Commerce Clause Implications of Allco Finance Ltd. Challenges to Connecticut and Massachusetts RPS Programs

July 28, 2016

by Carolyn Elefant, The Law Offices of Carolyn Elefant, for the Clean Energy States Alliance

This note summarizes the implications of two pending lawsuits, Allco Finance Ltd. v. Klee et. al. and Allco Renewable Energy Limited v. National Grid filed by Allco, a renewable energy developer. The lawsuits allege that the Connecticut and Massachusetts renewable energy portfolio standards (RPSs) and renewable procurement programs discriminate against out-of-region renewable energy generation and therefore violate the Commerce Clause of the United States Constitution. The Allco suits are noteworthy because they raise question of first impression regarding the constitutionality of in-region rather than in-state RPS eligibility requirements, and are significant since they put to legal test commenters predictions that regional restrictions would likely carry less risk of challenge than state-locational requirements. This note builds on previous notes for the RPS Collaborative on RPS-related lawsuits.