Appointed PRC passes rules to further erode democratic rights of public and intervenors in utility cases

We've seen this playbook before. The Trump administration has moved to fast track permitting procedures for fossil fuel projects, issued new rules proposing to eliminate public comment on data center air permit proceedings, and reduced permit reviews for power plants to 45 days. Now the Governor's handpicked PRC has voted to approve a slate of new rules to limit the ability of the public and intervenors to participate in PRC hearings, even as they acknowledge that the powerful corporations that they regulate possess a "natural advantage" because utilities control the critical information necessary to determine their own regulatory compliance. All in the name of "efficiency."

The new rule in docket 23-00119-UT gives lie to the frequent gaslighting from Blackstone's PR people and the PRC Commissioners themselves about how a Blackstone buyout of PNM won't affect rates because the PRC itself sets the rates. As if the PRC operates in a vacuum.

In fact, until now utility rates in New Mexico have been the product of public hearings in which a multitude of intervenors representing varied interests have filled the crucial role of questioning utility claims, demanding evidence to protect ratepayers and ensuring that the PRC has considered any significant risks before they decide how to respond to a utility's frequently inflated, greed-driven rate increase requests. Obviously a necessary role, given the PRC's recent admission to the NM Supreme Court that they don't even understand the law governing a merger that they already voted to approve!

The role of the public and intervenors like New Energy Economy to protect the public interest and New Mexican families against corporate greed cannot be overstated.

Some of the most egregious changes in the new rule include:

1. Requires potential intervenors to somehow prove in advance that their interests are not duplicative or already represented by other parties, before knowing all the facts or the specific concerns of any other group. This gives the Hearing Examiner the power to summarily reject intervention by any group they deem "duplicative" and is intended specifically to raise barriers to participation from public-interest organizations that often have overlapping but not identical interests.

2. Downgrades the status of public participants by specifying that Public Commenters lack party status and cannot introduce evidence, examine/cross-examine witnesses, appeal, or otherwise participate beyond comment. It reduced the public's participation to "speech" without any procedural importance.

3. Changed the rule so a public hearing occurs only “if necessary,” expressly citing efficiency, making the right to a public hearing discretionary rather than the default.

4. Instructs Hearing Examiners to impose “reasonable limitation[s] on discovery" in procedural orders, making such limitations the rule rather than an extraordinary measure.

5. Forces parties to crystallize position statements enumerating their issues before the hearing and even before discovery, and gives the Hearing Examiner the power to limit the hearing to the issues in those position statements, potentially excluding important concerns that arise during the course of discovery and cross examination.

6. Allows parties to settlement agreements to specify that they want their agreements to be "precedential," meaning that their private negotiated compromise will now inform decisions in future New Mexico utility cases. This transforms negotiated compromises between corporate utilities and whichever intervenors agreed to settle with them to create governing principles for utility cases without the input, participation or agreement of the public or any intervening parties that were rejected from participation. (Review a longer list of problematic rule changes here.)

You can almost imagine the shiny golden crowns these Commissioners want to wear.

Fast tracking regulatory procedures shifts power toward those who control the proposal - the utility - and away from those asked to live with its consequences, New Mexico communities and captive utility customers. Efficiency is not the measure of democracy, and speed is not a substitute for due process. The Commission regulates monopolies whose customers cannot simply walk away. For those customers, meaningful due process is not an extra - it is their only protection against monopoly power, and it is particularly critical now, as Blackstone, the largest private equity company in the world, seeks to control our energy future.

New Energy Economy is not alone in opposing the PRC's draconian new procedural rules. Intervenors will file a Motion for Rehearing and you, the public, still have a voice at open meetings. The next meeting will take place tomorrow, Thursday, September 10th, at the Capitol Building in Santa Fe, Room 309 at 10:00AM.

If you wish to speak in person or on zoom you must sign up today by emailing public.comment@prc.nm.gov.