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A day before Gov. Tim Walz signed a bill setting a 2040 deadline for electric utilities to transition to carbon-free power sources, North Dakota leaders said they were preparing to sue. 

And they set aside $1 million to take Minnesota to court.

“We respect state sovereignty, and the ability of states to regulate their own industries, and not their neighbors,” said North Dakota Gov. Doug Burgum, citing concerns about how Minnesota’s new law could impact utilities in his state that do business across the border.

Burgum isn’t alone in considering legal action. As DFL policymakers advance some of their top priorities in the Legislature, conservative groups have opposed the bills. And several have said they’re gearing up to sue if and when the measures become law.

“We have North Dakota, that's suing us over the energy bill. Now we're hearing that this is unconstitutional. This law that's being pushed forward. That's opening us up to more lawsuits,” said Rep. Pam Altendorf, R-Red Wing, about an election bill in a House committee hearing this week. 

Altendorf was voicing concern about part of the bill involving financial disclosure by groups that are involved in campaigns. Her free speech concerns echoed those of a group opposed to legal abortion.

“I know we just approved on the floor to give the A.G. [Attorney General Keith Ellison] $4 million more for his office, but I don't think Minnesotans want our money going towards these lawsuits. We’re passing laws that are truly unconstitutional,” Altendorf said

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With Democrats in control of the House, the Senate and the governor’s office, they have a clear pathway to pass laws. And in the first month of the  legislative session, the energy law and other DFL priorities such as guaranteeing the right to abortion and banning conversion therapy for LGBTQ youth were on the fast track.

Opponents say the laws invite legal challenges. 

“I believe this is a litigator’s dream and a responsible government official’s nightmare,” said Teresa Collett, a lawyer and professor at the University of St. Thomas, about the legislation that guaranteed the right to abortion. “In this instance, I would plead with you not to pass this bill, it will be a litigation nightmare.”

Collett has represented groups aiming to keep state restrictions on abortion on the books. And she said her clients are weighing a challenge to what’s called the Protect Reproductive Options Act, which Walz signed last week.

Conservative news outlet Alpha News has a standing segment on its website where attorneys from the Upper Midwest Law Center highlight bills they view as ripe for legal challenges. The firm has previously sued the Walz administration over several policies. 

“Today we are talking about serious legal problems with bills currently advancing through the Minnesota Legislature,” said James Dickey, one of the Upper Midwest Law Center’s attorneys. 

DFLers who wrote the bills said threats of lawsuits aren’t new, and they expected their proposals would hold up if taken to court. 

DFL House Majority Leader Jamie Long of Minneapolis wrote the carbon free energy bill. Long said he’d read every court opinion written on the topic ahead of introducing the legislation.

“We take a lot of care to craft bills that are going to stand up to legal challenge, and the 100 percent clean energy bill that we passed, we are confident would withstand any challenge from North Dakota,” Long said.

Long and other DFLers said some of the threats of litigation are likely aimed at stopping bills from passing.

“Sometimes the decision to go to court isn't about who's going to win on the law,” Long said. “It's about politics. And unfortunately, I think that's what we saw coming out of North Dakota.”

Rep. Zack Stephenson, DFL-Coon Rapids, had a similar response after drug companies said they were considering legal action around his proposal to block excessive price increases on generic drugs.

“It’s particularly common for industries that are seeing, frankly, really substantial accountability measures that could cut into their profit margins, to threaten legal action. I'm not surprised by that,” Stephenson said. “They have it pretty good under the current status situation, and I expect them to do everything in their power to try and preserve the status quo.”

It’s not clear yet whether any lawsuits will actually be filed. Even Burgum, North Dakota’s governor, said he hopes Minnesota policymakers will take additional steps to clarify the carbon-free electricity law, so that legal action won’t be needed. 

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As DFL lawmakers speed their priority legislation through at the Minnesota Capitol, some bills have been flagged as possible targets for legal action by conservative groups and others. 

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