IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

PUBLIC SERVICE COMPANY OF NEW MEXICO, WESTERN RESOURCE ADVOCATES, COALITION FOR CLEAN AFFORDABLE ENERGY, SIERRA CLUB, IBEW LOCAL 611, SAN JUAN CITIZENS’ ALLIANCE and DINÉ CARE

Joint-Petitioners, v. Case No. S-1-SC-37552

NEW MEXICO PUBLIC REGULATION COMMISSION,

Respondent,

MOTION FOR CLARIFICATION OF WRIT DENIAL OR, IN THE ALTERNATIVE, SUPPLEMENTAL VERIFIED EMERGENCY JOINT PETITION FOR WRIT OF MANDAMUS

August 29, 2019

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... ii

STATEMENT OF COMPLIANCE ...... vi

REQUEST FOR ORAL ARGUMENT ...... vii

I. INTRODUCTION ...... 2

II. STATEMENT OF JURISDICTION ...... 4

III. GROUNDS TO EXERCISE ORIGINAL JURISDICTION ...... 5

IV. FACTUAL BACKGROUND AND PROCEDURAL BACKGROUND ...... 7

A. The Energy Transition Act ...... 7

B. Procedural Background ...... 8

V. GROUNDS IN SUPPORT OF PETITION ...... 13

A. The Energy Transition Act Applies to the Consolidated Application ...... 13

B. Respondents’ Conduct Infringes Upon the Legislature’s Authority ...... 17

C. Respondents’ Deliberate Delays Harm the Parties and Violate Their Due Process Rights ...... 22

VI. CONCLUSION ...... 25

i

TABLE OF AUTHORITIES

Federal Cases

Town of Norwood v. Fed. Energy Regulatory Comm’n, 80 F.3d 526 (D.C. Cir. 1996) ...... 8

New Mexico Constitution

N.M. Const., art. III, § 1 ...... 21

N.M. Const., art. IV, § 34 ...... 5, 9, 14, 15, 16, 17, 25

N.M. Const., art. VI, § 3 ...... 4, 19

N.M. Const. art. XI, § 2 ...... 18

New Mexico Cases

Albuquerque Bernalillo County Water Util. Auth. v. N.M. Pub. Regulation Comm’n, 2010-NMSC-013, 148 N.M. 21 ...... 23

Bounds v. State ex re. D’Antonio, 2013-NMSC-037, ¶ 11, 306 P.3d 457 ...... 14, 23

Brazos Land , Inc. v. Bd. of County Commissioners, 1993-NMCA-013, 115 N.M. 168 ...... 16

El Castillo Retirement Residences v. Martinez, 2015-NMCA-041 ...... 14

El Paso Elec. Co. v. New Mexico Pub. Regulation Comm’n, 2010-NMSC-048, 149 N.M. 174 ...... 14, 18

In re Extradition of Martinez, 2001-NMSC-009, 130 N.M. 144 ...... 19

ii

Mandel v. City of Santa Fe, 1995-NMCA-052, 119 N.M. 685 ...... 16

Mountain States Tel. & Tel. Co. v. N.M. State Corp. Comm’n, 1997-NMSC-032, ¶ 19, 90 N.M. 325 ...... 18

N.M. Attorney Gen. v. N.M. Pub. Regulation Comm’n, 2013-NMSC-042 ...... 13

N.M. Indus. Energy Consumers v. N.M. Pub. Serv. Comm’n, 1986-NMSC-059, 104 N.M. 565 ...... 24

Santa Fe Expl. Co. v. Oil Conservation Comm’n of N.M., 1992-NMSC-044, 114 N.M. 103 ...... 22, 23

Santa Fe Trail Ranch II, Inc. v. Bd. of County Comm’rs of San Miguel County, 1998-NMCA-099, 125 N.M. 360 ...... 25

State ex rel. Clark v. Johnson, 1995-NMSC-048, 120 N.M. 562 ...... 19, 20

State ex rel. Sandel v. N.M. Pub. Util. Comm’n, 1999-NMSC-019, 127 N.M. 272 ...... 5, 19, 20, 21

State ex rel. Taylor v. Johnson, 1998-NMSC-015, 125 N.M. 343 ...... 18, 19, 20

State ex rel. Udall v. Pub. Empls. Ret. Bd., 1995-NMSC-078, 120 N.M. 786 ...... 14

Stockard v. Hamilton, 1919-NMSC-018, 25 N.M. 240 ...... 15

Tri-State Generation & Transmission Ass’n, Inc. v. N.M. Pub. Regulation Comm’n, 2015-NMSC-013 ...... 6

Victor v. N.M. Dep’t of Health, 2014-NMCA-012 ...... 14

iii

New Mexico Regulatory Cases

In the Matter of Pub. Serv. Co. of New Mexico’s Filing of Advice Notices for Revision to Energy Efficiency Tariff Riders Pursuant to NMAC 17.7.2.9K, 2010 WL 10113255, NMPRC Case No. 10-00106-UT ...... 17

In the Matter of the Application of American Medical Response Ambulance Service, Inc., d/b/a American Medical Response, Emergicare For a Certificate to Provide Ambulance Service and for Temporary Authority, 2014 WL 3943779, NMPRC Case No. 11-00316-TR-M ...... 17

In the Matter of the Application of Pub. Serv. Co. of N.M. for Approval to Abandon San Juan Generating Station Units 2 and 3, Issuance of Certificates of Public Convenience and Necessity for Replacement Power Resources, Issuance of Accounting Orders and Determination of Related Rate-Making Principles and Treatment, NMPRC Case No. 13-00390-UT (2015) ...... 9

Cases from Other Jurisdictions

In re Alabama Power Co., 2011 WL 4826138 ...... 8

In re Application of Pub. Serv. Co of Oklahoma, 2018 WL 7043112 ...... 8

New Mexico Statutes and Rules

NMSA 1978, §§ 62-1-1 to 62-6-28 and 62-1-1 to 62-13-15 (1941 as amended through 2019) (“Public Utility Act”) ...... 8, 13, 21

NMSA 1978, § 62-9-5 (2005) ...... 16

NMSA 1978, § 62-9-6 (1967) ...... 16

iv

NMSA 1978, § 62-11-1 (1993) ...... 6

NMSA 1978, § 62-12-2 (1941) ...... 5

NMSA 1978, § 62-13-3 (1978) ...... 24

NMSA 1978, §§ 62-18-1 to -23 (2019) (“Energy Transition Act”) ...... passim

Rule 12-309 NMRA ...... 4

Rule 12-504 NMRA ...... 4

1.2.2.31(B)(5) NMAC ...... 12

v

STATEMENT OF COMPLIANCE

In conformity with Rule 12-504(G) NMRA, the body of this Supplemental

Petition contains 5965 words.

vi

REQUEST FOR ORAL ARGUMENT

Because of the significant matters of public interest at stake in the matter,

Petitioners respectfully request oral argument on this Petition.

vii

Petitioner, Public Service Company of New Mexico (“PNM”) files this

Motion for Clarification of Writ Denial or, In the Alternative, Supplemental Verified

Emergency Petition for Writ of Mandamus (“Supplemental Petition”) requesting that the Court clarify that the reason underlying its July 26, 2019 Order lifting the stay and denying the writ of mandamus in this proceeding was that the passage and enactments of the Energy Transition Act (“ETA” or “Act”), L. 2019, Ch. 65, §§ 1 through 23, rendered the case moot.1 Further, Petitioners request clarification that the ETA applies to any application to the New Mexico Public Regulation

Commission (“NMPRC”) by a public utility made pursuant to the ETA, and filed after the stay was lifted. This clarification has become necessary because the

NMPRC and the individual named NMPRC Commissioners (collectively

“Respondents”) have refused to acknowledge that the ETA will be applied to PNM’s

July 1, 2019 application for abandonment, financing, and replacement of San Juan

Generating Station. The uncertainty created by Respondents’ refusal is likely to

cause irreparable harm to Petitioners. Because of the urgency of this situation,

Petitioners also request a shortened response time.

In the alternative, Petitioners request an emergency writ of mandamus

directed to Respondents mandating that they comply with their duties under the

1 This clarification appears to be consistent with a notation in the Court’s “Register of Actions” which explains vacating the oral argument with “Case Has Become Moot,” presumably because the ETA was effective as of June 14, 2019.

1 New Mexico Constitution and apply the ETA to the Proceedings on PNM’s proposed abandonment of the San Juan Generating Station (“SJGS”) and related approvals.2

Counsel for PNM sought the position of the parties in this docket and apprised

them of the relief being sought and was advised by counsel for the other parties that

they could not state a position until they review this Supplemental Petition.

I. INTRODUCTION

1. This is the second time it has been necessary to seek this Court’s intervention due to the actions of Respondents relating to the proposed abandonment of SJGS. PNM previously sought3 and obtained, in this docket, an emergency stay4

of Respondents’ Abandonment Order. 5 The Abandonment Order would have

required PNM to file an application for abandonment of SJGS by March 1, 2019, in

2 The proceedings are: In the Matter of Public Service Company of New Mexico’s Abandonment of San Juan Generating Station, NMPRC Case No. 19-00018-UT (“Case No. 19-00018-UT”); and In the Matter of Public Service Company of New Mexico’s Consolidated Application for Abandonment, Financing, and Resource Replacement for San Juan Generating Station Pursuant to the Energy Transition Act, NMPRC Case No. 19-00195-UT (“Case No. 19-00195-UT”). Case Nos. 19- 00018-UT and 19-00195-UT are collectively referred to as the “Proceedings.” 3 Emergency Verified Petition of Public Service Company of New Mexico for Writ of Mandamus, Request for Emergency Stay, and Request for Oral Argument (“Emergency Petition”), Case No. S-1-SC-37552 (Feb. 27, 2019). 4 Order, Case No. S-1-SC-37552 (March 1, 2019). 5 See Order Initiating Proceeding, Case No. 19-00018-UT (Jan. 30, 2019) (“Abandonment Order”) (initiating an abandonment proceeding and ordering PNM to file its application by March 1, 2019). Attached as Exhibit A to PNM’s Emergency Petition.

2 order to prevent the application of proposed new energy legislation pending in the

2019 legislative session.

2. Following the lifting of the stay and the dismissal of PNM’s Emergency

Petition, PNM filed its Consolidated Application6 pursuant to the ETA on July 1,

2019, in a new NMPRC docket, Case No. 19-00195-UT. In its application PNM

seeks NMPRC approval: (a) to abandon Units 1 and 4 of SJGS as “qualifying

facilities” under the ETA; (b) to procure replacement resources that comport with

the ETA’s standards; and (c) of a financing order authorizing the issuance of energy

transition bonds for SJGS abandonment costs and to fund economic development

for affected communities, and severance and job training benefits for impacted plant

and coal mine workers.

3. This Supplemental Petition is necessary because Respondents have

engaged in procedural maneuvers and delay tactics with respect to the Consolidated

Application, which are intended to avoid the full application of the ETA to the

Proceedings. Is so doing, Respondents are once again seeking to usurp the role of

the Legislature in setting energy policy for New Mexico, and are also violating the

6 Public Service Company of New Mexico’s Consolidated Application for the Abandonment, Financing and Replacement of the San Juan Generating Station Pursuant to the Energy Transition Act (“Consolidated Application”), Case No. 19- 00195-UT (July 1, 2019). [ATTACHMENT A]

3 due process rights of the parties to the Proceedings by refusing to timely apprise them of what laws are being applied.

4. PNM files its Supplemental Petition in this docket because these issues are directly related to PNM’s prior Emergency Petition including the existing record in this docket. PNM is now joined in this proceeding by Co-Petitioners Western

Resource Advocates (“WRA”), the Coalition For Clean Affordable Energy, Sierra

Club, IBEW Local 611, San Juan Citizens’ Alliance and Diné Care.7 Co-Petitioners are directly affected by these issues as parties to the NMPRC Proceeding or stakeholders that are adversely impacted should the ETA not be applied.

5. For their request for relief, Petitioners seek an order from this Court

clarifying that PNM’s Consolidated Application, filed after the lifting of the Court’s

Stay and after the effective date of the ETA, is subject to the ETA. In the alternative,

Petitioners seek a Writ from the Court directing Respondents to apply the ETA to

the entirety of the Consolidated Application without exception and regardless of the

NMPRC case to which the application is assigned.

II. STATEMENT OF JURISDICTION

6. This Supplemental Petition is filed pursuant to Rules 12-309 and 12-

504 NMRA governing motions and extraordinary writs. The Court has jurisdiction

over this Joint Petition pursuant to Article VI, Section 3 of the New Mexico

7 PNM and the Co-Petitioners are collectively referred to as “Petitioners.”

4 Constitution, which confers original jurisdiction in mandamus against all state commissions and authority to issue writs as necessary for the complete exercise of its jurisdiction. See State ex rel. Sandel v. N.M. Pub. Util. Comm’n (“Sandel”), 1999-

NMSC-019, ¶10, 127 N.M. 272 (Court’s power to vacate NMPRC orders by issuing a writ of mandamus derives from Article VI, Section 3 of the New Mexico

Constitution).

III. GROUNDS FOR EXERCISE OF ORIGINAL JURISDICTION

7. This case presents fundamental constitutional questions of great public importance, justifying the Court’s exercise of original jurisdiction over this matter.

See Sandel, 1999-NMSC-019, ¶11. By failing to clearly apply the laws enacted by the Legislature and signed into law by the Governor, Respondents are violating the separation of powers among the branches of government. Id. (the exercise of original jurisdiction is appropriate to prevent one branch of government from unduly encroaching or interfering with the authority of another branch and where the issue concerns “the non-discretionary duty of a government official”). Although state district courts have concurrent original jurisdiction pursuant to NMSA 1978, Section

62-12-2 (1941), this Court has previously exercised its original jurisdiction over the

NMPRC on the same underlying matter. A separate petition seeking different relief on the underlying matter is also pending before this Court in Case No. S-1-SC-37875.

5 8. The depth and urgency of harm caused by the Respondent’s actions warrant immediate correction by this Court. The orders of concern issued by the

NMPRC are not final orders subject to appeal pursuant to NMSA 1978, Section 62-

11-1 (1993), because not “all issues of law and fact have been determined” and the case has not been “disposed of to the fullest extent possible.” Tri-State Generation

& Transmission Ass’n, Inc. v. N.M. Pub. Reg. Comm’n, 2015-NMSC-013, ¶ 36, 347

P.3d 274 (internal quotation marks and citation omitted). Waiting to appeal at the conclusion of the Proceedings would fail to prevent the harm to Petitioners resulting from a refusal to apply the ETA to an application filed pursuant to its terms.

9. Obtaining an immediate determination that the ETA applies to the

Proceedings is imperative because:

a. The parties to the Proceeding cannot properly prepare their cases

in a meaningful way without knowing what law will apply to their

interests, in contravention of due process principles.

b. Replacement resources for SJGS may not be available when

needed or will cost more if applicable federal tax credits expire

during the pendency of an appeal taken at the conclusion of the

Proceedings.

c. Certainty concerning an ETA financing order is required or the

resulting regulatory cloud will render energy transition bonds

6 unmarketable, and imperil the timely deployment of millions of

dollars in severance and retraining benefits to coal mine workers

that could be impacted as soon as the summer of 2020. Thus, a

primary purpose of the ETA can be defeated through Respondents’

evasion and delay.

IV. FACTUAL AND PROCEDURAL BACKGROUND

A. The Energy Transition Act.

10. The Legislature passed the ETA with bipartisan support on March 12,

2019, the Governor signed it into law on March 22, 2019, and the ETA became law on June 14, 2019.

11. Through the ETA, the Legislature has established a comprehensive energy policy that provides an orderly transition of the state’s electricity supply needs away from fossil fuel generation to renewable sources of energy. The ETA advances existing renewable energy goals through increased renewable portfolio standards and new zero-carbon emission requirements for utilities. In order for utilities to transition away from fossil-fueled resources to meet these new standards, the ETA provides for the use of securitized, low interest financing to fund the economic early retirement of coal-fired power plants, provide for recovery of defined abandonment costs, and mitigate impacts to affected communities.

7 12. These legislative directives address industry changes and social and economic impacts to affected communities that go beyond the current regulatory jurisdiction of the NMPRC under the New Mexico Public Utility Act (“NMPUA”).

13. Utilities that retire generation plants for economic or policy reasons, prior to the end of their operating lives, are typically authorized to recover the undepreciated investment on their books at the time of retirement. 8 The ETA provides that undepreciated investments in abandoned plants will be financed through the issuance of “energy transition bonds,” commonly known as

“securitization.” This allows utilities to retire coal plants at lower costs to customers when compared to conventional rate recovery at the utility’s cost of capital. The

ETA also requires that securitization include the financing of funds to mitigate impacts on affected plant and coal mine workers and impacted communities.

B. Procedural Background

14. A detailed discussion of the procedural background of the Proceedings illustrates the great lengths that Respondents have gone to avoid the application of

8 See, e.g., Town of Norwood v. FERC, 80 F.3d 526, 531 (D.C. Cir. 1996) (denying full recovery gives investors the incentive to operate a plant until full investment is recouped, even if closing the plant would save ratepayers money); see also In re Application of Pub. Serv. Co of Oklahoma, 2018 WL 704312, at *2 (Jan. 31, 2018) (explaining that allowing a return “provides confidence in the financial integrity of the company” and “balances the interests of both the investor and the consumer”); In re Alabama Power Co., Docket No. U-5033, 2011 WL 4826138 (Sept. 7, 2011).

8 the ETA.9 Case No. 19-00018-UT was to be a case to determine the extent, if any,

that SJGS should provide service to customers after 2022. The scope of this case

was established by final order of the NMPRC authorizing the retirement of two of

four units at SJGS (Case No. 13-00390-UT). Rather than engaging in this limited

determination or inquiry, however, Respondents issued an order requiring PNM to

file an application to abandon SJGS by March 1, 2019, before the end of the 2019

legislative session. 10 Included in that NMPRC-required application was an

extensive list of issues never contemplated by the Case No. 13-00390-UT

requirements, including cost recovery for undepreciated investment. As attested to

by Senator Jacob Candelaria, Respondents docketed Case No. 19-00018-UT for the

thinly-disguised purpose of creating a “pending case” under Article IV, Section 34

of the New Mexico Constitution, in order to block any new energy legislation from

applying to regulatory approvals that might be sought by PNM for the abandonment

of SJGS.11

15. PNM obtained an emergency stay of the Abandonment Order in Case

No. 19-00018-UT, which lasted through June 26, 2019. PNM filed its Consolidated

9 See Chronology of Events Relating to ETA Applicability Issues. [ATTACHMENT B] 10 See Abandonment Order, ¶ B at 14. 11 See Affidavit of Jacob R. Candelaria, ¶¶ 4-6. [ATTACHMENT C]

9 Application in Case No. 19-00195-UT on July 1, 2019, after the ETA became law

(June 14, 2019).

16. Respondents’ first action on the Consolidated Application at their

July 10, 2019 open meeting was to bifurcate the application. The bifurcation of the

Consolidated Application is not of particular concern by itself. However, the

motives of certain Respondents underlying the bifurcation are of serious concern.

At the NMPRC’s July 10, 2019 open meeting, Respondents indicated the

Consolidated Application should be assigned to Case No. 19-00018-UT because “we

should proceed under that prior law and not the new Energy Transition Act

legislation”.12 Respondents voted to re-assign the issues of abandonment and the financing order to Case No. 19-00018-UT, and to leave the issue of the SJGS

replacement resources in Case No. 19-00195-UT where the Consolidated

Application was originally filed.13 The Corrected Bifurcation Order was reworded

from the Original to prevent the Respondents’ orders from being read as an acknowledgment that the ETA was the applicable law. Respondents are clearly

12 See Transcript of NMPRC July 10, 2019 Open Meeting, at 11:5-25, 12:1-4, 21:9- 24. [ATTACHMENT D] 13 See Order Concerning Consolidated Application (“Original Bifurcation Order”) [ATTACHMENT E]; Corrected Order on Consolidated Application (“Corrected Bifurcation Order”), Case No. 19-00195-UT (July 10, 2019). [ATTACHMENT F]

10 attempting to limit ETA applicability by selectively placing abandonment and

financing issues in the pre-ETA docket, Case No. 19-00018-UT.

17. Through their orders, Respondents have deliberately created confusion about the applicable law by specifically invoking the ETA on several procedural issues and case deadlines while refusing to state the ETA was applicable.

