New Mexico Supreme Court Blocks Governor From Violating Constitution for Polluters

New Mexico's Republican Gov. Susana Martinez. (Photo: Steve Terrell / Flickr)
New Mexico's Republican Gov. Susana Martinez. (Photo: Steve Terrell / Flickr)

On January 26, New Mexico’s Republican Gov. Susana Martinez was dealt a serious blow by her state’s Supreme Court, when it ruled unanimously that Governor Martinez had violated the state Constitution when she prevented a rule that reduced carbon pollution from being published as codified state law.

The lawsuit was filed by the nonprofit group New Energy Economy (NEE) and reflects a growing number of claims that Governor Martinez arbitrarily and illegally sought to suppress the aforementioned rule in an attempt to appease major carbon polluters, which made huge financial contributions to her gubernatorial campaign.

NEE’s lawsuit also brought to light emails showing deep collusion between Governor Martinez and TJ Trujillo, a lawyer who represents the dairy industry, and who is also a lobbyist for the Public Service Company of New Mexico (PNM), which is by far and away the state’s largest producer of greenhouse gas emissions. (PNM produces more than half of the greenhouse gas emissions for the State of New Mexico.)

“TJ Trujillo is a lobbyist for sale,” Mariel Nanasi, the executive director of NEE explained to Truthout, “He is a lobbyist for PNM. Governor Martinez ran her campaign on the whole idea of transparency, and here she is literally getting an email from an industry lawyer [Trujillo] on one day, and stopping the rules scheduled for publication the very next day.”

The revelation of the emails is also troubling because the dairy industry in New Mexico, which Trujillo lobbies for as well, was a large contributor to Martinez in the run up to her election.

Governor Martinez, in an attempt to defend her illegal actions of blocking the publishing of the new carbon emissions trimming rules, hired three different law firms to represent her, and used state funding to do so.

To this action, Nanasi gave Truthout a blunt assessment: “She said she’s hunting for waste. She did something illegal then hired three law firms to represent her on her unconstitutional illegal actions, and the people of New Mexico are paying for that.”

Nanasi added, “Governor Martinez has her ideological angle, but it’s really her relationships with big industry that are forming her policy. It’s not about saving money for New Mexicans, as she claims she is trying to do, it’s an ideological bent she is pursuing.”

The Supreme Court justices of New Mexico on January 26 stated that the issue of Governor Martinez’s attempt to break state law “is an issue of great public importance” specifically because of the issue of separation of powers.

At one point in the hearing, a Supreme Court justice exclaimed, “How can the Governor trump the law?”

“Here is a Governor who has been a prosecutor for the last 10-15 years who has made her livelihood on the basis of ‘you must follow the law,’ and one of the first things she does as Governor is tell someone not to follow the law,” Nanasi added.

The new rule requires New Mexico facilities that emit more than 25,000 metric tons of carbon pollution per year to reduce these emissions by 3 percent per year from 2010 levels, starting in 2013. The rule also now enables effective and economically efficient carbon pollution reduction that will spur job creation, investment and innovation across New Mexico’s economy, particularly the energy sector. The NEE says the rule will increase jobs and revenue among oil and gas producers as well as boost momentum in the state’s emerging energy efficiency and renewable energy industries.

“Governor Martinez attempted an end run around the Constitution at the request of major polluters,” stated Bruce Frederick, staff attorney from the New Mexico Environmental Law Center, who filed the lawsuit on behalf of NEE. “Her attempt to prevent the carbon pollution rule from becoming a valid state law is highly illegal and cannot be tolerated in a democratic society.”

Many of Governor Martinez’s critics believe her administration is actively cutting funding in programs that would help the average state resident, while using state government funds to hire private industry law firms to defend her recently failed unconstitutional actions. This action, in effect, meant that Governor Martinez attempted to have state agencies pay to defend an unlawful retraction of rules that she was obliged, as governor, to enforce.

On January 19, Truthout reported (hyperlink ‘Truthout reported’ with how, in an effort to tackle the climate change crisis, on December 6, 2010, the New Mexico Environmental Improvement Board (EIB) adopted NEE’s rules to reduce greenhouse gas emissions by 3 percent per year from 2010 levels, with a goal to reduce emissions 25 percent below 1990 levels by 2020.

According to NEE, this rule enables effective and efficient carbon pollution reduction that will foster both clean energy job creation and prosperity for New Mexico’s families and communities. By taking the lead on this critical issue, New Mexico and NEE have created a practical, transportable model for the rest of the country to follow.

