N.M. group sues over gov's 90-day hold on rules

Jessica M. Karmasek Jan. 13, 2011, 12:00pm


SANTA FE, N.M. (Legal Newsline) - A New Mexico environmental group filed a lawsuit this week against Gov. Susana Martinez and other state officials in response to a move that halts printing of adopted greenhouse gas regulation in the State Register.

The New Mexico Environmental Law Center filed the lawsuit in state Supreme Court on Tuesday. In addition to Martinez, the secretary of the state Environment Department and the State Records administrator were named as defendants.

The law center petitioned the Court on behalf of its client, New Energy Economy, for a writ of mandamus to compel the governor and Environment Department Secretary F. David Martin to comply with existing law, and to compel Sandra Jaramillo of the State Records Center to codify and publish the greenhouse gas regulation in the register.

"The governor and her staff cannot disregard the law," Bruce Frederick, the law center's staff attorney, said in a statement.

"When the board adopts a rule and files it with the State Records Center, the law requires the rule to be published in the State Register. That's how regulations become enforceable law.

"The governor cannot circumvent the law or expand her powers by executive order."

The governor's executive order was put into effect immediately after her swearing in on Jan. 1. It imposes a 90-day hold on all "proposed or pending" rules, but the greenhouse gas cap rule is "not a proposed or pending rule," Frederick explained. It is a final rule, he said.

The petition filed in the Supreme Court argues that neither the governor nor the environment department has any authority to adopt, repeal or amend rules, and that Martinez and Martin have "unconstitutionally usurped" legislative power and interfered with the appellate jurisdiction of the Court of Appeals.

"There is an established public process when proposing a new regulation, or when removing an old regulation, that allows for fair and careful scrutiny of data, and representation of many points of view," Frederick said. "The governor is attempting to eliminate this open and public process."

The petition requests an order compelling Jaramillo, with the state records center, to codify and publish the rule in the register, an order compelling Martin to rescind the purported cancellation of the filing of the rule, and an order compelling both Martinez and Martin to refrain from further interfering with the lawful process by which rules are filed.

"We are trying to uphold the rule of law, and to ensure that the new governor and her staff follow it," Frederick said of the law center's action.

Martinez spokesman Scott Darnell told The Associated Press on Thursday that the governor is, indeed, following the law.

"The governor's office is adhering to this requirement, while properly reviewing this regulation pursuant to the executive order," Darnell said. "The executive order does not seek to avoid or cancel publication, nor does it seek to amend or repeal the rule."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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