Court loss over North Dakota coal stokes long-shot appeal by Dayton

Minnesota Gov. Mark Dayton used to know when to call it quits. After giving himself an “F” and shutting down his Capitol Hill office in response to terrorism, Dayton walked away after one term in the U.S. Senate.

It was a slam-dunk. So was the June 15 federal appeals court ruling that Minnesota has no business trying to prevent North Dakota utilities from burning coal and putting the power on the regional grid.

But instead of stepping back, Gov. Dayton has stepped up his rhetoric and response to what most observers view as a lost cause legally. He’s announced an appeal of the North Dakota case, virtually guaranteeing Minnesota taxpayers will be stuck with tens of thousands of dollars or more in additional legal and court costs assessed to the loser.

“I will continue to do everything in my power to defend the State of Minnesota’s right to protect the quality of the air our citizens breathe.”download

No one except Dayton seemed surprised the court found Minnesota’s 2007 Next Generation Energy Act violates interstate commerce by restricting distribution of coal-generated power from North Dakota to 800,000 customers in Minnesota.

North Dakota state officials told Forum Communications they were always confident Minnesota had literally crossed the legal and state line.

Three-judge panel unanimously decided Minnesota does not have the authority to order North Dakota plants to make changes. “A statute that has the practical effect of exerting extraterritorial control over ‘commerce that takes place wholly outside of the state’s borders’ is likely to be invalid. …”

North Dakota Attorney General Wayne Stenehjem was happy with the victory, including the court order for Minnesota to repay more than $1 million in attorney fees in the case. More than half of the North Dakota cost comes from Stenehjem’s office, while other legal funding was provided by the state’s coal and power industry.

…Stenehjem 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.

The Minnesota law bans new coal power plants within the state, but also restricts purchase from other states’ coal plants.

Dayton had a shot at making this issue go away in 2011. Legislators passed a repeal of the unconstitutional provisions of the law at the heart of the case, but Dayton vetoed the legislation.

Dayton consulted with Minnesota Attorney General Lori Swanson over legal strategy. Swanson remains under congressional scrutiny in another climate-related case for potential “abuse of prosecutorial discretion” by joining other state attorneys general in an effort to silence climate change critics through the courts.

Center of the American Experiment filed a Minnesota Data Practices Act request with the Office of the Minnesota Attorney General on May 26. The request seeks communications and documents between the Minnesota A.G.’s office and environmental groups related to the climate change investigation of individuals, organizations and companies.

Swanson’s office has not acknowledged receipt of the request at the time of this writing.