Last week our organization, American
Tradition Institute, sued the State of Colorado in
federal court because we
assert that its Renewable Energy Standard
law violates the Commerce Clause of the
Constitution.
The mandate requires that major utilities in the state
(mainly Xcel Energy, which favors the law) to obtain 30 percent of
their power generation from “renewable” sources, such as wind or
solar, by the year 2020. It shouldn’t be difficult for anyone who
is slightly familiar with the Commerce Clause to understand why a
state law that restricts the sale of a product (electricity), which
is delivered on a grid that crosses state lines, would violate that
clause. We seek 12 claims for relief under the Commerce Clause,
which you can read in our
complaint. Many of them have to do with
forcing Xcel to purchase power from “renewable” sources — with
favoritism for those in state — which discriminates against
electricity generators from out of state. This impermissibly
burdens interstate commerce.
What has confused some people, including myself a little
bit, is our Law Center director David Schnare’s
explanation that we are “putting wind energy on
trial.” What does that have to do with the Commerce
Clause?
Well, there’s a history. A 1970 Supreme Court decision
in Pike v. Bruce
Church, Inc. established a “balancing test,”
which said if the effects on interstate commerce are only
“incidental” compared to the local benefits a statute establishes,
then it will be upheld. But if the burden on interstate commerce
“is clearly excessive in relation to the putative local
benefits,” then it is unconstitutional.
Hence the problem for Colorado: Wind energy, which the
American Wind Energy Association says now
provides 5.8 percent of the state’s electricity
(and
72 percent of all Colorado’s renewable
energy), offers no local benefit compared to other
generation sources. In fact, because wind energy produces dirtier,
less dependable and more expensive electricity than the
alternatives, it is a detriment.
Most people use electricity without regard for how their
utility generates it. They just want it on. But for manufacturers
and businesses that depend on timely production and delivery
schedules, the losses due to even the slightest interruptions in
power supply are in the millions of dollars.
Because the expectation is for electricity to be
uninterrupted, the only other aspect where its “quality” can be
graded is in its generation. For a long time environmentalists have
told us that “renewable” sources like wind and solar deliver
superior power because it is cleaner in its generation. That has
not proven true.
Studies
of
Colorado and
Texas by BENTEK Energy, LLC, in addition to
a study of the
Netherlands, found the coercion of utilities
to accept wind power means they must suddenly turn on coal and
natural gas generators when wind stops blowing — and then off when
it does — and then on again, etc. These fossil fuel combustion
generators create more pollutants (sulfur dioxide, nitrogen oxide,
and those dreaded greenhouse gases) when they are operated in this
fashion than they would if they ran continually. Also, wind’s
intermittency puts the electrical grid at greater risk of blackouts
and brownouts.
As Kent Hawkins of MasterResource.com
noted, “There are not
only more emissions with [Renewable Energy Standards] than without
them, but also there is duplicate capacity installed (wind) at
significantly higher costs, which adds notably to the
costs of
electricity.”
So you see that under the Pike balancing test, no “local
benefit” can be cited in order to overturn a determination that
Colorado’s Renewable Energy Standard is unconstitutional under the
Commerce Clause.
And that is what putting wind on trial has to do with
it.
