Climate change may have sparked its first border war. Two states are in early maneuvers for a potential legal battle over one’s effort to curtail carbon and another’s aspiration to become an energy “powerhouse.”
Those divergent designs have driven coal-rich North Dakota to threaten Minnesota with a lawsuit that could rise to the Supreme Court, observers say, while challenging an untested pillar in climate policy: the ability of states to place carbon fees on electricity imported from their neighbors.
“It’s one of the first cases of its kind,” said Patrick Hogan, the regional policy coordinator for the Pew Center on Global Climate Change. “But it’s also something people have expected. Whatever precedent that comes out of that might be quite important in determining future cases that are analogous.”
North Dakota Attorney General Wayne Stenehjem told local news outlets at the end of December that it’s likely his office will sue Minnesota for discriminating against North Dakota power producers. He says a Minnesota law requiring utilities beginning in 2012 to consider future carbon prices would violate the U.S. Constitution’s Commerce Clause. No suit has yet been filed.
The Midwestern dispute is sharpened by its timing. It comes as 13 other states and several Canadian provinces are designing sprawling financial programs intended to put a price on carbon dioxide released from sources like electricity plants, industrial processing sites and vehicles.
Those states, clustered in the West and Midwest, intend to include imported voltage in their climate programs. So utilities would be required to buy pollution permits, or allowances, for every ton of carbon released during the production of power they use, even if that occurred in a state without carbon laws.
If that didn’t happen, climate programs would spring leaks, and power from states without carbon prices could come flooding in, experts believe.