18. In an attempt to gain necessary clarification of Respondents’ intentions with respect to the ETA, WRA filed a Motion for Clarification on July 22, 2019,14

which was summarily denied by a single Commissioner Order on July 24, 2019.15

The Denial Order expressly acknowledges that the Corrected Bifurcation Order

“does not provide a definite statement regarding the critical issue of ETA

applicability.”16 The Denial Order states, however, that “[n]o further clarification

on the Commission’s Corrected Order is necessary” because the issue of the

applicability of the ETA would be addressed through the hearing examiners’

scheduling order. 17 The scheduling orders set an unusually extended briefing schedule that could leave the issue of ETA applicability undecided for the duration

14 Western Resource Advocates’ Motion for Clarification and Reconsideration, and Request for Oral Argument and Shortened Response Time (“WRA Motion for Clarification”), Case No. 19-00018-UT (July 22, 2019). [ATTACHMENT G] 15 Order on Motion for Clarification (“Denial Order”), Case No. 19-00195-UT (July 24, 2019). [ATTACHMENT H] 16 Id. ¶ D. 17 Id. ¶¶ E- G.

11 of the case. 18 Petitioners and other parties are in the untenable position of having to

prepare their cases and file testimony without knowing what law the NMPRC

intends to apply.

19. WRA filed a Motion for Interlocutory Appeal19 of the Denial Order,

which was included on the NMPRC’s agenda for August 14, 2019, but was tabled

by Respondents, causing further delay of the resolution of the question of whether

the ETA applies. Under NMPRC rules, the Motion for Interlocutory Appeal was

deemed denied by NMPRC inaction within fifteen days.20 Respondents nevertheless

considered WRA’s Motion for Interlocutory Appeal at their open meeting on August

21, 2019, and issued a formal order denying the motion.21

20. Significantly, the Interlocutory Order required PNM to make a filing by 4:00 pm Friday, August 23, 2019, indicating whether PNM would agree to toll the applicable statutory deadlines in the Proceedings. If PNM agreed to toll the deadlines, Respondents stated that they would suspend the current procedural

18 Procedural Order, Case No. 19-00018-UT (July 25, 2019) [ATTACHMENT I]; Procedural Order, Case No. 19-00195-UT [ATTACHMENT J]. 19 Western Resource Advocates’ Motion to Permit Interlocutory Appeal of Order on Motion for Clarification and Request for Expedited Response Time (“Motion for Interlocutory Appeal”), Case No. 19-00195-UT (July 29, 2019). [ATTACHMENT K] 20 Rule 1.2.2.31(B)(5) NMAC. 21 Order on WRA’s Motion to Permit Interlocutory Appeal of Order for Clarification (“Interlocutory Order”), Case Nos. 19-00018-UT and 19-00195-UT (Aug. 21, 2019). [ATTACHMENT L]

12 schedule and implement “a process to determine in an expedient fashion whether

Section IV, Art. 34 of the New Mexico Constitution bars application of the ETA to

PNM’s application as indicated above.” 22 The Interlocutory Order improperly placed PNM in the position of having to waive the deadlines under the NMPUA and the ETA applicable to PNM’s Consolidated Application, in exchange for a potentially earlier determination by the NMPRC on the legal issue of what law controls these proceedings. The Interlocutory Order exposes that the NMPRC’s refusal to decide ETA applicability was, at least in part, a “bargaining chip” to secure an extension of statutory deadlines.

21. The foregoing procedural history shows the effort that has been made to have Respondents answer a fundamental legal question that controls the

Proceedings. Petitioners have exhausted their administrative remedies.

V. GROUNDS IN SUPPORT OF PETITION

A. The Energy Transition Act Applies to the Consolidated Application.

22. The Legislature enacted the ETA, and courts are to presume that the

Legislature is well-informed regarding existing statutory and common law and does not intend to enact a nullity. N.M. Atty. Gen. v. N.M. Pub. Reg. Comm’n, 2013-

NMSC-042, ¶ 27, 309 P.3d 89. Statutes are presumed to be valid and upheld against constitutional challenge unless it is beyond all reasonable doubt that the Legislature

22 Interlocutory Order, ¶ C at 12.

13 exceeded its constitutional authority. State ex rel. Udall v. Pub. Emps. Ret.

Bd., 1995-NMSC-078, ¶ 7, 120 N.M. 786; see also Bounds v. State ex rel.

D’Antonio, 2013-NMSC-037, ¶ 11, 306 P.3d 457.

23. Generally, the issue of a statute’s constitutionality is an issue for the courts, and administrative agencies lack the authority to refuse to apply existing law unless and until a court invalidates the law. Victor v. N.M. Dep’t of Health, 2014-

NMCA-012, ¶ 24, 316 P.3d 213 (constitutional challenges are within the original jurisdiction of the district court and beyond the scope of the administrative tribunal’s jurisdiction); El Castillo Retirement Residences v. Martinez, 2015-NMCA-041, ¶ 6,

346 P.3d 1164 (confirming that constitutional challenges that exceed the scope of an administrative agency’s review are subject to the jurisdiction of the courts).

Although the NMPRC has in prior proceedings examined Article, IV, Section 34 on a limited basis in applying statutory and regulatory changes to proceedings

(discussed below), it does not appear that any party to those cases questioned the

NMPRC’s authority to do so.

24. This Court confirmed that the authority of the NMPRC to address the validity of laws is limited. In El Paso Elec. Co v. N.M. Pub. Regulation Comm’n,

2010-NMSC-048, 149 N.M. 174, the NMPRC attempted to exercise jurisdiction over county franchise ordinances by ruling that counties could not impose franchise fees and ordered a utility to stop collecting county franchise fees from customers.

14 This Court invalidated the NMPRC’s order as beyond the agency’s jurisdiction and stated that ordinances are subject to court challenge, and that the issue of whether ordinances “are lawful or unreasonable . . . is for a body other than the Commission to decide.” Id. ¶¶ 16, 17. Our Constitution confers on the NMPRC the responsibility for regulating public utilities only “in such manner as the legislature shall provide.”

N.M. Const. art. XI, § 2. Accordingly, Respondents must presume that the ETA is valid and apply it to the present proceedings.

25. Likewise, Article IV, Section 34 of the New Mexico Constitution does

not preclude the application of the ETA. This constitutional provision is intended

to prevent legislative interference with matters of evidence and procedure in cases

that are in the process or course of ongoing litigation. Stockard v. Hamilton, 1919-

NMSC-018, ¶ 9, 25 N.M. 240. The constitutional protection established in Article

IV, Section 34 is for litigants only and is limited in scope. It is not intended to

protect a state agency’s desire to second-guess or to circumvent duly enacted

changes to the agency’s controlling statutes passed by the Legislature.

26. Article IV, Section 34 does not prevent the application of the ETA to

these proceedings because there was no pending case until PNM filed its

Consolidated Application in Case No. 19-00195-UT. What constitutes a “pending

case” within the meaning of Article IV, Section 34 “var[ies] with the construction

of each particular statute.” Stockard, 1919-NMSC-018, ¶ 9. The mere opening of

15 a docket by Respondents in Case No. 19-00018-UT does not constitute a “pending

case” under NMSA 1978, Section 62-9-5 relating to the abandonment of utility

facilities which requires the filing of an application pursuant to NMSA Section 62-

9-6. Respondents necessarily conceded there was no pending application when

ordering PNM to file an abandonment application by March 1, 2019.

27. New Mexico courts recognize that, by itself, an application for administrative approval is not a “pending case” for purposes of Article IV, Section

34. See, Mandel v. City of Santa Fe, 1995-NMCA-052, ¶ 4 , 119 N.M. 685 (holding that an application for approval of subdivision plat to zoning authorities did not create a “pending case”); Brazos Land , Inc. v. Bd. of County Commissioners, 1993-

NMCA-013, ¶ 14, 115 N.M. 168 (concluding that Article IV, Sec. 34 did not apply because “the only administrative action [applicant] took was to submit a preliminary plat application, which the Board had the legal discretion to consider and approve or disapprove.”).

28. The NMPRC itself has previously recognized that the mere docketing

of a case, even upon filing of an application by a party, is not necessarily a “pending

case” for purposes of Article IV, Section 34. In two instances where the NMPRC

examined the applicability of Article IV, Section 34 to cases that were on the

NMPRC’s docket at the time new laws or regulations went into effect, the NMPRC

declined to find that the cases should be reviewed pursuant to the prior laws or

16 requirements rather than the new law or regulation. Instead, the NMPRC either

proceeded under the new law or required that a matter, filed in advance of a known

rule amendment’s actual effective date, be refiled.23

29. Importantly, until PNM’s Consolidated Application was filed July 1,

2019, and after the effective date of the ETA, there were no intervenors or parties to

Case 19-00018-UT, and no action by the NMPRC had been taken other than establishing a broad scope of inquiry designed to preclude legislative initiatives.

Article IV, Section 34 specifically refers to the interests of a “party” to a pending case.

B. Respondents’ Conduct Infringes upon the Legislature’s Authority.

30. Respondents’ ongoing procedural maneuvers and repeated delays and refusals to definitively apply the ETA confirm that the NMPRC is attempting to undermine the Legislature’s role in setting energy policy for the state.

31. The Constitution of the State of New Mexico commands that “[t]he powers of the government of this state are divided into three distinct departments, the legislative, executive[,] and judicial, and no person or collection of persons

23 See, In the Matter of the Application of American Medical Response Ambulance Service, Inc., d/b/a American Medical Response, Emergicare for a Certificate to Provide Ambulance Service and for Temporary Authority, 2014 WL 3943779, at *4 (NMPRC April 2, 2014); In the Matter of Public Service Company of New Mexico’s Filing of Advice Notices for Revision to Energy Efficiency Tariff Riders Pursuant to NMAC 17.7.2.9K, 2010 WL 10113255, at *2 (NMPRC May 4, 2010).

17 charged with the exercise of powers properly belonging to one of these departments,

shall exercise any powers properly belonging to either of the others[.]” N.M. Const.

art. III, § 1. The balance and maintenance of governmental powers is of great public concern. State ex rel. Taylor v. Johnson, 1998-NMSC-015, ¶ 17, 125 N.M.

32. The separation of powers clause “articulates one of the cornerstones of democratic government: that the accumulation of too much power within one branch poses a threat to liberty.” Id. ¶ 20. Respondents are encroaching on the Legislature’s and the Governor’s joint power and authority to establish and enact law and policy for New Mexico. Article XI, Section 2 of the New Mexico Constitution specifically requires that the NMPRC regulate utilities in the manner prescribed by the

Legislature.

33. The NMPRC typically defends a sweeping view of its regulatory power by quoting the Court’s declaration that the NMPRC has “a duty to be a prim[e] mover” in protecting the public interest and Commissioners should not “sit as spectators, like Roman Emperors in the coliseum, and simply exhibit a ‘thumbs-up or thumbs-down’ judgment[.]” Mountain States Tel. & Tel. Co. v. N.M. State Corp.

Comm’n, 1997-NMSC-032, ¶ 19, 90 N.M. 325. However, this Court has also made

abundantly clear that the NMPRC, although a constitutionally created body, “may exercise only its statutorily authorized jurisdiction.” El Paso Elec. Co. v. N.M. Pub.

Reg. Comm’n, 2010-NMSC-048, ¶ 6, 149 N.M. 174. This Court's authority to vacate

18 the NMPRC orders by issuing a writ of mandamus derives from Article VI, Section

3 of the New Mexico Constitution. Sandel, 1999-NMSC-019, ¶ 10.

34. This Court has frequently exercised its extraordinary writ authority as a tool for preserving the separation and protection of powers delegated to the three branches of government. State ex rel. Clark v. Johnson, 1995-NMSC-048, ¶¶ 18-

20, 120 N.M. 562 (concluding that prohibitory mandamus is a proper remedy to enjoin unconstitutional acts by the executive branch, and noting that, in cases presenting questions of great public importance, the Court has never insisted on a technical approach to the application of mandamus). This Court “will not be reluctant to intervene” through the grant of extraordinary writs “where one branch of government unduly encroaches or interferes with the authority of another branch.” State ex rel. Taylor, 1998-NMSC-015, ¶ 23.

35. Examples of this Court exercising its writ authority to preserve separation of powers include State ex rel. Taylor, 1998-NMSC-015, (granting a writ of mandamus issued to prevent the Governor from encroaching on the authority of the Legislature by administratively overhauling New Mexico’s public assistance programs); Sandel, 1999-NMSC-019 (issuing a writ of mandamus to vacate the

NMPRC’s orders implementing retail wheeling in the electric utility industry, which invaded the policy making authority of the Legislature); In re Extradition of

Martinez, 2001-NMSC-009, 130 N.M. 144 (issuing a writ of superintending control

19 to remedy the district court’s injunction against the Governor’s extradition warrant);

and State ex rel. Clark, 1995-NMSC-048, ¶¶ 18-20 (issuing a writ of prohibitory

mandamus to prevent the Governor from entering into gaming compacts without

legislative authorization).

36. In Sandel, this Court explained the conduct of the NMPRC intrudes on

the policy making authority of the Legislature when the NMPRC’s “administrative

policymaking conflicts with or infringes upon what is the essence of legislative

authority—the making of law.” Sandel, 1999-NMSC-019, ¶ 12 (internal quotation

marks and citation omitted). “Such an unlawful conflict or infringement occurs

when an administrative agency goes beyond the existing New Mexico statutes or

case law it is charged with administering and claims the authority to modify this

existing law or to create new law on its own.” Id. ¶12; see also Taylor, 1998-

NMSC-015, ¶ 24; Clark, 1995-NMSC-048, ¶¶ 31-33.

37. The Sandel case illustrates that NMPRC action is unlawful when it purports to override and repeal, through administrative action, the policy choices articulated in controlling legislation. The petitioners in Sandel, a group that included nine legislators, sought mandamus relief to vacate NMPRC rulings deregulating the retail electric power industry in New Mexico without authorization from the

Legislature. Sandel, 1999-NMSC-019, ¶ 1. The Sandel petition resulted from the conflict between the NMPRC’s order and the “regulated monopoly” regime

20 effectuated in the NMPUA. Id. ¶¶ 3-8. The Court addressed whether the NMPRC’s order exceeded its authority and violated the constitutionally required separation of powers “by effectively deregulating the retail side of the electric power industry in

New Mexico in the absence of a statutory mandate from the Legislature.” Id. ¶ 9.

This Court concluded that the NMPRC, while purporting to exercise the broad authority conferred by the NMPUA, actually aimed to “carry out broad changes in public policy by replacing regulation under the ‘just and reasonable’ standard with competition in an open marketplace.” Id. ¶ 19. In doing so, the NMPRC violated

Article III, Section 1 of the New Mexico Constitution by undertaking retail electric deregulation in New Mexico without legislative authorization. Id. ¶ 26.

39. Respondents’ efforts to invalidate the ETA, in this case by purposeful indecision, strongly resemble the NMPRC’s unconstitutional conduct in Sandel.

The NMPRC has arrogated to itself, as it did in Sandel, an important policy choice about public utility regulation in New Mexico, in contravention of the choices the

Legislature made in enacting the ETA. In selectively choosing whether to reject or apply the ETA to different elements of the Consolidated Application, the NMPRC is modifying, not administering, the applicable law. By disregarding the legitimacy of the Legislature’s policy choices, the NMPRC flouts the essence of legislative authority—“the making of law.” Sandel, ¶ 12.

21 40. The will of the Legislature and the power of the Court’s Stay have been

subverted by Respondents’ actions, and affected stakeholders, including Joint

Petitioners, will suffer irreparable harm. The ETA’s statutory time frames are

compromised if Respondents are allowed to arbitrarily condition their actions on the

waiver of those time frames, as well as if resolution of the threshold legal

determination of the ETA’s applicability is delayed until the end of the proceeding

and then wrongly decided. That outcome will compromise important features of the

new law, such as acquisition and location of replacement resources, bond issuance

dates, and the provision of worker retraining and economic development funds to

regions impacted by the abandonment of SJGS.

C. Respondents’ Deliberate Delays Harm the Parties and Violate their Due Process Rights.

41. Respondents have intentionally created and perpetuated ambiguity over whether it will apply the ETA to the abandonment and financing portions of the

Consolidated Application, and the Commissioner that advocated the ultimately- accepted bifurcation maneuver to create that ambiguity was unequivocal that the motivation for the maneuver was to have the ETA not apply. Constitutional due process principles apply to administrative proceedings where, as here, the agency adjudicates the rules that affect the legal rights of individuals or entities. Santa Fe

Expl. Co. v. Oil Conservation Comm’n of N.M., 1992-NMSC-044, ¶ 14, 114 N.M.

103. Due process safeguards are particularly important in administrative agency

22 proceedings because many of the customary safeguards adhered to by the courts may be foregone or relaxed “in the interest of expedition and a supposed administrative efficiency.” Id. Among other due process protections, parties are entitled to reasonable notice and an opportunity to be heard that affords them a fair opportunity to present their case. See Alb. Bernalillo Co. Water Util. Auth. v. NMPRC, 2010-

NMSC-013, ¶ 21, 148 N.M. 21. Parties to the Proceedings cannot adequately prosecute or defend their positions in a legal vacuum. See Bounds, 2013-NMSC-

037, ¶¶ 16-18 (explaining that the Court may exercise discretion to decide important constitutional issues rather than force parties to litigate with the legal question of constitutionality left unanswered, affording respect to an agency’s public-interest preference for judicial resolution). The refusal of Respondents to timely apprise the parties that the ETA is the applicable law in this case, while at the same time creating that uncertainty by their statements and actions, and the attempt to force parties to waive statutory timeframes for action, is highly prejudicial to the parties and falls far short of applicable due process guarantees Action by this Court is needed to prevent the ongoing harm caused by the NMPRC’s evasive rulings and to avoid exacerbated harm should the NMPRC decide months from now that it will not apply the ETA to Case No. 19-00018-UT. The provisions and benefits of the ETA will be compromised if the NMPRC effectively orchestrates a nine-month false-start.

23 42. The parties have been denied needed clarity. As admitted in the Denial

Order, the Corrected Bifurcation Order “does not provide a definite statement regarding the critical issue of ETA applicability.” 24 Due process necessarily includes “the right to be heard at a meaningful time and in a meaningful manner.”

N.M. Indus. Energy Consumers v. N.M. Pub. Serv. Comm’n, 1986-NMSC-059, ¶ 18,

104 N.M. 565. With no notice or knowledge about what law the NMPRC will apply, parties are denied due process. Moreover, the added resources needed to litigate two very different legal scenarios, and the attendant costs of that litigation, are not trivial in a case of this importance. Because New Mexico law requires parties to bear their own costs, NMSA 1978, §62-13-3, the Joint Petitioners will be irreparably harmed if the NMPRC is permitted to force parties into parallel litigation realms or face adverse consequences of litigating under the “wrong” law on a given issue.

43. Finally, it is important to consider the implications of allowing the

NMPRC’s purposeful obstruction of legislative authority to stand. In this instance, the NMPRC has misused its status as a “prime mover” to thwart the Legislature by attempting to manufacture a “pending case” as a purported constitutional bar against applying the ETA. The NMPRC has split PNM’s requests for abandonment, financing, and replacement resource approvals into three separate hearings and two

24 Denial Order, ¶ D.

24 separate dockets all while refusing to inform the parties which laws (past or current)

will be applied.

44. This Court previously rejected procedural moves intended to preclude

the application of a new law and has held that Article IV, Section 34 is not to be used

“as a sword to prevent what would otherwise be legitimate governmental action.”

Santa Fe Trail Ranch II, Inc. v. Bd. of County Comm’rs of San Miguel County, 1998-

NMCA-099, ¶ 11, 125 N.M. 360 (rejecting the attempt by a real estate developer to thwart a County Commission’s moratorium on development by filing a pre-emptive lawsuit). Case 19-00018-UT, the docket into which the NMPRC is placing issues presumably to avoid ETA applicability, was not “pending litigation” brought by an applicant. Rather, it was docketed for the purpose of precluding legislative action.

If this action by Respondents is validated, then any state agency, in anticipation of pending legislation with which it may disagree, can open a docket by its own motion, populate the scope of that docket with whatever issues it wants to prevent the

Legislature from acting upon, and thereby divest the Legislature of its law and policymaking authority. This is not the purpose of Article IV, Section 34.

VI. CONCLUSION

45. The NMPRC’s procedural tactics and refusal to unambiguously apply the ETA to the Consolidated Application is an affront to the power of the Legislature to set energy policy for New Mexico and a deprivation of the due process rights of

25 the parties to this proceeding. Time is of the essence and a prompt order is required to effectuate the law and policy outcomes embodied in the ETA, protect the due process rights of the parties, ensure that proposed replacement resources are not lost, and comply with the statutory timing requirements under the ETA. For these reasons, the Petitioners respectfully request the Court to clarify that PNM’s

Consolidated Application, filed after the lifting of the Court’s Stay and the effective date of the ETA, is subject to the ETA. In the alternative, Petitioners seek a Writ of

Mandamus from the Court directing Respondents to apply the ETA to the entirety of the Consolidated Application without exception and regardless of the NMPRC case to which the application is assigned.

