Ryan Whaley Coldiron Shandy

In 1992, the United States Supreme Court ruled that 45 O.S. §§ 939 and 939.1, which required Oklahoma coal-fired electric utilities to burn a mixture containing at least 10% Oklahoma-mined coal, violated the “Dormant Commerce Clause” of the United States Constitution.

Virginia law currently lets a coal-fired electric utility “petition the [State Corporation] Commission for approval of a rate adjustment clause for recovery . . . of the costs of (i) a coal-fueled generation facility that utilizes Virginia coal . . . .” Va. Code § 56-585.1(A)(6).

Environmental groups challenged the state’s approval of the construction of a coal-fired power plant pursuant to Section 56.585.1 on the grounds that it, like the Oklahoma statute, violates the Commerce Clause due to its Virginia coal requirement.

The Virginia Supreme Court upheld the law, however, on the ground that, unlike the Oklahoma statute, the Virginia statute did not require that coal plants use Virginia coal exclusively. “Unlike the Oklahoma statute at issue in Wyoming v. Oklahoma which prescribed the use of a ten percent mixture of Oklahoma coal in coal-fired plants in state, nothing in the Virginia statute requires the use of Virginia coal. What is required is the technology to be able to burn coal found in Virginia. Consequently, the phrase ‘utilizes Virginia coal’ is descriptive and not prescriptive in content.”

To access the opinion in Appalachian Voices v. State Corporation Commission, 2009 WL 1026840 (Apr. 17, 2009 Va.), please click here:
http://www.courts.state.va.us/opinions/opnscvwp/1081433.pdf.