Show Cause! Important Motions filed in Project Jupiter and Blackstone cases.

On Tuesday New Energy Economy filed a Motion to Dismiss Project Jupiter's pending air pollution permit application arguing that the New Mexico Environment Department should not conduct a costly, multi-day evidentiary hearing on a project that cannot presently be built because its only identified fuel source has been denied by the State Land Commissioner.

Project Jupiter’s proposed 2.46-gigawatt onsite power plant requires approximately 400 million cubic feet of natural gas every day to operate. The only identified means of supplying that fuel—the proposed Green Chili Lateral pipeline—has now been denied twice by the Commissioner of Public Lands, who concluded that the project was not in the best interests of the State Land Trust and that it would impose substantial environmental costs while providing minimal public benefit.  

At some point, everyone has to follow the law. Oracle, STACK Infrastructure, BorderPlex, Yucca Growth Infrastructure, and Bloom Energy are no exception. The Commissioner of Public Lands has twice denied the permits necessary to construct the only identified natural gas pipeline for this project. Without fuel, there is no power plant. Without a power plant, there is no Project Jupiter. It is simply absurd to spend weeks preparing for an air permit hearing on a project that cannot proceed as proposed.

New Energy Economy argued that the case has become administratively unripe because the Department would effectively be issuing an advisory opinion on a hypothetical project rather than one capable of construction. Our motion further notes that the Department’s own regulations require denial of a permit if the proposed source cannot be produced in a timely fashion.NMED must follow its own regulations. The New Mexico Environment Department (“Department”) promulgated 20.2.72.208(G) NMAC. The rule states “The Department shall deny any application for a permit or permit revision if considering emissions after controls it appears that the construction of the new source will not be completed within a reasonable time” 20.2.72.208(G) NMAC. (Emphasis supplied.)The word “shall” is mandatory. The Department therefore cannot simply ignore changed circumstances that directly affect whether the project can ever be completed.

Yesterday the Hearing Officer Ordered the permit applicants to respond within three days and explain:

• whether any legally obtainable alternative fuel source exists;

• whether any alternative pipeline has been engineered or permitted;

• whether the project remains capable of being constructed as proposed; and

• whether the proposed source can still be completed within a reasonable time as required by 20.2.72.208(G) NMAC.

If the answer is “no,” there is no project left to permit.

DOES PNM OWE RATEPAYERS MILLIONS FOR IMPRUDENT DECISION TO WAIVE MERGER TERMINATION FEE?

On Monday Prosperity Works filed a new Show Cause Motion at the PRC arguing that the decision by Blackstone and TXNM (PNM's parent company) to rewrite their merger agreement, waiving most of the $350 million merger termination fee, as part of their recent compliance filing was imprudent, and therefore the amount waived should now be owed to ratepayers as a rate credit, which would translate to a yearlong 16% reduction for PNM customers.The Motion states "The decision to not claim, and in fact waive its right to claim, $350 million available to TXNM as a result of the failed stock purchase is contrary to the interest of PNM, its customers and the public interest. A cash infusion of that amount would most certainly benefit the company and its customers – and reduce the revenues required to serve PNM and TNMP customers by that same amount. Failure to seek that recovery, ostensibly to pursue an uncertain merger proposal, also appears to be imprudent."We concur. The Compliance filing related to their illegal stock transaction was not an opportunity to rewrite their merger application and extend their business deal at the expense of ratepayers. It was a mandate to prove that they complied with the PRC's order to unwind their illegal stock sale and show how they would hold ratepayers harmless for any financial consequences of their unlawful act.

Not only did they fail to comply with the requirement to show how the transaction was made "void and of no effect," they imprudently gave up $350 million in the process. With tens of millions in personal compensation on the line if the merger falls through, it is clear why PNM executives decided to keep pursuing the deal regardless of the cost to ratepayers.

But that's a private interest, not a public interest.

Prosperity Works calls out that personal incentive in their Motion, noting "Six of TXNM’s top executives will collectively receive $45 million in “Golden Parachute Compensation” if the merger is completed." 

MEANWHILE BLACKSTONE AND PNM SEEK TO INTIMIDATE NEW ENERGY ECONOMY AND PUBLIC ADVOCATES WHO OPPOSE THEIR MERGER

Blackstone and PNM are trying to intimidate New Energy Economy and other public advocates by demanding disclosure of our relationships with advocacy organizations, coalition partners, consultants, legislators, grassroots organizations, editorial communications, drafts of opinion pieces, talking points, communications with elected officials, and internal advocacy strategy. The requests seek extensive information about organizations, public officials, media collaborations, and opinion pieces opposing the merger. 

This is what corporate retaliation looks like. Blackstone, TXNM, and PNM lost on the law. Instead of accepting responsibility, they are attempting to intimidate the very citizens, organizations, journalists, legislators, and advocates who successfully exposed their unlawful conduct. These discovery requests are designed to frighten people into silence.

We have formally objected, arguing that our relationships have nothing to do with the legal questions before the Commission—whether Blackstone’s acquisition of TXNM complies with New Mexico law—and instead targets constitutionally protected activities including coalition-building, public education, speech, association, petitioning government, and communications with public officials. 

Our response is simple: we will not be intimidated. These tactics will not silence New Mexicans, they will strengthen our resolve. The Constitution protects the right of citizens to organize, educate, criticize powerful interests, and petition their government without fear of retaliation. That is exactly what New Energy Economy intends to continue doing.