7, See freely utilities outside Minnesota. 824(b)(1). distinguishes The act U.S.C. It does not at 793-94. ‍‌‌​​‌‌‌​‌‌‌‌​​​​‌‌​​‌​​​‌​‌​‌​‌‌​​‌‌​‌​‌‌‌​‌​​‌​‍therefore 46 F.3d among wholesale sales between wholly outside Minnesota. control conduct utilities, generators and which Compare Quik Payday, Inc. v. id. See and retail sales of regulated Stork, who electricity by serving load entities extraterritoriality challenge to (rejecting it purchase power at wholesale and resell payday lending of Kansas’s enforcement FERC v. Electric Power to end users. See against internet lender based Utah law Supply (EPSA), U.S.-, Ass’n to Kansans located their making loans 760, 767-68, state), ex and State rel. Swanson home Advance, LLC, Integrity provision in the Minnesota import N.W.2d (Minn. “import (rejecting extraterrito covers transactions which 95-96 import commit to from outside the state challenge payday tо Minnesota’s riality lender), large energy facility.” by power internet from a new lending law Delaware 3(2). Loans, Mills, § Inc. v. Minn. Stat. subd. Since the with Midwest Title 2010) (invalidat 660, for import provision 669 Cir. bans contracts 593 F.3d an ing lending applied large power plants, law as from new it thus bans Indiana company lending Indiana resi of electric in inter Illinois wholesale sales “ using dents contracts which were made FPA ‘leaves no state commerce. The Illinois). entirely in regulation and executed room either for direct state or for prices of interstate wholesales’ of this Minnesota statute indi- The text indirectly ‘would achieve regulation that import provision does not cates that ” EPSA, at -, the same result.’ 577 U.S. “wholly out- activity which occurs cover (quoting Natu at 780 Northern S.Ct. Healy, state, 336, side” the 491 U.S. at Corp. Kan., ral Gas Co. v. State Comm’n 2491, reasonably con- and the State S.Ct. 646, 9 L.Ed.2d 601 372 U.S. 83 S.Ct. having application strues this statute as no (1963)). preempts The FPA therefore market. I to transactions on the MISO provision. import disagree Judge respectfully therefore challenged Loken’s conclusion that the' Appellаnts import pro- contend that the extraterritorially. provisions operate preempted vision in this statute is not it relates to a traditional area of because

II. by not covered the FPA. regulation state that the re- preemp- recognized can FERC has states This case be resolved regulate FPA to authority is- tain under the analysis complex tion that avoids in “traditional areas” such as the “adminis- surrounding application sues of the ex- integrated planning tration of resource traterritoriality doctrine to the markets, utility buy-side and demand-side decisions” challenged both statuto- because “utility generation port- and resource ry preempted by the Feder- provisions are York, 24, at folios.” See New 535 U.S. subd. grounds. They three 888). (quoting FERC Order contend that the statute preempted by is however, statute, import provision this Act, 824, the Federal Power 16 U.S.C. et any categories. does fall into of those seq., preempted by Act, the Clean Air laws, import provi- Unlike those 7401, seq., U.S.C. et and unconstitutional directly sion here bans certain wholesale under the “dormant” Commerce Clause. sales. The district court accepted the latter con- permanently enjoined tention and Minne-

The transactions covered (which enforcing sota from statutory provi- purchase agreement provision e sions. I megawatts agree for 50 or mor of the plaintiffs contracts capacity) are standing wholesale transactions. See dispute sue and that the ripe is §216H.03, 3(3).7 Minn. Stat. These for resolution. agreements capacity cover on the national Although the district court did not ad electricity grid and in are thus made “in dress whether the Minnesota statute is EPSA,

terstate commerce.” See 577 U.S. preempted by one or both of the federal York, at -, 768; New 535 statutes, we should question consider that U.S. at 122 S.Ct. 1012. FERC has first. According Supreme Court, to the jurisdiction regulate parameters certain preemption claim “is ‘statutory’ treated as market, capacity of the price and “the purposes practice of our deciding capacity indisputably a matter within statutory claims unnecessary first to avoid jurisdiction.” the Cоmmission’s exclusive adjudications.” constitutional Douglas v. England Ass’n, New Power Generators Prods., Inc., Seacoast 271- (D.C. Inc. v. 757 F.3d (1977); L.Ed.2d 304 Hughes Energy Mktg., 2014); v. Talen cf. accord Ariz. Dream Act Coalition v. Brew LLC, -, er, Cir.2016); 818 F.3d 913-14 (discussing reg FERC Co., C.E.R. Inc. v. Aetna Cas. & Sur. markets). ulation of capacity Minnesota’s (3d 2004). 272 n. 13 If capacity ban on certain directly contracts preempts federal law the Minnesota stat jurisdiction. conflicts with. FERC’s The ute, unnecessary then it is to address power purchase agreement provision is whether the statute violates a dormant preempted by thus also the FPA. limitation implied from the Commerce agree Judge I with Loken that we have Clause. jurisdiction and concur in judgment, parties dispute The scope I disagree Judge but with extra- Loken’s plaintiffs urge Minnesota statute. The a analysis territoriality and would instead interpretation broad under which the stat- injunction affirm the district court’s be- regulates activity occurring entirely ute challenged provisions cause both of the are outside Minnesota. The State favors a nar- preempted by the FPA. applies only rower construction that to bi- COLLOTON, Judge, concurring Circuit lateral contracts in which a en- Minnesota in the judgment. tity agrees power to purchase from an out- energy of-state It plaintiffs challenge provider. unnecessary in this case is (or validity § of Minnesota statute to dispute resolve that to decide wheth- electricity “capacity” enough during power peaks 7. In the markets is the de- ability produce Dep’t when neces- mand. See Conn. of Pub. Util. Control sary. purchase capacity Utilities from electric (D.C. 2009). power generators to ensure can obtain in North Dakota. SA 261. Energy operated first be should addressed question er the courts, that a North Dakota R.R. Comm’n The State contends see by the state Co., satisfy provi- could the offset entity Pullman also Tex. v. (1941)), because even allow- by purchasing L.Ed. 971 carbon dioxide sion view, narrower the State’s northeastern under from California or ances federal preempted by is States. law. an out-of- require effort to Minnesota’s statute bans the Minnesota

