July 19, 2019

Tenth Circuit: Renewable Energy Mandate Does Not Require Discriminatory Price Fixing Against Out-of-State Providers

The Tenth Circuit Court of Appeals issued its opinion in Energy & Environment Legal Institute v. Epel on Monday, July 13, 2015.

Colorado voters passed a ballot initiative requiring electricity generators to ensure that 20% of the electricity they sell to Colorado comes from renewable sources. Colorado receives its electricity from an interconnected grid serving 11 states and portions of Canada and Mexico. Electricity can go anywhere on the grid and come from anywhere on the grid. Colorado consumes more energy than it delivers, meaning that some out-of-state coal producers will lose business with out-of-state utilities who feed their power onto the grid. The Energy & Environment Legal Institute (EELI), on behalf of its client energy producer, brought suit in district court, arguing that Colorado’s renewable energy mandate violates dormant commerce clause jurisprudence. The district court ruled against EELI and it appealed.

The Tenth Circuit analyzed dormant or negative commerce clause jurisprudence, likening it to antitrust laws. EELI limited its appeal to the Baldwin test (see Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935)), which applies to certain price control laws controlling “extraterritorial” conduct and requires per se invalidation of the laws. EELI argued Colorado’s renewable energy mandate was such a law because it might result in fossil fuel providers being eliminated from the marketplace. The Tenth Circuit disagreed. The Tenth Circuit found no support for the proposition that Colorado’s renewable energy mandate would negatively affect prices for out-of-state consumers of fossil fuels, finding instead that the mandate was almost certain to raise energy prices in Colorado and may result in lower fossil fuel prices for out-of-state consumers. Since the Tenth Circuit read the dormant commerce clause jurisprudence as preventing discrimination against out-of-state rivals or consumers, there was no support for EELI’s argument against Colorado’s renewable energy mandate, noting that Colorado’s mandate did not directly impact pricing in Colorado or elsewhere.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Hobbs Act Applied to Robbery of Drug Dealer; Co-Conspirator Statements Properly Admitted

The Tenth Circuit published its opinion in United States v. Rutland on Tuesday, January 22, 2013.

Terrence Rutland was convicted in federal district court on robbery, narcotics, and firearm charges. Rutland was prosecuted under the Hobbs Act, 18 U.S.C. § 1951, which makes it a federal crime to interfere with interstate commerce by force or threats. Rutland contended his federal conviction for robbery and use of a firearm during a violent felony were invalid, arguing that the robbery of a drug dealer at his home did not interfere with interstate commerce because the dealer was not engaged in a business.

The Tenth Circuit joined the majority of circuits in holding that a robbery of a criminal organization, even if an individual drug dealer, is a robbery of a business for purposes of the Hobbs Act. “To satisfy the Hobbs Act’s jurisdictional requirement, evidence must be adduced showing the illegal drug operation was engaged, either directly or indirectly, in interstate commerce and that the robbery depleted the assets of the drug operation.” The government met those requirements by showing the drug dealer got his drugs from another state and the robbery deprived him of drugs and drug proceeds. The court also rejected Rutland’s argument that the drug dealer was not robbed in his capacity of drug dealer so the Hobbs Act should not apply.

Rutland also argued the district court erred by admitting numerous out-of-court statements as coconspirator statements when there was insufficient evidence of a robbery conspiracy. Rutland did not contest the existence of the drug conspiracy. The Tenth Circuit found that the two conspiracies were closely related and, after applying the four-part Ailsworth test, concluded a robbery conspiracy did exist. The court evaluated the coconspirators’ statements and concluded the out-of-court statements were admissible. As to many of the statements, the declarants testified at trial and were subject to cross-examination so any error admitting them was harmless. The court affirmed Rutland’s convictions.