Albuquerque Journal: Editorial Missed Mark on EIB Member Recusals

October 2011

I’m writing in response to the Albuquerque Journal editorial that ran on Oct. 8 titled, “These EIB Members Made the Correct Choice.” While I agree with the editors’ acknowledgement that Environmental Improvement Board members Gregory Fulfer and James Casciano made the correct choice by recusing themselves from the carbon pollution reduction law hearings, the editors have incorrectly characterized the underlying facts surrounding this legal process.

Just like judges, the law requires that EIB members make decisions impartially, based on facts presented as evidence, and with no predisposition one way or the other. Procedurally, requests that EIB members recuse themselves from specific decisions are filed with the EIB. In 2010, no requests for recusal were ever filed for then-EIB member Gay Dillingham, and therefore it can be assumed there was no legitimate basis for recusal. A motion for recusal was filed for then-EIB member John Horning and he recused himself. The editors claim that there was some dissatisfaction expressed in the GOP House Caucus over the past EIB members, but that is irrelevant and inapplicable.

Recently, New Energy Economy requested that EIB members Fulfer and Casciano recuse themselves not because of their “ties to industry” but because they have both previously testified under oath against the rules that form the basis for the state’s carbon pollution reduction law and are thus clearly predisposed against this law.

The matter of EIB Chairwoman Deborah Peacock meeting behind closed doors with PNM and other corporations that the EIB regulates is another distinct issue. An agreement made between regulators and the corporations they are regulating are fundamentally unfair and undermine transparency in government proceedings.

Peacock’s meeting with PNM included at least two troubling actions that run counter to an impartial and transparent process. The first of these disturbing actions was an attempt to keep New Energy Economy and the public from participating in the court action. Fortunately, the New Mexico Supreme Court upheld New Energy Economy’s right to participate in a unanimous decision earlier this year.

In the second troubling outcome of their private negotiation, Peacock and PNM agreed to “resolve” the carbon pollution reduction case with a new repeal petition to be filed by PNM before Peacock and the other EIB board members. This is an extraordinary legal maneuver and constituted the basis for our request that Peacock recuse herself from the upcoming hearings. Peacock has refused to recuse herself.

PNM is a multibillion-dollar monopoly, with an army of lawyers that has shown itsef more than willing to raise procedural issues to obstruct the passage of and avoid compliance with environmental laws. Regrettably, these convoluted legal maneuverings reduce public confidence, adversely impact public health and are incredibly costly.

Beyond the confusing legal details underlying the EIB hearings, the editors appear determined to perpetuate the outdated notion that we can avoid the risks and costs from climate change. It is deeply unfortunate that the newspaper seeks to marginalize the efforts of New Energy Economy rather than concern itself with encouraging policymakers to accelerate the transition to a low-carbon economy and urge strong public policies on climate change and energy efficiency.

New Mexico is poised to benefit from the opportunities of achieving a low-carbon and sustainable economy if we take prudent steps to develop effective climate strategies. Just today a solar company called my office inquiring about the status of the carbon pollution reduction law because they were interested in locating in New Mexico and wanted a stable economic environment in which to invest.

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