American Tradition Institute and Rod Lueck, v. Epel, et al.

In a decision affirmed by the US Court of Appeals for the Tenth Circuit (and written by then-Judge Neil Gorsuch, now a Justice of the US Supreme Court), the US District Court of the State of Colorado dismissed a complaint against the Colorado Public Utilities Commission. This complaint alleged that Colorado's Renewable Energy Standard (RES) violated the Dormant Commerce Clause. Providing expert opinions on behalf of the State of Colorado, Analysis Group's Senior Advisor Susan F. Tierney opined about the changing character of regional electricity markets that serve Colorado and other parts of the United States as driven by many factors, including fundamental market forces that affect that the costs of technologies and fuels; as well as by changes in technology, consumers' demand, and state legislative and regulatory policies. Dr. Tierney described the ways in which states' myriad policies affect the diversity of power supplies available to serve electricity customers in Colorado, and discussed the potential for one or another type of generating resource to be either more or less competitive in such systems, whether or not those resources are located within a state or out of the state. Although the court recognized that the RES's incentives may harm the profits of companies that produce electricity from non-renewable sources, the court ruled that the Dormant Commerce Clause does not protect profits of any particular business or means of production. In December 2015, the US Supreme Court rejected the petition of the Energy and Environment Legal Institute for a writ of certiorari.


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