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Commerce Clause Conflict

In-state green mandates face Constitutional challenges.

Fortnightly Magazine - December 2010

quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils. Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin.”) (citing Asbell v. Kansas, 209 U.S. 251 (1908), Reid v. Colorado, 187 U.S. 137 (1902), Bowman v. Chicago & N. W. Ry. Co., 125 U.S. 465 (1888)).

16. 397 U.S. 137 (1970).

17. United Haulers , 550 U.S. at 346 (internal quotation marks omitted).

18. Id. (internal quotation marks omitted).

19. See, e.g., Id. at 346-47; ][ Nw. Cent. Pipeline Corp. v. State Corporation Comm’n of Kansas , 489 U.S. 493, 525- 526 (1989) (upholding under Pike a state regulation which provided that the right to extract natural gas would be forfeited if production was delayed too long); Minnesota v. Clover Leaf Creamery Co. , 449 U.S. 456, 472-474 (1981) (upholding under Pike a state law prohibiting sale of milk in certain plastic bottles).

20. See Pike , 397 U.S. at 146 (striking down state law that required all state-grown cantaloupes to be packaged within state prior to export).

21. See generally Department of Revenue of Kentucky v. Davis , 553 U.S. 328 (2008) (“Some cases run a different course, however, and an exception covers States that go beyond regulation and themselves participat[e] in the market so as to exercis[e] the right to favor [their] own citizens over others. . . . This market-participant exception reflects a basic distinction ... between States as market participants and States as market regulators,. . . [t]here [being] no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market.”) (internal quotation marks omitted) (alterations in Davis).

22. Reeves, Inc. v. Stake , 447 U.S. 429, 436-46 (1980).

23. See, e.g., United Haulers , 550 U.S. at 343 (upholding “flow control” ordinance requiring trash haulers to deliver solid waste to a processing plant owned and operated by a public authority); Davis, 553 U.S. at 343 (upholding state law which provided tax exemption for bonds issued by the state, but not for those issues by other states).

24. Granholm, supra , 544 U.S. at 489.

25. If, as TransCanada has argued, Massachusetts’ decision to award PPAs only to in-state resources is Constitutionally suspect, it’s unclear why the numerous state PUC decisions over more than a century awarding to franchised utilities the exclusive right to build and rate-base new infrastructure projects isn’t similarly suspect.