NM Environmental Law Center Questions Impartiality of Environmental Improvement Board Members

On Wednesday, the New Mexico Environmental Law Center (NMELC) filed motions before the New Mexico Environmental Improvement Board (EIB) calling for the recusal of board members James R. Casciano, Gregory Hugh Fulfer and Debra Peacock due to their documented opposition to the adoption of the state’s carbon reduction rules. The motions, filed on behalf of New Energy Economy, also call for the other board members to disclose their past and ongoing relationships with the petitioners and other entities regulated by the carbon reduction rules. (Filed motions can be found here.)

NMELC said the Board decided to conduct hearings to repeal the rules at the request of PNM and several other utility and oil and gas groups (“petitioners”). The requests to repeal the rules were filed immediately following private discussions between the petitioners and Ms. Peacock, who chairs the Board.

“EIB’s regulations require its members to recuse themselves if there is reason to believe that they are not impartial,” says Bruce Frederick, NMELC Staff Attorney. “It’s an appearance standard and there’s good reason to believe that members Casciano, Fulfer and Peacock are not impartial. Mr. Casciano and Mr. Fulfer testified against the rules last year when they were adopted. Ms. Peacock engaged in private discussions with petitioners, which led directly to their requests to repeal the rules.”

“The rule of law requires that regulators and the entities they regulate abide by strict codes of conduct to protect the public interest,” said Mariel Nanasi, Executive Director of New Energy Economy. “Fairness and transparency require that EIB members make their decisions based on facts presented as evidence in public hearings, not based on ideological predispositions and back room deals.” 

Towards the end of the two-year process that led to the adoption of the carbon reduction rules late last year, “the same folks who are now petitioning EIB to repeal the rules accused the former EIB members of bias,” said Frederick. “The former members were concerned enough to make disclosures on the record regarding their employment and concern about climate change,” Frederick explained. “After all was said and done, one member ended up recusing himself, because he had supported the rules before being appointed to the EIB.” Frederick notes that, “unlike the petitioners, we are bringing up the issue early in the proceeding to give EIB a chance to avoid wasting taxpayer money on an invalid proceeding.”

“This isn’t about politics or ideology; we just want a fair chance to defend our case,” says Nanasi.

The EIB is scheduled to discuss the carbon reduction rules in their October 3rd meeting.

The rule advocated by New Energy Economy (Rule 100) generally requires facilities that emit more than 25,000 metric tons of carbon pollution per year to report their total carbon emissions and to reduce these emissions by a certain percentage each year. The rule has been lauded by national experts for its capacity to improve New Mexico’s energy security by means of predictability, market-based mechanisms and extensive compliance flexibility. An economic analysis released in February indicated the carbon pollution reduction law has the potential to add 17,500 family-supporting jobs in New Mexico’s electric sector and add more than $2 billion in total added economic value to New Mexico’s families and businesses.