Problems arose when New Mexico’s newly elected, conservative, Republican Governor Martinez – who has deep financial ties to oil and gas producers and individuals – attempted to subvert her own state constitution in order to stop this plan to begin reducing her state’s carbon emissions.

The new environmental regulations were, according to New Mexico state law, to be published in the New Mexico Register, so that the citizens of the state would be alerted of the new state rules. The problem was, Governor Martinez did not like the rules and ordered them not to be made public.

“She chose to tell a bureaucrat not to do what they were required to do, which was to publish the rules,” Nanasi explained. “The administrative function was to simply let people know what the rules are.”

In response, NEE filed a lawsuit in the New Mexico Supreme Court on January 11 against the governor’s action. The court granted NEE’s request for an expedited hearing and, then, on January 26, ruled against Governor Martinez.

In preparation for the trial, NEE’s attorneys reviewed public records pertaining to the Martinez administration’s efforts to prevent publication of the carbon pollution reduction rule. While doing so, they discovered that the administration had taken similar, apparently illegal actions to prevent the codification and publication of 32 final and filed rules adopted by various boards and commission before the start of 2011.

“Laws are published and codified because the public must be able to access and review these laws,” Frederick, the NMELC attorney who filed the writ, added. “This is a fundamental right in our democratic society and essential to transparent and representative government.”

“We are surprised at how quickly her administration has apparently violated the constitution in pursuit of an ideological agenda,” said Nanasi.

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It is also worth noting, some of the campaign contributions made to Governor Martinez were during the lead-up to her recent election, particularly those from outside New Mexico.

Oil and gas producers and individuals in the industry contributed at least $220,000 to Martinez, according to an analysis of her fundraising report by The Associated Press. Devon Energy, an Oklahoma City-based company, gave her $50,000. Myco Industries, an Artesia oil company, contributed $30,000, while Yates Petroleum of Artesia gave $15,000.

Bob Perry, a Houston developer and a major funder of the controversial Swift Boat Veterans for Truth, was one of the major Martinez contributors. Perry and his wife gave Martinez $450,000 last May.

Martinez’s largest individual donor was Foster Friess, an investor from Jackson, Wyoming, who donated $200,000.

Friess, who made his fortune in a management firm he started with his wife in 1974 called Friess Associates, is well-known in conservative circles and is active in Christian, right circles. He was a featured speaker at the Western Conservative Summit last June in Colorado, along with US Rep. Michele Bachmann (R-Minnesota), former Rep. Tom Tancredo (R-Colorado) and right-wing pundits Michelle Malkin and Dick Morris.

Friess, identified by The Washington Post as a “a big-time GOP donor” and hunting partner of former Vice President Dick Cheney, is a major financial backer of conservative commentator Tucker Carlson’s web site The Daily Caller. In the late 1990s, Friess was vice president of the Council for National Policy, a conservative group headed by former attorney general Edwin Meese.

Martinez also received $100,000 from B. Wayne Hughes Jr., who is listed by Forbes magazine as one of the richest people in the country. He is a major contributor to the new organization headed by former George W. Bush political director Karl Rove and former Republican National Committee Chairman Ed Gillespie.

Governor Martinez has nominated avid climate change denier Harrison “Jack” Schmitt to head New Mexico’s Energy, Minerals and Natural Resources Department.

While the rest of the world is progressing ahead with carbon-curbing emissions and the EU is aiming for 20 percent cuts by 2020, Nanasi said, “The Martinez administration has its head in the sand, pretending there isn’t a problem.”

“We are prepared to continue fighting, and winning, against all challenges to New Mexico’s carbon pollution reduction rule,” Nanasi said in a press release about the recent ruling, “The scientific and economic facts are clearly on our side.”

The new rules will add powerful momentum to New Mexico’s burgeoning renewable energy sector, where the state has world-class solar and wind energy resources.

The recent ruling means that New Mexicans can now help develop technologies to reduce greenhouse gas emissions and produce more clean energy. Global demand for these technologies is growing rapidly. Other states, such as California and Colorado, are already reaping the rewards of clean energy investments and job growth. New Mexico could now potentially shift its energy priorities, take advantage of this opportunity and stimulate a lagging economy.

“We think these state rules for reducing carbon pollution are business and environmentally friendly,” Nanasi told Truthout. “The long-term health of an economy is contingent on the environment.”