The Associated Press July 27, 2011, 5:50PM ET

NM Supreme Court issues ruling in emissions case

The New Mexico Supreme Court on Wednesday cleared the way for environmental groups to intervene in an ongoing legal battle over whether the state should regulate greenhouse gas emissions.

Attorneys for the groups said the justices' unanimous decision will ensure that proponents of the regulations will have a seat at the table if courts have to determine the fate of the state's carbon emissions policies.

"It's about fairness. The nugget of the whole argument in this case is you can't just have `one hand clapping,'" said Mariel Nanasi, executive director of New Energy Economy, the group that initially petitioned state regulators to adopt the regulations.

Nanasi was referring to a comment Chief Justice Charles Daniels made during arguments. Daniels had questioned the fairness of rulemaking and legal adjudication when only certain parties were involved.

Opponents of the greenhouse gas regulations, including utility companies, recently filed petitions with the board seeking to repeal the rules. In court documents filed last week, New Energy Economy had accused the state Environmental Improvement Board and the opponents of collusion, saying they had met secretly about resolving the case.

The Supreme Court also addressed a motion that sought to overturn an earlier appellate court decision that sent the case back to regulators for consideration.

The justices said the Court of Appeals has the authority to remand the case, but that the groups now have the right as interveners to ask that court to reconsider its decision.

The justices' ruling Wednesday has no direct bearing on whether the Environmental Improvement Board will agree to hear the opponents' petitions for repeal. The board is expected to decide Monday whether to consider those petitions and begin a new hearing and public comment process.

New Mexico's largest electric utility, which has been battling the rules since they were first proposed, said it was pleased that the court is allowing it and the other parties to pursue a repeal through the regulatory process rather than the courts.

"If the repeal isn't successful within 180 days, our appeal before the court will continue," said Don Brown, a spokesman for Public Service Company of New Mexico.

PNM is joined in its effort by other utilities, the oil and natural gas industry and the city of Farmington.

Besides New Energy Economy, Amigos Bravos, the League of Women Voters of New Mexico and the Center of Southwest Culture are working to protect the rules.

The fight over regulating greenhouse gas emissions is likely to get even messier since both regulators and judges will be weighing in, with opposing sides having the ability at every turn to file either new petitions or more appeals.

"You could end up with opposite decisions on basically the same evidence," said Bruce Frederick, an attorney with the New Mexico Environmental Law Center, which is representing New Energy Economy. "It's an insane system, and I don't think that's what the Legislature intended when it set up this procedure for rulemaking."

He explained that even if opponents were successful in getting the board to repeal the rules, New Energy Economy or any other group or individual could simply petition the board again to reinstate the rules, and any decision by the board could be appealed through the courts.

Still, attorneys representing the environmental groups said the Supreme Court's ruling is a big victory for public participation.

Alison Flint, an attorney for Earthjustice, said by allowing groups that were involved in an administrative rulemaking process to automatically be parties to any legal appeals, future courts will be able to hear from parties on all sides of an issue and make informed decisions.

Championed by former Democratic Gov. Bill Richardson and environmentalists, the emissions rules encompass the state's plan for participating in a regional cap-and-trade program, as well as a statewide cap of greenhouse gas emissions and a system for industry to report its emissions.

The rules were approved in the waning weeks of Richardson's tenure.

Republican Gov. Susana Martinez, a vocal opponent of the state's effort to control carbon emissions, has called the effort a "cap and tax." As governors often do with state boards and commissions, she replaced members of the Environmental Improvement Board with her own appointees after taking office this year.

Martinez, some lawmakers and other critics are concerned the rules will lead to higher costs for New Mexico families and will drive businesses and jobs from the state.

They also argue that the rules do not have any discernible benefits to human health or the environment given that New Mexico's carbon emissions represent only a fraction of global emissions.

Supporters contend the state can't afford to leave such emissions unchecked and that New Mexico's mandates for reducing greenhouse gases will help spur clean energy development.

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Susan Montoya Bryan can be reached at http://www.twitter.com/susanmbryanNM


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