Appeals Court Upholds Illinois’ Effort to Increase Clean Energy, Cut Pollution

(Chicago – September 13, 2018) The U.S. Court of Appeals for the Seventh Circuit today upheld a clean energy policy created by the state of Illinois and reaffirmed states’ right to craft critical energy, environmental, and public health policies for their citizens.

“This is a resounding victory for Illinois, and for all states that are working to transition to clean energy in order to reduce unhealthy air pollution and address the growing threat of climate change,” said EDF Senior Attorney Michael Panfil. “The court recognized Illinois’ fundamental authority to craft a strong clean energy policy – an authority that can provide profound benefits for the health and safety of Illinois families.”

EDF was part of a broad coalition that filed an amicus, or “friend of the court,” brief supporting Illinois’ right to establish its own clean energy policies.

The case is Electric Power Supply Association v. Star. It was previously heard by the U.S. District Court for the Northern District of Illinois, which ruled in favor of Illinois — affirming the state’s public policy authority. Today the Seventh Circuit upheld that decision.

Opponents objected to a state policy that is part of the Illinois Energy Future Jobs Act – an effort to reduce dangerous pollution, create jobs in Illinois, and save families money on their power bills.

The Illinois policy will provide Zero Emission Credits (ZEC) to non-polluting power generators. Opponents argued that it was discriminatory and violated the Commerce Clause of the Constitution because it usurped the authority of the Federal Energy Regulatory Commission.

But the court ruled that:

“The Commerce Clause does not cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, [just because] the legislation might indirectly affect the commerce of the country” and “because states retain authority over power generation, a state policy that affects price only by increasing the quantity of power available for sale is not preempted by federal law.” (Opinion, pages 8 and 6)

The court went on to say that:           

“The absence of overt discrimination defeats any constitutional challenge to the state’s legislation.” (Opinion, page 9)