A Supreme Court case about pigs could shape how states add clean energy to their grids. The justices will hear arguments Tuesday in National Pork Producers Council v. Ross, which challenges a California law that requires pork sold in the state to come from facilities where sows have enough room to stand up and turn around. Some energy lawyers will be watching closely, as the ruling could have implications for the nation's ability to reduce planet-warming emissions. The pork industry argues that the California law, approved by state voters in 2018, will effectively force producers in other states to follow the same requirements. And that, they argue, violates the so-called dormant commerce clause – a constitutional protection invoked in energy lawsuits from coal export terminals to transmission lines. If the justices agree with that argument, "that would be a considerable problem for many energy laws," said Joel Eisen, a law professor at the University of Richmond. Pig producers assert that the hog housing law exerts too much power outside California's borders. That rationale – if affirmed by the court – could be adopted by opponents of state requirements that utilities purchase a certain amount of renewable energy. Already, 30 states and the District of Columbia have such renewable portfolio standards in place. A win for the pork producers could be particularly problematic for states that want to strengthen those standards. And, in turn, for the Biden administration's goal to halve U.S. emissions by 2030. Why the conservative court may balk An argument to expand the dormant clause may not sit well with the court's conservative "textualist" judges, however. Justices Neil Gorsuch and Clarence Thomas have been openly critical of such an expansion because the doctrine is not explicitly written into the Constitution. But will the court's conservative 6-3 majority find a way to rule in favor of the pork producers without expanding the dormant clause? " The really important question is, do the conservatives think there are limits" to the reach of state laws, said James Coleman, a law professor at Southern Methodist University. If they do, "who knows if they will make provisions for renewable power standards." The Biden administration, which is backing the pork producers, argues that a key difference exists between the hog law and state renewable energy standards: The energy requirements provide a clear health benefit to the state's residents, while the pig protections do not. The court's opinion is due in the first half of 2023. Read more about the case here.
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