Morgan Gilhuly was quoted on in an article entitled "Calif. Fuel Plan Ruling Won't Stop Commerce Clause Attacks" on August 19, 2015. 

To read the full article on Law360, click here (subscription required). 

Excerpt below:

Calif. Fuel Plan Ruling Won't Stop Commerce Clause Attacks

By Juan Carlos Rodriguez
Although a California federal judge tossed the majority of a dormant Commerce Clause challenge to California's low carbon fuel standard, experts say programs in other states that may discriminate against fuel produced outside its borders could still be vulnerable to similar attacks.
Last week, U.S. District Judge Lawrence J. O'Neill largely dismissed challenges against California's low carbon fuel standard, or LCFS, following the direction of the Ninth Circuit, which had overturned his previous ruling striking down the program. Judge O'Neill found that the variety of industry plaintiffs had not shown that crude oil provisions in the plan are discriminatory, one of the issues the appeals court left him to decide.
California's LCFS calls for a 10 percent reduction in carbon pollution by 2020 by setting limits on "carbon intensity," which measures not only the amount of carbon released when fuel is spent but also the carbon released during the process of manufacturing and distributing fuels. 
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. . . Morgan Gilhuly, a partner with Barg Coffin Lewis & Trapp LLP, suggested that if Judge O'Neill's decision is upheld on appeal, it could make it much harder for challengers to challenge a low carbon fuel standard on Commerce Clause grounds.
"I think it's likely to be upheld. And if it is, I don't see a successful challenge to a low carbon fuel standard on the immediate horizon. Somebody will have to come up with a new theory,” he said.
He said that the judge found that in California, the effect of the LCFS hurts California producers in some respects and helps them in others and has the same impact on producers outside the state.
"What he decided was that where you have that overlap, even though on balance it helps California producers more than it helps out-of-state producers, that's not enough to state a Commerce Clause claim. And I think if that's upheld, that will make it much tougher to sustain a Commerce Clause challenge to this type of rule," Gilhuly said. "California is blazing a path, and opponents are helping them to plant legal mileposts as they go, saying, 'This is the way you can go and it will be upheld.'"
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