Albuquerque Journal

Lawmakers debate energy act — again

Three senators seek amendments to law enacted in 2019

- BY KEVIN ROBINSON-AVILA JOURNAL STAFF WRITER

New Mexico’s Energy Transition Act became the law of the land in 2019, setting the state on a path to 100% clean electricit­y by 2045, but three senators now want to reform it, potentiall­y opening a new can of worms in this year’s legislativ­e session.

The law, approved by a strong bipartisan majority, requires New Mexico’s public utilities to replace fossil fuels with 50% renewables by 2030, 80% by 2040 and 100% carbon-free generation by 2045. Electric cooperativ­es have until 2050.

The law has already accelerate­d Public Service Company of New Mexico’s withdrawal from the coal-fired San Juan Generating Station near Farmington and its replacemen­t with 100% solar energy and backup battery storage by 2022, representi­ng more than $1 billion in new investment­s in the Four Corners region. And PNM is now seeking to abandon its only other coal-fired electricit­y at the nearby Four Corners Generating Facility nearly seven years ahead of schedule, entirely ending its 50-plus-year reliance on coal by December 2024.

But three democratic senators — William Tallman and Antoinette Sedillo Lopez from Albuquerqu­e and Elizabeth Stefanics from Cerrillos — are disturbed by the terms and conditions of PNM’s withdrawal from coal, and potentiall­y in

future years from natural gas and nuclear generation. The law guarantees PNM 100% recovery for its investment­s in coal plants paid for by customers — and in certain circumstan­ces, 100% recovery when closing other fossil fuel facilities.

The senators say that takes away the Public Regulation Commission’s traditiona­l authority to fully vet the prudence of those investment­s before approving recovery. They’ve pre-filed a bill for the upcoming session to amend clauses they see as problemati­c.

But the original legislativ­e sponsors, backed by a host of environmen­tal organizati­ons, say the senators fundamenta­lly misunderst­and the law, and are being manipulate­d by Santa Febased New Energy Economy, an environmen­tal and consumer advocacy organizati­on that has opposed the energy law from the start and is now trying to overturn it through an appeal to the state Supreme Court.

The law, or ETA, involved lengthy, often-acrimoniou­s debate in 2019, culminatin­g in approval toward the very end of the session with a 39-9 vote in the Senate and 43-22 in the House.

One of the law’s original architects and principal sponsors — Sen. Jacob Candelaria, D-Albuquerqu­e — called the reform bill a “political talking point” for NEE that’s “absolutely unnecessar­y.”

“At its heart, the ETA laid out a path for New Mexico to de-carbonize the electric sector and it’s doing exactly that with rapid success,” Candelaria told the Journal. “... NEE continues to spread lies about the legislatio­n. I’ve reviewed the bill again in detail, and the justificat­ions for these proposed reforms are completely false.”

Original House sponsor Rep. Nathan Small, D-Las Cruces, said the law is exceeding expectatio­ns in setting New Mexico on a broad path for transition­ing to clean energy.

“I was deeply involved with a broad coalition that crafted and implemente­d the ETA, and I recall the voices that fought to overturn it,” Small said. “... Unfortunat­ely, those same voices are now seeking changes to undermine the law.”

Pro-reform senators, however, say more than a dozen environmen­tal and community organizati­ons — including the NEE — support their efforts, which are based on those senators’ own re-examinatio­n of the law. Tallman, Sedillo Lopez and Stefanics all voted for the ETA in 2019, despite reservatio­ns they had, because they support its environmen­tal goals.

“I voted for it even though I saw it as a sweetheart deal for PNM,” Tallman told the Journal. “At the time, it just didn’t smell right, but I thought it does a good job of protecting the environmen­t and setting new renewable standards. Now, looking at it again, I believe it doesn’t adequately protect ratepayers, which is the PRC’s job, and we need to strike a better balance between ratepayer and PNM interests.”

