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Port: North Dakota leaders to warn Minnesota of the 'certainty' of a lawsuit over proposed energy ban

"Has anyone informed the House, the Senate, the governor that they've already lost at this?" Ag Commissioner Doug Goehring asked, referring to Minnesota's proposed ban on some energy imports.

PHOTO: Coal Creek Station
Coal Creek Station coal plant near the Falkirk mine outside of Underwood, N.D., pictured in this file photo, is the largest power plant in North Dakota.
Michael Vosburg / Forum Photo Editor
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MINOT, N.D. — Minnesota lawmakers are considering identical bills in the House and Senate legislative chambers that would seek to ban imports into the state of energy from sources that produce carbon. That would be things like natural gas and coal power.

News of the bills was presented today to North Dakota's top energy regulators on the State Industrial Commission — made up of Gov. Doug Burgum, Attorney General Drew Wrigley, and Agriculture Commissioner Doug Goehring — who were visibly nonplussed.

"Has anyone informed the House, the Senate, the governor that they've already lost at this?" Goehring asked the commission's staff.

Goehring was referring to years-long litigation between North Dakota and Minnesota over a 2007 ban on importing coal power from new sources. A lawsuit filed by the Industrial Commission, among other interested parties was successful, with the federal courts striking down the law as unconstitutional.

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

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"It's pretty bold to make such a statement and think you're going to regulate commerce in other states," Goehring said during the meeting.

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Burgum also made it clear that he, like Goehring, sees this new legislation as a rerun of an already settled debate.

"They can do anything they want to regulate themselves," he said, pointing out that if they make a "small change" to the proposed legislation and keep it focused only on commerce happening within Minnesota's borders they can avoid "the certainty of a lawsuit."

Burgum noted that North Dakota and Minnesota work well together on many issues, and hoped a slight amendment to these bills could avoid a lengthy legal squabble.

After the meeting commission members signed a letter to Minnesota Gov. Tim Walz, Attorney General Keith Ellison, and Agriculture Commissioner Thom Petersen, urging amendments the proposed bills.

"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 states.

"Moreover, these bills would unfortunately again raise some of the same issues regarding interstate commerce constitutional violations that federal courts have already decided and settled in North Dakota v. Heydinger et al.," it continues.

The bill has faced headwinds in Minnesota from utilities, regulators, and other interests who are concerned about its impact on energy prices.

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The House version of the bill is due on the floor for a vote of Minnesota's representatives. The Senate version is still in committee.

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 rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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