Energy & Environment Legal Institute v. Epel

On October 9, 2015, the Energy & Environmental Legal Institute (EELI) filed a certiorari petition in the United States Supreme Court seeking review of the Tenth Circuit Court of Appeals decision upholding Colorado’s Renewable Energy Standard (RES). The Tenth Circuit held that the RES did not constitute impermissible extraterritorial regulation and did not violate the Constitution. EELI argued in its petition that the Tenth Circuit too narrowly interpreted Supreme Court precedent regarding the Constitution’s bar on state action regulating extraterritorial conduct. EELI said that the Tenth Circuit fell into the “conceptual trap” of pigeon-holing cases concerning extraterritorial conduct into the dormant Commerce Clause, when the jurisprudence on extraterritoriality “stems … from the structure of our system as a whole.” EELI also asserted that there was a circuit split on the issue of whether the prohibition of extraterritorial regulation of interstate commerce applied exclusively to price control or price affirmation statutes, and that the risks of states “exporting” their regulatory agendas nationwide warranted the Supreme Court’s exercise of supervisory powers.