Invenergy Thermal LLC v. Watson

In an unpublished memorandum, the Ninth Circuit Court of Appeals affirmed the dismissal of a case brought by owners of a natural gas power plant in Washington challenging a provision of the Washington Climate Commitment Act that provides no-cost emissions allowances to electric utilities but requires non-utility owners of power plants to purchase allowances. Although the Ninth Circuit found that the district court had erred by addressing standing without providing the parties an opportunity to be heard and in finding that the power plant owners lacked standing, the Ninth Circuit concluded that the owners failed to state a viable dormant Commerce Clause or equal protection claim. Regarding the dormant Commerce Clause, the appellate court said the law did not discriminate against out-of-state entities because electric utilities and independent plant owners were not similarly situated, and that the law did not impose an impermissible burden on interstate commerce. Regarding equal protection, the court again noted that electric utilities and independent power plant owners are not similarly situated, which foreclosed the equal protection claim. In addition, the Ninth Circuit found that the owners did not negate Washington’s rational basis for the law, i.e., its “interest in balancing the rising cost of energy against the State’s desire to reduce greenhouse gases.”