Last week PNM, Avangrid and Iberdrola filed to strike the most impeachable evidence submitted in the merger case, including:
testimony from NM Attorney General's expert witness Scott Hempling opposing the merger,
testimony from Maine legislator Seth Berry regarding Avangrid's performance and behavior in Maine,
results of the damning Liberty management audit ordered by Maine regulators,
evidence regarding investigation of Iberdrola executives for corruption and fraud in Spain,
evidence regarding the conflict of interest posed by Marcus Rael's lobbying of the NM Attorney General and Bernalillo County on behalf of Iberdrola, and
all portions of New Energy Economy expert testimony that refers to the above evidence.
PNM/Avangrid/Iberdrola's motion was opposed by New Energy Economy, New Mexico Affordable Reliable Energy Alliance, the Albuquerque Bernalillo County Water Utility Authority, and PRC Utility Division Staff. In their response opposing the motion, PRC staff wrote:
Their Motion in Limine, which seeks to keep the Liberty Audit out of this case, brazenly ignores the determination made by the Hearing Examiner in directing that the Liberty Audit become part of the record in this proceeding. The information in the Liberty Audit is more than simply an evaluation of Central Maine Power’s performance since its acquisition by Iberdrola, it is a review of Iberdrola and Avangrid’s management of its eastern U.S. utility subsidiaries, and as such contains critical information that the Commission should be aware of and be able to consider in making its determinations in this case. Joint Applicants’ Motion in Limine is essentially a last second Hail Mary pass; a sad, desperate attempt to prevent the Commission from having clearly relevant information to use in making its determination in this case. (emphasis supplied)
As we wrote in our response, a pattern and practice has emerged; the Rael/Balderas conflict of interest and undue influence (and potential fraud) laid out in our expert's testimony, in conjunction with the underhanded and extra-legal misconduct in Spain and Maine, evidences a disturbing modus operandi by the Iberdrola/Avangrid group. The last thing New Mexico needs is another powerful energy company with unlimited resources and questionable ethical practices controlling our energy future and undermining the rule of law in New Mexico. Especially, in light of the more than one million dollars spent by Avangrid/Iberdrola on advertisements on tv, in the newspapers, on radio, and on the web touting how ethical they are and how beneficial the merger will be, and their efforts to conceal past and current wrongdoing, the evidence they sought to quash is critical to understanding how the company will operate if the merger is allowed to proceed.
Today the Hearing Examiner agreed with our positions (almost entirely), issuing an order denying their motion, saying:
The testimony of Scott Hempling's (now a Judge with FERC) will be admitted into the record, but he will not have to appear at the upcoming evidentiary hearings.
Mr. Berry’s statements that relate to the activities Central Maine Power Company undertook to investigate the proponents of a proposed referendum against Avangrid’s proposed transmission line …are reliable, and they are relevant to legitimate issues in this case. (The Hearing Examiner agreed that regarding the other issues PNM/Avangrid/Iberdrola had a right to cross-examine him and therefore those portions would be stricken.)
The audit report is evidence that is relevant to the issue of how the adequacy of PNM’s service might deteriorate under the Iberdrola/Avangrid group of companies [and therefore] the Joint Applicants’ Motion to Strike the audit report is denied.
The evidence related to investigations in Spain is relevant both for the fact of the criminal investigation and for the activities being investigated. The evidence is relevant to the manner in which PNM’s future operations would be controlled by Iberdrola and Avangrid and what the impact of that control will be. The evidence is also relevant to the manner in which the Joint Applicants attempt to gain the Commission’s approval of the proposed merger. The Joint Applicants’ objections regarding evidence related to the criminal investigation in Spain involving Iberdrola and Avangrid executives and Iberdrola Renovables should also be denied.
Competent testimony and evidence presented in this proceeding related to the alleged conflict of interest of Marcus Rael and the Attorney General is relevant and will not be stricken. (Though the Hearing Examiner did strike one line and three news articles were struck. The Hearing Examiner is being very thoughtful and measured!)