NM voters voices were clear in June and November, but those voices are being repeatedly ignored. Today’s post examines specific bills where inaction, indifference, and subversive amendments are being used to undermine the will of the voters.
Important Legislative Strategy Huddle, 3:30-4:30pm Friday. We will review all of what is discussed in today’s post as well as really zero in a very specific strategy for advocating for bills to be heard, amendments to be removed and crises averted. There are two ways to view this: we still have two weeks to fix some things OR we only have two weeks to fix these things. If any of what you read today disturbs you, join us at 3:30.
Retake Conversation with former Senator Dede Feldman, Saturday 8:30 am on KSFR 101.1 FM or Streaming from KSF.org.
You won’t want to miss this, as Feldman lays out her views on independent redistricting and her experience in 2001 and 2011 when she was a NM State Senator for the last two NM redistricting fiascos. Feldman is the author of Inside the NM State Senate: Boots Suits and Citizens. Our discussion was far ranging, also covering the inner workings of the NM State Senate and why, despite a huge surplus and a horde of new progressive legislators, we still wind up watching one bold bill after another undermined by faulty, flawed, and factually bereft Financial Impact Reports, stalled by inaction or amended to death (see Community Solar below).
“Community Solar,” No Longer Solar or Community
Bills are often developed through a collaborative process involving legislators, experts, stakeholders and if lucky, advocates. The bills are then drafted by Legislative Council Services staff with a feedback loop between bill sponsors and their allies and the LCS bill drafter. Inevitably, they get some things wrong, including language here or there that is unconstitutional, unclear or subject to interpretation. One of the reasons so many bills go to House and Senate Judiciary Committees is to ensure that this kind of language is fixed. If you’ve sat in Senate Judiciary and watched Sen. Cervantes and Sen. Ivey-Soto go over every word of a bill, you know what I mean. And very often this saves a bill, tightens the language and makes it less susceptible to legal challenge. A good thing. In other committees, other amendments can be added and most often they do improve the bill. But then there are other times. Read on!
Throughout much of the summer a “community” of stakeholders often numbering 60 or so highly invested individuals, met under the leadership of bill sponsor Senator Liz Stefanics. The stakeholders included solar developers, representatives from the utility industry like PNM, representatives from Legislative Council Services, representatives from state agencies, experts in community solar legislation, and advocates. They met every other week for four or five months to create HB 106 / SB 84 Community Solar. I participated in most of these meetings and they were beyond detail oriented. It was tedious, but the intent was to create a bill that would not require endless wrangling and multiple amendments.
It wasn’t a perfect bill, nothing created by a committee can be perfect, but it incorporated a vast amount of input and members of the task force took serious time to deliberate on each detail. The resulting bill was thoughtful, purposeful and, financially feasible. And with the Governor’s support, I thought this was the year. Yesterday, a series of amendments introduced by Senator Ivey-Soto and Senator Katy Duhigg utterly destroyed the bill. In its current form it is useless and what was done had to be intentional, it was too insidious to be inadvertent.
The purpose of community solar is to create competition in the energy market and to carve out protection for customers of all kinds (residents, businesses, and tribes) to invest in low-cost solar as a hedge against rising utility rates and to make the choice to consume solar energy rather than coal. This can be either or both an economic or an environmental decision. Community Solar is supposed to offer communities and individuals the option of saying: my energy provider is simply being too slow and long-term their product will be too expensive. I want to work with a community to develop our solar alternative.
After virtually an all night review of the Ivey-Soto-Duhigg amendments, New Energy Economy believes the Ivey Soto/Duhigg amendments actually EXPAND utility control over the market, stifle competition and essentially undermine completely the financial viability of any and all community solar installations. Put another way, community solar was supposed to offer customers an autonomous choice, to pick their source of energy, independent of the whims of utility monopolies. Without removal of these amendments, that choice will no longer exist.
With the Ivey-Soto / Duhigg amendments “Community” has been left out and “Solar” will not be added in NM because of these amendments to the “Community Solar” bill. Put simply despite a task force of 60 people meeting every other week for months to create a feasible and just Community Solar bill, that bill was undermined in one hour by amendments that the bill’s sponsor saw only minutes before the hearing.
