Utility commission now appointed by governor
By Susan Montoya Bryan
Associated Press
ALBUQUERQUE, N.M. (AP) — The New Mexico Supreme Court on Monday denied a challenge to a voter-approved measure overhauling a powerful commission that oversees public utilities and determines how much customers can be charged to heat and cool their homes.
The court announced its decision after hearing oral arguments in a case that centered on whether voters understood they would be giving up their right to elect members to the Public Regulation Commission when they approved the constitutional amendment in 2020.
The amendment turns the commission into a three-person panel appointed by the governor with the consent of the state Senate. An independent nominating committee is supposed to vet candidates before the governor picks appointees.
The petition was filed earlier this year on behalf of Indigenous Lifeways, New Mexico Social Justice & Equity Institute and the Three Sisters Collective. The nonprofit groups work on environmental restoration projects on Native American lands in northwestern New Mexico.
Sarah Shore, an Albuquerque attorney who represents the groups, told the court that the question deserved special scrutiny since the amendment repealed the right of New Mexicans to elect representation to the commission.
“This case presents a unique circumstance where there’s a real risk of abuse of power,” she said. “There’s a transfer away from the people who in their own constitution reserve rights to themselves to the political branches. This is not a circumstance where the Legislature is proposing to change rights that the people already delegated.”
Attorneys for the state and the governor’s office argued that the groups waited too long to raise their concerns and that the time to bring such a challenge would have been when the measure was debated and as the ballot language was crafted.
Shore argued that the amendment should be struck from the state constitution because it illegally rolled several reforms into one ballot question for voters to decide. She said most voters are neither lawyers nor lawmakers and were misled since the ballot measure did not reference the effect on the public’s right to elect commission members.
The justices said they did not believe the measure amounted to logrolling and would outline the grounds for their decision in an upcoming written opinion.
The measure was approved by 56% of voters in 2020, with supporters arguing that establishing an independent nominating committee would boost the professionalism of the regulatory panel and remove membership from the political process.
However, opponents have said politics would still be at play given that commissioners would serve at the pleasure of the governor. Currently, Democrats hold the governor’s office, control the state Supreme Court and make up the majority of the Legislature.
In recent years, the New Mexico Supreme Court has overruled PRC decisions related to the state’s energy transition law and a proposed merger involving the largest electric provider in New Mexico.
Legislative analysts in outlining arguments for and against the ballot measure had previously noted that the amendment would not change how the commission actually functioned and there was no guarantee lawmakers would appropriately fund the agency.
There have been concerns over the years about a lack of money to attract and retain a professional staff of engineers, accountants, lawyers and others to draft rules and advise commissioners on complicated cases that range from customer rates to the future of renewable energy development in the state.
