State ex rel. Egolf v. N.M. Pub. Regulation Comm'n
| Decision Date | 23 July 2020 |
| Docket Number | NO. S-1-SC-38041,S-1-SC-38041 |
| Parties | STATE of New Mexico EX REL. Representative Brian EGOLF, Senator Jacob Candelaria, Senator Mimi Stewart, Representative Nathan Small, Governor Michelle Lujan Grisham, and Navajo Nation President Jonathan Nez, Petitioners, v. NEW MEXICO PUBLIC REGULATION COMMISSION, Commissioner Valerie Espinoza, Commissioner Jefferson L. Byrd, Commissioner Cynthia B. Hall, Commissioner Theresa Becenti-Aguilar, and Commissioner Stephen Fischmann, Respondents, and Public Service Company of New Mexico, Intervenor-Real Party in Interest. |
| Court | New Mexico Supreme Court |
Keleher & McLeod, P.A., Thomas C. Bird, Albuquerque, NM, for Petitioners Representative Brian Egolf, Senator Jacob Candelaria, Senator Mimi Stewart, Representative Nathan Small
New Mexico Office of the Governor, Matthew L. Garcia, Chief General Counsel, Santa Fe, NM, for Petitioner Governor Michelle Lujan Grisham
Navajo Nation Department of Justice, Paul W. Spruhan, Window Rock, AZ, for Petitioner Navajo Nation President Johnathan Nez
Michael C. Smith, Acting General Counsel, Judith Ellen Amer, Associate General Counsel, Santa Fe, NM, for Respondents
PNM Resources, Inc., Patrick V. Apodaca, General Counsel, Stacey J. Goodwin, Associate General Counsel, Albuquerque, NM, Miller Stratvert P.A., Richard L. Alvidrez, Albuquerque, NM, for Intervenor-Real Party in Interest Public Service Company of New Mexico
{1} In this original proceeding, members of both houses of the Legislature, along with the Governor and President of the Navajo Nation (collectively Petitioners), filed an emergency petition on behalf of the State of New Mexico seeking a writ of mandamus against the New Mexico Public Regulation Commission (Commission). Petitioners seek a writ of mandamus to direct the Commission and its individual commissioners to apply the Energy Transition Act (ETA), NMSA 1978, §§ 62-18-1 to -23 (2019), to proceedings related to Public Service Company of New Mexico's (PNM) abandonment of Units One and Four of the San Juan Generating Station (San Juan). The critical question in the case before us is whether the Commission has the authority to initiate an abandonment proceeding. Concluding that the Commission does not have such authority, we granted Petitioners’ writ of mandamus on January 29, 2020, and ordered the Commission to apply the ETA to abandonment proceedings for San Juan Units One and Four. See Order at 2, Egolf v. New Mexico Pub. Regulation Comm'n , S-1-SC-38041 (Jan. 29, 2020); Writ of Mandamus at 2, Egolf , S-1-SC-38041 (Jan. 29, 2020). As stated in our January 29, 2020, order, we issue this opinion to more fully explain this Court's ruling. Order at 3, Egolf , S-1-SC-38041.
{2} The Commission exceeded its constitutional and statutory authority by initiating proceedings for abandonment of San Juan Units One and Four, and as a result, lawful abandonment proceedings were not initiated until after the ETA became operative. As the ETA was effective at the time abandonment proceedings began, the Commission had a nondiscretionary duty to apply the ETA. The Commission's equivocation to administer applicable law to abandonment proceedings necessarily invoked this Court's mandamus jurisdiction in order to preserve New Mexico's constitutionally required separation of powers. See N.M. Const. art. III, § 1.
{3} The genesis of this case is rooted in the proceedings for abandonment of San Juan Units Two and Three, which PNM initiated in 2013. San Juan is a four-unit, coal-fired power plant near Farmington, New Mexico, that is operated and partially owned by PNM. Previous abandonment proceedings targeted only San Juan Units Two and Three and were docketed by the Commission as Case No. 13-00390-UT (2013 Docket).1
{4} Abandonment of Units Two and Three was authorized by the Commission through a modified stipulation (Modified Stipulation). The Modified Stipulation served as the final order in the 2013 Docket but also contained provisions for the future use of the remaining units at San Juan—Units One and Four. See New Energy Econ. , 2018-NMSC-024, ¶¶ 6, 9-10, 416 P.3d 277. Of significance to the instant case, Paragraph 19 of the Modified Stipulation required PNM to seek Commission review of any agreements that would commit PNM to the use of Units One and Four past 2020. Paragraph 19 states, in relevant part:
After July 1, 2018, but no later than December 31, 2018, PNM shall make a filing with the commission, and serve all parties to this case, to determine the extent to which [San Juan] should continue serving PNM's retail customers’ needs after June 30, 2022. The filing shall be made before PNM has made a binding commitment to a post-2022 coal supply agreement, but after PNM has received firm pricing and other terms for the supply of coal at [San Juan], unless PNM proposes not to pursue a coal supply post-2022....