If you want more evidence that these amendments are insidious, every single Republican voted for them. Why? They knew they didn’t have the votes to kill the bill, but they could kill its purpose and capacity by approving amendments, that if allowed to stand, would eliminate the possibility of our ever seeing a successful Community Solar installation in NM, at least not under the existing bill.
New Energy Economy identified four poison pills in the amendments. We will cover just three today as that will give you the picture.
Poison Pill # 1. Essentially the solar developers of projects only have so much margin to make a project economically feasible. HB 106 / SB 84 were carefully designed to succeed under those conditions. But the Ivey-Soto / Duhigg amendments require PRC regulatory oversight of every single project. According to New Energy Economy, not a single community solar bill in the country requires utility regulation, precisely because it would be so costly that this single MAJOR requirement would make the development of a community solar project cost prohibitive. To present a case before the PRC requires a battery of regulatory lawyers and thousands of hours of legal advice, brief drafting and expert testimony. This alone will ensure no community solar project is ever developed.
Poison Pill # 2. An Ivey-Soto / Duhigg amendment insists that there be no “cross subsidization.” Ok, stay with me; I’ll make this simple. In the 19 other states that have community solar legislation, whenever an installation begins, most of the time it is able to generate enough energy to power the homes and small businesses in that solar community. Indeed, most of the time they generate excessive energy and feed that back into the utility system. In NM, PNM currently pays the customers who have rooftop solar about $.04 per KWH when those customers have excess energy and then sell it to PNM. PNM then sells that energy to its customers for two to three times that (between $.07 and $.15 per KWH). In the rare instances of gray days in NM, when a PNM customer needed energy from the utility, that customer would pay the standard rate, a rate on which PNM profits. Simple. And profitable for PNM.
One of the major discussion points of the Community Solar Task Force was to ensure that PNM and other monopoly utilities operating in NM would suffer no financial harm from the development of community solar installations. New Community Solar developers would have to incorporate into their rates sufficient customer charges to pay PNM for their lost customer base and the cost of transmission lines. But that wasn’t enough for PNM and the other utility monopolies. The “no cross subsidization” amendment would require each solar developer to prove to the PRC that it was not being subsidized by the utility. From New Energy Economy:
“But to make solar providers prove in advance that there will be no cross-subsidization will cause solar providers (and their lawyers) to be caught in a dragnet of utility obfuscation for years on every project. IOU purpose is to slow deployment and implementation of community solar and undermine the very purpose of community solar: local control and energy democracy.”New Energy Economy
So with two amendments, Ivey-Soto / Duhigg have installed the PRC as adjudicator on all new solar developments (Poison Pill 1) and then added a legal regulatory hurdle that would make it financially impossible for solar development to occur. What is going on? Glad you asked.
Poison Pill # 3: Under the Ivey-Soto / Duhigg amendment, utilities like PNM can own a “community solar” project.
This defeats the whole purpose: A true community solar program, means that a subscriber owns shares in the system, gets the electricity-generated offset, gets the tax advantages. The community solar subscriber is an investor, an owner, and has a say in the process and gets the direct benefits as they occur. Whether low-income or store owner!
The term “community solar” has been around more than a decade in 19 states and refers to projects with shared ownership in which participants receive direct financial benefits, including reduced utility bills.
The National Renewable Energy Lab defines community or shared solar as models that “allocate the electricity of a jointly owned or leased system to offset individual consumers’ electricity bills, allowing multiple energy consumers to share the benefits of a single solar array.”
There are a number of other very big problems with other provisions in the Ivey-Soto / Duhigg amendments, but they are “very wonky / weedy” and I think you get the picture. With poison pills # 1 and 2, no “community” solar installation could be economically feasible. But under Poison Pill # 3, PNM would have yet another way to profit and, more importantly, to control the market. And just like that the Community Solar Act became the PNM Profit & Control Act.
