As
Carol Holahan discussed, the 7th Circuit last month
affirmed the Illinois zero emission credit program. Now the
2nd Circuit has weighed in, agreeing with the
7th Circuit and affirming the similar New York State ZEC
program. Whatever one's views on the merits, it seems pretty
clear at this point that state programs to encourage generation of
renewable or zero-emissions energy will be upheld by the Appeals
Courts, so long as the incentives are:
Untethered to a generator's wholesale market
participation.
Traditional generators are going to have an uphill battle
combating these programs for at least three reasons. First, liberal
judges want to preserve programs that encourage renewable energy
use. Second, conservative judges want to preserve state authority.
Finally, in the absence of a Circuit split (which is becoming less
likely by the day), the Supreme Court seems unlikely to take these
cases.
