FORESIGHT COAL SALES, LLC. v. KENT CHANDLER, in his official capacity as Chairman and Commissioner of Kentucky Public Service Commission, et al. - Articles

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FORESIGHT COAL SALES, LLC. v. KENT CHANDLER, in his official capacity as Chairman and Commissioner of Kentucky Public Service Commission, et al.

Posted by: Karen Belcher on Feb 3, 2023

Court: 6th Circuit Court (Published Opinions)

Attorneys 1: ARGUED: Joshua I. Hammack, BAILEY & GLASSER, LLP, Washington, D.C., for Appellant.

Attorneys 2: ARGUED: Matthew F. Kuhn, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

Attorneys 3: ON BRIEF: Joshua I. Hammack, Nicholas S. Johnson, BAILEY & GLASSER, LLP, Washington, D.C., Christopher D. Smith, BAILEY & GLASSER, LLP, Charleston, West Virginia, for Appellant.

Attorneys 4: ON BRIEF: Matthew F. Kuhn, Brett R. Nolan, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

Judge(s): BATCHELDER, CLAY, and LARSEN, Circuit Judges

Court Appealed: United States District Court for the Eastern District of Kentucky at Frankfort

LARSEN, Circuit Judge. Kentucky imposes a severance tax on coal extracted within its borders. At the same time, Kentucky directs its utilities to buy the most competitive coal, with cost being one of the most important factors. Predictably, this combination of measures, along with the fact that many coal-producing states don’t impose a severance tax, makes Kentucky utilities less likely to buy Kentucky coal. Recognizing the problem, the Kentucky legislature decided to have its cake and eat it, too. The legislature directed the agency that regulates Kentucky utilities to evaluate the reasonableness of coal prices after subtracting any severance tax paid from the actual bid price. In practice, the policy makes coal from states with severance taxes, like Kentucky, cheaper for the utilities by the amount of the severance tax.

A coal producer from Illinois, where there is no severance tax, challenged the policy as a violation of the Commerce Clause. The Commission responded that it wasn’t discriminating against interstate commerce because it was only leveling the playing field tilted against Kentucky coal by its own severance tax. Twice the district court bought this argument. We do not.

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