New Mexico Governor Violating Constitution for Polluters

A coal power plant in New Mexico. The state's newly elected governor's financial ties to oil and gas producers has attempted to subvert her own State Constitution to prevent a plan that reduces carbon emissions from taking effect. (Photo: glennia)
A coal power plant in New Mexico. The state's newly elected governor's financial ties to oil and gas producers has attempted to subvert her own State Constitution to prevent a plan that reduces carbon emissions from taking effect. (Photo: glennia)

A coal power plant in New Mexico. The state’s newly elected governor’s financial ties to oil and gas producers has attempted to subvert her own State Constitution to prevent a plan that reduces carbon emissions from taking effect. (Photo: glennIn an effort to tackle the climate change crisis, on December 6, 2010, the New Mexico Environmental Improvement Board (EIB) adopted New Energy Economy’s (NEE) 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.

The problem is, New Mexico’s newly elected conservative governor, Republican Susana Martinez – who has financial ties to oil and gas producers and individuals – has attempted to subvert her own state constitution in order to stop this plan to begin reducing her state’s carbon emissions.

“Because there’s no federal climate legislation, it’s up to the states to lead,” Mariel Nanasi, the executive director of NEE, told Truthout. “New Mexico is an energy-producing state. We produce and export energy, so it’s important that an energy-producing state expand its energy portfolio to include renewable energy.”

According to Nanasi, the new regulations actually create investment and jobs, and the only people opposed to it are a select group of big polluters.

“Folks in New Mexico support it because they want clean air, clean water and more jobs,” Nanasi said.

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 ruled that the Martinez administration must respond by January 24, as oral arguments will begin on January 26. The lawsuit seeks to reverse the actions of the Martinez administration that are preventing the lawful publication of final administrative rules as codified state law.

The writ was filed by the New Mexico Environmental Law Center (NMELC) on behalf of NEE. NEE claims that the Martinez administration has deliberately and illegally prevented the codification and publication of numerous final and filed rules legally adopted by various boards and commissions before the start of 2011.

New Mexico’s EIB had voted to adopt NEE’s rule pursuant to the Environmental Improvement Act and the Air Quality Control Act (AQCA) and filed the final rule with the New Mexico State Records Center on December 27.

Since this rule was adopted by the EIB as a final rule in accordance with the law, NEE claims that this rule cannot be impacted by an executive order issued by Governor Martinez that called for the suspension of all “proposed or pending” rules.

Thus, NEE is claiming that the EIB has exclusive legal authority to adopt, repeal or amend rules under the AQCA. If that is the case, Governor Martinez’s then acting Secretary of the New Mexico Environment Department, Raj Solomon, a former manager for the state’s public pool program, did not have the legal authority to prevent the carbon reduction rule adopted by the EIB from being published as codified law.

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 thirty-two 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,” said Bruce Frederick, the NMELC attorney who filed the writ. “This is a fundamental right in our democratic society and essential to transparent and representative government.”

“Our claim is that she [Governor Martinez] is breaking state law by what she did,” Nanasi added. “We are asking the New Mexico Supreme Court to stop her from doing anything else illegal and to publish the rules that have been filed.”

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

It is also worth noting some of the campaign contributions made to Governor Martinez during the lead-up to her recent election, particularly from 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 website The Daily Caller. In the late 1990’s, 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.”

When NEE petitioned the EIB to address the issue of climate change, the economic, technical and scientific facts supporting the carbon reduction rules were objective and presented by highly credible experts. These facts are available for public scrutiny in the statement of reasons issued in support of the rule adoption order.

Nanasi believes the companies that use technology, ingenuity and their competitive spirit to comply with the carbon pollution reduction rules will create more jobs, bring more advanced technology to New Mexico and grow the state’s renewable energy industry. 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.

If the NEE is successful in their case against Governor Martinez, New Mexicans can 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.”