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Ethanol Regulations of California’s Low Carbon Fuel Standard Pass Constitutional Muster Under the Dormant Commerce Clause - For Now

by J. Scott Miller
Morris Polich & Purdy LLP - Los Angeles Office

March 12, 2014

Previously published on March 5, 2014

On January 22, 2014, the Ninth Circuit Court of Appeals denied en banc review of a 2013 decision, rendered by a 2-1 majority, which found that the ethanol regulations of California’s low carbon fuel standard (“LCFS”) do not violate the U.S. Constitution’s dormant Commerce Clause because the LCFS “does not facially discriminate against out-of-state commerce” or violate the “prohibition on extraterritorial regulation.” In a spirited dissent to the denial order, the six-judge minority teed up the issue for Supreme Court review, proclaiming that the decision “disregards longstanding dormant Commerce Clause doctrine, and places the law of this circuit squarely at odds with Supreme Court precedent.” (Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1101 (9th Cir. 2013), en banc rev. denied, 740 F.3d 507 (9th Cir., Jan. 22, 2014).


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