In New Energy Economy, Inc. v. Hon. Linda M. Vanzi, 012-NMSC-005, the Supreme Court answered the question, "What level of participation in an administrative rule-making proceeding gives a participant the right to defend that new rule in an appellate court during a subsequent appeal?" After very fine and comprehensive analysis, discussed below, the Court holds that "those who have participated in a legally significant manner in administrative rule making ... have the right to participate as parties to an appeal if they express such an intention."
The case concerned four separate petitions for writs of superintending control stemming from appeals of decisions made by two administrative agencies, the New Mexico Environmental Improvement Board (EIB) and the New Mexico Water Quality Control Commission (WQCC).
The EIB matter concerned its adoption of "Rule 100" or the "Greenhouse Gas Reduction Program." The Rule had been petitioned for by the New Energy Economy (NEE), which asserted it had submitted over one hundred hours of sworn expert testimony in support thereof. The Rule was also supported by an "Amigos Bravos Group," who assert they supported Rule 100 by providing technical testimony, and nearly 100 other participants to the ensuing hearings. All of these participants were considered "parties" by the EIB.
After Rule 100 was adopted, utility company PNM and six additional parties before the EIB filed separate appeals with the Court of Appeals, naming EIB as the sole respondent. Several of the other EIB parties attempted to intervene as parties to PNM's appeal, and were denied. Thereafter, the Court of Appeals referred PNM, EIB and the other appellants--but not NEE or the Amigos Bravos Group--to mediation. "Thus, appellate mediation over the future of Rule 100 took place without the parties who had prevailed below." Id. ¶ 8.
The WQCC matter concerned its adoption of certain rules (hereinafter "Water Rules") that had been requested by the New Mexico Environment Department (NMED), the department of Games and Fish, and the Energy, Minerals and Natural Resources Department (EMNRD). Although the Water Rules had been requested by these agencies, a number of organizations (hereinafter the "River Parties") participated in the administrative proceedings "by giving written and oral testimony, including technical testimony and making legal and closing arguments." Id. ¶ 11. After the Water Rules were adopted, the New Mexico Cattle Grower's Association appealed, naming the WQCC, NMED, Game and Fish, and EMNRD as respondents. The River Parties were not named and filed unopposed motions to intervene, which was also denied.
As legal background, the Supreme Court began by noting that in the EIB matter, the NEE "as the petitioner, ... fulfilled a role that is central to rule formulation." It also noted that both the EIB and the WQCC recognize certain participants as "parties," and "recognize persons giving technical testimony as a distinct category of rule-making participants." Id. ¶¶ 11-14, 18-19. Finally, the Court noted "NEE, the Amigos Bravos Groups, and the River Parties, as presenters of technical testimony, were held to a higher standard than other participants, and their testimony was limited to a narrower set of interests than mere preference for one policy over another." Id. ¶ 19.
The Court then looked to guidance from NM Court Rules, statutes and case law. It noted that Rule 12-601(B) NMRA requires proof of service "on the agency involved and all parties" (emphasis added), while NEE, the Amigos Bravos Groups, and the River Parties were recognized parties. The Court noted that service must be required for a reason, and that the Court of Appeals had previously recognized that in typical appeals, service of notice is "not to require their participation but to afford them an opportunity to join the appeal." Id. ¶ 29 (citation omitted). The Court concluded that the rules "do authorize those who are parties to administrative rule-making proceedings to participate as parties to an appeal under the circumstances set forth in this case." Id. ¶ 31.
Finally, the Court considered whether NEE, the Amigos Bravos Groups, and the River Parties were such "parties" to these rule-making proceedings. It easily concluded NEE was, since they initiated the rule-making. It then concluded that participants like the Amigos Bravos Groups and the River Parties "who have presented technical testimony are" are also "'parties' to an appeal." Id. ¶¶ 36-37. In light of their significance in the rule-making proceeding below, the Court also rejects that their participation as amici curiae would have adequately have protected their interests.
In this regard, it noted ""[w]e seriously doubt that PNM would have been content to sit on the sidelines as amicus curiae, if it had been successful before EIB and NEE was appealing. Amici curiae status does not afford the same rights as those available to a party on appeal" because "[a]micus must accept the case on the issues as raised by the parties" and "do not have the right to file a brief," or to "petition this Court for a writ of certiorari."
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