Editorial: Big Coal suit would big-foot Minnesota

  • Updated: November 14, 2011 - 5:57 AM

Flawed North Dakota lawsuit seeks to mire state in energy past.

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Surface mined coal is loaded into a truck at the Dakota Westmoreland Corp coal mine in Beulah, N.D.

Photo: Will Kincaid, Associated Press

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It's hard to see how suing one of your best customers in hopes they'll buy more from you is a smart business decision.

But that's the dubious strategy pursued by North Dakota and its coal industry in filing a federal lawsuit against the state of Minnesota -- one of North Dakota's most cost-effective markets for coal-fired electricity.

This flawed lawsuit seeks to overturn key provisions of Minnesota's historic 2007 Next Generation Energy Act, keeping the state mired in the fossil-fuel past instead of moving toward a future powered by clean, renewable energy.

The lawsuit, filed Nov. 2 by North Dakota Attorney General Wayne Stenehjem, alleges that the Minnesota law's restrictions on coal-fired electricity discriminate against North Dakota companies, violating the U.S. Constitution's interstate commerce clause.

Two coal companies, a North Dakota coal trade group and three utility companies joined Stenehjem in filing the suit.

The lawsuit is unlikely to succeed and is a waste of taxpayer dollars.

The weakness of the its principal discrimination argument, along with the other out-there reasoning included in it, reveals this legal maneuver for what it really is: a Hail Mary-effort by Big Coal to hang onto the big energy market next door.

Minnesota's groundbreaking law, signed by then-Gov. Tim Pawlenty, a Republican, put in place some of the nation's most aggressive renewable-energy standards.

It also sought to hold the line on the state's greenhouse gas emissions by requiring offsets (carbon emission reductions) for new coal energy added to the state's electricity mix.

This applies equally to producers no matter where they're located -- whether it's in Minnesota, Wisconsin, Iowa or North Dakota.

Laws that typically run into interstate commerce problems expressly discriminate against out-of-state interests. Yet Minnesota's law is even-handed.

Add to that the longstanding presumption by courts that state statutes are constitutional, and North Dakota's discrimination claim faces long odds.

The lawsuit also argues that Minnesota is attempting to regulate North Dakota. But that argument also is flawed. The law applies to energy sold to and used by Minnesota customers.

If anything, North Dakota's coal interests are trying to regulate Minnesota. Their influence was also felt in St. Paul during the last legislative session, when the Republican majority voted to undo these provisions of the Next Gen Act.

Gov. Mark Dayton smartly saw that as a roadblock to Minnesota's energy future and vetoed it, though session-end dealmaking resulted in an exemption to the law for North Dakota's new Spiritwood coal plant.

Bizarrely, Stenehjem's lawsuit cites that exemption as evidence of the law's bias against North Dakota.

The complaint's sneering language about the effectiveness of the Next Gen law is also just plain offensive. It implies that Minnesota can't even try to do its part in fighting one of this era's most pressing concerns: climate change.

A spokeswoman for Stenehjem this week said that he and his staff were too busy to respond to an editorial writer's questions. Environmental groups called the lawsuit "baseless."

Some Republican lawmakers applauded the North Dakota effort, saying that the Next Gen law puts at risk the reliability of the state's baseload energy generation (which has primarily been coal-fired).

The reality is that Minnesota energy prices are some of the most affordable in the nation. In addition, the economic downturn and conservation efforts have reduced demand in many areas.

A recent state filing by Xcel Energy underscores this: The utility may delay a major project because its revised forecasts indicate "a more than 500 [megawatt] reduction in forecasted demand" by 2016.

The 2007 Minnesota Legislature passed the Next Generation Energy Act, not the Big Coal Protection Act. North Dakota's coal interests may not like that reality, but it's one they need to accept.

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