A lot to digest this morning. Early voting has begun, and the polls we’ve seen reporting Dems with cozy leads may be optimistic — the Land Commissioner’s internal poll shows a dead heat while published polls show a 10+ point lead. We need to gear up our work, and so we share a tool to help with down-ballot races. Also, U.S. Dept. of Energy hearing on WIPP is coming to NM on Oct 24, and we want them to hear our concerns loud and clear. And Retake has filed an Amicus brief in support of an indigenous petition to the state Supreme Court to rule as unconstitutional the amendment to allow MLG to appoint PRC Commissioners.

Governor’s Constitutional Amendment to Appoint PRC Commissioners Challenged

In a recent op-ed, “PRC Appointees Should not Serve at Governor’s Pleasure,” in The Santa Fe New Mexican, former PRC Commissioner Valerie Espinoza offered some of the reasons why we all should be offended and even outraged at the disingenuous, duplicitous process used to mislead voters into approving a constitutional amendment that has essentially disemboweled the PRC, making it nothing less than a panel of Gubernatorial “yes men” who serve at the pleasure of the Governor. Let’s hear from the former Commissioner as she puts the amendment in historical context:

Between 1999 and now, other commissioners tarnished the reputation of the PRC: Two commissioners were removed from office after being convicted of felonies; another commissioner was accused of sexual harassment, resulting in the state agreeing to pay the complainant over $800,000 in damages; and yet another commissioner was arrested for possession of marijuana and drug paraphernalia (before the recreational use of marijuana was legalized in New Mexico).”

“PRC Appointees Should not Serve at Governor’s Pleasure,” by former PRC Commissioner Valerie Espinoza, The Santa Fe New Mexican, Oct. 15, 2022.

Not exactly stellar public service. And that was but the tip of the iceberg, as prior to 2018, Commissioners Sandy Jones, Lynda Lovejoy, and Patrick Lyons would routinely ignore Hearing Examiner findings and vote to advance utility interests at great expense to ratepayers and the planet. And so in 2017 the legislature passed legislation to conduct an independent study of the operations and staffing of the PRC. National Regulatory Research Institute (NRRI) was selected to conduct the study. At about the same time, beginning in 2018, a series of elections, including the defeat of Lyons and Jones, resulted in a much more responsible PRC who more consistently deliver decisions holding utilities accountable and rejected a proposed merger of PNM and Avangrid.

These decisions were not aligned with the Governor’s allies’ priorities or her plan for hydrogen hubs in NM. Her fear was that her hydrogen hub plans and/or another round of merger deliberations would be challenged by an effective PRC with Commissioners who listen to constituents and comb though tomes of legal briefs to get to the truth, not just rubber-stamp industry plans. And so, a barrage of stories and quotes began to surface bemoaning how inept, ineffective, and inefficient the PRC was, most often citing horrible commissioners from decades ago. And grasstops organizations like the Sierra Club and CVNM began echoing the message that the PRC needed reform.

The PRC recognized that they were severely under-staffed and under-funded and welcomed the study conducted by the NRRI, a highly credible research group that had conducted dozens of such studies. That study laid out in detail how the PRC struggled from under-staffing and under-funding when compared with other utility commissions. They offered clear recommendations for how to improve PRC functioning. Nowhere in that report was there any mention of eliminating elections and having the governor appoint commissioners. Retake published a post in October 2020, weeks before the election, outlining all that was wrong with the amendment and how misleading the campaign had been in supporting its passage. Click here to review that analysis.

If the governor had truly sought a strong, independent PRC, she could have adopted the NRRI’s recommendations from its excellent report and pressed for more funds to provide Commissioners with staff support as reflected in national best practice. The NRRI performs this role all over the country, providing a lens on how regulatory agencies function, comparing them to national best practices. We provide the gist of their recommendations here:

• The NM PRC relies upon funding from the General Fund to underwrite their operations instead of the fees it levees in conducting its regulatory functions. This is contrary to most regulatory agencies, causes the PRC to be dependent upon the legislature to fund its operations, and results in PRC staffing fluctuating with up and downturns of the state economy and the political biases of the majority party. If funded by fees, this would not occur and it would allow the PRC to more easily fill vacant positions and provide sustained professional development for those staff.
• The NRRI found that, due to a lack of adequate funding, the NM PRC operates with a fraction of the expert and technical staff found in other regulatory agencies across the nation, with one technical support staff for all five commissioners, while most regulatory agencies offer at least one technical staff per commissioner. How are good decisions possible if there is just one expert advisor available to all five commissioners? Critics of the PRC have pointed to long delays in decisions. This is the more likely cause of those delays, not the commissioners being elected.
• The fact that campaigns for PRC commissioner are publicly funded insulates them from influence from the utilities they are charged with regulating. [10.8.2020 Note: We realized that the NRRI had this a bit wrong in that public funding is an option, but not required.]

None of the NRRI recommendations were incorporated in the constitutional amendment or attempted legislatively. Instead, a constitutional amendment was developed that addressed none of the root causes of the concerns raised by PRC critics.

