Branstad pins hopes on Ninth Circuit activist judges

Governor Terry Branstad and Iowa Attorney General Tom Miller both joined a brief filed today by seven Midwestern states that oppose California’s Low Carbon-Fuel Standard. Branstad was eager to “take a stand for Iowa farmers against [an] unconstitutional California law,” as a press release put it.

It’s not every day that a governor who has praised strict constructionists and “the philosophy of judicial restraint” cheers for the Ninth Circuit U.S. Court of Appeals to keep an injunction on (and eventually strike down) a state law.

Background: California adopted the Low Carbon-Fuel Standard in April 2009.

The Air Resources Board’s 9-1 decision is aimed at achieving a 10 percent reduction in motor vehicles’ emissions of greenhouse gases by 2020 and spurring commercial development of low-carbon fuels like hydrogen and cellulosic ethanol. […]

The California standard is hinged on a scientific analysis of fuels’ lifecycle emissions – pollution generated from a fuel’s production through its combustion. The rule calls for fuel blenders, refiners and importers to achieve emission reductions of 10 percent for their entire fuel mix by 2020 and allows them to buy credits from producers of low-carbon fuels.

For biofuels, the lifecycle emissions score also includes indirect pollution from the conversion of forests to farms for cultivation of corn and other fuel-feedstock crops. The provision that outlines the calculation of these “indirect land-use changes” has been the bane of ethanol producers, which maintain the law is singling them out.

The final regulation contains several procedural concessions to the biofuels industry. The most significant change moved a review of a measurement of indirect land-use effects up a year, to 2011 from 2012. Other changes from the proposed rule include creating a list of biofuel feedstocks with no or low land-use effects, as well as working with U.S. EPA and the European Commission to synchronize land-use values and modeling.

Most state governments in the northeastern U.S. supported the California standard, but various interest groups that are powerful in the Midwest opposed the rule.

A coalition of industry organizations representing corn and soybean growers, ethanol producers, oil refiners, and trucking companies filed suit against members of the California Air Resources Board. In December 2011, the U.S. District Court for the eastern district of California ruled in the plaintiffs’ favor, finding that “California’s Low Carbon Fuel Standard (LCFS) violates the dormant Commerce Clause of the U.S. Constitution.” Click here to read the whole ruling in Rocky Mountain Farmers Union v Goldstene, or here for a summary of U.S. District Judge Lawrence O’Neill’s reasoning.

The state of California has appealed that ruling to the U.S. Court of Appeals for the Ninth Circuit and has asked the appeals court to stay the lower court’s injunction against enforcing the fuel standard. Representatives of Nebraska, Iowa, Kansas, Michigan, Missouri, North Dakota, and South Dakota filed an amicus (friend of the court) brief today urging the appeals court to deny the motion to stay the district court’s ruling. Click here to read that brief. Excerpt from Governor Terry Branstad’s press release:

Gov. Branstad joins Amicus Brief opposing a California law that discriminates against Iowa corn farmers

Takes a stand for Iowa farmers against unconstitutional California law

(DES MOINES) – Gov. Branstad today joined an Amicus Brief in the Ninth Circuit Court of Appeals opposing California’s fuel standards law that discriminates against Iowa’s corn farmers.

Gov. Branstad, along with other Midwestern states, argues that allowing the California Air Resources Board’s unconstitutional fuel standards to take effect would hurt our corn farmers and ethanol markets.

The brief, which was filed by Nebraska Attorney General Jon Bruning and co-signed by the attorney generals of Iowa, Kansas, Michigan, Missouri, North Dakota and South Dakota, and Gov. Branstad, argues that the court should rule against the request for a stay based on the following three arguments:

·         California is unlikely to prevail on the merits because California’s fuel standards discriminate against ethanol produced in Midwestern states in favor of ethanol produced in California.

·         The fuel standards violated the U.S. Constitution’s Commerce Clause because it is an improper exercise of extra-territorial regulation.

·         A stay of the district court’s preliminary injunction and judgments will substantially injure the economies of the Amici States and it’s the public interest.

According to the Nebraska Power District Economic Development Department, ethanol production boosts the price of corn by $0.05-0.10 per bushel, which ultimately supports family farmers’ incomes.

Additionally, a May 2011 study by Iowa State University found that the past decade of growth in ethanol production reduced gas prices in the Midwest region by $0.39 per gallon.

I’m no expert on the Commerce Clause, so I have no idea whether the Ninth Circuit judges will agree that California’s rule is unconstitutional. I support the general concept behind the rule, which was designed to create incentives for oil companies to sell cleaner fuels. Perhaps the U.S. Constitution requires this kind of regulation to come from the federal rather than the state level.

I am always amused when conservative Republicans like Branstad become fans of so-called “activist judges” as soon as a state law threatens business interests. The Low Carbon-Fuel Standard had bipartisan support in California, including from Republican Governor Arnold Schwarzenegger at the time of its adoption.

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