Midwest States File Supreme Court Brief Challenging California Fuel Standards

LINCOLN, Nebraska, April 24, 2014 (ENS) – Nebraska and 20 other states have filed a brief in the U.S. Supreme Court requesting review of a lower court decision in a challenge to California’s Low Carbon Fuel Standard.

California’s Low Carbon Fuel Standard mandates annual reductions in the “carbon intensity” of gasoline and other transportation fuels sold in California. Carbon intensity measures the extent to which carbon is consumed in the production, transportation and use of the fuel.

The Low Carbon Fuel Standard is a regulation adopted by the California Air Resources Board to implement California’s Global Warming Solutions Act of 2006.

To comply with the fuel standard, fuel suppliers must keep the average carbon intensity of their total volume of fuel below the fuel standard’s annual limit.

The dispute arose because the regulation assigns higher carbon intensity scores to corn ethanol produced in Nebraska and other Midwestern states compared to identical ethanol produced in California.

The petitioners are asking the Supreme Court whether California’s Low Carbon Fuel Standard is unconstitutional because it discriminates against interstate and foreign commerce and regulates aspects of fuel production occurring wholly beyond the borders of California.

“This unconstitutional regulation directly threatens $1.3 billion in ethanol sales from Nebraska alone, and untold billions across the Midwest,” said Nebraska Attorney General Jon Bruning. “We will continue to fight for Nebraska corn and ethanol producers.”

In 2011, the U.S. District Court for the Eastern District of California found the regulation violated the Commerce Clause of the U.S. Constitution by discriminating against state ethanol.

California appealed the district court’s decision to the U.S. Ninth Circuit of Appeals.

In March 2012, Nebraska filed a support brief for the plaintiffs in that challenge. In September 2013, the district court’s ruling was reversed at the U.S. Ninth Circuit Court of Appeals in decision that split the panel of judges.

The Supreme Court is being asked to review the appeals court ruling.

Writing for the Midwest law firm of Stinson Leonard Street, Harvey Reiter forecasts how the highest court might decide, saying, “In cases going back to the founding days of the republic, the U.S. Supreme Court has read the Constitution’s Commerce Clause to outlaw protectionist state legislation.”

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