Minutes ago, Gov. Susana Martinez lost her administration's first legal challenge when the New Mexico Supreme Court demanded that the administration allow the publication of a greenhouse gas emissions cap rule passed late last year.
Shortly after taking office, Martinez issued several sweeping executive orders, the first of which suspended all pending rules and regulations for 90 days. The New Mexico Environmental Law Center, however, petitioned (pdf) the Supreme Court to force the publication of a greenhouse gas emissions cap rule, arguing that Martinez did not have the authority to interfere in the rule-making process.
Though the Martinez camp maintained that its interference was legal, the New Mexico Supreme Court has come down on NMELC's side. Today, the court issued a writ requiring the administration to allow publication of the rule. Under state law, all new rules are required to be published "in a timely manner"; and rules cannot go into effect without being published. The emissions cap would not take effect, however, until 2012.
Though NMELC petitioned the court in regards to two rules, the greenhouse gas cap and a dairy regulation, NMELC Executive Director Douglas Meiklejohn tells SFR that the court's decision has a broader impact.
"It says that everyone has to follow the law," Meiklejohn says. "The law indicates clearly that when rules are filed with the state records administrator, they have to be published in a timely manner, and it's clear that everybody has to follow that."
The argument that 90 days is still "timely," Meiklejohn says, was rejected by the court today. He says the rules will likely be published "as soon as is practically possible."
In other news, as we predicted yesterday, New Mexico Sen. Tom Udall's attempt to invoke the constitutional option to change US Senate rules with only 51 votes faltered yesterday. Senate leadership on both sides of the aisle has expressed support for changing some Senate rules, but any change will now require 67 votes.
Updated, 11:20 am: Here's the press release from NMELC:
FOR IMMEDIATE RELEASE
Wednesday, January 26, 2011
NM SUPREME COURT ORDERS RECORDS ADMINISTRATOR TO PRINT RULES
SANTA FE, N.M.— The New Mexico Supreme Court sided with environmental groups today when it granted a writ of mandamus to the New Mexico State Records Administrator, compelling her to print the 32 adopted and final rules. The printing of the rules was halted earlier in the month by Governor Martinez’ Executive Order which suggested the rules were “pending” and therefore subject to a ninety day hold for review.
“This is a tremendous and deserved victory for the administration of justice in New Mexico,” stated Bruce Frederick, staff attorney of the New Mexico Environmental Law Center (NMELC), the nonprofit law firm that brought two suits against the Governor for its clients, New Energy Economy and Amigos Bravos. “The ruling ensures that our regulations will continue to be developed in a public and open process, and be protected from revision through secret, backroom deals.”
Supreme Court Chief Justice Charles Daniels stated, when announcing the court’s decision, the Court did not think it necessary to issue a writ against the Governor or the Secretary of the New Mexico Environment Department. “The issue is whether the suspension of the printing of the rules was proper. We will issue a writ against the State Records Administrator. She has a non-discretionary administrative duty to follow the law.”
“The ruling sends a strong message to Governor Martinez and her cabinet secretaries,” said Douglas Meiklejohn, NMELC Executive Director, “they must follow the law, just like the citizens they govern.”
This was not a loss of the Governor. The writ was only issued against the State Records Center, represented by the AG. The court actually took a very moderate approach. The larger question is why would the court bother to intervene for a GHG program that would not become effective until 2013? The law and the court should not be reactive - Bush v. Gore and the Schiavo case both teach this.