Retail Energy Advancement League v. Brown

In 2024, Maryland enacted a law regulating how retail electricity suppliers market “green power.” Among other things, the law prohibited suppliers advertising “green power” from marketing their electricity as “clean, green, eco-friendly, environmentally friendly or responsible, carbon-free, 100% renewable, 100% wind, 100% hydro, 100% solar, 100% emission-free, or similar claims” unless the electricity is at least 51% renewable or backed by renewable energy credits derived from within the service territory managed by PJM Interconnection. A renewable energy retailer and a national organization whose members included renewable residential electricity suppliers challenged the law on First Amendment and dormant Commerce Clause grounds. In December 2024, the federal district court for the District of Maryland denied a motion for a preliminary injunction enjoining enforcement of the law. On May 15, 2026, the Fourth Circuit Court of Appeals reversed the denial, finding that the plaintiffs were likely to prevail on their First Amendment facial challenge to the law because they would be able to show that the restriction failed intermediate scrutiny review. The Fourth Circuit agreed with the district court that the regulated speech was not inherently or in fact misleading and further found that the law’s restrictions did not “directly advance the State’s asserted interest in consumer protection and are not adequately tailored.” The Fourth Circuit declined to consider Maryland’s interest in promoting local renewable energy because Maryland did not assert this interest until late in the litigation. The court also found that the plaintiffs showed they would suffer irreparable harm in the absence of an injunction of the speech restriction, that the balance of equities leaned in their favor, and that an injunction was in the public interest. With respect to the plaintiffs’ constitutional challenges to the law’s disclosure requirements, the court remanded these questions to the district court to address new disclosure language promulgated by the Maryland Public Service Commission after the district court issued its ruling.

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