In-state green mandates face Constitutional challenges.
Richard Lehfeldt (lehfeldtr@dicksteinshapiro.com) is a partner in Dickstein Shapiro LLP’s energy practice. Woody N. Peterson (petersonw@dicksteinshapiro.com) is a partner in the firm’s business litigation practice, and David T. Schur is a research attorney with the firm.
Massachusetts wanted renewable power—lots of it, and sooner rather than later.
So it established cutting-edge energy efficiency standards. It enacted tax incentives for qualifying biofuels and low-carbon fuels. It adopted California’s vehicle standards—the most stringent in the nation. It developed, in conjunction with other New England states, a climate change action plan. It joined the Regional Greenhouse Gas Initiative (RGGI), a multi-state emission cap-and-trade program. It established industrial emission targets. It devised an aggressive renewable portfolio standard (RPS) requiring its utilities to use significantly more renewable power to meet load requirements.
So far, so good—these efforts were praised by both the environmental community and the burgeoning alternative energy and energy efficiency industries.
But then Massachusetts enacted the Green Communities Act (GCA) in 2008 to foster the development of new renewable power plants within the Commonwealth.1 One of the ways the GCA tried to do this, in Section 83, was to require Massachusetts electric distribution companies to enter into long-term power purchase agreements (PPAs) with renewable power companies located “within the jurisdictional boundaries of the Commonwealth.”