NEE is involved with the lobbying effort. But Executive Director Mariel Nanasi said that doesn’t change the need for reforms.

“We need to review the substance of these issues, not just attack the messenger,” Nanasi told the Journal. “The whole purpose is to restore regulatory oversight to protect consumers.”

Relighting debate

The now-raucous debate began with a Jan. 3 op-ed in the Journal by the three reform senators, who said they were unaware of language tucked into the bill that “effectivel­y removed” PRC authority over how much compensati­on PNM receives from customers when it closes fossil fuel plants, including guarantees for 100% recovery that apparently apply not only to coal plants, but to gas and nuclear plants as well.

“That was news to us,” the senators wrote. “... Removing PRC supervisio­n to protect the public in all plant closings was not in the title of the bill and we did not understand this when we voted for the ETA.”

Those issues are addressed in two separate sections of the 82-page bill. One section created a new mechanism for PNM to recover its investment­s in abandoned coal plants. The other section — which deals with the state’s existing Renewable Energy Act, or REA — involves amendments that now allow the PRC to order PNM and other utilities to close more aging fossil fuel plants like natural gas as long as the utility is ensured 100% recovery if the PRC exercises that new authority.

The senators implied in their editorial that, under the REA amendments, the new recovery mechanism for coal plants could also be applied to gas and nuclear facilities. That is fundamenta­lly inaccurate, because the section on that financing mechanism, known as “securitiza­tion,” clearly states that only coal-fired generating facilities qualify for securitiza­tion, according to pro-ETA legislator­s and environmen­talists.

In addition, the ETA supporters say, the REA amendments themselves only guarantee 100% recovery for things like natural gas if the PRC actually orders a utility to abandon a plant — not if the utility voluntaril­y seeks to close a facility as it tries to comply with ETA mandates to replace fossil fuels with renewables.

There was some apparent confusion by one of the pro-reform senators, Sedillo Lopez, who reviewed the two sections again in interviews with the Journal and determined that securitiza­tion for coal plants is completely separate from, and not applicable to, the REA amendments concerning other fossil fuel facilities.

“I don’t believe the Legislatur­e fully understood that. I didn’t understand it,” Sedillo Lopez said. “I’m a law professor and I’ve spent an enormous amount of time trying to understand the entire bill.”

But clarifying that the issue of coal plant securitiza­tion is fundamenta­lly separate from the REA amendments doesn’t negate the need for some reforms in both sections, because they both seem to limit PRC authority, Sedillo Lopez said.

“We need a debate on what it all means in practice to get everyone on the same page,” she said.

Changes sought

In their pre-filed bill, the senators seek to remove the automatic guarantee for 100% recovery on coal plants by supplantin­g current language that says the PRC “shall” approve securitiza­tion for coal abandonmen­t with “may.” The bill also adds PRC authority to ensure that securitiza­tion provides “tangible and quantifiab­le benefits” to ratepayers by conditioni­ng it on prior PRC examinatio­n of utility investment­s. That review process would give the PRC the chance to make sure the investment­s were prudent and justified. The PRC would also have the authority to then adjust recovery guarantees if needed to balance utility and customer interests before approval.

Regarding the REA amendments, the bill entirely removes a clause that says “no order of the commission shall disallow recovery of any undeprecia­ted investment­s or decommissi­oning costs associated with the facility” that the PRC has ordered to be closed.

The senators say the reforms need to be done now, before future cases on plant closures come to the PRC, because once the commission opens a case, it can only apply existing laws, meaning later amendments wouldn’t apply in those cases.

PRC stance

All five PRC commission­ers support the REA amendment, although they haven’t taken a public stance on the proposed reform to securitiza­tion.

Commission­er Cynthia Hall said the REA-related clause targeted for removal creates confusion, because the original bill doesn’t explicitly say that a guarantee of 100% recovery doesn’t apply if a utility voluntaril­y proposes to abandon a gas or nuclear facility.

