Read why this PRC hearing is so crucial as it will determine who pays the costs for abandoned facilities, imprudent investments, and cleaning up impacted communities. This hearing is extremely important to the future of NM.

Retake Our Democracy Potluck & Discussion of Non-Violent Direct Action Options in 2020.

Thursday, December 12, 6pm-8pm, 1420 Cerrillos, Santa Fe. We will share food and sit in a circle to hear from the local Extinction Rebellion and from Youth United for Climate Crisis Action and share our thoughts on how Retake can best support their efforts. We will also provide an update on recent news as to what to expect in the 2020 legislative session and what you can do to advocate for good bills.

RSVPs are MANDATORY as we are ordering pizza–YAY. To RSVP write to us at RetakeResponse@gmail.com or click here to RSVP on Facebook.

PRC Hearing on San Juan Generating Station Abandonment Case

Monday, December 9, 9:30-12:30pm, PRC, Downstairs Hearing Room, 1120 Paseo de Peralta, Santa Fe

For years, I have been joined by other environmental advocates at PRC hearings to listen to the cogent arguments of New Energy Economy (NEE) and its allies, while PNM dissembles or lies. Most often, the PRC Hearing Officers side with NEE and point out the duplicity in PNM testimony. Until last January, the PRC was comprised of Commissioners who didn’t care about the testimony or the views of their own Hearing Officers. Decisions were made before hearings began: always 3-2 for PNM with Commissioner Sandy Jones smirking as only he can.

Those days are over. Last year, advocates worked hard to elect Steve Fischmann to replace Sandy Jones. Mission accomplished. Now we have a PRC that has given every indication it intends to make decisions based on the rule of law and the facts. And, as this post describes, with that criteria, PNM is about to be handed a stunning defeat. You can be part of the testimony that contributes to that defeat. Read on.

On Monday, New Energy Economy will join with the impacted community of the San Juan Generating Station to demand thorough cleanup based on a comprehensive assessment of the immense damage done to the environment and the health of the community.

NEE will be seeking a cleanup that the polluter pays for, not the ratepayers–most of whom are low-income New Mexicans. NEE will also join ratepayers in demanding that PNM pay SOMETHING for their irresponsible investments in San Juan and to establish a precedent for holding them accountable in future abandonment cases.

Monday morning from 9:30am-12:30pm is your opportunity to weigh in and offer public comment. This post and the links at bottom will offer you plenty of speaking points. When arrive, you can decide on which side of the aisle you wish to sit: with New Energy Economy, Earth Care, WildEarth Guardians, Retake Our Democracy, and representatives of the indigenous and impacted communities or on the other side of the aisle with PNM, Sierra Club, 350NM, and other grasstops “environmental” organizations, the same organizations that backed the Energy Transition Act and the Produced Water Act. It is sad that we have this division among environmental groups, but in this case, we must be grateful to NEE for leading with integrity and standing up to corporate greed.

With a series of increasingly costly abandonment cases and cleanups to come in the next fifteen years, e.g., Palo Verde Nuclear Plant, this case will determine how resource abandonment is treated under the law in NM, how quickly we are able to transition to renewables, and the cost and allocation of financial responsibility for the transition and retirement of coal (and nuclear) between ratepayers, shareholders, and the public.

NEE will argue that the intent of the Energy Transition Act (ETA) was to free PNM of responsibility for paying for any share of the cost of San Juan Abandonment by eliminating the PRC’s regulatory authority to conduct its constitutional mandate to regulate the utility industry in a case that had been pending before ETA legislation was passed.

It appears that the PRC Chief Hearing Examiner Ashley Schannauer agrees. The quote below is his recommended decision, made in another pending case on Monday, and is indicative of his legal position. Schannauer clearly feels that the ETA represents “interference” and after making that claim he cites Stockard v Hamilton as precedent:

The historical purpose of NM Constitution Article IV, §34 (“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.”)  has been to prevent legislative interference to dictate the result of litigation in pending cases:

Recommended decision from PRC Hearing Examiner who will preside over the PRC hearings that begin Monday. Schannauer then cites Stockard v Hamilton.

The evident intention of the Constitution is to prevent legislation interference with matters of evidence and procedure in cases that are in the process or course of litigation in the various courts of the state, and which have not been concluded, finished, or determined by a final judgment. This provision of the Constitution was inserted for the purpose of curing a well-known method, too often used in the days when New Mexico was under a territorial form of government, to win cases in the courts by legislation which changed the rules of evidence and procedure in cases which were then being adjudicated by the various courts of the state. Such a provision, in our opinion, does not apply to a case like the present one, where a final judgment was obtained long prior to the enactment of the law of 1917.”

Stockard v. Hamilton, 1919-NMSC-018, ¶9, 25 N.M. 240, 242-245, 180 P. 294, 295; quoted with approval in U.S. West Communications, Inc. v. N.M. Pub. Regulation Commission, 1999-NMSC- 024, ¶13, 127 N.M. 375, 379, 981 P.2d 789, 793.

Since the ETA was passed by the legislature and signed by the Governor several months after the PRC initiated a docket on the San Juan closure had already been filed, could it be PNM’s goal in pushing the ETA was explicitly to interfere with the pending regulatory process to hold PNM accountable for the abandonment of the San Juan coal plant? Should the PRC rule that the ETA does not apply to this case (as per above), past PRC precedent strongly suggests that at best PNM would receive half of what it is seeking. PNM would almost certainly appeal such a ruling to the NM Supreme Court, which would then open the door for arguments that certain provisions of the ETA are unconstitutional for abridging the regulatory authority of the PRC and, as stated by the NM Attorney General, leaving PNM to regulate itself.

In August 2019, NEE went to the Supreme Court, asking it to intervene and declare parts of the ETA unconstitutional. At the same time, PNM submitted a suit seeking the court to affirm the constitutionality of the ETA. The court declined to act on either suit, deferring action until this regulatory decision has a complete record and is ripe for appellate review.

Once the PRC rules on San Juan, we are almost certain to find the constitutionality of the ETA in play before the Supreme Court. A Retake post from August not only provides NEE’s legal argument, but includes comments from the NM Attorney General, Rio Arriba Concerned Citizens, the Navajo nation, TEWA Women United, Food and Water Watch, TruthOut, Citizens for Fair Rates and the Environment, NM Political Report, and Physicians for Social Responsibility. All of these organizations reinforced the validity of NEE’s assertions. Click here to read this post. I think it is one of the more substantive posts Retake has published and lays out clearly what is at stake.

For an excellent guest blog from New Energy Economy on exactly what is wrong with the ETA, click here. It will provide fodder if you want to make public comment on Monday.

It is hard to overstate the importance of this case. In a conversation with me and Roxanne, Mariel Nanasi, NEE Executive Director, said this is the most important case in NEE’s history. It is time to find out what a real PRC will do when faced with the facts of this case, and there is every indication that they will hold PNM accountable and not allow them to foist the costs of their malfeasance on ratepayers.

If you have never been to a PRC hearing, we highly recommend you bone up a bit by reading over the two links above and make plans to attend the hearing and to testify.

In solidarity,

Paul & Roxanne

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