Albuquerque Journal: Martinez Action on Emissions Contested

By Deborah Baker

SANTA FE — Ten days after she was sworn into office, Gov. Susana Martinez was sued by environmental advocacy groups who claim she unconstitutionally canceled a new regulation curbing greenhouse gases that had been adopted by the Environmental Improvement Board.

In a petition filed Tuesday with the state Supreme Court, New Energy Economy Inc. alleged that the administration circumvented the state’s rule-making process and encroached on the powers of the Legislature and the state Court of Appeals.
The petition filed by the New Mexico Environmental Law Center asks the state’s highest court to order the new regulation reinstated and order Martinez to stop interfering with the rule-making process.

Martinez’s office did not respond to a request for comment on the petition.

Immediately after she took office on Jan. 1, the Republican governor ordered a 90-day hold on proposed or pending rules while a task force assesses their impact on business.

The petition says the greenhouse cap rule was already final — it had been adopted by the EIB on Dec. 6 and filed with the State Records Center on Dec. 27 — and therefore didn’t fall under the suspension.

New Energy Economy also argues that the EIB has exclusive legal authority to adopt rules under the Air Quality Control Act. The administration didn’t have the authority to halt the rule’s publication — which makes it valid and enforceable — in the New Mexico Register, NEE said.

“The governor cannot circumvent the law or expand her powers by executive order,” Bruce Frederick, staff attorney with the Environmental Law Center, said in a statement.

NEE says a total of 32 final and filed rules that had been adopted under Gov. Bill Richardson’s administration by various boards and commissions were prevented by the administration from being published.

They include water quality regulations for dairies and building code updates aimed at making new structures more energy-efficient.
The Supreme Court’s decision in the NEE case would be binding in the cases of the other rules that were ”improperly ‘canceled,’ ” the petition says.

The carbon pollution reduction rule — effectively a state-only cap on emissions — was sought by NEE and adopted after a two-year public hearing process.

It wouldn’t take effect before 2013 and was viewed as a backup measure to a separate rule, proposed by Richardson’s Environment Department, that calls for New Mexico to participate in a regional cap-and-trade program. That rule took effect Jan. 1.
Both rules would require utility companies, gas and oil operations and other large emitters of greenhouse gases to make annual reductions from 2010 baseline levels.

Opponents say the measures would increase energy costs, endanger jobs and put the state at an economic disadvantage.
Martinez has terminated all the members of the Environmental Improvement Board.

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