Energy & Environment Legal Institute v. Epel

The Tenth Circuit Court of Appeals ruled that Colorado’s renewable energy mandate did not violate the dormant Commerce Clause. The decision affirmed a ruling of the federal district court for the District of Colorado in a lawsuit brought by the Energy and Environment Legal Institute (EELI), whose members include a fossil fuel producer. EELI appealed only one aspect of the district court’s decision—that the mandate did not impermissibly control extraterritorial conduct. The Tenth Circuit said that although fossil fuel producers will be hurt by the mandate, EELI “offers no story suggesting how Colorado’s mandate disproportionately harms out-of-state businesses,” and “it’s far from clear how the mandate might hurt out-of-state consumers either.” The Tenth Circuit concluded that this case did not fall within the narrow scope of the Supreme Court’s extraterritoriality precedent, which was applied only to price control or price affirmation regulation. The Tenth Circuit said that EELI’s reading risked “serious problems of overinclusion.”