Respectfully submitted this 29th day of August 2019.

PUBLIC SERVICE COMPANY OF NEW MEXICO

/s/ Patrick V. Apodaca Patrick V. Apodaca, General Counsel Stacey J. Goodwin, Associate General Counsel PNM Services Company Corporate Headquarters – Legal Department Albuquerque, NM 87158-0805 (505) 241-4927 (505) 241-4864 [email protected] [email protected]

and

26 ELECTRONICALLY FILED 08/29/2019

/s/ Richard L. Alvidrez Richard L. Alvidrez Miller Stratvert P.A. 500 Marquette NW, Suite 1100 P.O. Box 25687 Albuquerque, NM 87125 (505) 842-1950 [email protected]

Attorneys for Public Service Company of New Mexico

WESTERN RESOURCE ADVOCATES

/s/ Steven S. Michel Steven S. Michel 409 E. Palace Avenue, Unit #2 Santa Fe, New Mexico 87501 Cell: (505) 690-8733 [email protected]

and

Thomas C. Bird Keleher & McLeod, P.A. P.O. Box AA Albuquerque, NM 87103-3328 (505) 346-4646 [email protected]

Attorneys for Western Resource Advocates

27 /s/ Charles F. Noble Charles F. Noble 409 E. Palace Ave. #2 Santa Fe, NM 87501 (505) 913-0269 [email protected]

Attorney for Coalition for Clean Affordable Energy

YOUTZ & VALDEZ, P.C.

/s/ Stephen Curtice Shane Youtz [email protected] Stephen Curtice [email protected] James Montalbano [email protected] 900 Gold Avenue S.W. Albuquerque, NM 87102 Telephone: (505) 244-1200

Attorneys for IBEW Local 611

/s/ Kyle J. Tisdel Kyle J. Tisdel WESTERN ENVIRONMENTAL LAW CENTER 208 Paseo del Pueblo Sur, Suite 602 Taos, New Mexico 87571 (p) 575.613.8050 [email protected]

Attorneys for San Juan Citizens’ Alliance and Diné CARE

28 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Supplemental Petition was served by e-mail on August 29, 2019, on the following:

Stacey Goodwin Rick Alvidrez [email protected] [email protected]

Ryan Jerman Raymond L. Gifford [email protected] [email protected] [email protected]

Carey Salaz Nann M. Winter, Esq. [email protected] [email protected]

Cholla Khoury Douglas Gegax [email protected] [email protected]

Gideon Elliot Robert Lundin [email protected] [email protected]

Elaine Heltman Jody Garcia [email protected] [email protected]

Andrea Crane Martin R. Hopper [email protected] [email protected]

Richard L. C. Virtue Carla R. Najjar [email protected] [email protected]

Steven S. Michel, Esq. Dahl Harris [email protected] [email protected]

Peter J. Gould, Esq. Peter Auh, General Counsel [email protected] [email protected]

Charles F. Noble, Esq. Stephanie Dzur [email protected] [email protected]

Donald E. Gruenemeyer, P.E. Lisa Tormoen Hickey [email protected] [email protected]

Steven Gross Marcos D. Martinez [email protected] [email protected]

29

Michael I. Garcia Daniel R. Dolan [email protected] [email protected]

Bruce C. Throne, Esq. Joan Drake [email protected] [email protected]

Jeffrey H. Albright, Esq. Keith W. Herrmann [email protected] [email protected]

Mariel Nanasi Kyle J. Tisdel [email protected] [email protected]

Erik Schlenker-Goodrich Stephen Curtice [email protected] [email protected]

Jason Marks Barry W. Dixon [email protected] [email protected]

Thomas Manning Randy S. Bartell [email protected] [email protected]

John F. McIntyre Sharon T. Shaheen [email protected] [email protected]

Mark Fenton Ned Parker [email protected] [email protected]

Erin Overturf, Esq. Kelly Gould [email protected] [email protected]

Noah Long David Van Winkle [email protected] [email protected]

Don Hancock Ramona Blaber [email protected] [email protected]

Mariam Wheir John W. Boyd, Esq. [email protected] [email protected]

Josh Ewing, Esq. Tom Singer [email protected] [email protected]

Joseph A. Herz Michael Dirmeier [email protected] [email protected]

30

John Reynolds Milo Chavez [email protected] [email protected]

Jason Montoya Michael C. Smith, Esq. [email protected] [email protected]

Ashley Schannauer Anthony Medeiros [email protected] [email protected]

Jack Sidler John Bogatko [email protected] [email protected]

Dhiraj Solomon Georgette Ramie [email protected] [email protected]

Bradford Borman Beverly Eschberger [email protected] [email protected]

Elisha Leyba-Tercero Anthony Sisneros [email protected] [email protected]

David Rhodes Rob Witwer, Esq. [email protected] [email protected]

Chris Hunter Maurice Brubaker [email protected] [email protected]

Evan Gillespie Rachel Brown [email protected] [email protected]

Antonio Paez Jay Kumar [email protected] [email protected]

Pete Lewis James R. Dittmer [email protected] [email protected]

Alex Dreisbach Camilla Feibelman [email protected] [email protected]

Jennifer Breakell Germaine R. Chappelle, Esq. [email protected] [email protected]

Marvin T. Griff State Senator Steve Neville [email protected] [email protected]

31

Andrew Harriger Representative James Strickler [email protected] @sawvel.com [email protected]

Aaron El Sabrout Representative Anthony Allison [email protected] [email protected]

Edward Montoya Senator Carlos Cisneros [email protected] [email protected]

Jane Yee State Senator William Sharer [email protected] [email protected]

Saif Ismail Representative Rod Montoya [email protected] [email protected]

Amanda Edwards Representative Paul Bandy AE@Jalblawcom [email protected]

Jason Marks, Esq. Representative Patricia A. Lundstrom [email protected] [email protected]

Lorraine Talley Randy S. Bartell [email protected] [email protected]

Vicky Ortiz Caitlin Liotiris [email protected] [email protected]

Kathleen Fraser James Dauphinais [email protected] [email protected]

Dan Akenhead Heather Allen [email protected] [email protected]

Steve Schwebke Michael Gorman [email protected] [email protected]

Pat O’Connell April Elliott [email protected] [email protected]

Michael Milligan Cydney Beadles [email protected] [email protected]

Tyler Comings Chelsea Hotaling [email protected] [email protected]

32

Anna Sommer Brian Andrews [email protected] [email protected]

John M. Brittingham Melissa Buttler [email protected] [email protected]

Josh Combs Bob Edwards [email protected] [email protected]

Eric Koontz Kiran Mehta [email protected] [email protected]

David Getts Matthew Gerhart [email protected] [email protected]

Katherine Lagen Shane Youtz [email protected] [email protected]

Mike Eisenfeld Robyn Jackson [email protected] [email protected]

Carol Davis Greg Sonnenfeld [email protected] [email protected]

Josh Finn Honorable Chair Theresa Becenti-Aguilar [email protected] [email protected] [email protected]

Honorable Vice-Chair Valerie Espinoza Honorable Commissioner Cynthia B. Hall [email protected] [email protected] [email protected] [email protected]

Honorable Commissioner Jeff L. Byrd Honorable Commissioner Stephen [email protected] Fischmann [email protected] [email protected] [email protected]

33 Jeffrey H. Albright, Esq. Mariel Nanasi [email protected] [email protected]

Thomas Manning Ashley C. Schannauer [email protected] [email protected]

Michael C. Smith, Esq. Elisha Leyba-Tercero [email protected] [email protected]

Cydney Beadles John Reynolds [email protected] [email protected]

Georgette Ramie Heidi Pitts [email protected] [email protected]

Hon. Chair Theresa Becenti-Aguilar Hon. Vice-Chair Valerie Espinoza [email protected] [email protected] [email protected] [email protected]

Hon. Commissioner Jeff L. Byrd Honorable Commissioner Stephen Fischmann [email protected] [email protected] [email protected] [email protected]

Honorable Commissioner Cynthia B. Hall [email protected] [email protected]

Mark Fenton Robb Hirsch [email protected] [email protected]

Erin Overturf, Esq. Charles Kolberg [email protected] [email protected]

Noah Long David Van Winkle [email protected] [email protected]

Don Hancock Camilla Feibelman [email protected] [email protected]

Mariam Wheir John W. Boyd, Esq. [email protected] [email protected]

Josh Ewing, Esq. Tom Singer [email protected] [email protected]

Joseph A. Herz Glenda Murphy [email protected] [email protected]

34

James Cotton Michael Dirmeier Andrea Crane [email protected] [email protected]

Jack Sidler John Bogatko [email protected] [email protected]

Dhiraj Solomon Milo Chavez [email protected] [email protected]

David Rhodes Rob Witwer, Esq. [email protected] [email protected]

James Dauphinais Maurice Brubaker [email protected] [email protected]

Evan Gillespie Adam Baker [email protected] [email protected]

Antonio Paez Jay Kumar [email protected] [email protected]

Pete Lewis Douglas Gegax [email protected] [email protected]

Alex Dreisbach Ryan Jerman [email protected] [email protected]

Jennifer Breakell Germaine R. Chappell, Esq. [email protected] [email protected]

Marvin T. Griff State Senator Steve Neville [email protected] [email protected]

Stephen Curtice Representative James Strickler [email protected] [email protected]

Barry W. Dixon Representative Sharon Clahchischilliage [email protected] [email protected]

Zoe E. Lees Senator Carlos Cisneros [email protected] [email protected]

Jason Marks, Esq. State Senator William Sharer [email protected] [email protected]

35

Jane Yee Representative Rod Montoya [email protected] [email protected]

Amanda Edwards Representative Paul Bandy [email protected] [email protected]

Tony A. Gurule Representative Patricia A. Lundstrom [email protected] [email protected]

Saif Ismail Nicholas Phillips [email protected] [email protected]

Sharon T. Shaheen Chris Hunter [email protected] [email protected]

Randy S. Bartell Caitlin Liotiris [email protected] [email protected]

Lorraine Talley Edward Montoya [email protected] [email protected]

Vicky Ortiz Joy Yazza [email protected] [email protected]

Bradford Borman [email protected]

Kathleen Fraser [email protected]

Gail Evans [email protected]

/s/ Stacey J. Goodwin Stacey J. Goodwin GCG #______

36 VERIFICATION

I, Stacey J. Goodwin, Associate General Counsel for PNM Resources

Services Company and counsel for Public Service Company of New Mexico, berng duly sworn upon my oath state that I have read the attached Motionfor Clarification of Writ Denial, or in the Alternatiye, Supplemental Verifi.ed Emergency Joint

Petitionfor Writ of Mandamus andthe factual statements contained therein are true and correct to the best of my knowledge, information and belief.

Date: August29,20l9

Stacey J. oodwin, Esq.

37 VERIFICATION

I, Steven S. Michel, attomey for Western Resource Advocates, being duly

sworn upon my oath state that I have read the attached Motion for Clarification of

Writ Denial, or in the Alternative, Supplemental Verified Emergency Joint Petition for Writ of Mandamus and the factual statements contained therein are true and

correct to the best of my knowledge, information and belief.

Date: August 29,2019

Steven S. Michel

38 VERIFICATION

I, Charles Noble, attorney for the Coalition for Clean Affordable Energy,

being duly sworn upon my oath state that I have read the attached Motion for

Clarification of Writ Denial, or in the Alternative, Supplemental Verified Emergency

Joint Petitionfor Writ of Mandamus and the factual statements contained therein are

true and correct to the best of my knowledge, information and belief.

Date: August 29,2019 chnrW nobb Charles Noble

39 VERIFICATION

I, Kyle J. Tisdel, the counsel for San Juan Citizens Alliance and Din6 Citizens

Against Ruining Our Environment, being duly sworn upon my oath state that I have read the attached Motion for Clarification of Writ Denial, or in the Alternative,

Supplemental Verified Emergency Joint Petition for Writ of Mandamus and the factual statements containedtherein are true and correctto the best ofmy knowledge, information and belief,

Date: August 29,2019

Kyle J. Tisdel

40 ATTACHMENT A

ATTACHMENT B CHRONOLOGY OF EVENTS RELATING TO ETA APPLICABILITY ISSUE

January 15, 2019: Legislature convenes. It is widely understood that the legislature will consider a variety of energy related laws, including legislation to address the impacts of impending coal plant closures in the Four Corners’ area.

January 30, 2019: NMPRC issues its Order Initiating Proceeding, opening docket 19-00018-UT with a scope that includes all issues the legislature might consider related to the impending closure of San Juan Generating Station, including abandonment, undepreciated cost recovery and replacement resources. The Commission orders PNM to file its abandonment application by March 1, 2019. Two commissioners, Hall and Fischmann, inform the sponsor of the anticipated legislation, Senator Candelaria, that the Commission’s action will prevent the effectiveness of new legislation.

February 7, 2019: PNM files a motion for rehearing of the Order Initiating Proceeding.

February 27, 2019: NMPRC deems the rehearing request denied by lapse of time, and PNM files its Emergency Verified Petition for Writ of Mandamus in this Court, claiming among other things that the Commission designed its decision to thwart pending legislation (Docket No. S-1-SC-37552).

March 1, 2019: This Court issues a stay preventing NMPRC from taking further action in Commission Case 19-00018-UT, and orders responses to PNM’s Emergency Petition.

March 12, 2019: The Energy Transition Act (SB 489) passes both chambers of the New Mexico Legislature.

March 16, 2019: The Legislature adjourns.

March 19, 2019: WRA files its Proposed Response to PNM’s Emergency Petition with this Court, which includes an affidavit from Senator Candelaria about his conversations with Commissioners Hall and Fischmann.

March 22, 2019: The Governor signs SB 489, the ETA.

ATTACHMENT B June 14, 2019: The ETA becomes law.

June 26, 2019: This Court lifts the stay and denies PNM’s requested writ of mandamus, noting on the Court’s “Register of Actions” that “Case Has Become Moot.”

July 1, 2019: PNM files its Consolidated Application (Application) pursuant to the ETA to abandon, finance the costs of, and replace the energy from, San Juan Generating Station. The Commission dockets the Application as Case 19-00195-UT.

July 10, 2019: NMPRC selectively removes the issues of abandonment and financing from Case 19-00195-UT, and places them in Case 19-00018-UT, with Commissioner Espinoza stating that moving issues to Case 19-00018-UT would prevent application of the ETA, and leave those issues to be decided under old law. The Commission leaves the replacement power issues in 19-00195-UT, presumably to have the ETA apply to those portions of the Application. In memorializing its decision, the Commission first issues a written Order suggesting that the ETA would apply to PNM’s Application, and then issues a Corrected Order that leaves the issue of ETA applicability unaddressed and ambiguous. Despite the vote during the meeting being 4-1, all five commissioners sign both the Order and Corrected Order.

July 22, 2019: WRA files a Motion for Clarification and Reconsideration, asking the Commission to clarify whether it intends to block the ETA, as Commissioner Espinoza stated during the Open Meeting adopting the Corrected Order. If that was the intent, WRA requests that the Commission reconsider that determination, and find that the ETA does apply to PNM’s Application.

July 23, 2019: The two hearing examiners in the bifurcated cases order a briefing schedule for the issue of ETA applicability that has PNM’s initial brief due on August 23, 2019, and response briefs not due until October 18, 2019, an unprecedented eight weeks later. This is the same deadline for testimony from intervenors. When WRA and Interwest raise the concern that this provides no opportunity for parties to understand what law the Commission believes will apply to the Case prior to submitting testimony, and ask that the briefing schedule be shortened for a quicker determination, the hearing examiners deny that request.

July 24, 2019: Commission Chair Becenti-Aguilar, in a single-commissioner order usually reserved primarily for procedural matters (NMPRC Rule No. 1.2.2.30 NMAC), effectively denies WRA’s Motion for Clarification and Reconsideration, stating that the Commission has not decided whether the ETA would apply, and that the issue was assigned to the hearing examiners to determine – even though the hearing examiners, by the extended briefing schedule ordered, effectively decided to leave the issue unresolved for the duration of the Case.

July 29, 2019: WRA files its Motion for Interlocutory Appeal and Request for Expedited Response Time, asking that Commissioner Becenti-Aguilar permit appeal of her single-commissioner order denying WRA’s Motion to the full Commission, so that the issue of ETA applicability can be resolved quickly.

August 1, 2019: At an unrecorded open meeting in Rio Rancho, Commissioner Fischmann announces that he intends to issue his own single- commissioner order shortening the briefing schedule in order to quickly determine ETA applicability. Commissioner Espinoza contests that announcement.

August 1, 2019: Commissioner Fischmann issues a written order simply shortening by one day (from 13 days to 12 days) the response time to WRA’s Motion for Interlocutory Appeal. No order shortening the briefing schedule is ever issued.

August 13, 2019: Commissioner Becenti-Aguilar has taken no action, and WRA’s Motion for Interlocutory Appeal is deemed denied by NMPRC Rule 1.2.2.31(B)(5) NMAC.

August 14, 2019: WRA’s Motion for Interlocutory Appeal is on the open meeting agenda, but is tabled in a 3-2 vote at the start of the meeting, with the explanation that not all the commissioners were physically present. However, Commissioner Espinoza participated by phone and provided the third vote necessary to table the item. (Notably, commissioners routinely conduct business by phone, and in fact they debated the July 10, 2019 bifurcation order and voted on it with Commissioner Espinoza participating by phone.) Navajo Nation leaders, including President Nez, commented and strongly urged that the Commission immediately determine that the ETA applied to PNM’s Application.

August 16, 2019: WRA’s Motion for Interlocutory Appeal is again placed on the agenda for the Commission’s August 21, 2019 open meeting. It is unknown which commissioner or commissioners requested that inclusion – a single commissioner can request an item be placed on the agenda.

August 21, 2019: The Commission denies WRA’s Motion for Interlocutory Appeal.

August 23, 2019: PNM compliance filing made, stating that PNM will not waive ETA statutory timeframes.

ATTACHMENT C

1

1 2 3 4 5 IN RE: NMPRC Case Nos. 19-00018-UT and 19-00195-UT 6 7 TRANSCRIPTION OF AUDIO PROCEEDINGS 8 July 10, 2019 9 10 11 12 13 TRANSCRIBED BY: 14 ANNE DEHON, CCR #263 Bean & Associates, Inc. 15 201 Third Street NW, Suite 1610 Albuquerque, New Mexico 87102 16 (505) 843-9494 17 18 19 JOB NO: 2693N 20 21 22 23 l 24

25 ATTACHMENT D

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111-1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 2

1 CHAIRWOMAN AGUILAR: Okay. Let's go ahead 2 and continue our meeting this morning. We are on 3 the regular action and discussion items. We are 4 ready to discuss case number 19-00018-UT, 5 19-00195-UT. Michael Smith from general counsel's 6 office is here to cover the matter of Public 7 Service Company of New Mexico's abandonment of San 8 Juan Generating Station Unit 1 and 4. And I

9 believe we have Vice Chair Espinosa back on the 10 phone? 11 VICE CHAIR ESPINOSA: Yes, ma'am, thank you. 12 CHAIRWOMAN AGUILAR: Okay. Let's proceed. 13 MR. SMITH: Madam Chair, as you just stated, 14 this is related to PNM's proposed abandonment of 15 its remaining interests in San Juan Generating 16 Station. It filed an application on July 1st, 17 2019, actually a consolidated application, seeking 18 three principal approvals, approval for abandonment 19 of San Juan Generating Station Units 1 and 4 as of 20 July 1st, '22, the issuance of a financing order 21 under the new Energy Transition Act approving the 22 issuance of bonds secured by a non-bypassable 23 customer charge, and approval of replacement

24 l resources to replace the 497 megawatts of

25 generating capacity retired through its requested

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1 abandonment of San Juan Generating Station.

2 Just briefly, I'm just going to hit the

3 highlights of what this application is proposing.

4 It has proposed four different scenarios for

5 replacement resources. One is a combination of new

6 solar resources and battery storage distributed

7 throughout New Mexico with what it terms flexible

8 fast-start natural gas generation located at the

9 former San Juan -- oh, my mic is off -- San Juan

10 Generating Station plant in San Juan County. Those

11 resources would be comprised of the Arroyo solar

12 project, a 300-megawatt solar project which would

13 be combined with the Arroyo storage project, a

14 40-megawatt battery project located in McKinley

15 County -- that would be a 20-year purchase power

16 agreement -- the Jicarilla 1 solar project, a

17 50-megawatt solar project which would be combined

18 with the Jicarilla storage project, a 20-megawatt

19 battery project located Rio Arriba County -- that

20 also would be a 20-year purchase power agreement --

21 the Sandia storage project, a 40-megawatt battery

22 storage project in Bernalillo County owned by PNM

23 which would require the issuance of a certificate

24 l of convenience and necessity; the Zamora storage

25 project, a 30-megawatt battery project also located

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1 in Bernalillo County and also PNM-owned, and the

2 Pinon gas plant, a 280-megawatt natural gas plant

3 to be located in San Juan County. That also would

4 be PNM-owned.

