Avangrid/Iberdrola has now accused New Energy Economy, and Mariel, specifically of defamation. This is an attempt to shift the narrative away from their illegal efforts to rush the PNM Avangrid merger through the PRC behind closed doors.
Under increasing scrutiny, Avangrid/Iberdrola is using its power to try to silence New Energy Economy because we are leading the effort to hold them accountable. They are claiming that we defamed them, but we did not ruin their reputation. They did that on their own. We are just exposing their decade long history of alleged bribery, harassment, spying, falsification of documents, and fraud, on top of the mountain of evidence of their poor service performance and regulatory compliance. Much of this was reported and included in the merger hearing and the Certification of Stipulation written by the Hearing Examiner. The response from our lawyer points out that Iberdrola has been characterized in the press previously as being in a “reputational crisis” and having suffered “reputational damage” as a result of all of the allegations of wrongdoing against it.
On April 14th, in an interview with Retake Our Democracy Mariel may have conflated two issues when she stated Iberdrola had “bribed judges.” News reports indicate that Iberdrola has paid for spying on judges and that Iberdrola engaged in bribery generally. Mariel retracts the statement that Iberdrola bribed judges. The Spanish investigation is ongoing and was updated with even more evidence as recently as March of this year. In three years of litigating this Avangrid/PNM merger case, and after review of nearly 40,000 pages of evidence and more than 100 national and international news reports describing alleged failures, abuses and criminal and civil misconduct by Iberdrola and its subsidiaries in Europe, Mexico, and the United States, Avangrid and Iberdrola have seized upon a single moment to attack the credibility of New Energy Economy and Mariel specifically. A notice of the errata will be posted on the YouTube video.
Iberdrola is one of the largest and most powerful energy companies in the world, with €13.23B in earnings in 2022. They use that financial power to silence and intimidate their critics. In three other cases they charged their opposition and the press with defamation, and in all those cases they lost - Perez, El Confidencial, and against Paulo Silva who was sued for defamation by Avangrid after making public comment in the Avangrid/PNM merger case in 2021. Not only did Mr. Silva win, the court awarded attorney's fees against Avangrid. Avangrid has appealed that case
We will not allow Avangrid and Iberdrola to bully us into silence.
WE FILED A REPLY BRIEF AT THE PRC INSISTING THAT THE LAW REQUIRES FAIR AND IMPARTIAL REGULATORS TO PROTECT RATEPAYERS
Yesterday we filed our reply to the response brief filed by Avangrid/Iberdrola and PNM at the Supreme Court attempting to defend against their illegal ex parte negotiations with the PRC. Avangrid and PNM argued that:
1. Their discussions with the PRC were "procedural" only and therefore were "permitted ex parte." While minor procedural communications are permitted (for scheduling, or other trivial matters, like ordering lunch) that “do not deal with substantive matters or issues on the merits.” Minor communications are only allowed if the Commission reasonably believes that no party will gain an advantage as a result. Rule 220.127.116.11(A) NMAC. Even if it were minor and only "procedural" it is still ex parte, and it requires disclosure within 5 days. The PRC finally disclosed email communications that occurred three months ago, but still has not disclosed phone calls referenced in the emails. The law explains that "substantive matters" include an inquiry about whether a party’s client would contribute to a settlement or a request for leave to amend a complaint. The communications involved here include matters of far greater substance.
2. Because the case is on appeal it is no longer a "pending adjudication" before the PRC and therefore the PRC is free to meet with one side of the case and decide to reconsider the final decision denying the merger. There is no legal support anywhere for such a claim. Courts in New Mexico and every other jurisdiction have held that a case remains "pending" until it is completely concluded. New Mexico's administrative code states “pending adjudication means any matter docketed[.]" 18.104.22.168 F. NMAC. In this case the whole point of the ex parte negotiations was to keep the case pending and return the case to the PRC so it could carry out the agreement with Avangrid/PNM to reconsider the former denial.
3. Because their discussions with the PRC were about "settlement" they are exempt from the prohibition on ex parte communication. They claim that it would be "bad public policy and create absurd results" if the prohibition against ex parte were followed. There is no “settlement” exception under the ex parte prohibition, in statute, rule or case law. (NMSA 1978, §62-19-23). Settlement discussions between the tribunal that will be deciding the case and one side of the controversy involve substantive matters and are forbidden.
By agreeing to a rehearing process under Rule 22.214.171.124(F) NMAC that was intended to avoid the due process rights of the non-Avangrid/PNM parties, the Commission has shown that it is biased in favor of Avangrid/Iberdrola and PNM and unfit to act as a neutral decision maker if the case were to be remanded. Ex parte communications on the part of a judge or tribunal requires disqualification by both law, precedent, and the Code of Judicial Conduct for exactly that reason. A judge (or tribunal acting as a judge) "is disqualified and shall recuse himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . .” City of Albuquerque v. Chavez, 1997-NMCA-054, ¶16, 941 P.2d 509, 514. In New Mexico Commissioners are held to the same ethical and legal standards as judges.
The private negotiations between the PRC with Avangrid/Iberdrola and PNM disadvantaged every other party to the case, and every ratepayer who is owed transparency and protection by the regulatory agency charged with maintaining its integrity and ensuring just, fair and reasonable electricity rates. The remedy under the law for ex parte between the regulators and the utility and its suitor is disqualification. Parties in a quasi-judicial matter are entitled to an opportunity to be heard, to an opportunity to present and rebut evidence, to a tribunal which is impartial in the matter — having had no ex parte contacts concerning the question at issue — and to a record made and adequate findings executed.
Without these due process protections, who is defending New Mexican electricity customers?
It is time for a new vision for New Mexico. A vision of responsibility and accountability, and of cooperative care for our earth, water, wind and sky to benefit the people.