North Dakota, Minnesota clash over new energy law

North Dakota lawmakers on Monday included $3 million in appropriations legislation to help fund a lawsuit.
Minnesota House Majority Leader Jamie Long (D) speaks during the first day of the 2023 legislative session, Tuesday, Jan. 3, 2023, in St. Paul, Minn. (AP Photo/Abbie Parr)

A potential lawsuit is pitting North Dakota against Minnesota and clouding a law enacted Tuesday that mandates the Gopher State move to 100% carbon-free energy production by 2040.

North Dakota lawmakers on Monday included $3 million in appropriations legislation to help fund a lawsuit over the law, as opponents argue it violates the U.S. Constitution’s interstate commerce clause because it tries to regulate electricity providers across state lines.

The Democratic-controlled Minnesota legislature declined to amend the bill to address those concerns, and Gov. Tim Walz (D) expressed confidence in it Tuesday.

“I trust that this bill is solid,” Walz said when asked about the potential suit at the signing ceremony. “I trust that it will stand up because it was written to do exactly that. And just to be clear, Minnesota is not staking our future on coal and carbon, and I can’t speak for our neighbors, but I think it would be more productive to join us and move the rest of the country in this direction.”

North Dakota Gov. Doug Burgum (R) spoke to Walz and wrote to Minnesota lawmakers last month, seeking an amendment that would specify that the measure only applies to Minnesota-generated electricity.

But during the debate in the Minnesota Senate last week, Democrats, led by Sen. Nick Frentz (D), chairman of the chamber’s energy panel, rejected a GOP amendment to include the language. Frentz cited an analysis from Harvard Law School that found no such interstate commerce violation.

Minnesota environmentalists and other supporters of the law 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.

Jason Bohrer, president of the Lignite Energy Council, a North Dakota coal industry trade group named for the type of coal that is abundant in the coal-rich region, said renewable energy standards tend to be less than 100%, and that “as you approach 100%, then it becomes impossible to get to that standard without regulating interstate commerce.”

The Minnesota law’s opponents, including Bohrer, are quick to point out that Burgum has set a goal for North Dakota to be carbon neutral by 2030.

“The sad thing about this is, objective-wise, when you listen to what Gov. Walz is trying to achieve, when you listen to what Gov. Burgum is trying to achieve, they’re not that far apart,” Bohrer said.

But there is a difference. Most of the electricity produced in North Dakota is generated from coal (1.9 million megawatt hours in October), followed by renewables (1.3 million MWh). Burgum wants to reach carbon neutrality through technological innovation, such as carbon sequestration, as opposed to regulation.

North Dakota exports about 50% of its electricity supply, with much of it sent to Minnesota, according to the Lignite Energy Council.

During the North Dakota House Appropriations Committee meeting Monday, first reported by Fargo Forum, Rep. Keith Kempenich (R) joked that North Dakota should stop selling power to Minnesota.

“I still think that putting a transfer switch in Fargo that’ll shut the line off would have a bigger impact than suing them,” Kempenich said.

Bohrer — who appeared before the appropriations panel to request the funds — stressed that going to court is a last resort. He said the appropriations bill has not been finalized but that North Dakota lawmakers seem prepared to provide the funding.

“This is not our first choice,” Bohrer said. “We want to make sure that Gov. Walz has all the information he needs at his disposal, maybe to figure out some kind of alternative solution.”

Bohrer suggested that the Minnesota law could still be amended with subsequent legislation.

“We want to keep that dialogue open as long as possible before we would file,” Bohrer said. “So we’re not necessarily rushed to get to the courtroom because we recognize that this moved quickly through the Minnesota process.”

Still, he said he felt confident in the strength of North Dakota’s case. Meanwhile, Minnesota Democrats celebrated Walz’s signing the bill into law.

House Majority Leader Jamie Long (D), who helped author the bill with Frentz, said at the signing ceremony that the measure was among the top five most ambitious clean energy laws in the nation, and the bill would help protect Minnesota’s wild spaces and wildlife for future generations.

“Today’s bill is the strongest action that Minnesota has taken to date on climate change, full stop,” Long said.