5 PNM basically says that this option is its

6 preferred option because it would place PNM on

7 track to meet the 40 percent renewable portfolio

8 standard in 2025, would maintain reliability in the

9 electric system and there would be benefits to

10 local jobs and property taxes in San Juan County

11 and independent local power producers would own and

12 operate approximately half of the battery and all

13 of the renewable generation resources.

14 The second scenario that they outline is

15 that San Juan Generating Station would be replaced

16 entirely by 476 megawatts of natural gas resources

17 located exclusively in San Juan County. PNM

18 asserts that this would maintain reliability in the

19 electric system and preserve jobs and property tax

20 base for San Juan County as much as possible;

21 however, it would be a more costly option for

22 ratepayers than option one.

23 The third and fourth scenarios would

24 l involve San Juan -- well, the third scenario would

25 involve San Juan Generating Station being replaced

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1 by renewable resources and battery storage

2 distributed throughout the state with no new

3 natural gas generation. PNM indicates that it does

4 not support this option and claims it will not

5 provide adequate and reliable replacement power.

6 The fourth scenario is -- similarly, is just

7 renewable energy. And, again, PNM does not support

8 this option and claims it would not provide

9 adequate and reliable replacement power.

10 The financing order that PNM seeks would let

11 it issue securitized bonds through a wholly-owned

12 special purpose subsidiary, SPE, in an aggregate

13 amount of approximately 361 million which includes

14 340 million constituting underappreciated

15 investments totaling 283 million, costs for job

16 training and severance benefits for employees at

17 San Juan coal plant and the San Juan coal mine in

18 an amount of 20 million, decommissioning and

19 reclamation costs of 28.6 million and transaction

20 costs associated with issuing energy transition

21 bonds and obtaining approval of abandonment of

22 approximately 8.7 million.

23 The application is asking that these -- as I

24 l said, is a consolidated application asking that all

25 three of these approvals, the approval for the

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1 abandonment, the approval for the financing order

2 and the approval for replacement resources, be

3 considered as part of a single application, the

4 consolidated application. However, the order that

5 I have prepared for you would actually bifurcate

6 these issues into two separate proceedings. The

7 replacement resource selection issue is likely to

8 be the most heavily contested issue in this case,

9 and there are provisions, as PNM acknowledges in

10 its application, in the new Energy Transition Act

11 that permit the Commission to segregate or

12 basically defer the replacement resource

13 application to a separate proceeding.

14 The reason that I am proposing that we would

15 do that is because, under the ETA, there's a

16 six-month deadline for approval of the financing

17 order and the abandonment application when they're

18 combined. I think they do not have to stay

19 combined. That six-month deadline could be

20 extended by three months, but that only provides

21 the commission nine months, and that nine-month

22 time frame would apply to the replacement resource

23 application as well if they were all left

24 l consolidated together.

25 Since the ETA allows -- the Energy

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1 Transition Act allows the Commission to defer

2 consideration of the replacement resource to a

3 separate proceeding, it doesn't require that we

4 defer it and wait necessarily on it, but we can

5 have it in a separate proceeding, and then it would

6 be subject to the normal time frame for issuance of

7 a certificate of convenience and necessity for

8 these new resources which would be a nine-month

9 initial time period and it can be extended by an

10 additional six months.

11 So the proposed order that I've prepared

12 would defer and separate/bifurcate the replacement

13 resource application into a separate case. The

14 order would also extend the time frames now rather

15 than waiting until later to the maximum nine months

16 for the abandonment and financing order case and 15

17 months for the CCN replacement resource case based

18 on good cause due to the complexity of these cases,

19 the fact they will be conducted in parallel rather

20 than be staggered one after the other, and the

21 novelty of having to apply the new Energy

22 Transition Act statute which I anticipate will

23 basically result in a fair amount of contested

24 l issues about how the Act should be applied and

25 those kinds of things.

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1 Okay. The only other thing I have is that

2 the order provides for the appointment of two

3 hearing examiners to this case to expedite the

4 handling of that. It would be Hearing Examiner

5 Ashley Shanhauer and Hearing Examiner Anthony

6 Maderos, and they would handle both of the cases

7 jointly in the anticipation that one case will

8 probably end before the other.

9 The time frames that I've set, I do have in

10 the order that the hearing examiners should

11 endeavor to try and meet PNM's requested time frame

12 for getting this case done before the contracts for

13 their proposed resources expire; however, based on

14 the issues, the public interest, I think, in making

15 sure that this case is done correctly, that they

16 should have the full time period available to them

17 in the event that they need it.

18 COMMISSIONER HALL: Madam Chair?

19 CHAIRWOMAN AGUILAR: Yes, Commissioner Hall.

20 COMMISSIONER HALL: I move the order as

21 recommended with bifurcation. I think that I agree

22 with everything Mike said in terms of needing --

23 having the cases separated and having the maximum

24 l length of time now set forward I think is what we

25 need to do with our staff resources, and so I would

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1 move the order.

2 MR. SMITH: Madam Chair, there's just one

3 other thing I needed to address. I have two

4 proposed orders for you, and that really depends on

5 the Commission's -- the Commission's position on

6 this. The Commission -- as you know, the

7 Commission initiated a case in case 19-18 which

8 required PNM to file an abandonment application in

9 that case. That case -- in that case PNM responded

10 by seeking a writ of mandamus against the

11 Commission. A stay was granted on the Commission's

12 order; however, that stay was subsequently lifted

13 on June 28th.

14 PNM's application came in on July 1st, so

15 there's -- basically, the proposition before you is

16 that the Commission has the option, because its

17 original case was open and required the abandonment

18 proceedings to be part of that, to have that

19 case, the application for abandonment and financing

20 order, proceed in that original docket. The

21 proposition would be that the replacement resources

22 would be left in the 195 case.

23 The other option would be to close the 19-18

24 l case and treat both of the -- all three of the

25 applications, rather, the bifurcated cases, in the

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1 195 docket and basically assign it a docket number

2 of 19-195 part one and 19-195 part two. That

3 method has been employed by the Commission in the

4 past in consideration of various cases like, I

5 believe, excess capacity cases in the past and

6 things of that nature where there were

7 determinations that needed to be made before

8 proceeding to other subsequent determinations that

9 were litigated in separate proceedings. So I

10 believe that would be an appropriate way to divide

11 up the case, as well.

12 COMMISSIONER HALL: Okay, Madam Chair. I

13 would include that in my motion, as well, to close

14 out the old docket number and proceed with the new

15 docket number, having it be part one and part two.

16 Is that how you -- is that accurate for what you

17 just described?

18 MR. SMITH: That's one of the options, yes.

19 CHAIRWOMAN AGUILAR: And that's your motion?

20 VICE CHAIR ESPINOSA: Madam Chair?

21 CHAIRWOMAN AGUILAR: Yes, Vice Chair

22 Espinosa?

23 VICE CHAIR ESPINOSA: Madam Chair, my

24 l understanding is that the Commission order -- okay,

25 so I don't know if you can hear me. Before I keep

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1 talking, are you able to hear me?

2 CHAIRWOMAN AGUILAR: Vice Chair Espinosa, we

3 can hear you, but if you can speak a little louder

4 so that everyone can hear you.

5 VICE CHAIR ESPINOSA: So my understanding is

6 that Commission order in case 19-18 wasn't stayed

7 by the supreme court as Mike Smith just said, so

8 that order required PNM to file its proposal for

9 replacement resources, and case number 19-18,

10 therefore, would or should proceed under the prior

11 law, not under the new Energy Transition Act

12 legislation. So, with respect to replacement and

13 power resources, PNM should be precluded or

14 prevented from bidding on any such options if it

15 developed the RFP or had any involvement or input

16 in the development of that RFP.

17 So what I'm hearing Mike Smith say is

18 that -- or what I would say is, since the issues

19 are critical to New Mexico's future and since the

20 replacement resources will be long-lasting, perhaps

21 20, 30 years, and since the costs are going to be

22 significant, I think it's imperative for the

23 Commission to have as complete and comprehensive

24 l understanding as possible. So, therefore, I

25 would -- in addition to keeping the procurement

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1 decision in case 19-18, I would also like us to

2 utilize the option that's going to provide us the

3 maximum amount of time to make the best decision

4 possible.

5 VICE CHAIR ESPINOSA: I couldn't hear it

6 all.

7 CHAIRWOMAN AGUILAR: Okay. Thank you.

8 Commissioner Fischmann?

9 COMMISSIONER FISCHMANN: Yeah, Madam Chair.

10 Commissioner Espinosa, so I want to get a little

11 more clarity on what you're proposing.

12 VICE CHAIR ESPINOSA: Well, since the

13 Commission order in case 19 wasn't stayed in the

14 supreme court, that required them to file their

15 proposal for replacement resources, right?

16 COMMISSIONER HALL: File what? Could you

17 repeat that, please, Commissioner Espinosa?

18 VICE CHAIR ESPINOSA: Okay. So, Mike, you

19 proposed -- I'm supporting what Mike is saying in

20 terms of his last comments. So it was my

21 understanding that the Commission order in case

22 19-18 was not stayed by the supreme court, like he

23 said. And that order had required PNM to file its

24 l proposal for replacement resources, so, therefore,

25 what I'm just trying to say is that we should

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1 proceed under the prior law and not the new Energy

2 Transition Act legislation. Maybe you're not

3 understanding me.

4 COMMISSIONER FISCHMANN: Thank you, that

5 clarified it for me. Other commissioners --

6 MR. SMITH: Madam Chair, I think I could

7 clarify what I think Commissioner Espinosa is

8 saying. What I was saying is that the

9 Commission's -- PNM responded to the Commission's

10 order in January -- I think it was January -- by

11 seeking a writ of mandamus against the Commission

12 in the New Mexico Supreme Court. They also sought

13 a stay of the Commission's order. The Supreme

14 Court granted the stay, scheduled the oral argument

15 for July 9th, which was then lifted or, rather, I

16 guess, vacated, I should say, and then they lifted

17 the stay and dismissed PNM's request for a writ of

18 mandamus against the Commission. That order was

19 issued on June 28th.

20 What I was saying is that therefore left the

21 Commission's order -- rather reinstated the

22 Commission's order from January. PNM filed its

23 application after that. The Commission's -- the

24 l Commission's -- sorry, the Commission's reason for

25 initiating the case in 19-18 was based on the

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1 stipulation in the 13-390 case which required PNM

2 to make a filing no later than December 31st of

3 2018 as to what it proposed -- basically whether it

4 proposed to still utilize the remaining units at

5 San Juan Generating Station for retail -- for New

6 Mexico retail ratepayers.

7 And in the course of the dispute over the --

8 I should say the Commission responded then by --

9 after PNM made its filing, by initiating a case to

10 have that hearing to determine whether San Juan

11 Generating Station would continue to serve New

12 Mexico ratepayers. PNM responded in its writ

13 application by basically claiming that the

14 Commission was attempting to preempt the action of

15 the legislature and prevent --

16 VICE CHAIR ESPINOSA: That's right, you said

17 that in your memo. Everything that you're

18 repeating, thank you for repeating it. It's all in

19 the memo and the information you gave us, but, yes.

20 COMMISSIONER HALL: Go ahead.

21 MR. SMITH: However, that was not the --

22 that was not the basis on which the Commission

23 acted to start the 19-18 case, and that was what we

24 l responded with in response to PNM's writ

25 application. So the point I'm making right now is

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1 that the Commission's initial order in 19-18

2 remains a valid order because it was not -- the

3 writ of prohibition was not granted by the Supreme

4 Court, and it was reinstated before PNM's

5 application was filed.

6 Therefore, I think there is a basis upon

7 which the Commission could handle PNM's

8 application. Since bifurcation is appropriate, it

9 could all be moved into the 19-18 case and the

10 19-195 case dismissed or I just split it because we

11 were contemplating the abandonment in the 19-18

12 case. We had contemplated already at that time

13 bifurcating the proceedings as far as replacement

14 resources because that was one of the principal

15 objections that PNM had to the Commission's January

16 order saying that they were not ready to proceed

17 with the replacement resources because they had not

18 finished, rather, reviewing the results of their

19 RFP that was issued in 2017.

20 So we issued -- we requested all the parties

21 to address that in their responses to the

22 Commission's -- the Commission had issued an order

23 basically asking the parties to weigh in on that,

24 l whether we should start the case then and whether

25 we should bifurcate it. So those were issues that

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1 we had already considered, but, as I said, the

2 Commission could -- and I guess I didn't phrase it

3 that way initially. We could do the entire thing

4 in the 19-18 docket. We could bifurcate it between

5 the two dockets or we could just close 19-18 and we

6 could do it within two dockets within that case.

7 COMMISSIONER HALL: Okay. So Madam Chair?

8 CHAIRWOMAN AGUILAR: Yes, Commissioner Hall.

9 COMMISSIONER HALL: I thought you were going

10 to be clarifying what Commissioner Espinosa had

11 stated as her question or her request.

12 MR. SMITH: My understanding of what

13 Commission Espinosa is saying is that she would

14 like to put it in the 19-18 docket essentially to

15 pursue -- and I hesitate to put the words in her

16 mouth --

17 COMMISSIONER HALL: Well, we can ask her

18 again.

19 MR. SMITH: -- to pursue the --

20 VICE CHAIR ESPINOSA: That's exactly

21 (inaudible), the 19-18.

22 COMMISSIONER BYRD: Madam Chair?

23 COMMISSIONER HALL: I just want to hear what

24 l she says.

25 VICE CHAIR ESPINOSA: Go ahead, Mike.

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1 COMMISSIONER HALL: Commissioner Espinosa,

2 could you just finish that sentence? You want to

3 stay in the 19-18 case for what reason?

4 VICE CHAIR ESPINOSA: Are you there? I

5 don't know what your question is.

6 CHAIRWOMAN AGUILAR: Vice Chair Espinosa,

7 can you please restate your reason why we should go

8 with the case number 19-18 docket?

9 VICE CHAIR ESPINOSA: Because that order

10 required PNM to file its proposal for replacement

11 resources, and in that case, you know, therefore we

12 should proceed under that prior law and not the new

13 Energy Transition Act legislation.

14 CHAIRWOMAN AGUILAR: Okay. Commissioner

15 Byrd?

16 COMMISSIONER BYRD: So, in recognizing

17 there's already a motion on the floor, I will move

18 another motion that we do the abandonment through

19 19-18 and the new acquisitions through the 195

20 case.

21 VICE CHAIR ESPINOSA: I second that.

22 COMMISSIONER BYRD: Separating them.

23 COMMISSIONER FISCHMANN: Madam Chair?

24 l CHAIRWOMAN AGUILAR: Yes, Commissioner

25 Fischmann.

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1 COMMISSIONER FISCHMANN: Discussion, I --

2 first of all, in terms of 19-18 being used to go

3 forward with the -- we were going to do the

4 procurement in 19-18? Was that the -- or the

5 abandonment? I can't --

6 COMMISSIONER HALL: Madam Chair, I believe

7 Commissioner Espinosa, when she's referring to the

8 prior law, must mean the abandonment statute and

9 it's still in effect. Isn't that correct, Mark --

10 or Mike? I'm sorry.

11 MR. SMITH: Yes, the abandonment statute is

12 still --

13 COMMISSIONER HALL: So, yeah, I mean, that's

14 fine.

15 COMMISSIONER FISCHMANN: If we're

16 bifurcating, I'm just trying to get the sense of --

17 clarify for me, Mike, when we're bifurcating, which

18 portion would go into 19-18 --

19 COMMISSIONER HALL: Right.

20 COMMISSIONER FISCHMANN: -- and which

21 portion would go into 195?

22 COMMISSIONER HALL: Yeah.

23 MR. SMITH: When the Commission issued its

24 l order in January, obviously, there was no Energy

25 Transition Act so there was no provision for

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1 securitization and the issuance of a financing

2 order.

3 COMMISSIONER FISCHMANN: Right.

4 MR. SMITH: So what we were addressing at

5 that time was a normal abandonment case which would

6 involve the abandonment proceeding, and we

7 contemplated at that time bifurcating the case to

8 address the replacement resources in a separate

9 proceeding at that time because PNM said it wasn't

10 ready to proceed with that.

11 COMMISSIONER FISCHMANN: So the current

12 proposal you're making is taking 195 for the

13 procurement and 18 for the abandonment?

14 MR. SMITH: That was one of the options.

15 COMMISSIONER FISCHMANN: That's one of the

16 options, okay.

17 VICE CHAIR ESPINOSA: Right, right, and

18 that's the option Commissioner Byrd just made a

19 motion, and I second and I support that.

20 COMMISSIONER FISCHMANN: And what would

21 be --

22 VICE CHAIR ESPINOSA: If we chose this

23 option, that's the one that would provide us -- you

24 l know, you've got to look at the impact, and it

25 gives us, you know, the amount of time we need to

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1 make the best decision possible.

2 COMMISSIONER FISCHMANN: And so, Mike and

3 Madam Chair, what would be -- so I'm hearing an

4 implication that there would be -- the old law

5 would apply to the abandonment if we did that. How

6 would that be different from the new law in terms

7 of the abandonment itself?

8 MR. SMITH: The issue that PNM raised in its

9 writ was that there was -- basically, that there

10 was an attempt -- an impetus behind the

11 Commission's action to do it in that case and

12 require the abandonment case to start first because

13 then it would be -- then the ex post facto

14 prohibition would apply that any legislation that

15 was passed subsequent to the initiation of the

16 proceeding would not apply to that proceeding

17 because the case had already started.

18 COMMISSIONER FISCHMANN: So, theoretically,

19 it would impact the securitization and --

20 MR. SMITH: It would -- so there was an

21 argument about whether -- and I am not making or

22 offering an opinion about whether that would be the

23 case because that was never anything I actually

24 l analyzed. However, obviously, if it was put in the

25 19-18 case, that would become an issue right away.

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 21

1 COMMISSIONER FISCHMANN: Okay.

2 MR. SMITH: The way I have provided for this

3 is based on the idea that the Energy Transition Act

4 does apply, and that's why I'm referring to the

5 bifurcation provision within the Energy Transition

6 Act, and that's what the application is premised

7 on, is the application under the Energy Transition

8 Act.

9 COMMISSIONER FISCHMANN: So, based on what

10 I'm hearing, you know, my sense is that the

11 legislature has passed a law. That's where we

12 want to -- certainly where they want to go from a

13 policy perspective, and that if we go through the

14 old law in terms of bifurcating instead of just

15 doing part A and part B under 195, we stand to

16 raise a whole bunch of issues that we'll get bogged

17 down in because people are going to be going, well,

18 all right -- I can imagine a million arguments from

19 lawyers on all sides about which law applies when,

20 and I'm afraid that we're just going to get in a

21 sinkhole and when it comes down to it what we're

22 going to end up doing is and what a judicial

23 process will eventually decide is do what the

24 l legislature asked you to do.

25 And I -- I just think that we're going to

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 22

1 end up wasting a lot of resources, getting into a

2 lot of arcane arguments and probably not

3 accomplishing much. So I do believe we should

4 bifurcate. And we need the extra time to do the

5 decision on the new resources, but I think the way

6 to do that, quite honestly, is through 195 if we

7 want to just keep the process straightforward and

8 simple and everybody understanding what's going on

9 and so I can avoid listening to a really, really

10 complicated explanation from you, Mike, at some

11 time when we have to make a final decision if we

12 try to bifurcate and keep the old case open.

13 So I just have to say my point of view is

14 that, yeah, we should bifurcate, but let's

15 bifurcate under the new case, 195, and let's keep

16 it as clean as possible, have one set of statutes

17 that we're operating under for this process instead

18 of having arguments about two.

19 So, anyway, that's my thought.

20 CHAIRWOMAN AGUILAR: Okay. I would like to

21 insert my recommendation, as well, whether we go

22 with the 195 case or if we go with the 19-18 case.

23 January 30th, 2019, I asked PNM if they can do an

24 l educational session in the Four Corners area, and

25 it's been six months. I have not heard a word from

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 23

1 PNM. So I imagine that my recommendation was taken

2 very lightly, and I'm being forced to put it into

3 this -- the proceeding that is set before the

4 Commission this morning.

5 PNM needs to understand that they have

6 employed more than 350 Navajos at San Juan

7 Generating Station, and now that the comprehensive

8 application has been filed, I would like to ask the

9 general counsel if PNM has filed any public

10 document indicating that they have set any public

11 meetings to educate the people that were employed

12 at San Juan Generating Station.

13 MR. SMITH: Madam Chair, I have not read the

14 application in its entirety, but in the first

15 portion and the executive summary, I did not see

16 that.

