Associated Press via Bloomberg Business Week: Recusal of NM Regulators Sought in Emissions Case

September 2011

By Susan Montoya Bryan

An environmental group is asking that three New Mexico regulators recuse themselves from the debate over whether the state should uphold its rules for managing greenhouse gas emissions.

New Energy Economy filed a pair of motions with the board this week. One challenges whether Environmental Improvement Board members James Casciano, Greg Fulfer and Deborah Peacock would be fair and impartial as the board considers petitions aimed at overturning the rules.

The other motion asks for remaining board members to disclose their past and current relationships with the electric utilities, oil and natural gas developers and others who have petitioned to have the rules repealed.

“We’re not trying to ambush them. We’re giving them an opportunity to explain themselves,” said Mariel Nanasi, executive director of New Energy Economy. “We just want the law to be followed, and we want a fair hearing.”

The seven-member board meets Friday, but it will likely be October before the recusal matter is considered.

The fight over whether New Mexico should regulate greenhouse gas emissions from coal-fired power plants and other large polluters has been dragging on in the courts and before state regulators for nearly two years. Supporters contend the state can’t afford to leave such emissions unchecked and that New Mexico’s mandates for reducing greenhouse gases will help spur clean energy development.

Having rules in place now, they say, will also put the state in a better position in the event the federal government develops its own cap and trade regulations.

Opponents, including Republican Gov. Susana Martinez and some legislators, argue the state’s emissions represent only a fraction of the global problem and that the rules will lead to higher costs for families and will drive businesses and jobs from the state.

Following numerous public meetings and hearings, the rules were approved by the Environmental Improvement Board last fall in the waning weeks of former Democratic Gov. Bill Richardson’s administration. Industry groups and others argued the board at that time was biased toward environmental interests. The board members dismissed those accusations and continued with the proceedings.

Martinez appointed new board members after taking office this year.

The board has scheduled hearings starting in November to consider the petitions that seek to repeal the greenhouse gas emissions rules. Appeals are also pending in state appellate court.

New Energy Economy contends the petitions were filed with the board immediately following private negotiations between board chairwoman Peacock and the petitioners to resolve the legal appeals. The group also argues that Fulfer and Casciano had testified against approval of the emissions rules last year before they were appointed to the board.

Peacock told The Associated Press on Thursday that she had only briefly reviewed the motions but that she did not have any unlawful private meetings with the groups that are pushing for the rules to be repealed. She said she remains unbiased.

“I absolutely believe I can be fair and impartial,” she said.

Fulfer, a Lea County commissioner, said he testified against the rules as part of his position with the county, which is home to a large contingent of New Mexico’s oil and gas industry. He said he would object to the idea of being recused from the case.

“I’m not a person who jumps to conclusions without looking at the information presented,” he said. “I’m very impartial in that way, and I think most of my rulings and votes and everything else reflect that.”

Casciano, who heads environmental health and safety at Intel’s computer chip manufacturing plant in Rio Rancho, did not immediately return a phone message seeking comment.

Bruce Frederick, an attorney with the New Mexico Environmental Law Center, which is representing New Energy Economy, said the board’s own regulations require its members to recuse themselves if there’s any reason to believe they’re not impartial.

“It’s an appearance standard,” he said. “These rule makers have to have the same impartiality as judges.”

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