The vast majority of Retake readers are strong supporters of Community Solar and they deserve to be furious about all of the above. I went into great detail in outlining how “unfriendly” amendments, introduced with out due time for deliberation, can undermine the work of stakeholders. This is important because this same dynamic occurs over and over again in committees and on chamber floors. A good bill is introduced, and then industries, chambers of commerce, and business associations and their lobbyists weigh in with very targeted amendments to make sure they are protected and you are not. You saw it with the Energy Transition Act. A well intentioned effort to defray the decommissioning costs of San Juan Generating Station, to provide economic compensation to stranded workers and their communities, and to create a national standard Renewable Portfolio Standard, all good things. But they came with a price tag. Small bill language crafted by the industry to provide them a $2 billion payoff at ratepayer expense.
This happens every day in the Roundhouse.
Health Security Status
HB 203 was scheduled for House Appropriations on Monday, but was rolled over. Since then negotiations have been fast and furious with bill sponsors and Health Security for New Mexicans Campaign working to find a path forward. There are the votes on the House and Senate floor to pass the bill and it appears that HB 203 will be heard on either Friday or Saturday in HAFC. No agenda for today has been posted, as of 8:15 am today. I am increasingly concerned HB 203 will not emerge from HAFC..
Fortunately, Bill Sponsors have collected all the funding they need for their Health Security Planning and Design process in Junior Bill funding. Bill sponsors created carefully worded language in the Junior Bill funding to dedicate those funds to the planning and design process, with funds to be managed by the Office of the Superintendent of Insurance, rather than attaching the funding directly to the bill. In this way the funds and the planning will be done whether or not HB 203 eventually wends its way through the Roundhouse. The Superintendent of Insurance, Russell Toal, is fully on board with this plan and supportive of the goals of HB 203. With no funding being sought outside of the Junior Bill, the HAFC should have no reason to hold or table the bill. But there are forces that are trying to stall the bill, trapdoors and escape hatches are everywhere, but it appears there are plans A, B and C for each possibility. But stay tuned.
Public Bank Tabled
Sometimes you can have a strong coalition from an array of sectors: agriculture to ranching, energy and environment, cities, counties and tribes; you can assemble impeccable research and an irrefutably successful model to point to, in this case the over 100 year success of the Bank of North Dakota; and you can assemble a host of extremely compelling expert witnesses skilled in rebutting any and all opposition and articulate in verbalizing the myriad of benefits to the state from advancing the bill. Such is the case for HB 236 the State Public Banking bill.
Yet obstacles remained in the form of a horribly inaccurate Financial Impact Report. But bill sponsors drafted a carefully crafted rebuttal, correcting every single inaccuracy in the report. Bill sponsors presented a compelling case in House Appropriations and Finance Committee. All the ducks were in a row. Until by a 17-1 vote to table the ducks were flattened.
It was excruciating to listen to the discussion that preceded the vote. Despite such a clearly delineated case, one committee member after another, Democrat and Republican, restated inaccuracies in the original FIR or concerns from the Chamber of Commerce and community bankers, despite expert witnesses for HB 236 having very clearly and convincingly refuted each of these concerns. Five minutes before the vote, I told Roxanne, “It’s dead; it isn’t gonna be close.” 17-1 is not close.
We have written about how difficult it is for a bold idea to advance in the Roundhouse, especially in its first year being heard. I’ve written of Senator Wirth’s comment that even the best idea can take 2-3 sessions to pass into law.
This morning, I spoke with Mary Feldblum advocate for health security and the environment. We were discussing the demise of HB 236 Public Banking Act and how a version of HB 8 had introduced 30 years ago. If you look at The Sierra Club summary below, you would wonder why HB 8 would take 30 years to get done. It wasn’t as if it lacked Democratic Party leadership, as for several years Senator Wirth has sponsored the bill. And then, of course, there is the 25+ years that Mary has been pushing the Health Security bolder up hill, only to watch it roll back down by session end, year in and year out.