17 CHAIRWOMAN AGUILAR: Okay.

18 MR. SMITH: I have not read through the

19 testimony, but I doubt that would address that,

20 so --

21 CHAIRWOMAN AGUILAR: Normally when utility

22 companies file documents, after it's filed I get a

23 courtesy copy, and, to my knowledge, PNM has not

24 l filed community meetings, public meetings to

25 educate the people as to what their intentions are

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 24

1 and what their decisions are. I understand that

2 Pat Colon, the CEO for PNM, has met with the Navajo

3 Nation president twice since my announcement, and

4 that was not my instruction. My instruction was to

5 meet face to face with the coal miners and their

6 families and to educate them about renewable energy

7 targets and what the decision of PNM would like to

8 accomplish.

9 Moving forward, once again, I would like

10 this to be part of the record that they hold public

11 meetings. I will not attend because I will be

12 making a decision on these cases. And when they do

13 have these public meetings, they should document

14 that with the Public Regulation Commission because

15 it's a concern coming from one commissioner.

16 Nenahnezad chapter, that's where they should

17 have a public meeting. Setigan (phonetic) chapter,

18 that's where they should have a public meeting.

19 San Juan Chapter, another community, they should

20 have a public meeting, and Shiprock Chapter.

21 That's four chapters. And then they also have to

22 establish a dialogue with the whole Navajo Nation

23 council that this is the intention of PNM to exit

24 l San Juan Generating Station so that the lawmakers

25 of the Navajo Nation can understand firsthand what

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 25

1 the intentions of Public Service Company of New

2 Mexico intends to do.

3 As it stands today, there's no analysis,

4 there's no recommendations, there's no clear

5 directions. I ask PNM to build that strong

6 relationship in a diligent way and also indicate

7 the communications in a way that is diplomatic for

8 all governments that are tied into this closing of

9 the San Juan Generating Station.

10 And I would like to insert that, and if

11 there's misspelling or any spelling that needs to

12 be clarified I'm happy to do so after the meeting.

13 That's for the general counsel.

14 Going back to the case that's before us to

15 decide whether to go with the 19-18 case or to go

16 with 195, there was a motion by Commissioner Hall

17 that we should consolidate all the concerns and all

18 the issues into the new case, which is 195, and I

19 believe that was seconded by Commissioner

20 Fischmann. Is that correct?

21 COMMISSIONER FISCHMANN: Well, I'll second

22 now if I didn't before.

23 CHAIRWOMAN AGUILAR: Okay.

24 l (Discussion off the record.)

25 MR. FISCHMANN: Was it? Okay.

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 26

1 CHAIRWOMAN AGUILAR: Is that clear for the

2 record?

3 UNIDENTIFIED MALE: (Inaudible).

4 CHAIRWOMAN AGUILAR: That was the first

5 motion.

6 MR. SMITH: No, the first one was by

7 Commissioner Espinosa. The second was --

8 CHAIRWOMAN AGUILAR: And there was a second

9 motion, which I'm going to get to in just a little

10 bit, but there was a first motion by Commissioner

11 Hall that all issues on the closing of the

12 abandonment case should be consolidated into the

13 195 case and it was seconded by Commissioner

14 Fischmann. Is that clear, general counsel's

15 office?

16 MR. SMITH: I'm relying on the --

17 CHAIRWOMAN AGUILAR: All right.

18 MR. SMITH: Quite frankly --

19 COMMISSIONER HALL: I'll tell you that's

20 what I said. She's right.

21 CHAIRWOMAN AGUILAR: Okay. So there's a

22 motion by Commissioner Hall to consolidate all the

23 issues, the abandonment/financing case on the San

24 l Juan Generating Station and second by Commissioner

25 Fischmann. All those in favor say aye.

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 27

1 COMMISSIONER HALL: Excuse me, Madam Chair?

2 CHAIRWOMAN AGUILAR: Yes.

3 COMMISSIONER HALL: I was in favor of

4 bifurcating the abandonment case from the

5 procurement of replacement resources into the new

6 docket as part one and part two, the way Mike

7 described it originally.

8 COMMISSIONER FISCHMANN: So it's basically

9 accepting Mike's drafted order for consolidating

10 into 195.

11 COMMISSIONER HALL: Okay, but they are

12 bifurcated --

13 COMMISSIONER FISCHMANN: Yes.

14 COMMISSIONER HALL: -- as two different

15 cases even though they apparently have the same

16 number, but one is part one and one is part two.

17 MR. SMITH: Correct.

18 COMMISSIONER HALL: Is that correct?

19 VICE CHAIR ESPINOSA: Are you including 18

20 in that?

21 COMMISSIONER HALL: No. What Mike's

22 proposal was, Commissioner Espinosa -- Madam Chair,

23 Commissioner Espinosa, was one of his options was,

24 l within the 195 case, to bifurcate the --

25 VICE CHAIR ESPINOSA: I know, but my

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 28

1 question to you is only are you including, as you

2 try to consolidate, 18 into that, and you said no,

3 so I'm good. Thank you.

4 COMMISSIONER HALL: Right. No, I'm not

5 consolidating the 18-19 case.

6 VICE CHAIR ESPINOSA: Right. No, so you

7 answered the question and your answer was, no,

8 you're not including 18 and that was what I was

9 wanting. So, okay, thank you for answering that.

10 COMMISSIONER HALL: Yeah.

11 COMMISSIONER FISCHMANN: So, Madam Chair,

12 I'd move we vote on that motion and see where we go

13 from there.

14 CHAIRWOMAN AGUILAR: Okay. There's a motion

15 on the floor seconded by Commissioner Fischmann,

16 recommendation by Michael Smith that two -- case

17 will be divided into two cases. Is that correct?

18 MR. SMITH: Madam Chair, to clarify, it

19 would be that the 19-195 case that was filed by PNM

20 would be bifurcated into a part one and part two.

21 Part one would address the abandonment and

22 financing order. Part two would address the

23 replacement resource.

24 l CHAIRWOMAN AGUILAR: Okay. All right. That

25 was clarified, and all those in favor with the

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 29

1 motion by Commissioner Hall and seconded by

2 Commission Fischmann say aye.

3 COMMISSIONER HALL: Aye.

4 COMMISSIONER FISCHMANN: Aye.

5 CHAIRWOMAN AGUILAR: Opposed?

6 COMMISSIONER BYRD: No.

7 CHAIRWOMAN AGUILAR: No.

8 VICE CHAIR ESPINOSA: No.

9 CHAIRWOMAN AGUILAR: The motion failed, and

10 we go with the second motion which is we're going

11 to go with the 19-18 case for abandonment process

12 and we're going to take case number 195 for the

13 financing portion. That was a motion made by

14 Commissioner Byrd and seconded by Vice Chair

15 Espinosa.

16 MR. SMITH: Madam Chair, just a correction.

17 I think the motion was the abandonment and

18 financing or was it -- maybe it should be restated

19 just so we make sure we have the right --

20 COMMISSIONER BYRD: The abandonment part

21 would be handled under 18 and the acquisition of

22 new parts would be -- the acquisition of additional

23 generation would be under 195.

24 l CHAIRWOMAN AGUILAR: That's the motion and

25 it was seconded by Vice Chair Espinosa. All those

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 30

1 in favor say aye. Aye.

2 COMMISSIONER BYRD: Aye.

3 COMMISSIONER HALL: Aye.

4 VICE CHAIR ESPINOSA: Aye.

5 CHAIRWOMAN AGUILAR: Opposed?

6 COMMISSIONER FISCHMANN: No.

7 CHAIRWOMAN AGUILAR: Four in favor, one

8 opposed.

9 VICE CHAIR ESPINOSA: Yes, I'm over here.

10 Hello?

11 CHAIRWOMAN AGUILAR: Yes, we can hear you.

12 VICE CHAIR ESPINOSA: Oh, sorry. Yeah,

13 thanks.

14 CHAIRWOMAN AGUILAR: Okay. Any questions?

15 Carl?

16 UNIDENTIFIED MALE: I'm sorry, did

17 Commissioner Espinosa say she abstained just now?

18 COMMISSIONER HALL: No.

19 UNIDENTIFIED MALE: Okay. I didn't hear

20 what she said.

21 CHAIRWOMAN AGUILAR: Vice Chair Espinosa?

22 VICE CHAIR ESPINOSA: Yes, ma'am.

23 CHAIRWOMAN AGUILAR: We didn't hear your

24 l vote. Can you restate that, please?

25 VICE CHAIR ESPINOSA: It was a yes --

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected] 31

1 CHAIRWOMAN AGUILAR: Thank you.

2 VICE CHAIR ESPINOSA: -- on Commissioner

3 Byrd's motion.

4 CHAIRWOMAN AGUILAR: Okay. We go to the

5 next case on the agenda.

6

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11

12

13

14

15

16

17

18

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20

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24 l

25

SANTA FE OFFICE MAIN OFFICE 119 East Marcy, Suite 110 201 Third NW, Suite 1630 Santa Fe, NM 87501 Albuquerque, NM 87102 (505) 989-4949 (505) 843-9494 FAX (505) 820-6349 FAX (505) 843-9492 111- 1---800800800800----669669669669----9492949294929492 e-mail: [email protected]

BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) ABANDONMENT OF SAN JUAN ) Case No. 19-00018-UT GENERATING STATION UNITS 1 AND 4 )

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) CONSOLIDATED APPLICATION FOR ) APPROVALS FOR THE ABANDONMENT, ) Case No. 19-00195-UT FINANCING, AND RESOURCE REPLACEMENT ) FOR SAN JUAN GENERATING STATION ) PURSUANT TO THE ENERGY TRANSITION ACT )

ORDER CONCERNING CONSOLIDATED APPLICATION

THIS MATTER comes before the New Mexico Public Regulation Commission

("Commission" or "NMPRC") on Public Service Company of New Mexico's ("PNM") July 1,

2019 Consolidated Application For Approvals for the Abandonment, Financing, and Resource

Replacement for San Juan Generating Station Pursuant to the Energy Transition Act

("Consolidated Application") filed in Case No. 19-00195-UT. The Commission, having reviewed the Consolidated Application and being otherwise duly informed, FINDS:

1. An abandonment proceeding under NMSA 1978 §62-9-5 of the Public Utility Act was previously initiated in Case 19-00018-UT to address the abandonment of PNM's interest in

San Juan Generating Station (SJGS) Units 1 and 4.

2. The Commission's January 30, 2019 Order ("1/30 Order") in Case 19-00018-UT required PNM to file an application with supporting testimony by March 1, 2019 in support of its planned abandomnent addressing all relevant issues, including, inter alia, all reasons justifying

PNM's decision to abandon its ownership interests in SJGS Units 1 and 4; PNM's actions such as

ATTACHMENT E notice to its partners regarding tennination of the SJGS related coal contract and write-offs taken;

PNM's identification of the amount of costs associated with the abandonment; PNM's identification of the amount of costs it seeks to recover associated the abandonment; and PNM' s proposed treatment and financing of undepreciated investments, decommissioning costs and reclamation costs. The 1/30 Order provided that the scope of that proceeding would include all issues relevant to an abandonment proceeding under NMSA 1978, §62-9-5 and any other applicable statutes and NMPRC rules, (emphasis added).

3. In response, PNM filed an Emergency Petition for Writ of Mandamus and Request for Emergency Stay with the New Mexico Supreme Court on February 27, 2019 seeking to nullify the Commission's 1/30 Order.

4. By order issued March 1, 2019, the New Mexico Supreme Court ordered responses to the Petition for Writ by March 19, 2019 while at the same time granting the Request for

Emergency Stay.

5. PNM's Petition for Writ expressly sought to delay the abandonment filing required by the Commission's 1/30 Order until after an anticipated June 14, 2019 effective date ofproposed legislation that might apply to PNM's abandonment of SJGS.

6. Governor Michelle Lujan Grisham subsequently signed into law Senate Bill 489 - the Energy Transition Act ("ETA"), on March 22, 2019, with an effective date of June 14, 2019.

7. On June 26, 2019, the New Mexico Supreme Court issued an Order sua sponte that denied PNM's Petition for Writ and lifted the stay of the Commission's 1/30 Order.

8. On July I, 2019, PNM filed its Consolidated Application in a new docket - Case

19-00195-UT, rather than the existing docket in Case 19-00018-UT. 9. PNM's Consolidated Application seeks approvals for, inter alia, abandonment of its remaining interest in San Juan Generating Station as ofJuly I, 2022; the issuance of a Financing

Order under the ETA approving the issuance of bonds secured by a non-bypassable customer charge; and approval of replacement resources to replace the 497MW of generating capacity retired through its requested abandonment ofSJGS.

10. As the stay of the Commission's 1/30 Order in Case 19-00018-UT had been lifted at the time of PNM's filing of its Consolidated Application, the Commission's 1/3 Order was effective and PNM's Consolidated Application should have been filed in Case No. 19-00018-UT.

11. Under the ETA, that portion of PNM' s Consolidated Application seeking abandonment ofSJGS continues to be governed by Section 62-9-5. However, under Section 62-

18-4 (E), the timeframes of the ETA apply to consolidated abandonment and financing order applications. Therefore, Section 62-18-5 (A) provides the Commission with six (6) months (plus three (3) month extension) from the date of filing to rule.on the Consolidated Application.

12. Similarly, under Section 62-18-4(C) where an application for a financing order under the ETA is accompanied by a request for approval of new resources, the six-month timeframe of section 62-18-4(A) governs, unless the Commission acts to defer the replacement resource application to a separate proceeding as provide in section 62-18-4 (D). Upon deferral, the normal nine (9) month (plus six (6) month extension) timeframe of section 62-9-1 applies.

13. Prior to issuing the 1/30 Order, the Commission's January 10, 2019 Order

Requesting Response to PNM's 12/31/18 Verified Compliance Filing Concerning Continued

Use of SJGS requested that the respondents address whether the Commission should handle the issue of replacement resources in a separate bifurcated proceeding. 14. Most respondents to the Commission's January 10, 2019 Order at that time did not support conducting separate proceedings on the issue of replacement resources on grounds of efficiency and preservation of the parties' resources. However, the Commission notes that in Case

13-00390-UT, the Commission approved proceeding with a determination on abandonment pending a separate proceeding on replacement resources. Moreover, the ETA now expressly affords the Commission the discretion to defer consideration of a replacement resource application to a separate proceeding.

15. The Commission further notes that at least one entity, Western Resource

Advocates (WRA), has filed a motion to intervene which includes a protest pursuant to section 62-

18-5 asserting challenges to "the resource mix and locations proposed by PNM, including whether the amount of renewable energy, storage and natural gas proposed by PNM is a mix that best serves the public interest "as well as "the location of resource replacement, particularly the amount to be located in the Central Consolidated School District, where SJGS 3 currently operates and provides tax revenues to the district. PNM' s proposed regulatory asset to allow for immediate expenditures on workforce severance and training, in anticipation of the plant's closure, is also of importance and should likely be evaluated against an earlier bond issuance to recover those particular costs which will pre-date the plant's closure." This protest constitutes good cause to proceed with a hearing on that portion of PNM' s Consolidated Application seeking approval of a Financing Order.

16. The Commission's six-month time limit for approval oflong-term purchase power agreements under 17.9.551.10 NMAC may be applicable to the Consolidated Application's request for approval of replacement resources. In order to consider all potential replacement resources in one proceeding and as the timeframe of 17.9.551.10 NMAC appears to conflict with the timeframe provisions provided by the ETA, the applicability of 17.9.551.10 NMAC to this matter should be waived.

17. Accordingly, the Commission will treat PNM's Consolidated Application as responsive to the Commission's 1/30 Order. Those portions of newly docketed matter 19-00195-

UT seeking approval of the abandonment ofSJGS and a Financing Order should be consolidated with Case 19-00018-UT and shall proceed under Case No 19-00018-UT subject to the existing orders issued in that case. The six-month timeframe for review of PNM's application under

Section 62-18-5 shall apply to this application. Good cause exists to extend that timeframe by an additional three months due to the complexity and novelty of the matters contained in PNM' s application, resulting in a nine-month timeframe for review.

18. Those portions of the Consolidated Application seeking approval of replacement resources shall be bifurcated from the Consolidated Application and deferred for consideration as a separate proceeding to be conducted under Case No. 19-00195-UT. Due to the fact that this matter shall be proceeding at the same time as the abandonment and financing order applications, good cause exists at the outset of this matter to extend the timeframe for review of PNM's application by an additional six months for a total review period of 15 months.

19. All motions to intervene filed in either docket as of the date of this order shall be accepted and treated as motions to intervene in both cases.

IT IS THEREFORE ORDERED:

A. Two separate proceedings concerning PNM's Consolidated Application shall be conducted in Case 19-00018-UT and Case 19-00195-UT respectively pursuant to the findings and terms established above which are incorporated here as orders of the Commission. B. Pursuant to NMSA 1978, §8-8-14 and the Commission's Utility Division

Procedural Rules, 17 .1.2.1 NMAC, et seq, Anthony Medeiros is appointed as Hearing Examiner to preside, take all actions necessary and convenient within the limits of the Hearing Examiner's authority, conduct any necessary hearings and take such other action in Case No. 19-00195-UT consistent with Commission procedure, and issue a recommended decision for consideration by the Commission in sufficient time for the Commission to render a decision within the applicable statutory timeframes and as established by this Order.

C. Nothing in this order shall affect or disturb the Commission's previous appointment of Ashley Schannaner as hearing examiner in Case No. 19-00018-UT.

D. Both Hearing Exan1iners shall issue procedural orders at their earliest convenience establishing, inter alia, the terms by which notice of PNM' s applications shall be made and establishing a timeframe for intervention by interested parties.

E. A copy of this Order shall be served upon all persons listed on the attached

Certificate of Service by e-mail, if e-mail addresses are known, or by regular mail only if e-mail addresses are not known. ISSUED under the Seal of the Commission at Santa Fe, New Mexico, this 10th day of July 2019.

