On July 27, the New Mexico Environmental Law Center (NMELC), led by Staff Attorney Bruce Fredrick, gained another victory in the New Mexico Supreme Court when it won the right for its client, New Energy Economy (NEE), to intervene as a full party in Public Service Company of New Mexico’s appeal of the statewide carbon rules.

In a unanimous decision, the Supreme Court Justices announced that because NEE was named as a party in the previous proceedings with the EIB, it has a right to be granted party status in the current appeal. Chief Justice Charles W. Daniels asked opposing counsel what party would argue the legitimacy of the carbon cap law if NEE wasn’t allowed to participate and compared the result of that omission to “one hand clapping.”

NEE, a nonprofit advocacy group, says PNM is “the state’s largest source of carbon pollution.” NEE’s Executive Director Mariel Nanasi said, “The Court’s decision upholds the rule of law against special interests and their lobbyists. We now look forward to defending the carbon pollution reduction rule based on its economic and scientific merits.”

NEE led a two-year public process that led to the creation of the landmark law, which has been lauded by some national experts. The state Environmental Improvement Board (EIB) adopted the law in December of 2010. In January, the NM Supreme Court, in a NEE lawsuit, ruled that Gov. Susana Martinez’s administration acted unconstitutionally when it tried to prevent the publishing of the carbon pollution reduction rule as codified state law. Shortly thereafter, Gov. Martinez appointed the current EIB.

PNM and other entities regulated by the EIB (NM Oil and Gas Assn., Independent Petroleum Assn., El Paso Electric and Tri-State Generation and Transmission Assn.) appealed the statewide carbon cap rule in early January. PNM then filed an unopposed motion to stay the appeal and remand the case to the EIB. The Court of Appeals granted the motion. The NMELC then filed motions on behalf of NEE to intervene in the appeal but were denied; therefore, NMELC brought the petition to the NM Supreme Court.

On July 29, NEE filed a motion with the EIB that seeks to disqualify the EIB members for ex parte (secret) agreements between them and the utilities who seek to repeal the carbon reduction law. NEE’s motion was triggered by joint legal documents filed by PNM and the EIB in the New Mexico Court of Appeals. The joint motion provides that PNM and EIB agree to proceed before the EIB to resolve PNM’s appeal. Additionally, PNM, in its argument before the New Mexico Supreme Court conceded that there were private discussions between the EIB and other regulated entities. Supreme Court Judge Bosson asked, “Who was there to defend the rule?”

Ex parte communications with EIB members and hearing officers are strictly forbidden, and EIB members whose impartiality or fairness may reasonably be questioned must recuse themselves.