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Minnesota will not appeal North Dakota coal power suit

ST. PAUL—Minnesota will not appeal a federal court ruling that called unconstitutional a law restricting importing electricity from coal-fired electric generating plants.

North Dakota filed the suit against the Minnesota Next Generation Energy Act and won in a federal district court. A federal appeals court panel in June agreed with the district court, leaving the U.S. Supreme Court the only opportunity for Minnesota to win.

But on Monday, the Minnesota Commerce Department and Public Utilities Commission announced the state will not appeal.

"Although we strongly disagree with the court's ruling, Minnesota has made significant gains with strong energy and environmental initiatives other than the specific provision of the law at issue in this case," the departments said in a statement. "This specific provision has not played a role in Minnesota's efforts to reduce carbon pollution. Since the law was passed in 2007, the state has not had cause to enforce this provision, nor is it likely to in the future."

The decision means that Minnesota utilities may buy electricity produced in North Dakota plants, where they generate power with locally mined coal known as lignite.

Minnesota's law, designed to reduce carbon dioxide emissions, also bans new coal-fired power plants in the state. That part of the law remains on the books.

Earlier this summer, North Dakota Attorney General Wayne Stenehjem called the law "overreaching regulations."

Stenehjem's office said that if the Minnesota law were left in place, it would have prevented North Dakota utilities from providing power to a regional distribution system that sells to Minnesota utilities.

Stenehjem, who heard of the Minnesota Monday decision from Forum News Service, welcomed the news. "They probably recognize that any appeal to the U.S. Supreme Court is a long shot."

"This should be the end of the road for them," Stenehjem said.

The three-judge 8th Circuit Court of Appeals panel ruled in June that the Minnesota law affected all states that get North Dakota power. Much of North Dakota-produced electricity is sold in other states.

The state of North Dakota, electrical cooperatives that serve Minnesota customers and other organizations challenged the Minnesota law. They said it violated part of the U.S. Constitution that gives Congress the sole power to regulate interstate commerce, claiming that the Minnesota law hampered North Dakota businesses.

"In the regional (electricity) transmission grid, a person who 'imports' electricity does not know the origin of the electrons it receives..." the appeals court judges wrote.

Minnesota officials unsuccessfully argued that they have the power to regulate power sold in Minnesota.

The general issue of Minnesota trying to stop purchase of coal-fired North Dakota electricity dates back decades, but Stenehjem said the North Dakota coal industry is cleaning up its product.

"We have invested mightily in that," he said. "There are a lot of scientists working on it."

North Dakota has a record of the country's cleanest air, even in the area around the coal power plants, Stenehjem said.

North Dakota coal also is cheap energy, he said. "We generate electricity every inexpensively, and we are happy to do it."

Stenehjem said the victory over Minnesota is one of the top five in his nearly 16 years as attorney general.

However, the battle is not quite over. North Dakota has asked the federal court to require Minnesota to pay legal fees of more than $1 million it has built up, a request Minnesota is fighting.

A Minnesota Commerce Department spokesman did not know how much Minnesota has spent on the lawsuit

Don Davis
Don Davis has been the Forum Communications Minnesota Capitol Bureau chief since 2001, covering state government and politics for two dozen newspapers in the state. Don also blogs at Capital Chatter on Areavoices.
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