2 NM regulators step down from emissions case

October 4, 2011 • State News

SANTA FE, N.M. (AP) — Two regulators Monday rescued themselves from debate on an effort to repeal tough new anti-pollution rules after environmentalists raised questions about their impartiality.

State Environmental Improvement Board members Greg Fulfer of Jal and James Casciano of Albuquerque said they believed they could be fair and impartial but decided to step down from the case to maintain the integrity of the seven-member board and head off any public perception of bias.

The board in November is scheduled to open hearings on petitions to repeal the rules, which were passed under former Gov. Bill Richardson to regulate greenhouse gas emissions from coal-fired power plants and other large polluters. Appeals are also pending in state appellate court.

Questions about the impartiality of Fulfer, Casciano and board chairwoman Deborah Peacock were first raised last month by the environmental group New Energy Economy.

The group [auth] sought the three members’ recusal and asked that the rest of the board members disclose their past and current relationships with the electric utilities, oil and natural gas developers and others who have petitioned to repeal the rules.

The group said Fulfer and Casciano — who were appointed this year by incoming Republican Gov. Susana Martinez — testified against the emissions rules when they were being debated by their predecessors. The group also accused Peacock of having private meetings earlier this year with the utilities and others who are pushing for the repeal.

Peacock dismissed the accusation Monday and declined to step down from the case.

“I know I can be fair and impartial,” she said.

Fulfer, a Lea County commissioner, has acknowledged testifying against the emissions rules as part of his position with the county, which is home to a large contingent of New Mexico’s oil and gas industry. He is also the son-in-law of state Sen. Carroll Leavell, a vocal opponent of the rules.

“I feel I’m very impartial … but to maintain the highest integrity of the board, I’m going to recuse myself,” Fulfer said.

Casciano said he also did not want to call into question the fairness of the board.

“Putting myself in the public’s position, it’s reasonable to question whether I could be fair in this matter given my previous testimony,” he said.

Before Fulfer and Casciano announced their decisions, attorneys for the state Environment Department argued that New Energy Economy’s petitions were unfounded and that board members were entitled to “strong views” on policies or law.

“Those views alone are not grounds for disqualification. The inquiry is whether you can keep an open mind and judge each issue before you on the merits,” said department counsel Ryan Flynn.

It was unclear whether the recusals would change the outcome of the case, said Bruce Frederick, an attorney with the New Mexico Environmental Law Center, which is representing New Energy Economy.

But he said Casciano and Fulfer made the right decision because their previous comments are part of the case record and it would have been awkward for them to review their own testimony now that they are decision makers.

The fight over whether New Mexico should regulate greenhouse gas emissions from coal-fired power plants and other large polluters has been dragging on in the courts and before state regulators since December 2008.

The emissions rules — approved last year in the waning weeks of Richardson’s tenure — encompass the state’s plan for participating in a regional program for controlling greenhouse gas emissions.

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