NEW MEXICO PUBLIC REGULATION COMMISSION

, COMMISSIONER

N L. BYRD, COMMISSIONER

TELEPHONICALLY APPROVED

VALERIE ESPINOZA, VICE-CHAIR

PHEN FISCHMANN, COMMISSIONER BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) ABANDONMENT OF SAN JUAN ) Case No. 19-00018-UT GENERATING STATION UNITS 1 AND 4 )

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) CONSOLIDATED APPLICATION FOR ) Case No. 19-00195-UT APPROVALS FOR THE ABANDONMENT ) FOR SAN JUAN GENERATING STATION ) PURSUANT TO THE ENERGY TRANSITION) ACT )

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a ttue and coITect copy of the foregoing Order Concerning

Consolidated Application issued by the New Mexico Public Regulation Commission on July

10, 2019, was sent via email on July I 0, 2019 to the parties indicated below:

Ryan Jerman [email protected]; Germaine R. Chappell [email protected]; Stacey Goodwin [email protected]; Richard Mertz rcmertz7@outlook. com; Ryan Anderson [email protected]; Nicholas Phillips nl12 [email protected]; Mark Fenton Mark. [email protected]; Jim Dauphinais [email protected]; Richard Alvidrez [email protected]; Andrea Crane [email protected]; Joan Drake [email protected]; Jennifer Breakell [email protected]; Caitlin Liotiris [email protected]; Marvin T. Griff Marvin. Griff@thom psonhine. com; Kathleen Fraser [email protected]; Stephen Curtice [email protected] ; Mariah Wheir [email protected]; Barry W. Dixon [email protected]; Lisa Tormoen Hickey [email protected]; Peter J. Gould [email protected]; Zoe E. Lees [email protected]; Charles F. Noble [email protected]; Thomas Manning [email protected]; Steven S. Michel [email protected]; Glenda Murphy [email protected]; Bruce C. Throne [email protected]; Jason Marks [email protected]; Mariel Nanasi [email protected]; Evan Gillespie [email protected]; Rob Witwer [email protected]; Jane Yee [email protected]; Chris Hunter [email protected]; Tony A. Gurule [email protected]; Senator Steve Neville [email protected]; Saiflsmail [email protected]; Rep. James Strickler [email protected]; Edward Montoya [email protected]; Rep. SbaronClahchisch.illiage [email protected]; Louis W. Rose [email protected]; Senator Carlos Cisneros [email protected]; Sharon T. Shaheen [email protected]; Senator William Sharer [email protected]; Randy S. Bartell [email protected]; Rep. Rod Montoya [email protected]; Steven Gross [email protected]; Rep.Paul Bandy [email protected]; Martin R. Hopper [email protected]; Rep. Patricia A. Lundstrom [email protected]; Lorraine Talley [email protected]; Charles Gunter [email protected]; Vicky Ortiz [email protected]; Jack Sidler Jack. [email protected]; Peter Auh [email protected]; Michael C. Smith [email protected]; Nann M. Winter [email protected]; John Reynolds [email protected]; Dahl Harris [email protected]; Sarah Becker [email protected]; Jeffrey Albright Jalbright@ lffc.com; Bradford Borman [email protected]; Dhiraj Solomon [email protected]; Elisha Leyba-Tercero [email protected]. us; Milo Chavez [email protected]; Joseph Yar [email protected]; John Bogatko John. [email protected]; Carey Salaz [email protected]; Gail Evans [email protected];

Mark Fenton Mark.Fenton@,12nmresources.com; Cholla Khoury Ckhoui:[email protected]; Steven Michel snlichel@ westernresources.org; James R. Dittmer jdi tt mer(a),u til i tech.net; Bruce C. Throne bthroneatty(a),newmexico.com; Peter Gould 12gouldlaw@,gmail.com; Charles Kolberg ckoI b [email protected]; Nann Winter nwinter(a),stelznerlaw.com; Thomas Wander Thomas. [email protected]; Marcos Martinez mdmartinez(a),santa fenn1. gov; Charles Noble [email protected]; Jeff Albright [email protected]; David Van Winkle [email protected]; Patrick Ortiz [email protected]; Noah Long nlong@m dc.org; Tom Singer [email protected]; Camilla Feibelman [email protected]; Joseph A. Herz jaherz(a),sawvel.com; Don Hancock [email protected]; Glenda Murphy gmum [email protected]; Mariel Nanasi [email protected]; Dahl Harris [email protected] Lisa Tormoen Hickey [email protected]; Andrea Crane [email protected]; Sarah Cottrell Propst 12 [email protected]; Michael Dirrneier mdinneie(a),gmail.co m; John W. Boyd jwb@fbd law.com; Charles Gunter charles.gunter(a),state.nn1. us; Anthony Sisneros [email protected]; Cydney Beadles cydney. [email protected]; Jack Sidler ja [email protected]. nm. us; Donald Gruenemeyer [email protected] wve I.com; Rob Witwer [email protected]; Louis W. Rose [email protected]; David Rhodes [email protected]; Randy S. Bartell [email protected]; Rachel Brown [email protected]; Steve Gross [email protected]; Michael I. Garcia [email protected]; Martin R. Hopper n1ho1212er@msmower .o rg; Erin Overturf [email protected]; Maurice Brubaker [email protected]; Jim Dauphinais jd au12hinais(a),consul tbai.c om; Michael Smith [email protected];

Ryan Jerman [email protected]; Germaine R . Chappell G [email protected]; Stacey Goodwin [email protected]; Richard Mertz rcmertz7@o utlook.com; Ryan Anderson [email protected]; N icholas Phillips [email protected]; Mark Fenton [email protected]; Jim Dauphinais jdau12hinais@consultba i.com; Richard Alvidrez [email protected]; Andrea Crane [email protected]; Caitlin Liotiris [email protected]; Jennifer Breakell [email protected]; Kathleen Fraser kfraser@energystra t. com; Marvin T. Griff Marvin. Gri [email protected]; Sarah Cottrell Propst [email protected]; Shane Youtz shane@you tzvaldez. com; Joan Drake [email protected]; Stephen Curtice stephen@ youtzvaldez.com; Lisa Tormoen Hickey lisahickey@newla wgroup .com; Barry W. Dixon [email protected]; Zoe E. Lees Zel@ modrall.com ; Peter J. Gould [email protected]; Thomas Manning cfrecleanenergy@ yahoo.com; Charles F. Noble [email protected]; Jason Marks [email protected]; Steven S. Michel smichel@ westernresources.org; Matthew Gerhart [email protected]; Glenda Murphy [email protected]; Katherine Lagen Katherine. [email protected]; Pat O'Connell 12at.oconnell(@. westernresources.org; Travis Richie Travis. ri tchie@ sierracl ub .org; Bruce C. Throne [email protected]; Zach Pierce [email protected]; Mariel Nanasi [email protected]; Jane Yee j [email protected]; David Van Wink.le [email protected]; Tony A. Gurule TGurule@ cabq.gov; Rob Witwer [email protected]; Saif Ismail s [email protected]; Chris Hunter [email protected];· Danyel Mayer [email protected]; Senator Steve Neville [email protected]; Louis W. Rose [email protected]; Rep. James Strickler [email protected]; Sharon T. Shaheen sshaheen@ montand.com; Rep. Sharon Clahchischilliage [email protected]; Randy S. Bartell [email protected]; Senator Carlos Cisneros [email protected]; Steven Gross [email protected]; Senator William Sharer bi l [email protected]; Martin R. Hopper mhopper@ msrpower. org; Rep. Rod Montoya [email protected]; Lorraine Talley [email protected]; Rep. Paul Bandy [email protected]; Vicky Ortiz [email protected]; Rep. Patricia A. Lundstrom [email protected]; Peter Auh [email protected]; Charles Gunter [email protected]; Nann M. Winter nwinter@s telznerlaw.com; Jack Sidler Jack.s idler@state. nm. us; Keith Herrmann kherrmann@ste lznerlaw.com; Michael C. Smith [email protected] m. us; D ahl H arris [email protected]; John Reynolds [email protected]; Jeffrey Albright Jalbright@ lrrc.com; Sarah Becker Sarah. becker@state. nm. us; Carla Bond Cbond@ lrrc.com; Bradford Borman Bradford.Borman@s tate.nm.us; Megan A. O'Reilly [email protected]; Elisha Leyba-Tercero Elisha. leyba-tercero@state .nn1. us; Do n Hancock [email protected]; Josh Finn Joshua.fin11@11avajo12ower. com;

DATED this 10th day of July, 2019.

NEW MEXICO PUBLIC REGULATION COMMISSION BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) ABANDONMENT OF SAN JUAN ) Case No. 19-00018-UT GENERATING STATION UNITS 1 AND 4 )

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) CONSOLIDATED APPLICATION FOR ) APPROVALS FOR THE ABANDONMENT, ) Case No. 19-00195-UT FINANCING, AND RESOURCE REPLACEMENT ) FORSANJUANGENERATINGSTATION ) PURSUANT TO THE ENERGY TRANSITION ACT )

CORRECTED ORDER ON CONSOLIDATED APPLICATION

THIS MATTER comes before the New Mexico Public Regulation Commission

("Commission" or "NMPRC") on Public Service Company of New Mexico's ("PNM") July 1,

2019 Consolidated Application For Approvals for the Abandonment, Financing, and Resource

Replacement for San Juan Generating Station Pursuant to the Energy Transition Act

("Consolidated Application") filed in Case No. 19-00195-UT. The Commission, having reviewed the Consolidated Application and being otherwise duly informed, FINDS:

1. A proceeding under NMSA 1978 §62-9-5 of the Public Utility Act was previously initiated in Case 19-00018-UT to address the abandonment of PNM's interest in San Juan

Generating Station (SJGS) Units 1 and 4.

2. The Commission's January 30, 2019 Order ("1/30 Order") in Case 19-00018-UT required PNM to file an application with supporting testimony by March 1, 2019 in support of its planned abandonment addressing all relevant issues, including, inter alia, all reasons justifying

PNM's decision to abandon its ownership interests in SJGS Units 1 and 4; PNM's actions such

ATTACHMENT F as notice to its partners regarding termination of the SJGS related coal contract and write-offs taken; PNM's identification of the amount of costs associated with the abandomnent; PNM's identification of the amount of costs it seeks to recover associated the abandonment; and PNM' s proposed treatment and financing of undepreciated investments, decommissioning costs and reclamation costs. The 1/3 0 Order provided that the scope of that proceeding would include all issues relevant to an abandomnent proceeding under NMSA 1978, §62-9-5 and any other applicable statutes and NMPRC rules. ( emphasis added).

3. In response, PNM filed an Emergency Petition for Writ of Mandamus and

Request for Emergency Stay with the New Mexico Supreme Court on February 27, 2019 seeking to nullify the Commission's 1/30 Order.

4. By order issued March I, 2019, the New Mexico Supreme Court ordered responses to the Petition for Writ by March 19, 2019 while at the same time granting the Request for Emergency Stay.

5. PNM's Petition for Writ expressly sought to delay the abandonment filing required by the Commission's 1/30 Order until after an anticipated June 14, 2019 effective date of proposed legislation that might apply to PNM's abandomnent of SJGS.

6. Governor Michelle Lujan Grisham subsequently signed into law Senate Bill 489- the Energy Transition Act ("ETA"), on March 22, 2019, with an asserted effective date of June

14, 2019.

7. On June 26, 2019, the New Mexico Supreme Court issued an Order sua sponte that denied PNM's Petition for Writ and lifted the stay of the Commission's 1/30 Order.

8. On July 1, 2019, PNM filed its Consolidated Application in a new docket - Case

19-00195-UT, rather than the existing docket in Case 19-00018-UT. 9. PNM's Consolidated Application seeks approvals for, inter alia, abandonment of its remaining interest in San Juan Generating Station as of July 1, 2022; the issuance of a

Financing Order under the ETA approving the issuance of bonds secured by a non-bypassable customer charge; and approval of replacement resources to replace the 497MW of generating capacity retired through its requested abandonment of SJGS.

10. As the stay of the Commission's 1/30 Order in Case 19-00018-UT had been lifted at the time of PNM's filing of its Consolidated Application, the Commission's 1/3 Order was effective and PNM's Consolidated Application should have been filed in Case No. 19-00018-

UT.

11. That portion of PNM's Consolidated Application seeking abandonment of SJGS continues to be governed by Section 62-9-5. However, under Section 62-18-4 (E), the timeframes of the ETA would apply to consolidated abandonment and financing order applications. Therefore, Section 62-18-5 (A) would provide the Commission with six (6) months

(plus three (3) month extension) from the date of filing to rnle on the Consolidated Application.

12. Similarly, under Section 62- l 8-4(C), where an application for a financing order under the ETA is accompanied by a request for approval of new resources, the six-month timeframe of section 62-l 8-4(A) would govern, unless the Commission acts to defer the replacement resource application to a separate proceeding as provided by section 62-18-4 (D).

Upon deferral, the normal nine (9) month (plus six (6) month extension) timeframe of section 62-

9-1 would apply.

13. Prior to issuing the 1/30 Order, the Commission's January 10, 2019 Order

Requesting Response to PNM's 12/31118 Verified Compliance Filing Concerning Continued Use of SJGS requested that the respondents address whether the Commission should handle the issue of replacement resources in a separate bifurcated proceeding.

14. Most respondents to the Commission's January 10, 2019 Order at that time did not support conducting separate proceedings on the issue of replacement resources on grounds of efficiency and preservation of the parties' resources. However, in Case 13-00390-UT, the

Commission contemplated proceeding with a determination on abandonment pending a separate proceeding on replacement resources. Moreover, the ETA would now expressly afford the

Commission the discretion to defer consideration of a replacement resource application to a separate proceeding.

15. The Commission further notes that at least one entity, Western Resource

Advocates (WRA), has filed a motion to intervene which includes a protest pursuant to section

62-18-5 asserting challenges to "the resource mix and locations proposed by PNM, including whether the amount of renewable energy, storage and natural gas proposed by PNM is a mix that best serves the public interest "as well as "the location of resource replacement, particularly the amount to be located in the Central Consolidated School District, where SJGS 3 currently operates and provides tax revenues to the district. PNM' s proposed regulatory asset to allow for immediate expenditures on workforce severance and training, in anticipation of the plant's closure, is also of importance and should likely be evaluated against an earlier bond issuance to recover those particular costs which will pre-date the plant's closure."

16. WRA's protest constitutes good cause to proceed with a hearing on PNM's

Consolidated Application.

17. The Commission's six-month time limit for approval of long-term purchase power agreements under 17.9.551.10 NMAC may apply to the Consolidated Application's request for approval of replacement resources. As the timeframe of 17.9.551.10 NMAC appears to conflict with the timeframe provisions provided by the ETA, the applicability of 17.9.551.10

NMAC to this matter should be waived in order to permit consideration of all potential replacement resources in a single proceeding.

18. The Commission will treat PNM's Consolidated Application as responsive to the

Commission's 1/30 Order. Those portions of newly docketed matter 19-00195-UT seeking approval of the abandonment of SJGS and a Financing Order should be consolidated with Case

19-00018-UT and shall proceed under Case No 19-00018-UT subject to the existing orders issued in that case and the six-month timeframe for review of PNM's application under Section

62-18-5. Good cause exists to extend that timeframe by an additional three months due to the complexity and novelty of the matters contained in PNM' s application, resulting in a nine-month timeframe for review.

19. Those portions of the Consolidated Application seeking approval of replacement resources shall be deferred and bifurcated from the Consolidated Application for consideration as a separate proceeding to be conducted under Case No. 19-00195-UT. Due to the fact that this matter will proceed at the same time as the abandomnent and financing order applications, good cause exists at the outset of this matter to extend the timeframe for review of PNM' s application by an additional six months for a total review period of 15 months.

20. All motions to intervene filed in either docket as of the date of this order shall be accepted and treated as motions to intervene in both cases.

IT IS THEREFORE ORDERED:

A. Two separate proceedings concerning PNM's Consolidated Application shall be conducted in Case 19-00018-UT and Case 19-00195-UT respectively in accordance with and pursuant to the findings and terms established above which are incorporated here as orders of the

Commission.

B. Pursuant to NMSA 1978, §8-8-14 and the Commission's Utility Division

Procedural Rules, 17 .1.2.1 NMAC, et seq, Ashley Schannauer and Anthony Medeiros are appointed as Hearing Examiners jointly to preside, take all actions necessary and convenient within the limits of the Hearing Examiners' authority, conduct any necessary hearings and take such other action in Case No. 19-00018-UT and in Case No. 19-00195-UT as is consistent with

Commission procedure and the Commission's prior orders in Case 19-00018-UT. The Hearing

Examiners shall endeavor to issue recommended decisions for consideration by the Commission in sufficient time for the Commission to render a decision within the timeframes sought by PNM where appropriate, but definitely within the applicable statutory timeframes and as established by this Order.

C. The Hearing Examiners shall issue procedural orders -at their earliest convenience establishing, inter alia, the terms by which notice of PNM's applications shall be made and establishing a timeframe for intervention by interested parties.

D. The procedural orders shall include a timeframe requiring PNM to conduct face- to-face public community meetings with affected local govermnent entities, including specifically the Nenahnezad Chapter, the Tse daa K'aan (Hogback) Chapter, the Shiprock

Chapter, the San Juan Chapter and the Navajo Nation Council, to educate and provide answers to the public, including affected coal miners, concerning PNM' s plans and intentions with regard to the proposed shutdown of the San Juan Generating Station. E. A copy of this Order shall be served upon all persons listed on the attached

Certificate of Service by e-mail, if e-mail addresses are !mown, or by regular mail only if e-mail addresses are not known. ISSUED under the Seal of the Commission at Santa Fe, New Mexico, this 10th day of July 2019.

NEW MEXICO PUBLIC REGULATION COMMISSION

N L. BYRD, COMMISSIONER

TELEPHONICALLY APPROVED

VALERIE ESPINOZA, VICE-CHAIR

PHEN FISCHMANN, COMMISSIONER BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) ABANDONMENT OF SAN JUAN ) Case No. 19-00018-UT GENERATING STATION UNITS 1 AND 4 )

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) CONSOLIDATED APPLICATION FOR ) Case No. 19-00195-UT APPROVALS FOR THE ABANDONMENT ) FOR SAN JUAN GENERATING STATION ) PURSUANT TO THE ENERGY TRANSITION ) ACT )

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and conect copy of the foregoing Order Concerning

Consolidated Application issued by the New Mexico Public Regulation Commission on July

10, 2019, was sent via email on July 10, 2019 to the parties indicated below:

Ryan Jerman [email protected]; Germaine R. Chappell Gcha1:[email protected]; Stacey Goodwin Stacey.Goodwin(a),onmresources.com; Richard Mertz rcmertz7(@,out1ook.com; Ryan Anderson [email protected]; Nicholas Phillips [email protected]; Mark Fenton [email protected]; Jim Dauphinais jdau2hinais@,consultbai.com; Richard Alvidrez Ralvidrez(ci),mstlaw.com; Andrea Crane [email protected]; Joan Drake [email protected]; Jennifer Breakell [email protected]; Caitlin Liotiris ccollins(ci),energystrat.corn; Marvin T. Griff [email protected]; Kathleen Fraser kfraser@energystrat. com; Stephen Curtice [email protected]; Mariah Wheir [email protected]; Barry W. Dixon [email protected]; Lisa Tormoen Hickey [email protected]; Peter J. Gould [email protected]; Zoe E. Lees [email protected]; Charles F. Noble [email protected]; Thomas Manning [email protected]; Steven S. Michel [email protected]; Glenda Murphy [email protected]; Bruce C. Throne [email protected]; Jason Marks [email protected]; Mariel Nanasi [email protected]; Evan Gillespie [email protected]; Rob Witwer witwerr@southwestgen. com; Jane Yee [email protected]; Chris Hunter Chris(ci),comerstoneresults.com; Tony A. Gurule [email protected]; Senator Steve Neville [email protected]; Saif Ismail [email protected]; Rep. James Strickler [email protected]; Edward Montoya [email protected]; Rep. Shiron Clahchischilliage [email protected]; Louis W. Rose [email protected]; Senator Carlos Cisneros [email protected]; Sharon T. Shaheen [email protected]; Senator William Sharer [email protected]; Randy S. Bartell [email protected]; Rep. Rod Montoya [email protected]; Steven Gross [email protected]; Rep. Paul Bandy [email protected]; Martin R. Hopper [email protected]; Rep. Patricia A. Lundstrom Patricia. [email protected]; Lonaine Talley [email protected]; Charles Gunter [email protected]; Vicky Ortiz [email protected]; Jack Sidler [email protected]; Peter Auh [email protected]; Michael C. Smith [email protected]; Nann M. Winter [email protected]; John Reynolds Jolm [email protected]; Dahl Harris [email protected]; Sarah Becker [email protected]; Jeffrey Albright Jalbright@ lrrc.com; Bradford Bom1an [email protected]; Dhiraj Solomon [email protected]; Elisha Leyba-Tercero [email protected]; Milo Chavez [email protected]; Joseph Yar [email protected]; John Bogatko [email protected]; Carey Salaz carey.salaz(a),prun.com; Gail Evans [email protected]:

Mark Fenton Mark.Fen ton(a),gnrnresources. com; Cholla Khoury [email protected]; Steven Michel [email protected]; James R. Dittmer [email protected]; Bruce C. Throne bthroneatty/alnewmexico.com; Peter Gould ggouldlaw/algmail.com; Charles Kolberg [email protected]; Nann Winter nwinter(@,stelznerlaw.com; Thomas W antler Thomas. wander/algnmresources.com ; Marcos Martinez mdmartinez/alsantafenrn. gov; Charles Noble [email protected]; Jeff Albright jalbrigbt(@,lrrlaw.com; David Van Winkle [email protected]; Patrick Ortiz Portiz@cuddV!nccarthy.com; Noah Long [email protected]; Tom Singer Singer/alwesternlaw.org; Camilla Feibelman [email protected]; Joseph A. Herz jaherz/alsawvel.com; Don Hancock sricdon(a),earthlink. net; Glenda Murphy gmu1:[email protected]; Mariel Nanasi [email protected]; Dahl Hanis dahlharris(@,hotmail.com Lisa Tom10en Hickey lisahickey/alnewlawgroug.com; Andrea Crane [email protected]; Sarah Cottrell Propst [email protected]; Michael Dim1eier mdinneie(@,gmail.com; John W. Boyd [email protected]; Charles Gunter [email protected]; Anthony Sisneros Anthony.sisneros(@,state.nm.us; Cydney Beadles [email protected]. us; Jack Sidler jack.s idler@state. run. us; Donald Gruenemeyer [email protected]; Rob Witwer [email protected]; Louis W . Rose lrose(@,montand.com; David Rhodes [email protected]; Randy S. Bartell [email protected]; Rachel Brown rabrown/alsantafecountY!!Jn.gov; Steve Gross [email protected]; Michael I. Garcia mikgarcia/albemco.gov; Martin R. Hopper rnhog12er/alms02ower.org; Erin Overturf erin.overturf/alwesternresources.org; Maurice Brubaker mbrubaker@consul tba i. com; Jim Dauphinais [email protected]; Michael Smith [email protected];

Ryan Jerman [email protected]; Gennaine R. Chappell Gcha1212elle.law@ gmail.com; Stacey Goodwin Stacey. [email protected]; Richard Mertz [email protected]; Ryan Anderson [email protected]; Nicholas Phillips [email protected]; Mark Fenton Mark. [email protected]; Jim Dauphinais [email protected]; Richard Alvidrez [email protected]; Andrea Crane [email protected]; Caitlin Liotiris [email protected]; Jennifer Breakell j [email protected]; Kathleen Fraser [email protected]; Marvin T. Griff [email protected]; Sarah Cottrell Propst propst@interwest. org; Shane Youtz shane@yo utzvaldez.com; Joan Drake [email protected]; Stephen Curtice [email protected]; Lisa Tormoen Hickey [email protected]; Bany W. Dixon bwdixon953@msn. com; Zoe E. Lees Zel@ modrall.com; Peter J. Gould [email protected]; Thomas Manning [email protected]; Charles F. Noble [email protected]; Jason Marks [email protected]; Steven S. Michel smichel@ westerm esources.org; Matthew Gerhart [email protected]; Glenda Murphy [email protected]; Katherine Lagen [email protected]; Pat O'Connell [email protected]; Travis Richie Travis. ri [email protected]; Bruce C. Throne [email protected]; Zach Pierce [email protected]; Mariel Nanasi [email protected]; Jane Yee [email protected]; David Van Winkle [email protected]; Tony A. Gurule [email protected]; Rob Witwer [email protected]; Saif Ismail [email protected]; Chris Hunter [email protected];- Danyel Mayer [email protected]; Senator Steve Neville [email protected]; Louis W. Rose [email protected]; Rep. James Strickler [email protected]; Sharon T. Shaheen [email protected]; Rep. Sharon Clahchischi lliage [email protected]; Randy S. Bartell [email protected]; Senator Carlos Cisneros [email protected]; Steven Gross [email protected]; Senator William Sharer b ii l@wi 11 iamsharer.com; Martin R. Hopper [email protected]; Rep. Rod Montoya [email protected]; Lorraine Talley [email protected]; Rep. Paul Bandy [email protected]; Vicky Ortiz [email protected]; Rep. Patricia A. Lundstrom [email protected]; Peter Auh [email protected]; Charles Gunter Charles .gunter@state. nm. us; Nann M. Winter [email protected]; Jack Sidler J [email protected]; Keith Herrmann [email protected]; Michael C. Smith [email protected]; Dahl Harris [email protected]; John Reynolds [email protected]; Jeffrey Albright J [email protected]; Sarah Becker [email protected]; Carla Bond [email protected]; Bradford Bonnan [email protected]; Megan A. O 'Reilly [email protected]; Elisha Leyba-Tercero EIi sha. [email protected]; Don Hancock [email protected]; Josh Finn Joshua. [email protected];

DATED this 10th day ofJuly, 2019.