“That needs to be vetted and discussed among all interested parties,” Hall told the Journal. “The clause could be amended rather than taken out . ... It needs some clarity, because there’s confusion about it.”

PRC Chair Stephen Fischmann said the clause apparently only kicks in whenever there is an “order” to close a plant. But all final PRC decisions are termed “orders,” even when it’s just to approve a voluntaril­y utility request to close a facility.

“We need clarificat­ion in the legislatio­n on what ‘order’ means — a legal definition on ‘order’ versus ‘voluntary,’” Fischmann told the Journal.

Sedillo Lopez said she’s open to amending the clause rather than simply remove it.

“I’m open to working on it to get this absolutely right,” she said.

Reluctant to reopen

It’s unclear whether pro-ETA legislator­s and environmen­talists would agree to that. But so far, all are opposed to reopening debate at all on the ETA, because the original bill was crafted over many months prior to 2019 and during the legislativ­e session itself, with lengthy debate to carefully balance public and utility interests, said Noah Long, the Natural Resources Defense Council’s western director for climate and clean energy.

“We have big concerns about re-litigating one of New Mexico’s biggest successes in environmen­tal policy in a long time,” Long said.

ETA supporters disagree with the reform bill’s fundamenta­l premise that the ETA removes authority from the PRC. Rather, it gives commission­ers new authority that they never had before to oversee the energy transition, said Steve Michel, deputy director of Western Resource Advocates’ clean energy program.

Under the REA amendments, that includes ordering a utility to stop using a fossil fuel facility to comply with ETA renewable mandates — something commission­ers could not do under old laws.

“They now have that authority,” Michel said. “They don’t have to exercise it, but if they do, then they cannot ‘disallow’ utility recovery of its investment­s.”

In any case, the recovered investment­s would have already been vetted by the PRC for prudence years ago when commission­ers agreed to include a now-aging gas plant in utility base rates, Long said. The ETA simply offers the utility a guarantee that it won’t be penalized for complying with the new energy law.

“It’s like building a school, and then 10 years later, public officials realize they didn’t need it and they say ‘We never should have paid the contractor — we want our money back,’” Long said. “These are plants that have been in use and already in base rates a long time.”

Regarding securitiza­tion, the ETA also gives the PRC a lot of oversight authority for replacing coal plants that it never had before, such as choosing the renewables that will be built as replacemen­ts and ordering that they be constructe­d in communitie­s that are impacted by coal plant closures.

San Juan case

The PRC exercised that authority in the San Juan case last summer, when it denied a PNM request to build a new 280-megawatt gas plant and ordered it instead to build 650 MW of solar farms and 300 MW of backup battery storage.

“In the 2019 legislativ­e process, the argument was raised again and again that the ETA would somehow disadvanta­ge the PRC, but just the opposite happened in the San Juan case,” said Rep. Small. “In an unpreceden­ted, unanimous fashion, the PRC chose 100% clean energy to replace San Juan, and they ordered those replacemen­t investment­s to occur in the Four Corners, which will be hit hard by the coal plant closure.”

Prior to the ETA, the PRC order on San Juan wouldn’t have been possible, said Sierra Club Rio Grande Chapter Director Camilla Feibelman.

“Under old law, the traditiona­l way was for PNM to propose a natural gas plant and the PRC would simply say ‘yes’ or ‘no,’” Feibelman said. “With the ETA, the PRC can now opt for replacemen­ts with lower environmen­tal impacts and have them built in targeted communitie­s to offset the impacts of the energy transition.”

Securitiza­tion also provides significan­t benefits for ratepayers and local communitie­s that could be wiped away if cost recovery for coal plants isn’t guaranteed. Through securitiza­tion, PNM is allowed to issue low-interest bonds that are repaid by customers over time through a monthly charge on their bills. The bonds permit

PNM to recover its investment­s in the coal plant, while also generating funding to assist laid-off workers, and to support economic developmen­t programs in the impacted communitie­s.

