Like that scene in “Monty Python and the Holy Grail,” the fight to undo cap and trade in New Mexico isn’t dead yet.
Two pieces of legislation aimed at reversing regulations passed by the state Environmental Improvement Board (EIB) have been tabled in recent days, but that doesn’t mean more attempts won’t be made in this 60-day legislative session – or even, that those attempts won’t be successful.
There’s been plenty of three-dimensional chess-playing at the Roundhouse when it comes to the EIB regulations, which were passed in November and December of last year before Bill Richardson left the governor’s office.
In November, the EIB passed a cap and trade measure and then, at its December meeting, passed a statewide cap on greenhouse gas emissions that will take effect in 2013.
Environmentalists hailed the EIB’s decisions as a much-needed step to deal with climate change. Critics say the measures put the oil and gas industry at a competitive disadvantage with energy interests in neighboring states, while also complaining that the measures will lead to higher prices for consumers — a charge conservationists dispute.
Gov. Susana Martinez is a harsh critic of what she calls “cap and tax” and so are Republicans in both houses of the New Mexico legislature. A number of Democrats have also criticized the EIB regulations, especially those from energy-producing regions of the state.
While it’s hard to come up with an exact number, it’s generally accepted that if a straight, up-or-down vote were held at the Roundhouse, there are more critics of the EIB decisions than supporters.
Yet two bills aimed at neutering the EIB measures have been tabled in committee. Why?
Well, both bills — Senate Bill 91 and Senate Bill 190 – were sent to the Senate Judiciary Committee, which is made up of seven Democrats and four Republicans. Sen. Peter Wirth (D-Santa Fe) and Sen. Cisco McSorley (D-Albuquerque) make up part of the committee’s Democratic contingent and both are strong environmental supporters.
In each case, SB91 and SB190 were tabled on party line votes.
Supporters of the bill knew their chances of getting through the Judiciary Committe were slim and none. “It’s like going to a basketball game and finding out the opposing coach’s brother is the referee,” one EIB critic said.
But environmental supporters shouldn’t celebrate yet because opponents have at least three other options:
1. Introduce another bill and send it to a different committee:
There are rumblings another bill (or two) will be introduced. But this time, expect the sponsor to fight to assign the bill just about anywhere but Senate Judiciary.
Critics of the EIB regulations think a bill going to any other committee could have a decent chance of getting through. Even the Senate Conservation Committee – though stacked with five Democrats and three Republicans — could be more amenable to passing an anti-EIB bill since at least one Democrat on the committee (David Ulibarri of Grants) has already spoken out against the EIB regulations. (Click here for Ulibarri’s comments.)
Privately, regulation opponents have grumbled that former Speaker of the House Raymond Sanchez – the brother of current Senate Majority Floor Leader Michael Sanchez (D-Belen) — is a registered lobbyist, with one of his clients being the New Energy Economy, an environmental group that spearheaded the call for a statewide emissions cap that the EIB passed in December.
But procedurally, when introducing a new anti-EIB bill, Republicans could ask for unanimous consent and then request the bill go to any other committee but Senate Judiciary and, if thwarted, ask for a floor vote.
2. Skip the committees altogether
Once a bill is tabled (like SB 91 or SB 190), the bill is not dead. Its sponsor can go to the Senate floor and call for the bill to be sent to the Senate President’s desk as an active bill. From there, the bill can eventually come to a floor vote where — if Republicans vote as a bloc (and it’s generally thought they will on this matter) and enough Democrats vote against the EIB regulations — the bill can pass through the Senate without committee approval.
It’s an unusual move — and Democrats could make their own move to de-activate a bill sitting on the President’s desk — but it’s not unprecedented.
But it does come with risks. Senate members genearlly don’t like to bypass the committee process and some support for the bill may wither purely over such procedural concerns.
On the other hand, if enough members think their constituents are dead-set against cap and trade, it could be pulled off.
3. Let the new EIB do the work
Shortly after taking office, Gov. Martinez fired all seven members of the EIB (see story here) and has since replaced them with seven new members who — one would assume — are more amenable to the concerns of the oil and gas industry.
If no legislation makes it through the 60-day session, opponents of current EIB regulations could simply rely on the newly-constituted EIB to reverse what the previous members passed.
But it took the EIB nearly two years to go through the laborious process of testimony, fact-finding and endless public hearings at locations across the state to render its decisions. Undoing the current regulations may take a lot of time and effort.
Yet one advantage of letting the new EIB do the dirty work? It may avoid a constitutional question of separation of powers — with defenders of the EIB regulations arguing that the legislature does not have authority to rescind the board’s decisions.
Here’s what Wirth said at the committee hearing that tabled SB190, according to Gwyneth Doland of KUNM Radio:
“If we’ve delegated to EIB, then for us to come back along and say we’re going to do a legislative veto, I just have a real hard time seeing how we do that. The governor has reappointed the EIB and they can go back in and look at this regulation.”
So even after tabling two bills in the past few days, supporters of the EIB regulations can’t rest assured. But opponents have an uphill road to climb.
And beyond that, one veteran lawmaker told me, “It may end up being litigated one way or the other.”
Like so many political issues in Santa Fe, it seems there are no straight lines in the Roundhouse.
