January 29, 2020

Legislators unveil bill to shift PRC authority to governor’s administration

The seal of the state of New Mexico in the House

Democratic lawmakers on Tuesday unveiled legislation that would dramatically alter the structure of the state’s Public Regulation Commission, shifting nearly every division currently under its authority to a department within the governor’s administration.

Although the PRC is a state commission, it is an entity not under the control of the state’s governor. Legislation proposed by state Reps. Linda Trujillo, D-Santa Fe, and Nathan Small, D-Las Cruces, would change that, and comes amid frustration from Gov. Michelle Lujan Grisham and some lawmakers over disagreement with the PRC on whether the Energy Transition Act applies to plans from the state’s largest utility to abandon and recover investments into a coal-fired power plant near Farmington.

The energy act, signed into law by the governor in 2019, would allow Public Service Company of New Mexico to recover investment costs sunk into the San Juan Generating Station and requires the state to shift to zero-carbon electricity production by 2045. Whether the ETA applies to the coal plant closure has been the subject of heated debate because the company began proceedings to abandon the plant before the energy act was signed into law.

The New Mexico Supreme Court will hear oral arguments on whether the ETA applies to the San Juan abandonment on Wednesday at the request of the governor and lawmakers.

Trujillo and Small say the legislation is not in response to frustration with the PRC related to the clean energy law. They argue that the proposal is meant to address a long-standing problem at the commission of finding and retaining qualified staff.

“We’re falling behind because of structural challenges, and I think that’s the biggest core,” Small said.

But Nora Meyers Sackett, a spokeswoman for Lujan Grisham, said frustration is a part of the legislation’s impetus. Overhauling the PRC is on the governor’s list of 2020 legislative priorities, and the Governor’s Office has not shied away from expressing exasperation with the commission over disagreement on the energy transition law in recent months.

“That’s one item in a list of longstanding concerns expressed about the PRC over the years by folks from both sides of the aisle that this legislation is intended to rectify,” Sackett said in an email. She added the measure is intended to “ensure an objective process” within the PRC and to staff the commission with “professionalized leadership” that sticks around.

“As mentioned in announcing this year’s call, we want an agency fully staffed with technical experts that produces timely docket processes and decisions, consistent regulatory outcomes grounded in the law, and fewer ethics complaints and allegations of misconduct,” she continued.

The legislation, House Bill 11, would shift the consumer relations, transportation, utility and legal divisions from the PRC to the New Mexico Regulation and Licensing Department. It also would make the PRC chief of staff an initial three-year appointed term by the governor and then a six-year term from then on.

The only divisions that would be left under the direct authority of the PRC would be commissioners themselves — which remain elected positions under the state Constitution — plus commissioners’ secretaries, hearing examiners and the general counsel, said Jason Montoya, chief of staff at the PRC. But because those positions report to the chief of staff and that position would be appointed by the governor under the legislation, even the jobs remaining within the commission would still be under the governor’s authority, he said.

Meanwhile, voters will face  a ballot question in the November general election on whether to make PRC commissioners appointed by the governor rather than elected officials.

Montoya said commissioners may decide to call an emergency meeting to discuss the legislation.

“One of my concerns … is the governor having the authority to appoint the PRC chief of staff,” Montoya said. “You have five elected officials that currently appoint and hire the chief of staff. This legislation removes that authority, and the governor appoints that chief of staff. So I have a little bit of a concern that they’re even going to be able to work together.”

Commissioner Cynthia Hall said she that while the changes proposed go much further than she had expected, she is in strong support.

She said the bill is “similar to the pattern I’m seeing in some states where the PRC is pared down to a more strictly judicial function.”