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Copyright © 2019 Albuquerque Journal
SANTA FE – The Navajo Nation showed up in force Wednesday morning in Santa Fe to implore the Public Regulation Commission to uphold the state’s new Energy Transition Act in all deliberations on shutting the coal-fired San Juan Generating Station.
Navajo Nation President Jonathan Nez, Vice President Myron Lizer, and Navajo Council Resource and Development Committee Chairman Rickie Nez all spoke during the commission’s public comment period. Representatives from various Navajo chapters, the Jicarilla Apache Nation and Pojoaque Pueblo also attended in support of the law.
During his address, Nez hand-delivered a letter affirming the tribe’s “unambiguous” support for the new energy law and for the benefits it can bring to Navajo workers and communities.
“I am taking this unprecedented step today, as the leader of a sovereign nation providing comments to you because of the direct impact to Navajo workers,” the president said. “You may not be aware that Navajo workers make up 60% of the entire workforce of the coal plant, the coal mine, contractors and vendors affected by the power station’s shutdown.”
The tribe specifically wants assurances that $40 million in assistance for laid-off workers and local economic development programs will flow to Navajo families and area communities.
That assistance is included in the new energy law, which authorizes Public Service Company of New Mexico to issue bonds that customers would pay off through a surcharge on their bills. Those bonds would raise about $360 million to pay for all costs related to the San Juan shutdown, including the $40 million in worker and community assistance.
But some commissioners have said they may want to better balance costs between PNM and ratepayers without being restricted by the new law, possibly forcing the electric company to absorb some of the shutdown expenses rather than charge everything to ratepayers through bonds.
In July, the PRC ordered that the plant closure be reviewed under an existing case docket that precedes the new energy law, generating concern that the agency might ignore the legislation. The commissioners left it to hearing examiners to review the issue in the coming months.
Insisting on clarification
Energy law supporters, however, want the PRC to be clear about whether it plans to uphold the law in the San Juan case. In fact, on Wednesday, the commission was scheduled to review a motion from the environmental group Western Resource Advocates asking the PRC to immediately “clarify” whether it will apply the law and, if not, to “reconsider” that position. That is what prompted Navajo leaders to travel to Santa Fe to show their support.
Commissioners instead voted 3-2 to table a San Juan discussion until next week, because one commissioner, Valerie Espinoza, was participating by phone and not in person. Commissioner Jefferson Byrd asked to postpone the issue, and Espinoza and Commission Chairwoman Theresa Becenti-Aguilar supported the delay.
Those are the same three commissioners who voted 3-2 in July to place the San Juan shutdown in an old case docket, provoking the current controversy over energy law applicability.
In contrast, Commissioners Cynthia Hall and Stephen Fischmann want the commission to uphold the energy law to avoid a lengthy legal battle at the Supreme Court over whether the PRC has the authority to ignore policies approved by the Legislature and the governor.
Delay raises questions
Hall questioned the irony of allowing Espinoza to participate by phone in the vote to remove an agenda item supposedly because participating by phone was an impediment for her to discuss the energy law. In fact, Espinoza participated by phone for the rest of the commission meeting.
WRA and other energy law supporters criticized the commission’s decision to table the issue.
“Once again, the commission majority has shown itself incapable of making a decision to follow the law,” said Chuck Noble, attorney for the Coalition for Clean Affordable Energy.
WRA attorney Steve Michel said PRC inaction has consequences.
“At some point, no decision is a decision,” Michel said. “At this point, we have to look closely at going to the Supreme Court.”
Sen. Jacob Candelaria, an Albuquerque Democrat who sponsored the Energy Transition Act in this year’s session, said he asked legislative lawyers on Wednesday to begin exploring impeachment proceedings against commissioners Espinoza, Becenti-Aguilar and Byrd.
“Their behavior is unlawful and an affront to our constitutional order,” Candelaria said in a tweet on Twitter. “Their job is simple: Apply the law.”
The Navajo leaders also pleaded with the commission to declare that it will abide by the law.
President Nez said Navajo workers and their families can’t wait through months of hearings before commissioners decide the issue, because a significant number of coal miners will be laid off in July 2020. PNM needs PRC approval by next April to issue the bonds that will raise funds for severance pay and other employee assistance, Nez said.
“I felt compelled to appear and address this commission, so that you could understand that deferring a decision leaves these workers in an untenable position,” the president said. “This is especially true for the coal mine workers who will need those severance funds by next summer.”
The commission’s actions to date in the San Juan case threaten to “undermine the spirit and intent” of the energy law, Nez added.
“My nation speaks with one voice, as one people, in our hope and trust that you will live up to the spirit and requirements of the (ETA),” Nez said. “… To delay would be abdicating your responsibility as regulators, for which your constituents elected you. Anything less would be entirely unacceptable to the Navajo Nation.”