August 2010

NM Supreme Court Allows Consideration of Greenhouse Emissions Caps

Hearing to Continue August 16

by Seth Roffman

In June, in a unanimous decision, the New Mexico Supreme Court gave the green light for New Energy Economy’s petition to cap greenhouse gas pollution to proceed. The court dismissed a lawsuit filed by Public Service Company of NM (PNM), other utilities, conservative legislators, and the oil and gas industry, that challenged the NM Environmental Improvement Board’s (EIB) authority to hear the petition.

The Justices overruled Lea County District Judge William Shoobridge. Their decision was based on a separation of powers issue: “A judge cannot interfere with an “ongoing, uncompleted agency process,” stated Chief Justice Daniels.

The original NEE petition sought regulations that would cut greenhouse gas (GHG) emissions to 25 percent below their 1990 levels by 2020. A revamped proposal was submitted in March for a phased-in program that would include only electricity generators and oil and gas industry businesses that emit more than 25,000 metric tons a year. Emissions from those sources would be reduced 3 percent each year from 2010 levels.

At an EIB hearing in March, New Mexicans from all walks of life and from diverse areas of the state expressed their concerns, pro and con. NEE Senior Policy Advisor Mariel Nanasi said that New Energy Economy wants the EIB to proceed in accordance with its express legislative authority to hold public hearings for the purpose of considering regulating air pollution and protecting public welfare. “The ultimate takeaway is we were in the middle of a hearing to cap dangerous global warming pollution and further transition to a renewable energy economy.”

“We look forward to hearings this summer,” said Bruce Frederick, attorney with the New Mexico Environmental Law Center, representing New Energy Economy. “By acting now to transition to clean energy technologies, we can reduce air pollution and revitalize local communities. The health of our economy – and of many New Mexicans – was boosted by the decision of the Supreme Court,” said Dr. John Fogarty, a physician and President of New Energy Economy.

Oil, gas and industry groups claim emissions caps would be costly and would harm New Mexico’s economy. They also assert that greenhouse gas emissions should be regulated by the federal government rather than individual states. NEE has countered that the federal government is too slow, and as NM is an energy producing state, this is an opportunity to set a precedent on addressing global warming.

In June the US Senate defeated a resolution that would have denied the Environmental Protection Agency’s authority to move ahead with rules, to go into effect next January, aimed at cutting greenhouse gas emissions from power plants and other big polluters. Based on the review of thousands of scientists, the EPA has found that “increasing levels of greenhouse gasses threaten the public health and welfare of current and future generations.” The EPA’s standards were set after the US Supreme Court ruled that GHG emissions could be regulated under the Clean Air Act.

The next state EIB hearing on the petition will be on August 16. The EIB will also hear a separate proposal from the NM Environment Department for a cap-and-trade program on September 20. PNM and others have filed objections to that proposal as well. The cap-and-trade proposal would also limit the amount of greenhouse gasses that could be emitted by NM power plants and refineries to a set number allowed by the state. It would make it possible for participants to buy allowances from other sites in the West.

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