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NM energy law applicability upheld in legal explanation

The San Juan Gernerating Station operating west of Farmington Monday November 25, 2019. (Eddie Moore/ Albuquerque Journal)

Copyright © 2020 Albuquerque Journal

The state Supreme Court ruled on Thursday that the Public Regulation Commission lacks authority to force a utility to open proceedings to abandon a power plant.

The opinion, written by Justice C. Shannon Bacon, provides the legal rationale for the court’s decision in January to force the PRC to abide by the state’s new Energy Transition Act in hearings on Public Service Company of New Mexico’s request to exit the coal-fired San Juan Generating Station.

The commission threw the law’s applicability in doubt after PNM applied in July 2019 to exit the plant. Instead of opening a new docket request at that time, the commission incorporated it into an old docket the PRC itself initiated in January 2019 ordering PNM to file for abandonment to begin in March 2019.

Since the old docket preceded the new energy law, which took effect in June 2019, the commission sidestepped its application in proceedings last fall, raising concern it would instead apply old legal statutes when ruling on abandonment. That prompted the governor and some state legislators to appeal to the Supreme Court.

The court said Thursday the PRC cannot order PNM to seek approval to abandon a power plant, making the old case docket moot.

“We hold the commission does not have the authority to initiate an abandonment proceeding,” the opinion said.

The PRC already unanimously approved PNM’s exit from San Juan in March. Next week, it will rule on alternative resources to replace lost power from the coal plant.

This week, however, two Republican legislators from San Juan County, Rod Montoya and Bill Sharer, called for commissioners Cynthia Hall and Steven Fischmann to recuse themselves from decisions on San Juan saying they may have pre-judged the outcome by helping to craft language in the new energy law.

“Through Inspection of Public Record Act requests there is clear evidence that both commissioners Hall and Fischmann hold pre-determined positions in the closure case,” Montoya said in a statement.

In response, Hall said she made notes about an initial draft of the bill on her computer, which was revealed through IPRA requests, but those comments were never sent to anyone.

The commission already unanimously approved abandonment, Fischmann said, adding, “there’s nothing to recuse ourselves from.”


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