Gov's Office Responds to NMELC Lawsuit on 'Cap & Tax' Rule

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"Contrary to the allegations filed by the special-interest group, the Governor's office is following the law," a statement sent to SFR by Martinez spokesman Scott Darnell reads.

"The cap and tax regulation had not been published in the New Mexico Register, which means it was not yet valid or enforceable," the statement continues. "The executive order suspending pending rules for 90 days only temporarily postpones the publication of the rule for a brief amount of time to allow for review."

But NMELC Staff Attorney Bruce Frederick, who is the lead attorney on the case against Martinez, says whether the emissions cap was already in place is irrelevant.

According to New Mexico's State Rules Act, regulations adopted by any state agency (including, Frederick notes, the independent Environmental Improvement Board, which approved the greenhouse gas cap rule) must be published in the state register "in a timely manner."

A 90-day review period, according to Martinez' statement, is consistent with that requirement. But Frederick begs to differ. Once a rule is filed with the state records center, he says, "It's out of the governor's hands." So even if 90 days still counts as "timely," Martinez' intervention in the regulatory process, Frederick says, is "beyond her control."

"What she did, in terms of the regular process [whereby] adopted regulations become law--she inserted herself in the middle of that," Frederick explains. "The assumption she's making is that she has authority over what these boards and commissions are doing, after they've taken final action," he says. "She doesn't have any authority over them. She's not a czar; these boards are independent."

Even if Martinez were to appoint a uniform cadre of people opposed to regulating greenhouse gas emissions to the EIB, Frederick says, the board would still have to undergo an extensive hearing process--"And it would have to be a public process, not a backroom process, which is what happened here," Frederick adds.

The state Supreme Court will decide whether or not to take NMELC's case.

In the meantime, decide for yourself. Here's the full Martinez statement:

"Contrary to the allegations in the new lawsuit filed by the special interest group, the Governor's Office is following the law on administrative rule-making. The cap and tax regulation had not been published in the New Mexico register, which means it was not yet valid or enforceable.  The rule had been filed with the State Records Center and was awaiting publication.  The executive order suspending pending rules for 90 days only temporarily postpones the publication of the rule for a brief amount of time to allow for review.  This temporary postponement is consistent with the legal requirement that the State RecordsCenter publish filed rules "in a timely manner."  The Governor's Office is adhering to this requirement, while properly reviewing this regulation pursuant to the executive order.  The executive order does not seek to avoid or cancel publication, nor does it seek to amend or repeal the rule.  Moreover, given the rule's effective date of January 1, 2013 or later, this temporary postponement has no effect on the rule's application or implementation."

"The use of 'special interest' and 'cap and tax' show clearly that the Governor has not read the rule, and, moreover, that she is interested in playing political games, not complying with the law," Frederick writes in a follow-up email to SFR. "If the 'postpone has no effect,' as the Governor says, why do it?"

Santa Fe Reporter