Last week, Retake Our Democracy and Indivisible ABQ filed a joint Amicus brief in support of a petition filed by a coalition of indigenous groups in September — Indigenous Lifeways, New Mexico Social Justice Equity Institute, and Three Sisters Collective. Their petition asked the Supreme Court to find as unconstitutional the Amendment approved by voters in 2020. Their position is that the Amendment language did not clearly lay out what the amendment would and wouldn’t do. In essence, the petitioners assert that the Amendment language misled voters by omitting important information about what approval of the Amendment would authorize. If the Supreme Court agrees with the petitioners, their decision will prevent the appointment process from proceeding.

As reflected in former Commissioner Espinoza’s op-ed, she clearly felt the Amendment misled the voters:

Imagine, then, my surprise when I learned of a legal opinion prepared by an assistant attorney general for the nominating committee, dated Sept. 28, which concludes the appointed commissioners “serve at the pleasure of the governor, meaning they can be removed by the governor without specified cause.” The opinion further concludes that the governor, in removing an appointed commissioner, “need not make charges, give notice, or accord a hearing.”

New Mexico voters who passed the 2020 constitutional amendment surely did not anticipate that the appointed commissioners would ‘serve at the pleasure of the governor’ and be subject to removal without any specified cause. In fact, they were told explicitly that appointed commissioners could only be removed by being impeached…

The assistant attorney general’s legal conclusion that appointed commissioners “serve at the pleasure of the governor” turns the constitutional amendment on its head. Regardless of who serves as the governor of New Mexico, it is not a stretch to contemplate a governor removing an appointed commissioner if that commissioner does not do as the governor pleases. Even if that does not happen, the mere fact that an appointed commissioner could be fired by the governor for any reason likely would cause voters to question the impartiality of any vote by an appointed commissioner.

If appointed commissioners will be subject to being removed by the governor without cause, I regret having proposed to Senate Majority Leader Peter Wirth the constitutional amendment to make PRC members appointed. I made this recommendation after serving with commissioners who were constantly absent or partial to regulated utilities. Research shows commissioners who serve at the pleasure of governors are beholden to the governor who appoints them. It would be a disservice to New Mexicans if a commissioner is appointed and then removed because that commissioner makes a ruling that is at odds with the governor’s agenda.”

“PRC Appointees Should not Serve at Governor’s Pleasure,” by former PRC Commissioner Valerie Espinoza, in The Santa Fe New Mexican, Oct. 15, 2022.

So if a former PRC Commissioner is having second thoughts about what her “yes
vote on this amendment meant, how many tens of thousands of New Mexico voters were equally misled?

What Was Omitted in the Amendment Ballot?

Some very important information was left out of the amendment language. There was no language describing that there would no longer be PRC Commissioners representing distinct geographic regions. And, more importantly, there was no mention that the Commissioners would serve at the pleasure of the Governor. As pointed out by former Commissioner Espinoza, any Governor could refashion the PRC by removing standing Commissioners, no matter how many years remained on their term and without having to offer any reason for the removal. The Governor could then appoint Commissioners who the Governor is confident will advance her/his priorities or the priorities of the Governor’s largest donors. How exactly is this taking the politics out of the Commission?

We are not really interested in creating an “anti-MLG” message just now. We very clearly endorse her campaign, but we also want to be clear as to what an appointed PRC is about and what Retake, Indivisible, and Indigenous groups have tried to do about it. We’ll let you know what response we get from the state Supreme Court.

Vote 411: a Great Tool to Help with Down Ballot RACES

We all hate those moments. You’ve done your homework on the statewide ballot. You head to the polling booth and then you see a county bond measure and you have no idea what is in play. Or it could be a county commission or municipal judge race that escaped your attention. Well, the League of Women Voters came up with a very nifty tool to help you prepare for your day at the polls: Vote 411.

Just plug in your address and birthdate at the link below and the site assembles all the candidates, bond measures, and initiatives on which you will vote and provides some candidate info on positions and a non-partisan summary of bond measures. This is very handy for prepping yourself before you vote. You can even print out your sample ballot so you will be familiar with the ballot itself before you go to the booth, and you can mark up your personal ballot and bring it to the booth for reference. Click here for Vote 411, a Great Tool from League of Women Voters for info on all ballot choices from governor to county ballot and bond measures. Our recommendation is to try this tool, prepare your voting choices in advance, and then vote early.

Thank you, League of Women Voters.

One More Chance to Tell U.S. Dept of Energy How You Feel About WIPP and about NM Serving as the Nation’s Nuclear Sacrifice Zone

On Monday, October 24, 5:30 p.m., the U.S. Dept .of Energy (DOE) is hosting another “Community Forum.” Unlike the July 7 fiasco in Santa Fe, DOE promises that this time people will be able to make comments and ask questions of the WIPP Manager.

A 15-minute DOE presentation will be followed by up to 2 hours of public Q & A. Online participants will be able to ask questions that will be heard by the in-person audience.

