Port: Lawmakers prepare to earmark millions for a legal battle with Minnesota over ban on coal-powered energy

House appropriators are advancing an amendment that would set aside $3 million to litigate a newly passed Minnesota law prohibiting the import of power from carbon-emitting sources.

Photo: Coal Creek Station
Great River Energy's Coal Creek Station near Underwood, N.D.
Special to The Forum

MINOT, N.D. — Minnesota's lawmakers have passed legislation that would ban the import of energy into their state from sources like coal and natural gas plants. Gov. Tim Walz is expected to sign it.

Now North Dakota's lawmakers are preparing for a legal battle over it, and it wasn't hard to see coming.

Last month state officials on North Dakota's Industrial Commission — a regulatory entity made up of Gov. Doug Burgum, Attorney General Drew Wrigley, and Agriculture Commissioner Doug Goehring — warned of the "certainty" of a lawsuit if Minnesota went ahead with this legislation.

They drafted a letter to their counterparts in Minnesota asking for a compromise.

"Because our electric grid is fully integrated and does not stop at our state boundaries, these two recently introduced bills as written would subsequently hinder North Dakota utilities from effectively implementing carbon capture technologies and would also prohibit utilities from operating dispatchable and accredited resources," the letter stated.


At the time, the commission members were hoping for amendments to Minnesota's legislation that would limit it only to in-state power sources. That didn't happen, and now the stage is set for a courtroom skirmish.

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"I'm an atheist, and even I'm shocked about the level of anti-religion antipathy this legislation has engendered."

A legislative committee working on House Bill 1014 , the budget for the Industrial Commission, is pushing forward an amendment adding a $3 million amendment to fund a legal challenge to the law.

The amendment before a House Appropriations subcommittee was brought by Rep. Keith Kempenich, a Republican from Bowman, and it was discussed on Monday, Feb. 6.

"I still think putting a transfer switch in Fargo that will shut the line off would have a bigger impact," Kempenich quipped, suggesting that North Dakota could retaliate by shutting off power to Minnesota. "That might be an interstate commerce issue too," he added to laughter in the committee room.

Here's an excerpt from the committee meeting. You can watch the full video here .

Joking aside, interstate commerce and who gets to regulate it will be the foundation of this legal challenge. Both states have gone down this road before, and last time it was North Dakota that emerged the victor.

A lawsuit filed by the Industrial Commission over Minnesota's 2007 Next Generation Energy Act was successful, with the federal courts striking down the law as an unconstitutional attempt by a state government to regulate commerce between the states.

The U.S. Constitution gives Congress, and not the states, the authority to regulate interstate commerce. North Dakota officials argued, and the courts agreed, that Minnesota's law, called the 2007 Next Generation Energy Act, was an attempt by Minnesota to regulate commerce in North Dakota.


It's unclear what changes Minnesota has made to this new attempt to ban the import of coal-fired power to get around the court's previous finding.

What is clear is that both states will spend millions on legal fees before this is over.

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at Click here to subscribe to his Plain Talk podcast.
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