em081111g/jnorth/daily/Public Regulation Commissioner Theresa Becenti-Aguilar was voted vice-chairman during their regular meeting in Santa Fe, Thursday August 11, 2011. Commissioner Jerome Block Jr. was not at the meeting. (Eddie Moore/Albuquerque Journal) a01_jd_07dec_aguilar

A coalition of Indigenous women’s groups on Sept. 12 filed a petition with the New Mexico Supreme Court seeking to throw out a constitutional amendment that shifts the state’s utility regulatory body, the Public Regulation Commission, from an elected board to one appointed by the governor. 

Charged with everything from setting electricity rates to managing utility safety and quality of service, the PRC has a major influence on many New Mexican’s daily lives, but its inner workings are often poorly understood by the general public. The amendment had no organized opposition when it appeared on the ballot in 2020 and passed with 55 percent of the vote. But with an appointed commission set to take control in January, the change is coming under new scrutiny. 

The petitioners argue that the ballot measure is null and void because it failed to meet accuracy and clarity requirements, among other issues.

“I unknowingly voted in favor of an amendment that I thought would improve the PRC’s professionalism,” said Anna Rondon, executive director of the New Mexico Social Justice and Equity Institute, one of three nonprofit groups petitioning the court. “At the time, I didn’t realize I was giving up my right to vote for PRC commissioners, and I think many other voters were in the same position,” she said.

Rondon and the other petitioners — Indigenous Lifeways and the Three Sisters Collective, both focused on Indigenous rights and equity — argued in their filing that though the amendment was presented as a reform, it instead is a “repeal of democratic rights.”

A nomination committee holds power

In the past, voters from five districts elected a commissioner to represent their region for four-year terms. 

Under the new process, a seven-person nomination committee chooses potential candidates, and the governor ultimately makes all the appointments. The nominating committee includes one person from a tribal nation, appointed by the governor; other members are chosen by the secretaries of the Energy, Minerals and Natural Resources Department and the Economic Development Department, as well as by the leaders of both parties in the state legislature.  

The amendment also extends commissioners’ terms from four years to six. Instead of having them come from five distinct regions, they must come from three different counties (even if those counties are all in the same part of the state). 

Supporters say the changes will help ensure that commissioners are free of electoral politics, including the potential influence of campaign contributions and dark money from anonymous donors. The switch will also help ensure that commissioners have the necessary experience in utilities and regulations, they say. 

But for Rondon and her fellow petitioners, the amendment represents a major power shift, denying a voice to the people most affected by oil, gas and coal interests.

“Extractive industries have a disproportionate impact on Indigenous communities in New Mexico,” Rondon said in a written statement. “Therefore, it is imperative that our communities have representation in the agency that regulates extractive industries: the PRC.”

The petitioners also argue that the amendment contains numerous “ad hoc” measures that don’t achieve the goal of reforming the PRC.

If the Supreme Court rules in the petitioners’ favor, two PRC commissioners — Theresa Becenti-Aguilar and Cynthia Hall — would remain in place. The three whose terms are expiring would have their seats filled either through a special election or by governor appointment, according to attorney Sarah Shore, of Butt Thornton & Baehr in Albuquerque, who is representing the petitioners.

Agency with a troubled past

Formed in 1996 by combining two other regulatory agencies, New Mexico’s PRC at its outset was considered the largest state regulatory body in the country. For years, the commission served as a clearinghouse for a host of seemingly unrelated regulatory matters, from railroad safety and insurance to business registrations. There were no professional or educational requirements for commissioners.

The early PRC was perpetually mired in scandal, riddled with conflicts of interest and allegations of abuse of power. By the 2010s, calls for reform had reached a fever pitch. Throughout that decade, voters and the legislature slowly stripped away the agency’s responsibilities and focused it on utility regulation. 

A 2012 constitutional amendment provided additional reforms, including strict qualifications for commissioners, requiring them to have at least 10 years of relevant educational or professional experience. 

Many of the adopted reforms were proposed by Think New Mexico, an independent think tank, which researched the matter at length. Among other issues, the group investigated whether an appointed commission would be an improvement. “Our conclusion was that it didn’t seem like a magic fix,” said Fred Nathan, the group’s executive director. Instead, he said, the group found that both elected and appointed commissions can be vulnerable to political influence. “We really found that it’s just a coin flip either way.” The better solution, he said, was to simply raise the qualification requirements.

More attempts at reform

In 2019, a bipartisan group of legislators introduced a resolution to make PRC commissioners appointed as a first step to getting the amendment on the ballot. Though the resolution proposed no new qualifications for commissioners, supporters held it up as a way to professionalize the panel.

Four of the five sitting PRC commissioners were opposed to the amendment. But it met very little public opposition outside of the PRC, with no election spending to defeat the issue, according to the Secretary of State.

Becenti-Aguilar, a current PRC commissioner from the Navajo Nation who represents the state’s northwest region, is one of the four who opposed the amendment. Like the petitioners in the court case, she worries that an appointed commission will shift power away from communities.

“Whoever’s going to be on the next commission may not go to the small villages that I used to go to, to update the people,” she said. The choice of appointees will be “really heavily driven by the inside circle of the state legislature and the executive branch.” 

Those in favor

Supporters of the amendment include democrat Peter Wirth, the Senate majority floor leader and one of the sponsors of the 2019 resolution. Wirth believes that an appointed commission will improve the quality of the PRC and actually improve its representation.

“What I’d like to see are people who have the right type of regulatory backgrounds that don’t have to worry immediately about having to run in the next election,” Wirth said in a phone interview. “With all the dark money that is showing up in these races I just think at the end of the day the citizens in New Mexico are going to be better served.”

Historically, PRC elections have attracted floods of cash from political action committees and nonprofits, some of it from anonymous donors. But the campaign for the amendment similarly attracted dark money. Two groups — Vote Yes to Reform the New Mexico PRC and the Committee to Protect New Mexico Consumers — spent a combined $1 million on advertising promoting the measure, according to the Secretary of State. 

The New Mexico Supreme Court in the coming days can deny the petition or agree to hear the case. There is no deadline for its decision.