North Dakota hasn’t filed a lawsuit yet, but the Industrial Commission has requested $3 million from the state legislature for legal fees on top of $1 million the commission has already allocated to the effort from its “Lignite Research Program” — an initiative funded by taxes on fossil fuel revenue that researches and develops new coal projects in the state.
It’s no mystery why North Dakota was so quick to go on the offensive. Most of the state’s power comes from coal, and it sells some 50 percent of the electricity it generates to nearby states. Its biggest customer is Minnesota. Minnesota’s new law stipulates that all electricity sold in the state come from renewable sources on a set timeline — 80 percent carbon-free by 2030, 90 percent by 2035, and 100 percent by 2040.
“Minnesota is under no legal duty to prop up North Dakota power plants,” Michael Gerrard, founder of Columbia University’s Sabin Center for Climate Change Law, told Grist. The state would find itself in legal trouble if it discriminated between in-state and out-of-state power plants, he said. For example, if Minnesota’s law accepted coal-fired power from plants inside its own borders but banned coal power from North Dakota, that would certainly violate federal interstate commerce law.
“We have one of the conservative Supreme Court justices saying that a state clean energy standard is fine,” Gerrard said. “So I think the outlook, if this case gets to the Supreme Court, would be favorable to Minnesota.”That’s significant, especially from a climate perspective. With Republicans in control of the U.S. House of Representatives, the chances of new climate legislation passing in this Congress are slim.