State, Navajo Nation leaders petition for court order requiring the PRC to apply new law

As the PRC begins evidentiary hearings about the future of the San Juan Generating Station, New Mexico lawmakers and the governor have asked for state Supreme Court intervention

Hannah Grover
Farmington Daily Times
  • The PRC opened a docket in January in response to a Dec. 31, 2018, filing by PNM.
  • The court filing describes the docket as an "empty vessel docket" intended to prevent the new law from taking effect.

FARMINGTON — Celebrations about New Mexico’s landmark energy law were cut short this summer when the regulatory authority tasked with much of its implementation raised questions about whether it applies to the San Juan Generating Station.

Now the Energy Transition Act’s legislative sponsors as well as Governor Michelle Lujan Grisham and Navajo Nation President Jonathan Nez have petitioned the New Mexico Supreme Court to issue a writ of mandamus requiring the New Mexico Public Regulation Commission to apply the new law to the case.

More:Legislators revisit landmark energy law for New Mexico

“The ETA is the law of the land,” Lujan Grisham said in a press release announcing the filing. “The Legislature passed it, I signed it, and it should be applied to all PRC filings made since the effective date. Unwarranted delays are hurting New Mexico workers and communities.”

Gov. Michelle Lujan Grisham responds to a question during a July 11 interview in Farmington.

The court filing included three affidavits in support of the Energy Transition Act, including one by President Nez.

More:Does NM's new energy law apply to San Juan Generating Station? That depends on who you ask

“(Navajo Nation) along with a diverse group of stakeholders painstakingly worked together during the 2019 New Mexico legislative session to develop the ETA, which would transform the way we do business, the way we power businesses and give power to communities such as those within the Navajo Nation that have traditionally been unable to reap the rewards of a renewable energy economy,” Nez said in the affidavit. “We support the ETA because it represents the best way forward for not only the Navajo Nation and Navajo employees affected by the closure of the San Juan Generating Station, but because it also supports our neighbors, our environment, and perhaps most important, the next generation of New Mexicans and the Navajo people.”

Navajo Nation President Jonathan Nez.

Shortly after the announcement of the court filing, PNM released a statement saying, "We are not part of the filing. But we hope this provides an opportunity to end the confusion and responsibly execute our energy transition."

Proponents of the Energy Transition Act say it creates a plan for a transition from fossil fuels that provides economic support for impacted communities. However, not everyone heralded the Energy Transition Act as a step forward. The advocacy group Power the Future has launched a campaign in an effort to get the law repealed.

A sign is seen on an outside wall of the San Juan Generating Station.

More:Power the Future is gathering signatures in attempt to get Energy Transition Act repealed

“If anyone needed more proof the Energy Transition Act was too hastily forced upon our state, look no further than today's reckless actions by the law’s supporters," said Power the Future Western States Director Larry Behrens in an email statement following the filing. "Earlier this year, supporters of the controversial law supported the role of the PRC protecting rate payers, but today's action shows their promises are nothing more than an insincere shell game. New Mexico's energy workers and rate payers deserve better."

Larry Behrens

The PRC has not questioned the law as it relates to future cases and has asked for funding for additional staff to support implementing the law. It anticipates utilities filing additional rate cases and power purchase agreements as they increase their renewable portfolios as required by the Energy Transition Act.

What the PRC staff is disputing in their filings is the ability of the new law to apply to the San Juan Generating Station.

A generator for one of the units is pictured, Wednesday, Sept. 25, 2019, at San Juan Generating Station.

“The issue arises because of the PRC’s prior creation of an empty vessel docket in anticipation of the ETA becoming law,” the court filing states.

More:Meetings roundup: Energy Transition Act Advisory Committee will meet for the first time

This “empty vessel docket” opened Jan. 15 prior to the law being introduced in the legislative session, although draft versions had been released during interim committee meetings.

Steam comes from one of the four units at the San Juan Generating Station. The emissions from the power plant are monitored with equipment placed on each unit.

But the PRC maintains the docket was not opened in anticipation of legislative changes. Instead, the PRC staff has stated that there were years of actions that led to the docket.

The PRC opened the docket in response to a Dec. 31, 2018, filing PNM made pursuant to terms in a modified stipulation that was issued when the PRC approved closure of units 2 and 3 at the San Juan Generating Station.

More:PRC ponders action in face of planned plant closure

These pulverizers once crushed coal for unit 3 at the San Juan Generating Station. They have since been shut down along with the unit.

When it opened the docket, the PRC asked the various parties that had been involved in the previous case to weigh in on whether it should wait for PNM to file for abandonment of the power plant or if it should move forward with the case. Ultimately, the PRC ordered PNM to file an abandonment application by March 1 — an order that the New Mexico Supreme Court stayed until after the Energy Transition Act went into effect.

More:PRC tells PNM to file San Juan Generating Station abandonment application

Mariel Nanasi, Mark Hutson and Norman Norvelle look at a sealed pond, Monday, Oct. 28, 2019, at San Juan Generating Station in Waterflow.

Because the docket was opened in January prior to the new law even being introduced during the legislative session, the PRC staff maintains that the Energy Transition Act cannot be applied to the San Juan Generating Station abandonment and financing case.

This is not the first time an entity has asked the New Mexico Supreme Court to weigh in whether the law applies to the San Juan Generating Station case. Earlier this year, the court declined to weigh in when petitioned by PNM.

The court filing also comes as the PRC begins its evidentiary hearings into the future of the San Juan Generating Station.

The ETA's sponsors say not applying the new law to the case will have negative impacts on New Mexicans.

"The Energy Transition Act supports a just transition for coal dependent economies, sets strong renewable energy standards, and supports thousands of new jobs," said Rep. Nathan Small, D-Las Cruces, in a press release. "The Public Regulation Commission has an essential role, starting with applying the law. Until the PRC applies the ETA, coal dependent communities face growing uncertainty, electricity costs may rise rapidly, and thousands of new jobs will be stalled."

Hannah Grover covers government for The Daily Times. She can be reached at 505-564-4652 or via email at

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