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Supreme Court leaves the question of ETA applicability in the PRC's hands

On October 3, 2019, the Supreme Court denied Public Service Company New Mexico (PNM) NM and Western Resource Advocate’s (WRA) Motion for Clarification and In the Alternative Writ, which asked the Court to intervene and force the Public Regulation Commission (PRC) to apply the Energy Transition Act (ETA) to the San Juan Abandonment Case before any scheduled briefing by parties for and against in October, and before the PRC has made its own determination of the law's applicability.

Clearly, the Court wants the San Juan Abandonment Case to proceed in the normal course for utility filings at the NM Public Regulation Commission.

Cartoon by Aaron El Sabrout, our Staff Attorney with many talents, who made this piece to express why we must protect against the ETA's gutting of regulatory oversight.

The politically motivated, baseless, and divisive accusations by PNM, WRA, Senator Jacob Candelaria, and other ETA proponents that the PRC has used “procedural maneuvering” to undermine the legal process, were rejected by the Court.

And three days ago, our effort to have the Court weigh in on the unlawful and unconstitutional provisions of the law was also denied. The Court offered no reason whatsoever for its decision. See press coverage in The NM Political Report and The Santa Fe New Mexican.

The Court has made it clear that it will not interrupt the normal course of action of the Abandonment Case (which is the establishment of a record, a decision from the lower court or agency – in this case the PRC, a challenge through appeal or cross-appeal).

The Court has ruled to allow the PRC to proceed.

The PRC has the authority and the duty to determine if and how the law should be applied to PNM’s filing.

We will take our arguments against the unlawful and unconstitutional provisions of the ETA in front of the PRC including:

1) The ETA eviscerates the PRC requirement to regulate. Article. XI, §2 of the New Mexico Constitution provides that the Public Regulation Commission is responsible for regulating public utilities and that requires the exercise of control. The regulatory compact: PNM is free from any competition, hence a monopoly, and in exchange is to be regulated by the PRC.
2) The ETA violates ratepayers due process, Art. II §8: The ETA allows PNM to set rate increases without any determination or ability to review, change or deny the rate increase if PNM abandons its coal plants, gas plants or nuclear investments.
3) The ETA negatively affects the rights and remedies of ratepayers. The New Mexico Constitution provides: “No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.Const. Art. IV, § 34 states. The ETA affects the rights and remedies and changes the rules of evidence or procedure for ratepayers in three pending cases: Case No. S-1-SC-36115 (currently on remand in NMPRC Case No. 15-0026-UT) – finding PNM imprudent for its investment in and life extension of the Palo Verde Nuclear Generating Station, NMPRC Case No. 19-00018-UT the San Juan Abandonment Case, and the vested rights of ratepayers as a result of the Final Order in NMPRC Case No. 16-00276-UT – finding PNM imprudent for its investment in and life extension of the Four Corners Coal Plant and its affect in PNM’s next rate case.
4) The ETA’s title fails to provide notice of critical subjects and existing law that it amends - N.M. Const. art. IV, §§16 and 18 prohibit legislation that does not include essential terms or fails to give notice that it amends existing legislation. The ETA has a long title but doesn’t reference its alteration of PRC procedures, elimination of PRC rate control, changed appeal procedures, or extensive amendments to the PUA. In fact, the ETA title doesn’t refer to “rates”, “undepreciated investments”, or “decommissioning costs” at all.

New Energy Economy pledges to protect ratepayers from PNM’s attempt to offload the financial responsibility for their poor financial decisions and their contamination of the land and water of San Juan - using our regulatory safeguards and the Constitution as our shield.


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