NEW MEXICO PUBLIC REGULATION COMMISSION BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF THE APPLICATION ) OF PUBLIC SERVICE COMPANY OF NEW ) MEXICO FOR APPROVAL TO ABANDON ) SAN JUAN GENERATING STATION UNITS ) CASE NO. 19-00018-UT 1 AND 4. ) ______) and

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO’S CONSOLI- ) DATED APPLICATION FOR APPROVALS FOR ) THE ABANDONMENT, FINANCING, AND ) RESOURCE RELACEMENT FOR SAN JUAN ) GENERATING STATION PURSUANT TO ) THE ENERGY TRANSITION ACT. ) ) PUBLIC SERVICE CO. OF NEW MEXICO, ) CASE NO. 19-00195-UT ) Applicant. ) )

WESTERN RESOURCE ADVOCATES’ MOTION FOR CLARIFICATION AND RECONSIDERATION, AND REQUEST FOR ORAL ARGUMENT AND SHORTENED RESPONSE TIME

COMES NOW Western Resource Advocates (“WRA”) by and through its attorney, Steven S.

Michel, and for its Motion for Clarification and Reconsideration, and Request for Oral Argument and

Shortened Response Time, states the following:

1. On July 10, 2019, the Commission issued its Order, and then its Corrected Order on

Consolidated Application with respect the above-styled dockets. The transcript of the commissioner discussion leading up to those orders, as well as press reports following issuance of the orders, indicates that the Commission intends to not apply the Energy Transition Act (ETA) to the abandonment and financing portions of PNM’s July 1, 2019 Application in Case 19-00195-UT. There does not, in fact, appear to be another rationale behind re-assigning the abandonment and financing portions of PNM’s

Application to the 19-00018.UT docket. The Corrected Order, however, does not provide a definitive statement regarding the critical issue of ETA applicability.

ATTACHMENT G

2. Whether the ETA applies to PNM’s Application is a dispositive legal matter that should be determined at the outset, and appears to have been decided. To the extent it has been determined that the ETA does not apply, WRA requests that the Commission clarify that decision, and then reconsider. In the alternative, if WRA’s assessment of the Commission’s decision is wrong, and the Commission intends to apply the ETA to the entirety of PNM’s Application, the WRA requests that the Commission clarify that as well. Failure to clarify the Commission’s decision on ETA applicability will likely result in incredibly complex litigation with multiple, mutually exclusive, outcomes. Moreover, not clarifying this issue at the outset risks a situation where the Commission approves an outcome without applying the ETA, only to have a court determine that the ETA should apply and, by the terms of the new law, have PNM’s

Application automatically approved because the Commission did not act on it.

3. Assuming that the Commission has determined that the ETA should not apply, WRA asks for reconsideration of its Order assigning a portion of PNM’s Application to Case 19-00018-UT, given what WRA believes to be a clear legal requirement that the ETA apply, and the severe consequences of not utilizing the tools and directives found in the new law. Without the ETA, $40 million in economic relief, job training and severance to the Four Corners will be lost, as will the ratepayer benefits that flow from the low interest bonds that the ETA enables. The locational directives for replacement resources will also be foregone – directives that, under PNM’s proposal, would steer hundreds of millions of dollars in economic development to the impacted region. None of these factors were considered by the Commission in its deliberations concerning how to assign PNM’s Application to particular dockets – so as to have the

ETA apply to certain portions of PNM’s proposal, but presumably not apply to others.

4. For these reasons, including the importance to the State of New Mexico in assuring that the policies established by the Legislature are followed by the Commission, WRA requests that the

Commission clarify its intent to have the ETA not apply to portions of PNM’s Application, to reconsider and reverse that decision and instead bifurcate PNM’s Application into parts 1 and 2 of 19-00195-UT, as identified by Commission counsel as an alternative bifurcation procedure, and to provide the parties an opportunity to brief the applicability of the ETA, and present oral argument to the Commission on that

2

important and dispositive threshold issue. Because of the importance of the issue and the limited statutory time-frames available to the Commission to decide PNM’s Application, WRA suggest that the parties be afforded one week to submit simultaneous briefs on the applicability of the ETA, with oral argument to follow shortly thereafter.

5. WRA also requests that, because of the importance and urgency of a decision on ETA applicability, that the response time to this motion be shortened.

6. WRA has requested the concurrence and position of other parties on this Motion, with the following responses: Interwest and Public Service Company of New Mexico support the motion. The

New Mexico Industrial Energy Consumers support the request for clarification, but did not state a position on the other relief requested in this motion. The Albuquerque Bernalillo County Water Utility

Authority takes no position on the motion. Staff takes no position on the motion, but opposes a 7-day briefing schedule. Bernalillo County takes no position on the motion, but would participate in any scheduled oral argument. Southwest Generation opposes the motion and intends to submit a response.

New Energy Economy opposes the motion.

WHEREFORE, for the foregoing reasons, Western Resource Advocates prays for a Commission order shortening the response time to this motion, clarifying that its July 10, 2019 Corrected Order intended that the ETA not apply to the abandonment and financing portions of PNM’s Application, reconsidering that decision and allowing briefs and oral argument on the issue of ETA applicability, determining that the ETA applies to PNM’s entire July 10, 2019 Application, and reassigning PNM’s

Application to parts 1 and 2 of Case 19-00195-UT, and granting such other and further relief as this

Commission deems just and proper.

Respectfully submitted,

WESTERN RESOURCE ADVOCATES

______Steven S. Michel, Attorney for WRA 409 East Palace Avenue, Unit 2 Santa Fe, NM 87501 T: (505) 820-1590 [email protected]

3

BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF THE APPLICATION ) OF PUBLIC SERVICE COMPANY OF NEW ) MEXICO FOR APPROVAL TO ABANDON ) SAN JUAN GENERATING STATION UNITS ) CASE NO. 19-00018-UT 1 AND 4. ) ______)

and

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO’S CONSOLI- ) DATED APPLICATION FOR APPROVALS FOR ) THE ABANDONMENT, FINANCING, AND ) RESOURCE RELACEMENT FOR SAN JUAN ) GENERATING STATION PURSUANT TO ) THE ENERGY TRANSITION ACT. ) ) PUBLIC SERVICE CO. OF NEW MEXICO, ) CASE NO. 19-00195-UT ) Applicant. ) )

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Western Resource Advocates Motion was sent as indicated on July 22, 2019 to the following:

Stacey J. Goodwin [email protected]; Douglas Howe [email protected] Mark Fenton [email protected]; Richard C. Mertz [email protected]; Carey Salaz [email protected]; Peter Auh [email protected] Jennifer Hall [email protected]; Thomas Manning [email protected] Raymond L. Gifford [email protected]; Marcos D. Martinez [email protected] Jeffrey H. Albright [email protected] James R. Dauphinais [email protected]; Nann Winter [email protected] Martin Hopper [email protected] Joan Drake [email protected] Daniel R. Dolan [email protected] Douglas Howe [email protected]; Jane Yee [email protected]; Charles F. Noble [email protected] Jason Marks [email protected] Stephanie Dzur [email protected] Mariel Nanasi [email protected] Stephen Curtice [email protected] Michael I. Garcia [email protected]; Donald Gruenemeyer [email protected] Amanda Edwards [email protected] Tom Singer [email protected] Germaine R. Chappelle [email protected] John Bogatko [email protected] Robin Gomez [email protected]; John Reynolds [email protected] Caitlin Liotris [email protected] Brain Harris [email protected] Clyde Worthen [email protected]; Deborah Bransford [email protected] Mariel Nanasi [email protected]; Heather Alvarez [email protected] John Boyd [email protected]; Jennifer A. Baca [email protected] David Van Winkle [email protected]; Bradford Borman [email protected] Joe Herz [email protected]; Michael C. Smith [email protected] William Templeman [email protected]; Milo Chavez [email protected] Kurt J. Boehm [email protected]; Bruce Throne [email protected] Brian Andrews [email protected] 4

Camilla Feibelman [email protected] Melissa Butler [email protected] Randy Bartell [email protected] Bob Edwards [email protected] Louis Rose [email protected] Kiran Mehta [email protected] Adam Bickford [email protected]; Eric Koontz [email protected] Ramona Blaber [email protected]; David Getts [email protected] Don Hancock [email protected]; Loretta Martinez [email protected]; Noah Long [email protected]; Gideon Elliot [email protected] Dahl Harris [email protected] Jack Sidler [email protected] David Van Winkle [email protected] Andrea Crane [email protected] Keith W. Hermann [email protected] Anna Sommer [email protected] Dhiraj Soloman [email protected] Elisha Leyba-Tecero [email protected] Lisa Tormoen Hickey [email protected] Ralph Cavanagh [email protected]; John Howat [email protected]; Howard Geller [email protected]; Daniel A. Najjar [email protected]; Kevin Higgins [email protected]; Pat O’Connell [email protected] Erin Overturf [email protected] Cholla Khoury [email protected]; Robert Lundin [email protected] Elaine Heltman [email protected]; Loretta Martinez [email protected]; Gideon Elliot [email protected] Jack Sidler [email protected] Andrea Crane [email protected] Anna Sommer [email protected] Peter Gould [email protected] Kelly Gould [email protected] Doug Gegax [email protected]; James R. Dittmer [email protected];

______Glenda Murphy

5 BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) ABANDONMENT OF SAN JUAN ) Case No. 19-00018-UT GENERATING STATION UNITS 1 AND 4 )

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) CONSOLIDATED APPLICATION FOR ) APPROVALS FOR THE ABANDONMENT, ) Case No. 19-00195-UT FINANCING, AND RESOURCE REPLACEMENT ) FOR SAN JUAN GENERATING STATION ) l-JLl::L ) ;'\J OfFlCE u,. PURSUANT TO THE ENERGY TRANSITION ACT ) JUL I 4 2019 -,_~r'\~,, l i\

• • T - \I ' ORDER ON MOTION FOR CLARIFICATION

THIS MATTER comes before the New Mexico Public Regulation Commission

("Commission" or "NMPRC") on Western Resource Advocates' (WTA) July 22, 2019 Motion for Clarification and Reconsideration filed in Case No. 19-00195-UT and Case 19-00018-UT.

THE COMMISSION FINDS AND HEREBY ORDERS:

A. WRA's motion posits that the Commission intended to rule in its July 10, 2019

Corrected Order on Consolidated Application ("Corrected Order'') that the Energy Transition

Act (ETA) would not apply to that portion of the bifurcated proceedings on PNM's Consolidated

Application assigned to Case 19-00018-UT.

B. WRA's motion asserts clarification of the July 10 Corrected Order is necessary based on its view of the discussion among the individual commissioners prior to issuing the

Commission's, as well as various unspecified press reports appearing after the Corrected Order was issued.

ATTACHMENT H C. WRA's motion further assumes reconsideration would therefore be required to

change this supposed ruling of the Commission on the applicable law despite that WRA

acknowledges that ruling is not set forth in the Commission's Corrected Order.

D. WRAs motion is correct when it notes that the Corrected Order "does not provide

a definitive statement regarding the critical issue of ETA applicability."

E. The Corrected Order assigned this matter to the Hearing Examiners pursuant to

NMSA 1978, §8-8-14 and the Commission's Utility Division Procedural Rules, 17.1.2.1 NMAC, to preside, take all actions necessary and convenient within the limits of the Hearing Examiners' authority, conduct any necessary hearings and take such other action in Case No. 19-00018-UT and in Case No. 19-00195-UT as is consistent with Commission procedure and the

Commission's prior orders in Case 19-00018-UT.

F. At the scheduling conference held on July 23, 2019, the Hearing Examiners indicated they will be issuing a Scheduling Order that will encompass the issue of the law applicable to the approvals sought in PNM's Consolidated Application for abandonment and issuance of a financing order.

G. No further clarification of or elaboration on the Commission's Corrected Order

1s necessary.

H. This Order is issued by the Chair of the Commission or by a single Commissioner in accordance with l .2.2.30(B) NMAC.

I. This Order is effective immediately.

J. Copies of this Order shall be served on all persons listed on the attached

Certificate of Service, via e-mail to those whose e-mail addresses are known, and otherwise via regular mail. ISSUED under the Seal of the Commission at Santa Fe, New Mexico, this 24th day of July 2019.

NEW MEXICO PUBLIC REGULATION COMMISSION

TELEPHONICAU.Y APPROVED

THERESA BECENTI-AGUILAR, CHAIR BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) ABANDONMENT OF SAN JUAN ) Case No. 19-00018-UT GENERATING STATION UNITS 1 AND 4 )

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) CONSOLIDATED APPLICATION FOR ) Case No. 19-00195-UT APPROVALS FOR THE ABANDONMENT ) FOR SAN JUAN GENERATING STATION ) PURSUANT TO THE ENERGY TRANSITION) ACT )

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and co1Tect copy of the foregoing Order on Motion

for Clarification issued by the New Mexico Public Regulation Commission via Single Signature

Order on July 24, 2019, was sent via email on July 24, 2019 to the parties indicated below:

Ryan Jerman [email protected]; Germaine R. Chappell Gcha1:11:[email protected]; Stacey Goodwin Stacey.Good win@ .gnmresources.com; Richard Mertz [email protected]; Ryan Anderson [email protected]; Nicholas Phillips [email protected]; Mark Fenton Mark.Fenton@,pnrn.com: Jim Dauphinais [email protected]; Richard Alvidrez [email protected]; Andrea Crane [email protected]; Joan Drake jdrake@modral l. com; Jennifer Breakell [email protected]; Caitlin Liotiris cco II [email protected] m; Marvin T. Griff [email protected]; Kathleen Fraser [email protected]; Stephen Curtice [email protected]; Mariah Wheir [email protected]; Barry W. Dixon bwdixon9 [email protected]; Lisa Tormoen Hickey [email protected]; Peter J. Gould [email protected]; Zoe E. Lees Zel@modralLcom; Charles F. Noble [email protected]; Thomas Manning [email protected],com; Steven S. Michel [email protected]; Glenda Murphy [email protected]; Bruce C. Throne [email protected]; Jason Marks [email protected]; Mariel Nanasi Mariel@seedsbeneaththesno w.com; Evan Gillespie [email protected]; Rob Witwer [email protected]; Jane Yee j [email protected]; Chris Hunter [email protected]: Tony A. Gurule [email protected]; Senator Steve Neville [email protected]; Saiflsmail [email protected]; Rep. James Strickler [email protected]; Edward Montoya [email protected]; Rep. Sharon Clahchischilliage [email protected]; Louis W. Rose [email protected]; Senator Carlos Cisneros [email protected]; Sharon T. Shaheen [email protected]; Senator William Sharer [email protected]: Randy S. Bartell [email protected]; Rep. Rod Montoya [email protected]: Steven Gross [email protected]; Rep. Paul Bandy [email protected]; Martin R. Hopper [email protected]; Rep. Patricia A Lundstrom [email protected]; Lonaine Talley Ital [email protected]; Charles Gunter [email protected]; Vicky Ortiz [email protected]; Jack Sidler [email protected]; Peter Auh [email protected]; Michael C. Smith [email protected]. us; Nann M. Winter [email protected]; John Reynolds [email protected]; Dahl Hanis [email protected]; Sarah Becker [email protected]; Jeffrey Albright [email protected]; Bradford Bonnan [email protected]; Dhiraj Solomon [email protected]; Elisha Leyba-Tercero Elisha.leyba-tercero@state. nm. us; Milo Chavez [email protected]; Joseph Yar [email protected]; John Bogatko [email protected]; Carey Salaz [email protected]; Gail Evans [email protected]:

Mark Fenton Mark.Fent [email protected]; Cholla Khoury [email protected]; Steven Michel [email protected]: James R. Dittmer [email protected]; Bruce C. Throne [email protected]: Peter Gould [email protected]; Charles Kolberg ckolbern:@abcwua.org: Nann Winter [email protected]; Thomas Wander [email protected]; Marcos Martinez mdmartinez@santa fenm. gov; Charles Noble [email protected]; Jeff Albright [email protected]; David Van Winkle [email protected]; Patrick Ortiz [email protected]; Noah Long [email protected]; Tom Singer [email protected]; Camilla Feibelman [email protected]; Joseph A. Herz [email protected]; Don Hancock [email protected]; Glenda Murphy [email protected]: Mariel Nanasi [email protected]; Dahl Harris [email protected] Lisa Tormoen Hickey [email protected]; Andrea Crane [email protected]; Sarah Cottrell Propst [email protected]: Michael Dinneier [email protected]; John W. Boyd [email protected]; Charles Gunter [email protected]; Anthony Sisneros [email protected]; Cydney Beadles [email protected]; Jack Sidler [email protected]; Donald Gruenemeyer [email protected]; Rob Witwer witwerr@southwestgen._com: Louis W. Rose lrose@monta·nd.com; David Rhodes [email protected]; Randy S. Bartell rbartell@ montand.com; Rachel Brown [email protected]; Steve Gross [email protected]; Michael I. Garcia [email protected]; Martin R. Hopper [email protected]; Erin Overturf [email protected]; Maurice Brubaker [email protected]; Jim Dauphinais [email protected]; Michael Smith [email protected]:

Ryan Jerman Ryan.Jerman@ pnmresources.com; Germaine R. Chappell [email protected]; Stacey Goodwin S tacev.G ood [email protected]; Richard Mertz [email protected]; Ryan Anderson [email protected]; Nicholas Phillips [email protected]; Mark Fenton [email protected]; Jim Dauphinais jdauphinais@consultbai. com; Richard Alvidrez Ralvidrez@ mstlaw.com: Andrea Crane ctcolumbia('aiaol.com; Caitlin Liotiris [email protected]; Jennifer Breakell j breakell@fm tn.org; Kathleen Fraser [email protected]. com; Marvin T. Griff Marvin. [email protected]; Sarah Cottrell Propst [email protected]; Shane Youtz shane@youtzva ldez.com; Joan Drake [email protected]; Stephen Curtice [email protected]; Lisa Torrnoen Hickey [email protected]; Barry W. Dixon bwdixon9 [email protected]; Zoe E. Lees Zel@ modrall.com; Peter J. Gould pgouldlaw@gma il.com; Thomas Manning c [email protected]; Charles F. Noble [email protected]; Jason Marks [email protected]; Steven S. Michel smichel@ westernresources.org; Matthew Gerhart matt. gerhart@sierrac lub.org; Glenda Murphy gmurphy@westernresou rces.org; Katherine Lagen Katherine. lagen@s ierrac Iub .org: Pat O'Connell [email protected]; Travis Richie Travis. rit chie@sierrac Iu b.org; Bruce C. Throne [email protected]; Zach Pierce [email protected]; Mariel Nanasi Marie l@seedsbenea ththesnow. com; Jane Yee [email protected]; David Van Winkle [email protected]; Tony A. Gurule [email protected]; Rob Witwer [email protected]; Saif Ismail [email protected]; Chris Hunter C hris@cornerstoneresul ts.com ; Danyel Mayer [email protected]; Senator Steve Neville [email protected]; Louis W. Rose [email protected]; Rep. James Strickler [email protected]; Sharon T. Shaheen [email protected]; Rep. Sbamn Clabchischilliage [email protected]; Randy S. Bartell [email protected]; Senator Carlos Cisneros [email protected]; Steven Gross [email protected]; Senator William Sharer [email protected]; Martin R. Hopper [email protected]; Rep. Rod Montoya [email protected]; Lorraine Talley [email protected]; Rep. Paul Bandy [email protected]; Vicky Ortiz [email protected]; Rep. Patricia A. Lundstrom Patricia. [email protected]; Peter Aub [email protected]; Charles Gunter [email protected] ; Nann M. Winter [email protected]; Jack Sidler J [email protected]; Keith Herrmann [email protected]; Michael C. Smith [email protected]; Dahl Harris [email protected]; John Reynolds Jobn. [email protected]; Jeffrey Albright [email protected]; Sarah Becker [email protected]; Carla Bond [email protected]; Bradford Borman [email protected]; Chuck Noble [email protected]: Elisha Leyba-Tercero Elisha. [email protected] . us; Don Hancock [email protected]; Josh Finn Joshua.finn(ci;. navajogower.com;

DATED this 24th day of July, 2019.