Insofar as the statute’s entity comply with state in inter energy of electric wholesale sales conflicts with the Clean provision offset commerce, Part II of agree I regulates Air Act emis- Air Act. The Clean that the statute Murphy’s opinion Judge through cooperative ap- federalism sions Power Act. The by the Federal preempted grants Act the Environmental proach. The Regulatory Commission Energy Federal Agency authority Protection to establish the inter jurisdiction over has exclusive standards, including limits on baseline in electricity, for market state wholesale §§ It then 42 U.S.C. 7409. emissions. Hughes rates. See v. Ta wholesale cluding develop calls for each State State — U.S.-, Energy Mkg., len regulate Plan to station- Implementation Be 194 L.Ed.2d §§ ary sources within its boundaries. may regulate wholesale a State not cause 7410(a)(1). plan Each State’s must include im rates, may that a State it follows measures, means, techniques,” “control sales, complete ban on wholesale pose a as “enforceable emission limitations” such forbidding parties to arrive effectively permits,” or “marketable to meet Act’s mutually agreeable рrice. any 7410(a)(2)(A). § requirements. States terms, by its The Minnesota statute employ emissions standards permitted however, complete not constitute a does by the stringent specified more than those sales of that con- ban on wholesale § requirements. federal or increase statewide sec- tribute to respon- granted “primary Each State is dioxide emissions. Subdivision tor carbon sibility assuring quality air within [its] but subdivi- general prohibitions, contains 7407(a); geographic region.” see entire If a exceptions: “project sion establishes 7401(a)(3). designed The Act is so also that it will “off- proponent” demonstrates operator pollution that each of a source to emissions set the new contribution” only sovereign look to one need —the facility’s emissions or reducing existing the source is located—for rules which allowances, carbon dioxide purchasing “[A]llowing emissions. ‘a num- governing both, then the by a combination of independent of different states to have ber apply. 3 do not prohibitions of subdivision authority over a plenary regulatory therefore, statute, permits project lead chaotic con- single discharge would other- to conduct transactions proponent ” sovereign states.’ frontation between 3 if it meets by subdivision prohibited wise N.C., Auth., Cooper Valley rel. v. Tenn. ex example, For in a requirements. the offset (quoting concerning a new coal-fired proceeding Ouellette, Paper Int’l Co. v. Energy in North plant of Great River 496-97, to serve part Dakota that would be used (1987)). customers, the Minnesota Pub- Minnesota requirements of the Minneso- The offset solicited comment lic Utilities Commission ta encroach on the source State’s proposal offset to reduce emis- on a carbon from sources authority govern River emissions at other facilities that Great sions If within its borders. other States

region enacted laws similar to the Minne- statute, energy facility

sota then an could required

be to comply multiple vary-

ing requirements emissions order to sell energy through

wholesale the MISO mar- By demanding

ket. offsets or allowance

purchases from a North Dakota energy

facility as a condition for contracting to

provide power customers, to Minnesota

Minnesota’s regu- statute conflicts with the

latory Congress scheme that designed in Air

the Clean Act. If Minnesota has con- neighbors,

cerns with emissions from its may

then it through seek recourse one of Act’s several mechanisms which may challenge

affected States emissions See U.S.C. 7426;

from source States. Auth.,

Tenn. Valley 615 F.3d at 310-11. reasons,

For challenged provi- these law,

sions of Minn. preempt-

ed federal law. I concur in judg- affirming

ment injunc- the district court’s dismissing

tion and cross-appeal

moot. America,

UNITED STATES of

Plaintiff-Appellee JONES, Bernard

Victor Defendant-

Appellant.

No. 15-2287

United States Appeals, Court of

Eighth Circuit. Chatham, Reinert, Dan Patrick J. Assis- ‍‌‌​​‌‌‌​‌‌‌‌​​​​‌‌​​‌​​​‌​‌​‌​‌‌​​‌‌​‌​‌‌‌​‌​​‌​‍April Submitted: Williams, Attorneys, tant U.S. Lisa C. Filed: June Office, Attorney, Attorney’s Northern Iowa, IA, Rapids, District of Cedar Plaintiff-Appellee. Jones, MS, City,

Victor Bernard Yazoo Pro Se.

Case Details

Case Name: State of North Dakota v. Beverly Heydinger

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 15, 2016

Citation: 825 F.3d 912

Docket Number: 14-2156, 14-2251

Court Abbreviation: 8th Cir.