September 14, 2022

Native American groups challenge changes to the PRC, say ballot wording caused confusion

A petition filed this week in the New Mexico Supreme Court challenges a constitutional amendment that made sweeping changes to the state Public Regulation Commission. 

The amendment, approved by voters in 2020, reduced the number of commissioners on the Public Regulation Commission and transformed it from an elected body to one with members appointed by the governor, effective Jan. 1, 2023.

Three Indigenous nonprofits led by women—Indigenous Lifeways, New Mexico Social Justice & Equity Institute and Three Sisters Collective—filed the petition on Sept. 12. They claimed that the ballot language in the 2020 election when voters approved the constitutional amendment wasn’t adequate to inform voters about what would happen if it was approved. Because of that, the change to an appointed body is unconstitutional, they said.

The groups said that the constitutional amendment stripped voters of the “constitutional right and power to elect” commissioners and transfer that power to the governor and to the Legislature.

In the petition, the groups call the ballot language misleading and describe it as “bait and switch” text. 

The groups said ballot questions must be stated with clarity and accuracy so that the average voter understands what they are voting for. They further argued that the text presented to voters in 2020 “is undeniably incomplete and misleading.” They said that the language does not make it clear that the main effect of the amendment would be to repeal the right to elect commissioners to serve on the PRC.

Attorney Sarah Shore, who is representing the petitioners, said voters were not all aware that they were giving up their right to elect commissioners to represent their district by voting in favor of the constitutional amendment.

“It’s really the little guy that this amendment affected and disenfranchised,” she said.

Shore said the case could have future implications on how ballot questions are worded in the future.

After they realized what it meant, Shore said her clients spent time organizing and hiring her as an attorney. Before filing the petition, Shore said they also had to research to find out if turning to the state Supreme Court was a viable option. She said because most of the changes put into motion by the constitutional amendment do not go into effect until January they believe the court challenge is still a viable option.

“While the will of the voters should always be protected, the Supreme Court has discretionary jurisdiction to grant or deny writs and the constitutionality of legislation,” Jerri Mares, a spokesperson for the New Mexico Office of the Attorney General, wrote in an email to NM Political Report.

Should the petitioners prevail, Shore said there are policies in place that allow for temporary appointment of commissioners when seats become vacant. That would allow the PRC to continue its work until a special election could take place.

Shore acknowledged that it isn’t always possible to include all the impacts of a constitutional amendment in the ballot language. However, she said the main effect should be clear. That main effect was changing from an elected to an appointed body.

“This was a particularly egregious instance of a ballot that misled people by omission, because it was impossible to tell from the language of this ballot which of the provisions stated represented changes from the status quo and what the change was,” she said.

She said the language should have included language that stated it would result in repealing the process of electing commissioners to represent areas of the state.

“In an era when our right to vote, our right to representation, the very basis of our democracy, is under dire threat, we cannot stand by as this misleading and underhanded ballot measure threatens to remove our say in the oversight of New Mexico utilities – utilities that control essential infrastructure – water, electricity, and heat,” Christina Castro, co-leader of the Three Sisters Collective, said in a statement. “In a Democratically led state the right to vote and the right to representation should be respected.”

Ballot wording 

Alex Curtas, a spokesperson for the New Mexico Secretary of State’s Office, said the Legislature provides the language that is printed on the ballots. This is done in the legislation that is passed to approve sending a measure to the voters. The wording on the ballot is identical to the heading on the legislation that authorized the constitutional amendment.

The 2020 ballot question read: “proposing to amend the Constitution of New Mexico to provide that the Public Regulation Commission consist of three members appointed by the governor from a list of professionally qualified nominees submitted to the governor by a nominating committee as provided by law and that the commission is required to regulate utilities and may be required to regulate other public service companies.”

Once the legislation passes both the state House and Senate, it goes to voters for approval.

Related: Voters say yes to proposed constitutional amendment to reorganize the PRC

The measure passed with 56 percent of voters favoring the appointed body and the nominating committee has been meeting on a regular basis with its next meeting scheduled for Sept. 29.

Those seeking to serve on the PRC must submit applications by Sept. 30. The committee will then submit at least five names to the governor, who will choose three to appoint to the regulatory body. The state Senate must confirm the governor’s appointments and no more than two of the appointed commissioners can be from the same political party. The current commission consists of four elected Democrats and an elected Republican. The applications will be reviewed during an Oct. 3 nominating committee meeting.

The governor’s office declined to comment on how the petition could impact the nomination process.

Native American representation

The petition states that one of the current PRC districts consists primarily of Native American constituents. While the filing does not specifically name the district, that district is district four. District Four has been an energy powerhouse in New Mexico and is home to all three coal-fired power plants in the state including the shuttered Escalante Power Plant, the San Juan Generating Station and the Four Corners Power Plant. The district has also faced challenges with water utilities, including a boil-water advisory that lasted more than a year for residents of a subdivision east of Bloomfield as a result of a water utility failing to keep up on maintenance and submitting falsified water quality reports, according to an investigation conducted by the New Mexico Environment Department.

In addition to changing to an appointed body, the commissioners will no longer be chosen from geographic districts.

“New Mexico’s leadership was happy to site dirty energy mines and plants on Navajo land for sixty years, but we can’t have a seat on the PRC where decisions that directly affect our people are made?” Anna Rondon, the executive director of the NM Social Justice Equity Institute, said in a press release. “The people behind this ballot initiative wanted to silence us and give industry unfettered influence over the PRC. We will not sit quietly while our right to representation is stripped away by the underhanded and misleading ballot language.”

