PRC examiner tried to squelch testimony

SANTA FE, N.M. — It’s not entirely clear when public discussion of coal reserves in the Ute Mountains before a Public Regulation Commission hearing officer became confidential, but officials said it did.

And that meant blogger Jeff Ethan Green was ordered to leave and to delete the testimony he had recorded on video in what had been, at least up to that point, a public hearing.

In the Jan. 22 public hearing of the Public Regulation Commission in Santa Fe to discuss a PNM application to shut down two coal plants in San Juan County, commissioners were asking the utility’s representatives about the amount of coal in the mountains owned by the BHP mine in Farmington.

When PNM Vice President Chris Olson answered, the company’s legal team stood up to say the hearing had veered into confidential territory. That’s when all eyes turned to look at Green, who was videotaping and was asked to leave.

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Later that day, the PRC’s hearing examiner assigned to the case, Ashley Schannauer, ordered Green to delete the material from his camera, saying he had “inadvertently gained access … to confidential information.”

Green describes himself as a citizen journalist for Clear Air Media, an outlet that advocates for renewable energy like wind and solar power and reports on the “historic battle to shut down PNM coal at the PRC.” He refused to delete the video and published it on YouTube. He also cited the protective order, which was agreed upon by all parties in the case, that states that no material can become confidential if it is disclosed in the public domain or becomes public through no fault of the party that received it.

PNM spokeswoman Susan Sponar said the company has no intention of pursuing further action against Clear Air Media.

“We do not anticipate any consequences from the disclosure of this limited information and do not intend to take any action with respect to its disclosure,” Sponar said.

If that’s the case, asked Susan Boe, executive director of the New Mexico Foundation for Open Government, then why was the material classified in the first place?

She said she has counseled various groups throughout the course of the hearing that began in late 2013 and has repeatedly heard frustration about the amount of information that is classified. For example, on March 16 the Coalition for Clean, Affordable Energy asked the PRC to make public confidential material that relates to how PNM’s plan might affect jobs in the area, saying that the lack of information gives the public a warped idea of the plan.

“There are concerns that this protective order was much too broad and included information that the public should have seen,” Boe said. “PNM’s statement seems to reinforce that, doesn’t it?”

Sponar said the information in the video contained only a small amount of classified material and that, “because of these specific circumstances, PNM does not intend to pursue the matter further.”

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“That is the situation with regard to the limited disclosure in this case,” she said in an email. “There was no over-classification of confidential material or information.”

She also said the “vast majority” of information the utility provided was not confidential and that the hearing was open to the news media and public except during those rare cases of confidentiality. Parties involved in the case can see all of the material if they sign confidentiality agreements.

PRC attorney Michael C. Smith declined to comment, other than to say it is not possible to separate the confidentiality issue from the overall issue of PNM’s plan to shut down the two coal plants. As a result, he said, it would be “improper” to comment on the authority behind ordering Green to delete the video.

Green ultimately posted the 10-minute video in early February under the title, “Unclear PNM Coal Supply Shines Light on Confidential Negotiations, Secret PRC Testimony.” It had 48 views as of Wednesday afternoon.

“There’s such a great public interest in the state and it has such a huge impact on New Mexico’s energy future,” Green said. “The public deserves to know all of it.”

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