I am sure the folks at Alliance For Local Economic Prosperity are totally deflated. They should not be. They have advanced a bold new idea, gathered a powerful coalition behind public banking, and started the process of opening the minds of legislators. More importantly, they have very, very clearly identified opponent arguments and the ways in which legislators are seduced and misled. As importantly, they’ve learned that logic and research are only part of the recipe needed for baking this cake.
And they aren’t giving up on 2021. I just received an email from Elaine Sullivan one of the leaders at Alliance For Local Economic Prosperity and they are planning to continue to push the Senate version while working with the bill sponsors to craft an amendment to enable the sole No Vote on the tabling motion to return the amended bill for reconsideration. It ain’t over yet, but the climb now is Herculean.
Senate Bill 8 Passes Senate Finance On to the Floor
From The Sierra Club. For far too long, New Mexico’s environmental agency has been handcuffed by an antiquated law that constrains it from creating air and hazardous waste pollution protections more stringent than federal regulations. The law has enormous consequences statewide – and particularly for environmental justice communities, who are most likely to be impacted by hot spots of pollution, including methane, volatile organic compound and hazardous air pollution from oil and gas operations. The stringency limitations also have kept the New Mexico Environment Department from setting standards for PFAs clean up. Eliminating this damaging law will help make sure that overburdened communities are protected – not left behind – in comprehensive efforts to address climate, clean air and hazardous waste.
Cannabis in Crisis
Despite 61% of the state approving legalization of recreational marijuana and despite what was thought to be a solid HB 12 having passed through House committees and the House floor. It appears to have hit a snag as it is awaiting hearing in Sen Tax, Business and Transportation Committee. The bill has stalled with the STBTC asking that the sponsors of HB 12 and sponsors of four other legalization bills meet and work out their differences. But alas, according to Joe Monahan, there are more hurdles in reaching that compromise than were initially anticipated.
“The finger-pointing over this train wreck has already begun and Duke Rodriguez, a trailblazer of NM medical marijuana, is where the fingers are pointed…. The key point of contention is whether there should be a limit on how much marijuana a licensee can produce. Rodriguez supports unlimited production but opponents of that provision contained in HB 12–the main legalization vehicle–argue it could lead to a huge over supply that could end up in the black market and ruin the legal pot program.”From New Mexico Politics with Joe Monahan, Wednesday, March 3
Monahan pointed out that Oregon had passed a bill with no limits on plant count and it resulted in a bloated market that proliferated black market sales. But, Rodriguez argues there should be no “arbitrary plant limits that would limit the overall industry’s performance.” And in speaking with one cannabis advocate, I was told there was a reason for the no limit provision, as in order to expand the growth and distribution of cannabis sufficiently to meet market demand, there will have to be large scale operations that require a larger scale production to ensure a return on that investment. That may be, but Rodriquez sounds like a true capitalist, having made one killing, he is looking to make another. Rodriguez is by far the largest grower in NM. In a NM Press Women interview, he estimated that recreational cannabis sales could surpass $800M a year, four times the sales of medical marijuana. Did I mention that Speaker Egolf is his attorney?
Capitalism: take a long overdue reform and turn it into a money machine and squeeze out the little guy. Stay tuned.
And so this is how sausage is made in the Roundhouse. It ain’t always pretty. Indeed, it can be toxic. But do consider that we have already repealed the abortion ban and a good many good bills will emerge unflawed and as important laws, benefiting our most underserved New Mexicans. But, Lord, does it have to be this hard?
The answer is that it doesn’t. With a paid legislature, with paid staff and a five month sessions, there would be time for due deliberations. Faulty FIRs could be corrected before they are reviewed by legislators. Legislators would be able to examine an amendment for a day or two and get input from stakeholders before a vote is taken. It doesn’t have to be frantic. It could be deliberate, thoughtful and democratic. And there is a bill to create a paid legislature, SJR -4, ironically sponsored by Senator Ivey-Soto. It passed Senate Rules quickly on Feb 1. It has sat in Senate Judiciary unscheduled for over 4 weeks. And so it goes.
In solidarity & hope,
Paul & Roxanne
Categories: Local-State Government & Legislation