The San Juan Basin in northwest New Mexico is often referred to by environmental activists as an energy sacrifice zone. That means it has had higher levels of polluting industries. Sacrifice zones tend to disproportionately impact minority and low-income populations. For example, emissions from the San Juan Generating Station and the Four Corners Power Plant impact nearby Navajo communities such as Upper Fruitland, Hogback and Nenahnezad. 

For decades, the two coal-fired power plants in San Juan County have provided electricity to cities throughout the west including Albuquerque and Tucson.

“Our people have been marginalized and silenced for generations,” Krystal Curley, the executive director of Indigenous Lifeways, said in the press release. “Our land, water and air has been sacrificed so that people in other places could switch on their lights without a second thought. Our people have been sacrificed so that utilities and oil and gas company shareholders could profit from the sale of dirty coal, oil and gas. And now hydrogen threatens! The administration that will appoint the ‘professionally qualified’ PRC members under this ballot measure has repeatedly appointed industry friendly regulators who have done nothing to protect our people and our sacred land. We have no faith that they will appoint people who prioritize our sacred land to the PRC, and we demand that our voice and our representation be restored.”

The hydrogen proposal would transform the Escalante Power Plant, which closed in 2020, into a facility that generates electricity using hydrogen derived from natural gas.

The PRC does not have the authority to block proposals like the hydrogen plant or a proposed carbon capture retrofit for the San Juan Generating Station. However, it can approve or deny a regulated utility’s use of such resources.

Theresa Becenti-Aguilar, a Diné woman who has championed increased broadband access, currently represents District Four.  She served as the commission’s chairwoman during the discussions of Public Service Company of New Mexico’s application to close the San Juan Generating Station.

“There are a lot of really consequential issues on the table that really directly affect the communities that my clients are from and where they work,” Shore said. “We all know the legacy of disenfranchisement of Native American voters, so I think it feels tragic, pretty tragic to them to have lost representation on the PRC in this way.”

PRC history

The constitutional amendment came amid frustration about the PRC’s reluctance to implement the Energy Transition Act as well as questions about the technical expertise the elected regulators possess. It also came amid concerns that elected commissioners had failed to meet training requirements. Since the PRC’s creation in 1996, the body has faced numerous scandals leading to a bad reputation. Concerns about the PRC led to a 2017 study commissioned by the Legislature that led to a series of recommended reforms. Those recommendations did not include changing to an appointed body, however they did include measures like increasing funding to help the PRC hire highly-qualified support staff. Shore said the 2020 constitutional amendment did not include a single one of the recommendations from the 2017 study.

In November 2018, KRQE published an investigation that found the five commissioners and their executive assistants were “sporadically” in their offices. The report also stated that the assistants “appear to be playing hooky on the taxpayer’s dime.”

Months later, the Legislature passed a joint resolution on bipartisan votes in both the House and the Senate. The Senate voted 36 to 5 and the House voted 59 to 8 in favor of placing the constitutional amendment on the ballot.  

The PRC commissioners themselves were divided on whether the state regulatory body should be appointed or elected.

Shore said a 2012 constitutional amendment did increase qualification requirements for commissioners. She said the 2020 constitutional amendment did not alter that except to give the state Legislature greater discretion to change those requirements. She also said that the nominating committee does not have to hold any specific qualifications and a politician has already nominated himself to serve on that committee. 

Influence of outside money

Some opponents of the move to an appointed body argue that an appointed PRC could be easier for fossil fuel industries to influence. They point to a 2020 report by Common Cause and New Mexico Ethics Watch that found that both the governor’s election and legislative races receive large amounts of funding from major electric utilities like Public Service Company of New Mexico as well as the oil and natural gas industry. The petitioners say that having an appointed body rather than an elected one increases the opportunities for industries to influence decisions.

According to a campaign finance filing submitted Monday, Gov. Michelle Lujan Grisham has received donations from political action committees connected to electric and gas utilities that are regulated by the PRC. Her opponent, Mark Ronchetti, has received donations from a PAC related to a company that specializes in pipelines and associated infrastructure for transportation of oil and natural gas. The PRC oversees pipeline safety.

Utilities and oil and gas companies have also traditionally been big spenders in the PRC elections and PRC commissioners have not been immune to allegations that campaign donations would influence decisions.

In 2018, the group New Energy Economy filed a motion requesting that then-Commissioner Lynda Lovejoy recuse herself from participating in commission proceedings regarding a solar facility that would benefit El Paso Electric. NEE cited Lovejoy receiving donations from Affordable Solar, the company that EPE had contracted to build the solar facility.

Lovejoy also accepted a campaign donation from a political action committee connected to PNM Resources, the parent company of the state’s largest electric utility company. This led to her recusing herself from hearing the integrated resource plan case in which PNM proposed to close the San Juan Generating Station within her district.

Following the election, New Mexico In Depth reported that a dark money group with ties to the oil and gas industry pushed for the constitutional amendment. This group, called Committee to Protect New Mexico Consumers, spent about a quarter of a million dollars on efforts to promote the constitutional amendment. Exxon Mobil gave the group $10,000. The Committee to Protect New Mexico Consumers was founded by environmental advocates.

The energy transition

The transition to an appointed body comes at a critical moment as utilities are working to meet increasingly aggressive requirements for how much of their generation portfolio comes from renewable sources.

It also comes amid increasing electrification of household appliances and vehicles. The federal Inflation Reduction Act includes provisions such as tax credits and rebates to incentivize these purchases.

The PRC has also been working to ensure grid reliability amid supply chain challenges and delays in solar projects. This comes as other western states including California and Wyoming have asked customers to reduce electricity consumption amid a heat wave this month.