Posted: Monday, November 9, 2015 9:00 pm | Updated: 11:28 am, Tue Nov 10, 2015.
All five state Public Regulation Commission members will be allowed to decide on whether Public Service Company of New Mexico can go ahead with plans for the coal-burning San Juan Generating Station, the state Supreme Court ruled on Monday.
The high court ruled against a petition by New Energy Economy, a clean-energy advocacy group, that sought to remove four of the elected commissioners from the San Juan case for alleged bias in favor of the state’s largest utility company. The group alleged that some commissioners have engaged in improper “ex parte” communications with PNM during the course of the San Juan case and that some had made public statements that New Energy claimed were evidence the commissioners had already made up their minds in favor of PNM.
While the court ruled against New Energy, Chief Justice Barbara Vigil seemed to admonish the commissioners when, immediately before announcing the decision, she quoted from a 1999 opinion by a former justice, the late Pamela Minzner, in a case concerning the former state Corporations Commission, a predecessor of the current regulatory commission.
“Comments by a commissioner which constitute prejudgment may constitutionally taint any subsequent hearing so as to invalidate the ensuing order of the commission,” Minzner wrote.
If the San Juan case ends up back in the court system on appeal, Vigil said, the commission will face “heightened scrutiny” over actions taken regarding the aging power plant. Vigil said the justices found that “issues raised in the petition are important concerns.”
Mariel Nanasi, executive director of New Energy, said after the hearing that she was disappointed the petition was denied but was encouraged by Vigil’s talk of “heightened scrutiny” and prejudgment tainting the process. “The Court put the PRC on notice that any decision they make that fails to meet the standards of impartiality and fairness will be reviewed with heightened scrutiny given the evidence presented by New Energy Economy,” she said in a written statement.
Nanasi told a reporter that she believes the court’s main concern about the petition was the fact that there is no direction in current law as to what should happen with the case if a majority of the commissioners were removed from hearing the matter. “That was the first question they asked,” Nanasi said. “There just isn’t any remedy in the law.”
She said that if the commission approves PNM’s plans, New Energy probably will appeal the case in court.
PNM is proposing to close two of the San Juan plant’s four coal-fired units and replace the lost capacity with more coal-generated power from another unit at the plant, as well as natural gas from a proposed nearby facility, nuclear power from the Palo Verde plant in Arizona and a small percentage of solar power.
During Monday’s hearing, a large number of spectators packed the court room as well as two overflow rooms equipped with television monitors.
Patrick Apodaca, senior vice president and general counsel for PNM, said after the hearing that he was pleased with the court’s “thoughtful decision” which “allows the case to move forward.” He repeated the utility’s claim that the proposal for the San Juan facility allows cleaner energy and is the least costly alternative. New Energy has disputed that contention.
According to Vigil, all three justices who heard the petition Monday were against recusing Commissioners Karen Montoya, D-Albuquerque; Sandy Jones, D-Williamsburg; and Lynda Lovejoy, D-Crownpoint.
However, Vigil said, while she and Justice Edward Chavez were against forcing Commissioner Patrick Lyons, R-Cuervo, off the case, the third justice, Petra Maes was in favor of throwing Lyons off.
Lyons told a reporter after the hearing, “I’m glad the Supreme Court decided to let us do our job.”
Similarly, Montoya said, “I’m very happy to continue my responsibilities on this case. I feel like justice has been done.”
Jones said he believes the court made the right decision. But he noted that several times during the hearing, justices asked whether the commission offered any training for commissioners about what was proper and improper communication with the public and parties involved in cases the commission hears. He said the commission’s budget is “choked” and he’d like to see the Legislature budget more money for training commissioners.
Lovejoy didn’t attend the hearing. The only commissioner who New Energy Economy didn’t try to disqualify was Valerie Espinoza, D-Santa Fe, who has been publicly critical of PNM’s proposal.
Both sides faced hard questions from the justices.
At one point Chavez referred to some of the commissioners’ statements that New Energy presented as evidence of bias. “There is room to doubt whether some of these statements are taken out of context,” Chavez said.
Both Chavez and Maes had questions about Montoya soliciting campaign contributions from a PNM lobbyist for another Democratic candidate in the 2014 race. “Does that not have the appearance of impropriety?” Maes asked. Montoya’s lawyer, Sam Bregman, argued that Montoya was not soliciting contributions for herself.
Many of the questions pertained to the dual role of commissioners — that of elected officials and politicians who have to answer to constituents and that of judges in quasi-judicial proceedings — such as the San Juan case.
A hearing examiner, who took evidence at public hearings last month, is expected to make a recommendation about the power plant by the end of the month. The commission is expected to vote on it by the end of the year.