21 states ask Supreme Court to review California's LCFS

By Erin Voegele | April 28, 2014

Several states are joining the fight to take a legal dispute over California’s low carbon fuels standard (LCFS) to the U.S. Supreme Court. On April 21, a group of 21 states filed a brief requesting the Supreme Court review a lower court decision in the challenge to the LCFS. The move comes approximately one month after Growth Energy and the Renewable Fuels Association filed a similar brief asking the Supreme Court for certiorari to make a final determination on the LCFS.

A legal battle over the program has been ongoing for several years. In September 2013, the U.S. 9th Circuit Court of Appeals ruled that the LCFS program is constitutional, overturning a prior ruling that it violates interstate commerce laws. In December 2011, a lower court can ruled that the LCFS was unconstitutional because it violates the Commerce Clause of the U.S. Constitution.

In the brief, the states argue that the LCFS facially discriminates against interstate commerce by assigning a higher carbon intensity to ethanol production pathways based, in part, on the distance the product must travel to meet the California marketplace. In addition, it argues that the program discriminates against out-of-state crude oil. The brief states also that the 9th Circuit’s reasoning should be troubling to all states. “If left unturned, the decision will allow states to penalize or altogether prohibit the importation or sale of goods whose transportation through interstate commerce or out-of-state production methods are deemed undesirable according to one state’s scientific, aesthetic, or moral judgment.”

The brief was submitted by the attorney generals of Nebraska, Alabama, Alaska, Arizona, Georgia, Illinois, Indiana, Iowa, Kansas, Michigan, Missouri, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.

“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.”

“Kansas ethanol producers should have the same access to the California market as California ethanol producers,” said Kansas Attorney General Derek Schmidt. “By arbitrarily discriminating against fuels produced in the Midwest, California’s fuel standards unfairly restrict the free flow of goods between states and prevent Kansas fuels from reaching California consumers.”