North Dakota officials on Wednesday approved a letter to Minnesota regulators warning that the state’s recent carbon-free energy standard may be unconstitutional.

The Minnesota Legislature in 2023 adopted a policy requiring utility providers in the state to use exclusively carbon-free electricity sources by 2040. The rule applies not only to electricity produced in-state, but also electricity that comes from across state lines.

The North Dakota Industrial Commission — which comprises Gov. Doug Burgum, Attorney General Drew Wrigley and Agriculture Commissioner Doug Goehring — fears the plan could put the state’s coal and gas industries in jeopardy. Minnesota is a major consumer of North Dakota energy, the North Dakota Lignite Energy Council told the North Dakota Monitor previously.

The Industrial Commission early last year sent a letter to Minnesota’s governor urging the state to make significant changes to the policy.

In its most recent letter, dated Wednesday and submitted as public comment to the Minnesota Public Utilities Commission, the Industrial Commission argues the state’s energy plan is unlawful in three main ways.

First, it claims the policy violates the federal Commerce Clause because it attempts to regulate the commercial activity  of another state. It argues that the law conflicts with the Federal Power Act because it seeks to restrict wholesale electricity sales.

North Dakota also makes the case that the plan illegally tries to regulate carbon dioxide emissions from power plants, which it claims is a power given by the Environmental Protection Agency under the federal Clean Air Act.

A footnote in the letter states that North Dakota reserves the right to pursue legal action or other means of challenging the policy in the future.

North Dakota successfully took Minnesota to court over a similar energy policy the state passed in 2007. That law made it illegal for Minnesota to purchase energy from any new out-of-state coal plants.

A federal district court judge in 2014 struck down the law, finding that it unconstitutionally regulated the economies of other states. An appeals court in 2016 upheld that decision.

The 2023 policy “represents yet another improper attempt by Minnesota to export its wholly internal energy policy decisions to its neighboring states in patent violation of those states’ own rights and sovereignty,” the Industrial Commission stated in its letter.

The letter urges Minnesota to consider electricity produced using carbon capture technology as partially or fully compliant with the new rules so that North Dakota energy companies can retain Minnesota customers.

“Failure to properly include (carbon capture, utilization and storage) and other similar technologies as ‘carbon free’” means the Minnesota Public Utilities Commission is “parochially and arbitrarily narrowing the definition of ‘carbon free’ to only those energy generation technologies that do not emit any carbon dioxide whatsoever, and exclusively to those that can be implemented within the borders of Minnesota.”

Like Minnesota Reformer, North Dakota Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. North Dakota Monitor maintains editorial independence. Contact Editor Amy Dalrymple for questions: [email protected]. Follow North Dakota Monitor on Facebook and X.