Category — Colorado

The American Tradition Institute (ATI) and the American Tradition Partnership (ATP) have filed suit in Federal District Court in Colorado to have Colorado’s renewable energy standard (RES) declared unconstitutional. The plaintiffs find that the Colorado RES discriminates on its face against legal, safer, less costly, less polluting and more reliable in-state and out-of-state generators of electricity sold in interstate commerce, and thus violates the Commerce Clause of the U.S. Constitution.

Given 29 states with either a RES or a Renewable Portfolio Standard (RPS) of varying strength, the outcome of this case will likely have far reaching implications. The suit was filed yesterday, April 4, 2011.

Part of the suit is a “declaration” of technical aspects and the costs and benefits of how the RES is implemented; I am the author of that declaration. The other major part of the filing, as would be expected, is various legal arguments. This posting does not further describe the legal arguments but simply summarizes the content of my declaration.

RES/RPS Requirements

Renewable portfolio standards require utilities to use renewable energy or renewable energy credits (RECs) to account for a certain percentage of their retail electricity sales — or a certain amount of generating capacity — according to a specified schedule. The term “set-aside” or “carve-out” refers to a provision within an RPS that requires utilities to use a specific renewable resource (usually solar energy) to account for a certain percentage of their retail electricity sales (or a certain amount of generating capacity) according to a set schedule.

Colorado became the first U.S. state to create a renewable portfolio standard (RPS) by ballot initiative when voters approved Amendment 37 in November 2004. The original version of Colorado’s RPS required utilities serving 40,000 or more customers to generate or purchase enough renewable energy to supply 10% of their retail electric sales. In March 2007, HB 1281 increased the RPS to 15% from 2015–19 and 20% from 2020 forward, as well as  extending a separate renewable-energy requirement to electric cooperatives, among other changes. HB 1001 of 2010 expanded the RPS to 30% for 2020.

Eligible renewable-energy resources include solar-electric energy, wind energy, geothermal-electric energy, biomass facilities that burn nontoxic plants, landfill gas, animal waste, hydropower, recycled energy, and fuel cells using hydrogen derived from eligible renewables.

The PUC has issued rules to implement the RPS. The rules were amended as required by HB 1001 in August 2010. The PUC’s rules generally apply to investor-owned utilities (IOUs). Electric cooperatives and municipal utilities serving more than 40,000 customers are still bound to the separate requirement approved by the legislature. [Read more →]