15 Republican and Democratic Legislators Ask State Supreme Court to Compel PRC to Act on PNM Failed Community Relief

Organization Press Release – From New Energy Economy

New energy Economy released the following statement and information regarding the filing of the Writ of Mandamus:

A Bipartisan Group of 15 Legislators Today Filed a Writ of Mandamus at the NM Supreme Court to Enforce the Rights of the Legislature and of San Juan County and the Central Consolidated School District after the NM Public Regulation Commission Failed to Require PNM to Meet its Replacement Power Obligations Under the Energy Transition Act

July 9th, 2024 – Santa Fe, New Mexico – On June 13th a bipartisan group of legislators represented by New Energy Economy filed a Motion to Intervene and Motion for Rehearing in NMPRC Case No. 23-00353-UT.

The Motion seeks “to vacate the Public Regulation Commission (PRC)’s May 30th, 2024 order approving PNM’s application for a suite of resources located in Bernalillo, Valencia and Cebolla County, and asked leave to intervene to protect the interests of the Legislature, the Central Consolidated School District, the people of San Juan County and the public in a rehearing of the case, in which the Energy Transition Act (ETA)’s requirement for replacement resources upon closure of the San Juan Generating Station be located in the Central Consolidated School District were ignored,” according to the press release.

On June 27th the PRC rejected those Motions, accepting PNM’s assertion that its contract for the 130MW Rockmont project in the CCSD in 2021, which subsequently defaulted, fulfills their obligations to the community, stating “There is no requirement under the Energy Transition Act that if an approved replacement resource ultimately cannot be placed in service that the utility must seek approval for a substitute project under the [Energy Transition] Act.” (PNM Response at 16.)

By accepting that assertion at face value the PRC abdicated its responsibility under the law to carry out the will of the legislature, which clearly stated a requirement in Section 62-18-3 (2019) of the ETA to locate replacement power resources in the Central Consolidated School District, and deprives the affected community, primarily Diné students, of a tax base upon which their school system relies. (CCSD’s student population is about 95% Native American.)

PNM’s promise to the PRC and other parties to include replacement power in the CCSD in the next resource case does not offer an adequate alternative because PNM promises do not carry the force of law and even if fulfilled, will result in an unacceptable delay with real and significant financial consequences for the CCSD and the students and families within the district.

Our Writ of Mandamus asks the NM Supreme Court to intervene in this case and compel the PRC to exercise its mandatory duty to apply the ETA in Case No. 23-00353-UT. The PRC’s disregard of the authority of the Legislature is causing immediate and irreparable harm.

Affirmations filed in conjunction with our Writ (attached) from Representative Roybal Caballero, a sponsor of the ETA, and from CCSD Superintendent Carlson clarify the legislature’s intent in requiring replacement resources in the CCSD and detail how the PRC’s obstruction in this case is impacting the critical relief and economic opportunities for affected communities included in the ETA.

Those impacts include far lower tax revenue, resulting in lower operating budgets and ultimately growing learning deficits in district school children, exacerbating the cycle of poverty that already impacts more than 91% of CCSD students.

According to CCSD Superintendent Carlson, “PNM’s failure to locate replacement resources in the school district in New Mexico where the abandoned facility is located is having a direct economic impact on the students’ lives and their right and ability to learn.”

The Legislators represented in this case are Representatives Anthony Allison, Mark Duncan, William A. Hall, Rod Montoya, Patricia Roybal Caballero, Eleanor Chávez, Joanne J. Ferrary, Liz Thomson, and Senators William Sharer, Steven P. Neville, Shannon Pinto, Antoinette Sedillo Lopez, William P. Soules, Harold Pope, and Bill Tallman.

Democratic San Juan Representative Anthony Allison, remarked, “I support going forward with the Writ of Mandamus to require the PRC to apply the ETA to PNM’s San Juan Generating Station replacement power case. The ETA applies to this case and the standards (reasonable cost and the CCSD location preference) govern. PNM’s intentions to potentially site resources here, where I live and in the District I represent, at some future date is not legally binding and we need to enforce the legal obligation due and owing now.”

San Juan Representative and House Republican Leader, Rod Montoya, stated “The ETA was a bailout for PNM, in exchange PNM pledged specific obligations to the affected community. Our residents are suffering because of the significant job losses caused by the premature closures of San Juan Generating Station and San Juan Coal Mine.”

He continued, “Now, significant tax deficits are affecting Central Consolidated School District because of PNM redirecting  new infrastructure projects outside of the affected community. PNM has a legal obligation under the ETA and a moral obligation to the employees who worked for them for decades. The PRC has an obligation to follow the Energy Transition Act and ensure that jobs and revenue are located in the Central Consolidated School district. The ETA is settled law!”

Representative Patricia Roybal Caballero, a House Democrat, said, “I was a sponsor of the Energy Transition Act, which gave PNM enormous compensation for closing the San Juan Generating Station coal plant, because we wanted to spur a transition to clean energy in the electric sector and believe that climate disruption is real, negatively disrupting New Mexico: wildfires, flash flooding, heat waves. 

“The coal plant closure also meant a big loss in tax revenue for a local school district serving almost entirely Diné people.   The ETA included a requirement that PNM locate renewable resources to replace the lost power from San Juan and that those resources be within the school district so it could regain some tax revenue. 

“PNM has now announced that it is going to locate new power facilities – which will replace what PNM lost when it closed San Juan Generating – in Bernalillo County.  How is this happening?  Because PNM has labeled the replacement power as “system needs”, “not replacement power,” but PNM needs this capacity because it closed the coal plant. This betrays the trust that the legislature placed in PNM when it passed the ETA.”  

Mariel Nanasi, Executive Director of New Energy Economy, offered the following comments, “Even after the ETA showered PNM with $360.1 Million from ratepayers, it still can’t even abide the most basic provisions of the ETA to help others, this time Diné students in one of the most impoverished districts in New Mexico. PNM’s actions in this case are deceitful. Unfortunately, the PRC acquiesced to PNM’s gamesmanship – they chose not to “interfere”. Yet this is their job, to regulate on behalf of the people and enforce the laws. Legislators had no other alternative but to seek a remedy in the New Mexico Supreme Court.”

More reporting to follow.

Below is a copy of the Legislators file Writ of Mandamus.