Law 360: Enviro Group Can Join Emissions Suit: NM High Court

July 2011

New Mexico’s highest court on Wednesday allowed an environmental group to intervene in a lawsuit brought by utilities seeking to overturn state regulation of greenhouse gases.

New Mexico Supreme Court Chief Judge Charles Daniels said during a hearing that if New Energy Economy Inc. was not allowed to intervene in the suit, there would be no party to defend the rule, thus undermining the adversarial process, according to the group.

“The court’s decision upholds the rule of law against special interests and their lobbyists,” New Energy Economy Executive Director Mariel Nanasi said. “We now look forward to defending the carbon pollution reduction rule based on its economic and scientific merits.”

In December, New Mexico’s Environmental Improvement Board adopted Rule 100, which would force large producers of gases to reduce their emissions by 3 percent annually from 2010 levels, but immediately after taking office Jan. 1, Gov. Susana Martinez, an opponent of the cap, replaced the board’s members, according to New Energy Economy.

Electricity utility Public Service Co. of New Mexico and six other EIB-regulated entities appealed the adoption of the rule in January.

The New Mexico Court of Appeals referred PNM and the EIB to mediation in May, staying the appeal. That same month, the appeals court denied New Energy Economy’s motion to intervene in the suit.

In an emergency motion filed on Monday, New Energy Economy asked the state Supreme Court to vacate the appeals court’s decision to remand PNM’s appeal back to the EIB. The environmental group claims the regulatory board is colluding with the utilities to repeal the rule.

Approved by a 4-1 vote in December, the cap will apply to power plants, refineries and natural gas processing and compression facilities, as well as other stationary sources that emit more than 25,000 metric tons of carbon dioxide each year.

Originally, the cap was supposed to go into effect at the beginning of 2012, but the EIB amended the effective date to Jan. 1, 2013. New Energy Economy petitioned for the cap in 2008.

In January, the state Supreme Court ruled for New Energy Economy in another suit, saying the Martinez administration acted unconstitutionally when it tried to prevent Rule 100 from being published as codified state law, according to the group.

Representatives for the parties were not immediately available for comment on Wednesday.

New Energy Economy is represented by R. Bruce Frederick and Douglas Meiklejohn of the New Mexico Environmental Law Center.

PNM is represented by Robert H. Clark and Richard L. Alvidrez of Miller Stratvert PA, among others.

The case is New Energy Economy Inc. v. The Honorable Judge Linda M. Vanzi, New Mexico Court of Appeals, case number 33,074, in the New Mexico Supreme Court.

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