Prof. Josh Fershee on ND-MN Carbon Dispute
Letter could be last step in N.D.-Minnesota carbon dispute
A letter being sent to Minnesota’s legislators may be the last step before litigation against Minnesota over a law that taxes carbon-producing coal going into the state.
North Dakota is one of Minnesota’s biggest providers of coal, and the coal industry and Attorney General Wayne Stenehjem have said the law passed in 2007 by the Minnesota Legislature is in violation of the commerce clause of the Constitution.
Minnesota’s law adds a fee of between $4 and $34 per ton of carbon dioxide to the cost of electrical generation starting in 2012.
In 2007 the North Dakota Legislature passed a budget of $500,000 for litigation against Minnesota.
As the Minnesota law gets closer to its effective date, North Dakota is slowly exhausting its methods to resolve the matter.
Stenehjem and other officials have already met with Minnesota’s governor and attorney general. The letter, penned by the Lignite Research Council, is the second of it’s kind.
The Industrial Commission, made up of Gov. John Hoeven, Agriculture Commissioner Doug Goehring and Stenehjem, had already agreed to send one letter to the legislative leadership in Minnesota in May. They have yet to get any response.
Thursday they agreed to send out another letter, this time to all 201 members of the Minnesota Legislature.
“The first reason we’re writing this letter is to let them know they’re violating the commerce clause. The second reason is to let them know we want to work with them,” said Tim Porter, chairman of the Lignite Research Council. “This puts them on notice that we’re concerned about it.”
The commerce clause is designed to protect and regulate trading and commerce between states, and could serve as a legitimate argument from North Dakota, said Josh Fershee, a lawyer and professor of law at the University of North Dakota.
“There’s definitely a valid argument, I can’t tell you if it’s a winning argument,” said Fershee.
Fershee said that with a number of similar laws around the country, the issue was ripe for a lawsuit. “It’s not a slam dunk for either side. It’s classic litigation because it’s not clear,” said Fershee. “But the main point (of the commerce clause) is that you cannot do things that specifically favor your state over another in commerce issues.”
In-state tuition is an exception, Fershee said, because it’s that state’s taxpayers that fund that project for their children. “It’s not discriminatory,” he said.
Still Fershee believes Minnesota’s argument may be the better of the two if Minnesota can prove its law assesses environmental damages from coal the same regardless of its origin.
“They might say ‘We’re not putting any burden on you that we haven’t put on ourselves,’” said Fershee. “We don’t care what you do with your power in North Dakota, we only care about what your power does in Minnesota.”
“It’s going to be a tough case,” he said.
Posted in Govt-and-politics on Thursday, February 18, 2010 5:11 pm