State Supreme Court to Hear Arguments in N.M. Cap-and-Trade Plan Dispute
In New Mexico, where freshly elected Governor Susana Martinez (R) passed—as one of her first acts upon taking office—an executive order placing a hold on cap-and-trade rules adopted last year by a state agency, the state’s Supreme Court agreed to hear arguments later this month on whether Martinez’s actions were legal.
Gov. Martinez on Jan. 2 put a hold on all “pending and proposed” regulations for 90 days until they are reviewed by a newly created business task force. The freeze includes climate change rules passed in December by New Mexico’s Environmental Improvement Board (EIB), which said the state-level climate change regulatory program would go into effect if the state does not participate in the Western Climate Initiative as planned.
Under the EIB’s rules adopted on Nov. 2, 2010, about 63 large industrial sources would be forced to reduce carbon dioxide emissions by 2% relative to 2010 levels beginning in 2012. A unanimously approved amendment provides an option for the state to propose cost and compliance containment measures. The rules have not yet been published in the New Mexico Register, which will render them effective. Gov. Martinez also fired all eight members of the EIB, due to what she described as a their “antibusiness” stance.
Last week, Martinez’s freeze on the rules prompted the New Mexico Environmental Law Center to file, on behalf of the environmental group New Energy Economy, a petition for writ of mandamus with the New Mexico Supreme Court. The petition argues that neither the governor nor the New Mexico Environment Department has authority to adopt, repeal, or amend rules, and that the governor and the secretary unconstitutionally “usurped legislative power and interfered with the appellate jurisdiction of the Court of Appeals.”
“The Governor and her staff cannot disregard the law,” said Bruce Frederick, NMELC staff attorney. “When the Board adopts a rule and files it with the State Records Center, the law requires the rule to be published in the State Register. That’s how regulations become enforceable law. The Governor cannot circumvent the law or expand her powers by executive order.” The executive order puts a 90-day hold on all “proposed or pending” rules, but the greenhouse cap rule is “not a proposed or pending rule,” Frederick said. “It is a final rule.”
The New Mexico Supreme Court announced on Thursday that it would hear oral arguments in the case on Jan. 26.
Industry analysts suggest that even if the environmental groups win the legal challenge to Martinez’s hold on the regulations, Gov. Martinez is expected to prevent the state’s participation in the regional cap-and-trade Western Climate Initiative. The state’s withdrawal would leave only California and three provinces in Canada—British Columbia, Ontario, and Quebec—as active members when the program becomes active in 2012.
Sources: POWERnews, EIB, New Mexico Supreme Court, New Mexico Environmental Law Center, Gov. Susan Martinez