North Dakota v. Heydinger

After the Eighth Circuit Court of Appeals ruled that Minnesota’s low-carbon power law was unlawful, North Dakota and its co-plaintiffs asked the Eighth Circuit to remand the case to the federal district court for the District of Minnesota for a determination on their motion for attorney fees. The district court previously concluded that the plaintiffs were entitled to attorney fees under 42 U.S.C. § 1988, and the plaintiffs argued that they were also entitled to attorney fees and costs incurred during the appeal. The plaintiffs asserted that they had obtained all the relief they sought and prevailed in a case that asserted a substantial claim under 42 U.S.C. § 1983 (based on the dormant Commerce Clause), that they had succeeded on their Section 1983 claim (even though the Eighth Circuit “proffered additional rationales for affirmance” based on preemption and only one judge based affirmance on the dormant Commerce Clause), and that they had succeeded on other claims (i.e., the preemption claims) that arose from the same nucleus of operative fact. On July 22, Law360 reported that Minnesota had decide to file a petition for writ of certiorari with the United States Supreme Court rather than seeking en banc rehearing from the Eighth Circuit.

The Eighth Circuit Court of Appeals affirmed a district court’s conclusion that Minnesota’s Next Generation Energy Act (NGEA) was unlawful. The NGEA barred importing energy from a “new large energy facility” outside Minnesota or entering into new long-term power purchase agreements, where such activities would contribute to statewide carbon dioxide emissions. Only one judge on the Eighth Circuit panel agreed with the district court conclusion that the statute constituted impermissible extraterritorial regulation under the dormant Commerce Clause. The other two judges concluded that the law was preempted by the Federal Power Act, with one of the two judges also concluding that the law conflicted with the Clean Air Act. A blog post about this decision appears here.