NEE files an Emergency Motion for Leave to Seek Interlocutory Appeal after Hearing Examiners fail to allow evidence into BCP case record

On Friday New Energy Economy took the extraordinary step of filing an Emergency Motion for Leave to Seek Interlocutory Appeal in the Bernhard Capital Partners case. Our Motion was filed after Hearing Examiners in the case ruled repeatedly and defectively to refuse to allow discovery and evidence of BCP’s history and operations at BCP-owned companies into the record, to require one of our expert witnesses to testify as a lay person despite being a lawyer for 15 years and specifically with six years of utility law experience, to strike all but two pages of his testimony related to BCP’s qualifications to purchase New Mexico Gas Company, and even to disallow the deposition testimonies of BCP witnesses including, the Senior Managing Director of BCP Management, Jeffrey Baudier, into the record.

These rulings have silenced parties from making their case, have been inconsistently applied, are contrary to Commission rules and the Rules of Evidence, and most importantly prevented parties from addressing the six-factor test to evaluate protection of the public interest. They have hobbled the capacity of the public, the parties in this case, and the PRC itself, to obtain information critical to an evaluation of the company that wants to take over New Mexico Gas Company, and worse, set a precedent for all future cases that will limit the PRC’s capacity to properly evaluate any utility acquisition in New Mexico.

It was as if a surreal “Hear no evil, See no Evil” dictate hung over the proceedings, a corruption of the process so blatant, we have never seen its like in 15 years of practice before the Public Regulation Commission.

All we are seeking is a level playing field, where the public's wellbeing is put on equal footing with shareholder wealth.

Refusal to Compel fulsome discovery prevents the public and participants from obtaining relevant information prior to trial

It began prior to the hearing itself, when New Energy Economy filed a Motion to Compel after BCP’s response to discovery questions about its operations and violations at other BCP subsidiary companies received a cunning response from BCP - any questions about those companies constituted “third-party discovery” and was not relevant to this case. Our Motion was denied and we filed a request for reconsideration of that decision, concerned that our inadvertent mistake in failing to attach referenced exhibits was the cause. The appeal for reconsideration received no response, effectively shielding the company's history from scrutiny and analysis in the hearing.

During the hearing, after more information was elicited from Baudier about BCP's background we renewed our request to either have BCP answer our questions about their track record, or in the alternative, for the Hearing Examiners to issue what's called a bench request, an order requiring BCP to furnish that background information because "careful verification of the qualifications of the proposed new owner" is one of the factors that must be considered in determining whether the transaction is in the "public interest." That too was denied. 

Incredibly the Hearing Examiners accepted the company’s absurd claim that, as a private equity investment firm, it doesn’t exert any operating influence over the many companies that it owns and therefore such evidence has no relevance, a claim that is demonstrably false and furthermore, ignores precedent set in the Avangrid case in which the Hearing Examiner not only demanded that Avangrid produce fulsome discovery about its other companies, but also fined Avangrid for that failure. That is because the Commission’s liberal pretrial discovery rules to enable the parties to obtain the fullest possible knowledge of the facts before trial. 

The Hearing Examiners and the Commissioners, parties and the public, cannot possibly evaluate the fitness of a company that wants to take ownership of a New Mexico utility if the applicants won’t share the history of penalties, violations, fines and regulatory non-compliance, and the Hearing Examiners won’t require it. This will become particularly relevant in the upcoming Blackstone/PNM proceedings in which another private equity firm with numerous holdings, subsidiaries and interests wants to own and control our largest electric utility.

Refusal to allow relevant testimony and evidence leaves a one-sided evidentiary case record sanitized of evidence necessary to Commission deliberations.

When the hearing began BCP and other Joint Applicants also made objection to the expert testimony of Jesse George a utility advocate and lawyer in Louisiana with six years of experience in utility law and first-hand knowledge of the actions of BCP and its affiliates. The Hearing Examiners required us to eviscerate his testimony, reducing it from 19 pages and over 45 pages of exhibits about BCP's past performance to two pages and George's resume. In the original Mr. George explains in detail why he believes that this transaction may result in harm to NMGC ratepayers and gives many examples, including about complaints he personally received from customer ratepayers about BCP’s Delta Utilities, a gas LDC, that it has owned since July 2025, but this was kept entirely out of the record. His testimony was excluded.

The Hearing Examiners further:

• Prevented NEE from cross-examining Joint Applicants about the $20,000 a month lobbyist, a former senior advisor to Governor Michelle Luján Grisham, Dominic Gabello, who had, as of April 2025, billed BCP over $160,000.

• Prevented NEE from cross-examining BCP about their campaign contributions of more than a hundred thousand dollars to Louisiana officials immediately proceeding the vote to approve the acquisition by BCP of Delta Utilities in Louisiana.

• Prevented NEE from attaching the deposition testimony of Mr. Baudier as an exhibit, despite that fact that it was evidence of the sworn testimony of a party opponent.

• Prevented NEE and many other parties were prevented from attaching articles, studies, and other evidentiary information that the expert witnesses relied on to give his/her testimony.

Excluding testimony about the track record of BCP (whether from answers to interrogatories, Mr. George’s testimony, or from further investigation requested by a party) hobbles the Commission's ability protect the public interest. The Commission is required to analyze the transaction based on a six factor test to determine the fitness of a company that wants to own a utility in New Mexico:

1. Whether the transaction provides benefits to utility customers;

2. Whether the Commission’s jurisdiction will be preserved;

3. Whether the quality of service will be diminished;

4. Whether the transaction will result in the improper subsidization of non-utility activities;

5. Careful verification of the qualifications and financial health of the new owner; and

6. Adequacy of protections against harm to customers.

During this hearing the Commission’s duty “to investigate and regulate” was effectively subordinated to BCP’s claim that it does not “control” affiliates—even though BCP appoints board members, oversees strategic decisions, and integrates shared services across its portfolio.

If allowed to stand the PRC would be unable to examine whether customer benefits outweight risks, whether service quality would be diminished or whether the new owner is operationally competent or professionally able to meet its financial obligations.

Without the compliance history, the PRC cannot assess risk—full stop.

New Energy Economy has requested that the Hearing Examiners hold the record open, permit the parties to respond and make a decision on whether to allow NEE to pursue an interlocutory appeal.

If you feel inspired to tell the PRC what you think about this state of affairs, the next open meeting at which public comment will be accepted is November 25th at 10:00AM. The location has not yet been announced but will be listed on their website here soon.