Minn. clean energy bill advancing as written despite N.D. objection

Minnesota Democrats are pushing forward with a clean energy bill over objections from a neighboring state.

Legislation that aims to move Minnesota to 100% clean electricity by 2040 passed the Minnesota House late Thursday night. A companion bill cleared a Senate committee Friday and is likely to be taken up by the full Senate this week.

The forward progress comes despite a formal request from North Dakota Gov. Doug Burgum (R) and other state officials for language to be added to the legislation that specifies that it applies only to Minnesota-based producers. They argued that the bill as written would violate the U.S. Constitution’s interstate commerce clause by impeding North Dakota’s ability to sell electricity in Minnesota.

In an interview Monday, Minnesota House Majority Leader Jamie Long (D), the lead House sponsor of the bill, rejected that legal argument and said the bill “only regulates Minnesota utilities, and it only regulates the sales from Minnesota utilities to Minnesota customers.”

Long said he has spoken with Sen. Nick Frentz (D), the lead Senate sponsor of the bill, and that the Senate also will pass the measure in its current form.

“Sen. Frentz and I agree that the bill that we have constructed is constitutional and we are going to be passing one of the strongest 100% clean energy standards in the nation,” Long said. He said they have worked closely together on the legislation, and “the intent is to pass the same language in the Senate.”

Long said he has also been in touch with Gov. Tim Walz’s (D) office and the governor supports the bill as written.

Long echoed the argument made by Minnesota environmentalists, who contend that the bill is similar to a renewable energy standard, which requires utility companies to source a certain amount of the energy they generate or sell from renewable sources such as wind and solar.

More than half of all U.S. states have some renewable energy standard or goal, including Minnesota, which enacted its standard in 2007. That law requires that eligible renewable energy sources make up at least 25% of the power generated and sold in the state by utilities.

“Those that have been challenged in court, the renewable energy standard laws, have been universally upheld,” said Leigh Currie, director of strategic litigation at the Minnesota Center for Environmental Advocacy. “And this 100% clean electricity bill that passed the House [Thursday] is really similar to those renewable energy standard laws. And so we don’t have any concern about this type of law violating the interstate commerce clause.”

Fargo Forum reported that Burgum said at a North Dakota Industrial Commission meeting last week that he spoke to Walz by phone about the issue and was told that Walz and his staff would look into it.

“I spoke live to Governor Walz last week on this topic and offered the friendly amendment,” Burgum said then.

The letter Burgum sent stated that the measure, if enacted, would likely invite litigation similar to the 2007 lawsuit brought by North Dakota against a provision in the 2007 Next Generation Energy Act that sought to block the importation of power generated by new coal-fired power plants.

A federal judge in Minnesota ruled in 2016 that the provision violated the commerce clause. The state did not appeal the ruling.

But Currie stressed that the 2007 law’s framework was “quite a bit different” from the 100% clean electricity bill.

In the 2007 lawsuit, the judge took issue with the Next Generation Energy Act because it amounted to a ban on using certain types of electricity. The judge found that the law was an “impermissible extraterritorial regulation under the dormant Commerce Clause” because of the impossibility of determining what type of electricity goes to which location.

Rather than a ban on using certain types of electricity, the 100% clean electricity bill is more like the renewable energy standard, which has been upheld in court, environmental advocates argue.

North Dakota exports most of the energy it produces. According to the Energy Information Administration, most of the electricity North Dakota produces is generated from coal (1.9 million megawatt hours in October), followed by renewables (1.3 million MWh).

The letter stated that by impeding the state from selling power to Minnesota, the bill would hurt North Dakota’s efforts to decarbonize its energy sources. North Dakota uses funds from selling power across the state lines, including to Minnesota, to fund projects that help reduce carbon emissions.

Long said he was disappointed to see the letter and hopes that the two states can work together to advance their mutual goals to decarbonize.

“They mentioned in the letter that, as a state, they are also working to decarbonize electricity,” Long said. “That’s all that my bill is trying to do. So I think it would be better if we can work together than be at odds.”