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.
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