Environmental regulations must be published, state Supreme Court says

Jan 27, 2011

Santa Fe, NM – At least two new state regulations Governor Susana Martinez had hoped to delay will take effect immediately after a New Mexico Supreme Court decision issued today. The court's decision is the opening shot in the fight between environmental groups and industry. And at the same time, court documents show industry groups helped write Martinez's executive order earlier this month.

On January 1, Gov. Martinez put a 90-day hold on all new recently-passed rules and regulations. That included two that have gotten much attention of late: one capping greenhouse gas emissions, and another requiring dairy operators to line their manure pits with plastic.
Martinez said she would put together a small business task force to advise her on new regulations.

The New Mexico Environmental Law Center sued Martinez on behalf of two groups, Amigos Bravos and New Energy Economy, both of which had worked on the new regulations. In court, the Law Center's Bruce Frederick argued it's beyond Martinez's power to delay the regulations.

"The Legislature's use of the word 'shall' throughout 14-4-3 makes it clear that the duty to publish those regulations," Frederick told the court, "and to compile them in NMAC is strictly ministerial and non-discretionary. It has to be. Otherwise the records center could take it upon itself not to publish the law."

NMAC is the state's administrative code, and the 14-4-3 reference was to the state law guiding new regulations. Attorney Paul Kennedy represented Governor Martinez. He maintained the Governor did have the power to request the delay in publishing the regulations. Here he begins to lay out his point, and is questioned by Chief Justice Charles Daniels:

"The records administrator acceded to a request from the governor to publish in a timely manner but to make that timely manner [Daniels: under what procedure of law?] No procedure of law, it was a request. [ somebody walking off the street and asking them not to publish?] No, it was the governor of the state. [Daniels: I understand, but what law gives the governor the authority to ask them not to follow the statutory duty ?]"

Daniels continued to challenge Kennedy to find a place in state law that allows the governor to put a hold on rules and regulations passed by independent state agencies. Kennedy could not. He was then asked if the governor was attempting to trump the law in bypassing the state agencies that put the new rules and regulations in place.

"And the governor didn't trump the law and didn't attempt to," Kennedy said. "All the governor the governor made a request of the administrator to delay publication for 90 days, and to publish at the end of the 90 days."

But in the end, it was clear the court couldn't find a law to support Martinez's action, and their decision came back quickly: the records administrator has to publish the new dairy regulation and greenhouse gas cap rule. Frederick and the Law Center had also sought an order, or writ, against the governor generally to stop her from intervening in any rules publishing process. That one was denied. So both sides claimed victory.

Bruce Frederick: "It's exactly what we asked for. We want the records administrator to follow the law, and the court is merely ordering her to follow the law."

Kennedy said the governor's team wasn't surprised by the ruling: "We think it's appropriate that the governor was not issued the writ," he said. "Feel it was a victory in that regard. The governor's gonna move forward with her agenda as enunciated in the campaign, and make her small business review as she's said in her executive order."

Environmental groups were happy. Brian Shields is director of Amigos Bravos.

"You know, we're really talking about this really incredible process that we have here in the United States for developing rules and regulations and safeguards," Shield said, "and we can't just allow somebody, a governor, to interrupt that process arbitrarily."

Sierra Club Organizing Manager Michael Casaus also cautiously celebrated. The Sierra Club had also sued Martinez in Supreme Court over new energy efficient building codes that were also put on hold.

"We're very encouraged by today's decision." Casaus said, "It's our hope that this will send a message to the governor that she must obey the rule of law, and that she will be held accountable to that rule of law."

This clearly isn't the end of this issue. There's a litany of lawsuits pending in appeals courts over the new rules and regulations, and legislative proposals to overturn them at the Roundhouse this session.