Indigenous groups say changes to utility regulation in NM would favor energy companies

New Mexico voters approved a constitutional amendment in November 2020 that changed membership on the state’s utility regulatory body from an elected position to one that’s appointed by the governor. A coalition of Indigenous groups is now petitioning the state’s highest court to block the change before it takes effect next year, arguing the amendment’s ballot wording failed to meet accuracy and clarity requirements.

In addition to changing the way Public Regulation Commission board members are chosen, the amendment shrinks the board from five members to three. Sarah Shore, an attorney who filed the petition on behalf of the Indigenous groups, said voters should have been allowed to decide each item separately and that combining the two unrelated changes into a yes-or-no ballot question is a violation of the state’s constitution.

The ballot question was also deceptively worded, Shore said, and didn’t include sufficient details to allow voters to make an informed choice.

“Democratic rights — the right to vote and the right to representation — are fundamental to all of us,” Shore said. “They’re the basis of our government, and so a proposed constitutional amendment that’s going to take that right away from people needs to let them know that’s what will happen if they vote in favor of the amendment.”

Krystal Curley, executive director of Indigenous Lifeways, expressed concerns that appointed PRC board members would favor the desires of energy companies over protecting sacred land and the Indigenous people who inhabit it.

“Our people have been marginalized and silenced for generations. Our land, water and air has been sacrificed so that people in other places could switch on their lights without a second thought,” Curley said.

The bipartisan legislation was co-sponsored by Senate Majority Leader Peter Wirth, a Democrat from Santa Fe. In a statement to Source New Mexico, Wirth said the measure passed both chambers of the New Mexico Legislature with “overwhelming support,” and called the voter approval of the amendment “a clear sign” that people wanted a change to the PRC board.

“I’m confident that the Supreme Court will find no merit to this petition,” Wirth said. “Bipartisan efforts to reform the PRC have been years in the making, and included extensive engagement with the public on the scope and significance of the changes being proposed.”

The legislation was presented to voters during the November 2020 election. The ballot question asked voters whether the state’s constitution should be amended “to provide that the Public Regulation Commission consist of three members appointed by the governor from a list of professionally qualified nominees submitted to the governor by a nominating committee as provided by law and that the Commission is required to regulate public utilities and may be required to regulate other public service companies.”

New Mexico voters approved the amendment by a 56% to 44% margin. Barring intervention by the Supreme Court, the amendment is set to take effect Jan. 1.

Shore said she’s received some criticism over the petition, with some accusing the groups behind it of trying to overturn the results of an election. But Shore said they’re only trying to protect voters and their right to understand what’s being proposed on ballots.

“This isn’t an attack on the integrity of voting procedures in New Mexico, or anywhere else,” she said. “It’s an effort to protect the right of voters to have a minimum degree of clarity about what they’re voting on.”

The petition was filed on behalf of three Indigenous women’s groups — Indigenous Lifeways, New Mexico Social Justice & Equity Institute and Three Sisters Collective. The groups are asking the state Supreme Court to strike these provisions from the amendment. If the court agrees, the decision would return the PRC to a five-member board elected by voters.

“We all have a lot at stake,” Shore said. “But this has special significance for Native Americans in New Mexico in particular who are in areas of the state that have so many natural resources, and lots of important decisions are made by the PRC that directly affect the environment around where these people live.”

Anna Rondon, executive director of NM Social Justice & Equity Institute, asserted that those behind the ballot initiative are trying to silence Indigenous people in an attempt to give energy companies “unfettered influence” over the PRC.

“New Mexico’s leadership was happy to site dirty energy mines and plants on Navajo land for 60 years, but we can’t have a seat on the PRC where decisions that directly affect our people are made?” Rondon said. “We will not sit quietly while our right to representation is stripped away by the underhanded and misleading ballot language.”