Register For Virtual Event:
bit.ly/WIPP-virtual

Register For In-Person Event:
bit.ly/WIPP-OCT2022 – The Event is being held at Buffalo Thunder Resort & Casino, 20 Buffalo Thunder Trail, Santa Fe, NM. 

Many of you, like myself, will at first throw up your hands and say, “We already did this and they shut us down.” However, our protests in the press and elsewhere forced DOE to change the meeting format. DOE will still try not to answer questions about WIPP expansion; they have already said so. But we have allies who are pretty creative strategists and are crafting questions that will either cause DOE to have to answer things it says it won’t or will demonstrate that it is being duplicitous. We will share those questions with you in our next post in case you want to use them. But put this in your calendar.

DOE has given us very little time to organize for this and has set the meeting where it’s a little harder to get to. But having a lot of attendees is essential. Attending virtually is as good as in-person. Asking questions is needed. We can still manipulate DOE into addressing our concerns. 

The most important goals are:

1)  To leverage the hard work our allies have done on the petitions to get the Governor’s attention.

2)  Educate the rest of the public with the knowledge you already have that this expansion will put us at harm.

To get caught up, see our Oct. 2019 blog post: “What is WIPP? Who are Holtec? What do they propose? Why Should We Care?” From that post:

The Nuclear Regulatory Commission is in the process of evaluating a license to develop a temporary radioactive waste storage site in Southern New Mexico on about 1,000 acres halfway between Carlsbad and Hobbs. The plan calls for construction of a 23-foot-deep underground chamber for storage of containers of spent fuel rods discarded from nuclear power plants. The Governor has announced her opposition to the plan saying “it poses an unacceptable risk to New Mexicans…”

Those of you my age will recall the protests when the first of the nuclear plants was being proposed. A chief concern: we have no idea whatsoever what to do with the spent, highly radioactive fuel rods. We still don’t, 60 years later. The first US nuclear power plant was built in Pennsylvania in 1957. Today there are 60 plants with 98 reactors active in the US, with the most recent constructed in 2016. So we still haven’t learned our lesson. However, ever-vigilant to the financial liabilities involved in such a risky venture, and to the profit margins of industry moguls, in 1957 Congress enacted the Price Anderson Act which frees owners of nuclear plants from all liability from any disasters that might ensue. Having taken care of that, the industry developed nuclear plant after nuclear plant, despite having no clue as to where and how the spent nuclear rods could be stored. After all, there was profit to be made and Congress had made this venture risk-free — at least corporate profits are free from risk, just not us humans. This is the ultimate manifestation of capitalist hubris: we can make money here, we have no liability for risk from catastrophe and no idea how to dispose or store the waste produced from our work, but let’s get started. And get started they did. This is not an isolated instance of corporate, capitalist hubris, not by a long shot: tobacco, fossil fuels, autos and smog, the list is endless. And yet our Congress continues to curry favor with its true constituents: corporations…

 “There is not consensus about health and safety standards, including whether commercial spent fuel is safe where it is,” said Don Hancock of the Southwest Research and Information Center, a non-profit watchdog group. “If it is safe where it is, why move it? If it is not safe where it is, how can it be safe to transport it through many other communities?” I’d add another two questions: Why the hell didn’t someone consider this 50 years ago? And is anyone asking about the safety of the “permanent” storage of this waste here in NM? Some isotopes decay in hours or even minutes, but others decay very slowly. Strontium-90 and cesium-137 have half-lives of about 30 years (half the radioactivity will decay in 30 years). Plutonium-239 has a half-life of 24,000 years. That is a long time.”

Retake Our Democracy: “What is WIPP? Who are Holtec? What do they propose? Why Should We Care?”

So NM is being asked to serve as the nation’s sacrifice zone because it had never thought through how to manage and safely store the inevitable spent fuel rods.

Please let me know if you plan to attend by writing to RetakeResponse@gmail.com. I will get you questions and concerns being developed by other advocates with greater knowledge of the process and the facts.

An Interview with a Champion for the Planet & the People… Land Commissioner Stephanie Garcia Richard

I have spoken with the Land Commissioner before on our radio show, but this discussion provided an update on how powerfully the Land Commission has worked over the past four years to ensure that gas & oil operators are plugging wells, cleaning up spills, and paying royalties as defined in their leases. She also shared her plan to ensure that royalties and leasing amounts are increased for the first time in 50 years whether the legislature acts or not. But, as she underscored, she needs to be re-elected first. And while published polls show her (and most all statewide Dems) with a significant lead, internal polls conducted by her campaign show a very tight race. After listening to Commissioner Richard, you will be motivated to work and/or contribute to ensure she gets another four years.

Click here to donate to her campaign.

Click here to sign up to call or canvass.

Consider doing both. Our land will thank you.

In solidarity & hope,

Paul & Roxanne

Categories: Climate Justice

Tags: Featured, NM State Legislature, PRC, read more, WIPP