Yesterday we filed our response to the exceptional request made by PNM/Avangrid and the Governor’s newly appointed PRC to the New Mexico Supreme Court. The appellants asked the High Court to 1) approve the dismissal of the PNM/Avangrid appeal but in addition to 2) remand the dismissed case back to the PRC for an expedited “rehearing” and 3) to do so according to an expedited timeline set by the companies in order to prioritize their need for an April 12th resolution - with no disclosed explanation.
But the explanation for this request with this timeline is quite obvious – PNM and Avangrid, with support from the Governor’s PRC, are looking to create a process outside the law to have the new PRC “reconsider” their predecessor's decision in order to reverse it and rubberstamp the merger, in an absolute contrivance of the law and due process. Unfortunately, the motion by the Appellants is illustrative of what’s to come with Avangrid, and in line with the company’s behavior elsewhere and in New Mexico to date: it demonstrates a concerning disregard for the requirements of the law and respect for our regulatory process.
Our response brief argues that while requesting approval of a motion to dismiss is perfectly within any appellant’s rights, PNM/Avangrid and the PRC’s motion asks the Court to create a new, illegal process by which Rule 1.2.2.37(F) somehow allows for a rehearing and reconsideration - even though the 20-day deadline for that request to the PRC has long expired AND, the Appellants are saying they JUST want the reconsideration, without respect for parties’ due process rights! Appellants' motion is essentially asking the Court to facilitate a PRC reversal of its previous decision.
We lay out why the Court cannot grant the motion without violating regulatory and due process laws and cannot provide this unfounded relief to the Appellants. Further, the response brief explains how the illegal process outlined in the Appellant’s motion would further violate the rights of other parties by shifting the companies’ burden on appeal before the High Court, to other intervenors, who will be left no choice but to appeal a rubberstamped reversal should it occur.
We pointed out to the Court that if they were to grant Appellant's motion, it would be as though PNM and Avangrid had prevailed on the merits of their Supreme Court appeal and had somehow become entitled to enter into a settlement of the merits of the merger, following remand to the new PRC, in time to meet the April date that Avangrid and PNM have set for themselves to close their merger. Avangrid is coming to our state and asking us to bend the rules in ways that are deeply troublesome and frankly, unprecedented.
Our brief reminded the Justices that creating avenues for decisions to be reversed with no new evidence is a dangerous practice - citing to the US Supreme Court’s recent reversal on woman’s right to privacy and access to reproductive health services. “That the U.S. Supreme Court reversed well-established precedent for no reason other than the appointment of new Justices with differing political views has done incalculable damage to public perceptions of the legitimacy of that body.”
We asked the Court to deny the Appellants’ motion, and to follow the law and either:
1) Allow the appeal to move forward - giving the Supreme Court the authority to review the PRC decision on the merits and make a determination based on the application of the law.
2) Dismiss the PNM/Avangrid appeal. PNM/Avangrid could file a motion or the PRC could reopen the merger case with due process protections for all parties and a proper evidentiary proceeding because new evidence has come to light under Rule 1.2.2.37 E (4) NMAC.
3) Dismiss the PNM/Avangrid appeal. PNM/Avangrid could refile a new merger application for consideration with the PRC which, after a full evidentiary proceeding with due process, the companies would have to prove the new proposal was in the public interest and met the regulatory standards for a merger.
The brief outlines the legal avenues that exist for Avangrid just as they exist for all utilities regulated under New Mexico’s laws. Due process (presentation of witnesses, discovery, cross-examination, hearing, briefing, etc.) cannot be ignored.