Paragraph 19 further provided that signatories to the Modified Stipulation agreed "to support expedited Commission review and decision within six months after the date of PNM's filing."
{5} In response to Paragraph 19, PNM filed a "verified compliance filing" on December 31, 2018, in the 2013 Docket. The compliance filing informed the Commission that PNM did not intend to operate San Juan past 2022 and that a majority of San Juan's owners sought to close San Juan by 2022. Because PNM did not intend to operate San Juan past 2022, PNM did not consider it necessary to request the Commission's review or approval of PNM's planned course of action, as had been contemplated by Paragraph 19. For these reasons, PNM asked that the compliance filing be accepted in lieu of procedures outlined in Paragraph 19. PNM further stated it would formally file for abandonment of San Juan Units One and Four in the second quarter of 2019.
{6} On January 10, 2019, the Commission responded to PNM's compliance filing by opening a new case, Case No. 19-00018-UT (January 2019 Docket), and entering an order simultaneously in that newly created docket and the 2013 Docket. In that order, the Commission requested all parties to the 2013 Docket to brief whether the Commission should take one of two courses of action. The Commission's first proposed course of action was to accept PNM's compliance filing and not take further action until PNM filed its abandonment application in the second quarter of 2019. The second proposed course of action called for the Commission to instead immediately initiate abandonment proceedings for San Juan Units One and Four under the newly created January 2019 Docket, because PNM had "irrevocably committed itself to abandonment of [San Juan]." Based on the parties’ responses, the Commission proceeded with the second proposal and entered an order on January 30, 2019 (Abandonment Order) initiating an abandonment proceeding pursuant to authority ostensibly derived from NMSA 1978, Section 62-9-5 (2005). The Abandonment Order mandated that PNM file an application for abandonment by March 1, 2019.
{7} After the Commission denied PNM's February 7, 2019, motion to reconsider the Abandonment Order, PNM petitioned this Court for an emergency stay in abandonment proceedings and for a writ of mandamus ordering the Commission to vacate the Abandonment Order. We did not immediately rule on PNM's petition for mandamus but granted the request for an emergency stay in proceedings.
{8} While matters were stayed under this Court's order, the Governor signed the bill creating the ETA, which would go into effect on June 14, 2019. 2019 N.M. Laws, ch. 65, § 1; see §§ 62-18-1 to -23. On June 26, 2019, this Court denied PNM's petition for writ of mandamus and lifted the stay on abandonment proceedings.
{9} On July 1, 2019, PNM filed its consolidated application for abandonment of San Juan. The Commission, however, adjudged that a valid abandonment proceeding had already begun, prior to the enactment of the ETA, when the Abandonment Order compelled PNM to file an abandonment application in the January 2019 Docket. The Commission therefore found that PNM's July 1, 2019, application was responsive to the January 30, 2019, Abandonment Order. This led to the Commission's conclusion that abandonment and financing proceedings should proceed under the January 2019 Docket, which—according to the Commission—had been lawfully opened pursuant to the Commission's authority vested in Section 62-9-5. The Commission, however, opened a new docket, Case No. 19-00195-UT (July 2019 Docket), to which the Commission assigned review and approval of replacement resources. In sum, the Commission ordered bifurcated proceedings, assigning abandonment and financing matters to the January 2019 Docket, and review of replacement resources to the July 2019 Docket.
{10} After the Commission had bifurcated the proceedings, Western Resource Advocates (WRA)—a party to San Juan abandonment proceedings—petitioned the Commission to clarify whether it intended to apply the ETA to abandonment and financing proceedings. The Commission denied WRA's motion, noting that the Commission was considering the law applicable to San Juan abandonment proceedings but expressly declining to elaborate on whether the Commission would apply the ETA.
{11} Lacking clarification from the Commission, PNM along with WRA and several other interested parties moved this Court to clarify why it had lifted its March 1, 2019, stay of the Abandonment Order. Specifically, clarification was sought as to whether this Court had lifted the stay on June 26, 2019, and denied PNM's previous petition for writ of mandamus because the Court considered the case moot in light of the passage and enactment of the ETA. Alternatively, the parties sought a writ of mandamus to compel the Commission to apply the ETA to abandonment proceedings. On October 3, 2019, we denied both the motion for...
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