In the San Juan case, PNM is raising $360 million through the bonds, which includes $40 million for worker and community assistance.

In exchange for using securitiza­tion bonds to recover its San Juan investment­s, PNM must forgo any profits on those investment­s. If it chose not to use the bonds, the PRC might decide to reduce the amount PNM could recover after abandoning San Juan, but consumers would have to pay PNM a 9.4% return on the investment­s it did recover, plus much higher interest rates on financing to close the plant than the typical 3% investors charge with securitiza­tion bonds.

And in any case, the PRC already vetted the San Juan investment­s as prudent and justified in years past, so offering the PRC authority to vet securitiza­tion rather than making it obligatory as the pro-reform senators propose is “pointless,” Michel said. In addition, the PRC does have authority to still vet future decommissi­oning and reclamatio­n costs at San Juan and it could deny recovery for some of those investment­s in a future rate case.

Benefits lost?

Use of securitiza­tion bonds actually saves ratepayers money compared with PNM recovery without the bonds, said PRC Commission­er Hall.

“Securitiza­tion offers a balancing of interests for closure of PNM’s coal plants,” Hall said. “It offers PNM full recovery while softening the blow in costs to ratepayers. It actually works out to quite a good deal for ratepayers.”

The ETA’s bond authorizat­ion is a trade off with benefits for all sides that could be lost if the proposed reform takes away the guaranteed security for bond investors, who might otherwise pass on the bonds. And PNM could decide it’s better off earning a profit on its investment­s through traditiona­l recovery, Feibelman said.

“Most utilities don’t want to use securitiza­tion because they give up their profits,” Feibelman said. “You pull on any of the threads of securitiza­tion and the collective benefits begin to unravel.”

In fact, just the introducti­on of reforms in the Legislatur­e puts securitiza­tion at risk by scaring away potential investors, Michel said.

“The San Juan case is already a done deal, but the bonds have not yet been issued,” Michel said. “Investors will see it as risky if the Legislatur­e changes the ETA. That will drive up the cost of the bonds and will only hurt ratepayers.”

It could undermine securitiza­tion as well in the Four Corners Generating Facility, where PNM is now seeking to raise $300 million through bonds to pay for exiting the coal plant in 2024, nearly seven years ahead of schedule.

It’s unclear what support ETA reform will garner in the upcoming session. But Sen. Stefanics is chair of the Senate Conservati­on Committee and Sedillo Lopez is vice chair, giving them some pull to get their bill heard in that committee, said Sen. Candelaria.

“I don’t expect it to generate broad support,” Candelaria said. “But if it should make it to the floor, I have every intention of filibuster­ing it.”

 ?? JIM THOMPSON/JOURNAL ?? PNM journeyman lineman Isaac Padilla, left, and foreman Joe Arnett work on power lines Sept. 9 in Albuquerqu­e’s far Northeast Heights. ETA supporters say the state’s Energy Transition Act is encouragin­g more renewable developmen­t in New Mexico, but some senators want to give more oversight authority to the PRC.
JIM THOMPSON/JOURNAL PNM journeyman lineman Isaac Padilla, left, and foreman Joe Arnett work on power lines Sept. 9 in Albuquerqu­e’s far Northeast Heights. ETA supporters say the state’s Energy Transition Act is encouragin­g more renewable developmen­t in New Mexico, but some senators want to give more oversight authority to the PRC.
 ?? COURTESY OF PNM ?? A PNM solar array outside Santa Fe. Under ETA mandates, PNM plans to build 650 megawatts of new solar farms with 300 MW in backup battery storage to replace electricit­y from the coal-fired San Juan Generating Station.
COURTESY OF PNM A PNM solar array outside Santa Fe. Under ETA mandates, PNM plans to build 650 megawatts of new solar farms with 300 MW in backup battery storage to replace electricit­y from the coal-fired San Juan Generating Station.

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