CO PUBLIC REGULATION COMMISSION BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) ABANDONMENT OF SAN JUAN ) Case No. 19-00018-UT GENERATING STATION UNITS 1 AND 4 ) ______)

PROCEDURAL ORDER

THIS MATTER comes before the Hearing Examiners in this proceeding pursuant to

NMSA 1978, § 8-8-14 and New Mexico Public Regulation Commission (Commission or NMPRC)

Rules of Procedure 1.2.2.24 and 1.2.2.29 of the New Mexico Administrative Code (NMAC).

Being fully informed, the Hearing Examiners FIND and CONCLUDE:

1. On July 1, 2019, Public Service Company of New Mexico (PNM) filed its

Consolidated Application for the Abandonment, Financing and Replacement of the San Juan

Generating Station pursuant to the Energy Transition Act, NMSA 1978, §§ 62-18-1 to -23 (2019)

(ETA). In the Application, PNM requests the following approvals from the Commission:

(A) Abandonment of the San Juan Generating Station (SJGS), including:

(1) abandonment of the SJGS plant and facilities located at Waterflow, New Mexico;

(2) decommissioning of the SJGS plant and facilities and reclamation of the coal mine that

provides fuel for SJGS; and (3) recovery of abandonment costs and related energy transition costs

as defined in the ETA of approximately $360.1 million.

(B) Approval of new generating resources to replace the retired 497 MW of .

capacity and energy produced by PNM's share of the SJGS, including: (1) twenty-year purchased power agreements and energy storage agreements (PPAs) for the output from a 50 MW solar facility located on Jicarilla Apache tribal lands combined with a 20 MW battery storage agreement

(the Jicarilla PPA) and for the output from a 300 MW solar facility located in McKinley County

ATTACHMENT I combined with a 40 MW battery storage agreement (the Arroyo PPA); (2) issuance of certificates of public convenience and necessity (CCNs) for (a) 40 MW and 30 MW utility-owned energy storage systems, refe1Ted to as the Sandia and Zamora facilities, respectively, located at two existing utility sites in Bernalillo County and (b) 280 MW of utility-owned natural gas-fired generating units, referred to as the Pinon Gas Plant, located in Waterflow, New Mexico at the SJGS site. In addition to the foregoing SJGS replacement resource proposals, PNM requests that consideration be given to a PNM-owned 20 MW solar facility to be installed at the SJGS site as a means of fulfilling PNM's obligation under Paragraph 40 of the Modified Stipulation approved in

Case No. 13-00390-UT.

(C) Approval of a financing order under the ETA providing for the issuance of highly-rated Energy Transition Bonds in the principal amount of approximately $361 million secured by a non-bypassable customer charge that will provide for recovery of: (1) PNM's undepreciated investments totaling $283.0 millio'n; (2) costs for job training and severance for employees at SJGS and the coal mine in the amount of $20.0 million; (3) decommissioning and reclamation costs of $28.6 million; (4) transactional costs associated with issuing energy transition bonds and obtaining approval of abandonment of $8.7 million; (5) the Energy Transition Indian

Affairs Fund to be administered by the Indian Affairs Department, in the amount of $1.8 million;

(6) the Energy Transition Economic Development Assistance Fund to be administered by the

Economic Development Department, in the amount of $5.9 million; and (7) the Energy Transition

Displaced Worker Assistance Fund, to be administered by the Workforce Solutions Department, in the amount of$12.1 million.

2. On July 10, 2019, however, the Commission issued an order separating the

Commission's review of PNM's Application into two proceedings. The abandonment and

PROCEDURAL ORDER -2- Case No. 19-00018-UT securitization issues will be addressed in this proceeding, Case No. 19-00108-UT. The replacement resources will be addressed in Case No. 19-00195-UT. A separate notice and hearing schedule are being established for Case No. 19-00195-UT.

3. Thus, of the approvals PNM requested in its Consolidated Application, items (A) and

(C) described above will be addressed in this proceeding, Case No. 19-00018-UT. Additional details regarding the foregoing proposals are set forth in the Notice of Proceeding and Hearing on

San Juan Abandonment and Securitization of Energy Transition Costs attached to this Order.

4. The Commission's July 10, 2019 order established a nine-month timeframe for review of the PNM requests at issue in this proceeding. The order also appointed the undersigned as

Hearing Examiners and directed them to . "endeavor to -issue recommended decision for consideration by the Commission in sufficient time for the Commission to render a decision within the timeframes sought by PNM where appropriate, but definitely within the applicable statutory timeframes and as established by this Order." Corrected Order on Consolidated Application, Cases

Nos: 19-00018-UT and 19-00195-UT (July 10, 2019), at ,r 18 and ordering ,r B.

5. The Hearing Examiners held a prehearing conference in this case and Case No. 19-

00018-UT on July 23, 2019. Representatives of the following parties participated in the confer­ ence: PNM, Albuquerque Bernalillo County Water Utility Authority, the Coalition for Clean

Affordable Energy, the Interwest Energy Alliance, IUOE Local 953, New Energy Economy, the

New Mexico Attorney General, the New Mexico Industrial Energy Consumers, the San Juan

Citizens Alliance and Dine CARE, San Juan County, the Sierra Club, Southwest Generation

Operating Company, Western Resource Advocates, and the Utility Division Staff (Staff) of the

Commission.

PROCEDURAL ORDER - 3 - Case No. 19-00018-UT 6. The Hearing Examiners and the parties discussed a procedural schedule, procedures for the electronic service of filings and discovery requests and responses, and related matters.

7. The Commission has jurisdiction over the parties and the subject matter of this case.

8. The procedural schedule discussed at the prehearing conference on July 23, 2019 and related details set forth below should be adopted for this proceeding.

IT IS THEREFORE ORDERED:

A. The following schedule is adopted for this proceeding:

1) PNM shall cause, at its sole expense, a copy of the Notice of Proceeding and

Hearing on San Juan Abandonment and Securitization of Energy Transition Costs (Notice) appended to this Order. as Attachment A and incorporated by reference to be published once in newspapers of general circulation sufficient for availability in every county where PNM provides service on or before August 14, 2019. PNM shall, at its sole expense, post a copy of the Notice on its public website (http://www.PNM.com/regulat01y) on or before August 1, 2019. PNM shall

.also, atits sole expense, mail to its customers (by bill stuffer or separately) a copy of the Notice by no later than September 3, 2019. PNM shall promptly file affidavits reflecting such publication, posting, and mailing with the Commission.

2) On or before August 7, 2019, PNM shall file a document identifying and designating by page and line number the portions of its pre-filed testimony pertaining to items under paragraphs l(A) (abandonment) and l(C) (securitization) above. PNM shall also identify and designate by page and line number in such document the portions of its testimony pertaining to paragraph l(B), the replacement resource matters being addressed in Case No. 19-00195-UT.

3) PNM shall file a legal brief on or before August 23, 2019 regarding the issue of the extent to which N.M. Const. Article IV, § 34 prevents the application of the Energy Transition

PROCEDURAL ORDER - 4 - Case No. 19-00018-UT Act, NMSA 1978, §§ 62-18-1 to -23 (2019), to the issues in this case. PNM may also file supplemental testimony regarding the foregoing issue on or before August 23, 2019.

4) PNM shall make its best efforts to conduct all face-to-face public community meetings described in ordering paragraph B below with the affected government entities by no later than September 3, 2019.

5) On or before August 1, 2019, PNM shall send the Notice by certified mail to the proper regulatory officials or agencies of the affected government entities identified in ordering paragraph B below. PNM shall promptly file in the docket an affidavit confirming such service by certified mail and listing the names and addresses of each official or agency so served.

6) Any person desiring to become a party (intervenor) in this case shall file a motion for leave to intervene in conformity with Rules l .2.2.23(A) and l .2.2.23(B) NMAC by no later than September 24, 2019.

7) Responses to the PNM legal brief filed on August 23, 2019 as provided under ,r

A(3) above shall be filed on or before October 18, 2019.

8) The following testimony shall be filed by Staff and may be filed by intervenors on or before October 18, 2019: (a) testimony responsive to the testimony in PNM's Application;

(b) testimony responsive to the issues addressed in the legal brief and supplemental testimony filed by PNM on August 23, 2019 regarding the applicability of the Energy Transition Act to the current proceeding; and ( c) in the event the Energy Transition Act is ultimately determined not to apply to this proceeding, testimony on the merits of Staff and Intervenors' claims (if any) regarding the abandonment of the San Juan Units 1 and 4 and the allocation of the costs associated with the abandonment (including any undepreciated investment in the San Juan Generating Station).

9) Rebuttal testimony shall be filed on or before November 15, 2019.

PROCEDURAL ORDER - 5 - Case No. 19-00018-UT 10) All motions m limine, motions to strike testimony, and other prehearing motions shall be filed on or before November 22, 2019.

11) A prehearing conference will be held, if necessary, beginning at 9:30 a.m. on

November 25, 2019 in the Ground Floor Hearing Room of the Commission in the P.E.R.A.

Building, 1120 Paseo de Peralta, Santa Fe, New Mexico 87501.

12) A public comment hearing in this matter shall be held pursuant to 1.2.2.23.F

NMAC on December 9, 2019, commencing at 9:30 a.m. MT in the Ground Floor Hearing Room of the Commission, P.E.R.A. Building, 1120 Paseo de Peralta, Santa Fe, New Mexico.

13) The evidentiary hearing in this matter shall be held on December 10, 2019

.commencing. at 9:00 a.m. MT in the Ground Floor Hearing Room of the Commission, P.E.R.A.

Building, 1120 Paseo de Peralta, Santa Fe, New Mexico, and shall continue as necessary until

December 19, 2019.

B. PNM shall conduct face-to-face public community meetings in accordance with the

Commission's Orders of July 10 and 12, 2019 with affected government entities, including specifically the Nenahnezad Chapter, the Tse daa K'aan (Hogback) Chapter, the Shiprock Chapter, the San Juan Chapter and the Navajo Nation Council, to educate and provide answers to the public, including affected coal miners, concerning PNM's plans and intentions with regard to the proposed shutdown of the San Juan Generating Station.

C. To prevent the Commission from being placed in the untenable position of issuing an order rejecting a stipulation and then having insufficient time remaining in the statutory review period to adequately consider PNM's Application, the parties are put on notice that, if any parties request consideration of a stipulation, the Hearing Examiners may refuse to consider the stipulation or condition consideration of the stipulation on the stipulating parties' agreement to toll the running

PROCEDURAL ORDER - 6 - Case No. 19-00018-UT of the nine-month review period established by the Commission for the period of time between the filing of the stipulation and the Commission's final action thereon.

D. PNM shall provide the Hearing Examiners with a CD of PNM's Application and testimonies (in Word and text-searchable Portable Document Format or PDF) by July 30, 2019.

E. The Commission's Records Bureau is hereby directed to place a copy in this case docket (Case No. 19-00018-UT) of the Application, including supporting testimonies, filed by

PNM on July 1, 2019 in Case No. 19-00195-UT.

F. Timely motions to intervene in this docket shall be accepted and treated as motions to intervene in Case No. 19-000195-UT.

. ~Gr Interested persons may appear at the time and place of hearing . and-make oraLor ·-·· -·". written comment pursuant to l .2.2.23(F) NMAC without becoming an intervenor. However, pursuant to Commission Rule l.2.2.23(F) NMAC, comments shall not be considered as evidence in this case.

H. Written comments, which shall reference Case No. 19-00018-UT, must be sent to the

Commission at: New Mexico Public Regulation Commission; Attention: Melanie Sandoval,

Records Management Bureau, P.E.R.A. Building, 1120 Paseo de Peralta, P.O. Box 1269, Santa Fe,

NM 87504-1269, Telephone: (505) 827-6968.

I. PNM's Application, together with the supporting pre-filed direct testimony, and any exhibits and related papers, may be examined by any interested person on PNM's website at https://www.pnm.com/regulatory or in person at the offices of PNM at the following address:

Public Service Company of New Mexico 414 Silver Avenue, SW Albuquerque, New Mexico Telephone: 505-241-2700

PROCEDURAL ORDER - 7 - Case No. 19-00018-UT J. The public record for this case may be examined in person at the Commission's

Records Bureau in the P.E.R.A. Building, 1120 Paseo De Peralta, Santa Fe, New Mexico, (505) 827-

6968, or under "Case Lookup E-docket" on the Commission's website at http:/11 64.64.85.108/.

K. Any person filing prepared testimony on behalf of a party shall attend the hearing and

submit to examination under oath. See 1.2.2.35(1) NMAC.

L. Unless otherwise ordered or approved by the Hearing Examiners, at the public hearing only pre-filed prepared.written testimony, in question and answer form and verified by the witness, and examination of witnesses on such pre-filed testimony shall be accepted, considered for admission, and received in evidence along with other relevant and otherwise admissible testimony, documents, and other materials.

M. Unless expressly permitted, questioning by a party sponsoring a witness shall be limited on direct examination to the authentication and verification of the witness's pre-filed testimony, and subsequently, to permissible redirect examination.

N. Friendly cross-examination prohibited: Cross-examination in which the advocate questions the witness of a non-adverse party to elicit testimony favorable to, aligned with, or supportive or corroborative of the advocate's position or side of the controversy shall be prohibited unless expressly allowed by the Hearing Examiners; if not allowed, an offer of proof may be made in lieu of such examination.

0. Each witness at the hearing, and each witness's attorney, shall have readily available to him or her at the hearing a copy of the pre-filed testimony of each witness.

P. Parties shall ensure that they have served prior to the evidentiary hearing copies of all exhibits (including but not limited to pre-filed testimony, if any, and other documents) to the

Hearing Examiners and all other parties before formally requesting admission of such exhibits.

PROCEDURAL ORDER - 8 - Case No. 19-00018-UT Q. If a party or Staff shows a witness a document during cross-examination, a copy of the document shall be provided to the Hearing Examiners, all other parties, and Staff at the time of such cross-examination.

R. The filing and service of pleadings and other documents in this case are subject to applicable Commission rules (see, e.g., 1.2.2.10 NMAC), this Order, and rulings in this case.

S. Anyone filing pleadings, testimony, and other documents shall file either in person with the Commission's Records Management Bureau in the P.E.R.A. Building in Santa Fe, New

Mexico, or by mail addressed to: New Mexico Public Regulation Commission; Attention: Melanie

Sandoval, Records Management Bureau, P.E.R.A. Building, 1120 Paseo de Peralta, P.O. Box 1269,

Santa Fe, NM 87504.:.1269. The following physicaLaddress shall be used only for special or hand deliveries: Records Management Bureau's fourth floor office, 1120 Paseo de Peralta, Santa Fe, NM

87501.

T. The Certificate of Service for this case is attached to this Order. Subject to subsequent revision pursuant to 1.2.2.1 O(C)( 4) NMAC, the attached service list shall be used for service of all pleadings, testimony and other documents in the manner indicated to the individuals and addresses listed thereon.

U. Pleadings, testimony, and other filings shall be served by email only. However, upon requesting such service from the filing party, the requesting party shall receive hard copy (paper) service of testimony and exhibits thereto from the filing party.

V. All filings shall be emailed to the Hearing Examiners on the date filed at [email protected] and [email protected] by no later than 5:00 p.m. MT.

Such filings shall include the Word or other native version of the filing ( e.g., Excel or Power Point) if created in such format. All PDF documents provided to the Hearing Examiners shall be text-

PROCEDURAL ORDER - 9 - Case No. 19-00018-UT searchable. Any filings not emailed to the Hearing Examiners in compliance with the foregoing requirements are subject to being summarily rejected and stricken from the record in the Hearing

Examiners' discretion.

W. Except as expressly provided in this Order or subsequently ruled, discovery matters, and any discovery disputes shall be governed by the Commission's discovery rules at 1.2.2.25

NMAC. The parties shall raise any disputes, questions, or concerns regarding discovery with the

Hearing Examiners at the earliest available opportunity so that all such issues may be considered well in advance of the hearing.

X. Discovery responses and objections to discovery requests shall be served within eleven (11) days after service of the request under 1.2.2.25 NMAC.

Y. Service of discovery requests and responses shall be by email only. Likewise, exhibits to discovery responses shall be served electronically at the same time as such responses.

PNM may post its responses to discovery requests on PNM's Collaboration website.

Z. Discovery requests (interrogatories, requests for production of documents, and requests for admissions, but not the pleading, instructions, etc.) and responses thereto shall be provided in Word or another native format.

AA. An order of the Hearing Examiners or Commission is not required for agreements between or among any of the participants regarding discovery matters. All other participants shall be notified of such agreements.

BB. Motions regarding any discovery dispute shall not be considered unless accompanied by a statement that the participants made a good faith effort to resolve the dispute but were unable to do so.

PROCEDURAL ORDER - 10 - Case No. 19-00018-UT CC. The procedural dates and requirements established in this Order are subject to further order or ruling of the Hearing Examiners or Commission. The Commission's Rules of Procedure,

1.2.2 through 1.2.2.40 NMAC, shall apply in this case except as modified or varied by order of the

Hearing Examiners or Commission. The Rules of Procedure can be obtained from the offices of the Commission or from the official NMAC website at http://www.nmcpr.state.nm.us/nmac/.

DD. Interested persons should contact the Commission at (505) 827-6956 for confirmation of the hearing date, time, and place since hearings are occasionally rescheduled or, if deemed not required or necessary, canceled at the discretion of the Hearing Examiners or

Commission.

ANY PERSON WITH A DISABILITY REQUIRING SPECIAL ASSISTANCE IN ORDER TO PARTICIPATE IN THIS PROCEEDING SHOULD CONTACT THE COMMISSION AT LEAST 24 HOURS PRIOR TO THE COMMENCEMENT OF THE HEARING, AT EITHER (505) 827-4500 OR 888-427-5772.

ISSUED at Santa Fe, New Mexico this 25th day of July 2019.

NEW MEXICO PUBLIC REGULATION COMMISSION

Ashley C. Schannauer Anthony F. Medeiros Hearing Examiners

PROCEDURAL ORDER - 11 - Case No. 19-00018-UT BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) Case No. 19-00018-UT ABANDONMENT OF SANJUAN ) _G_ E_ N_E_RA_T_I_O_N_ ST_A:_T_I_O_N_U_N_I_T_S_l_A_N_D_4_ )

CERTIFICATE OF SERVICE I CERTIFY that on this date I sent to the parties and individuals listed here, via email only, a true and correct copy of the Hearing Examiners' Procedural Order and Notice of Proceeding and Hearing on

San Juan Abandonment and Securitization of Energy Transition Costs, issued on July 25, 2019.

Stacey Goodwin [email protected]; Stephen Curtice [email protected]; Ryan Jerman [email protected]; Barry W Dixon bwdixon9 [email protected]; Richard Alvidrez [email protected]; Shane Youtz [email protected]; Dan Akenhead [email protected]; Kyle J. Tisdel [email protected]; Mark Fenton [email protected]; Erik Schlenker-Goodrich [email protected]; Carey Salaz [email protected]; Thomas Singer [email protected]; Steve Schwebke [email protected]; Mike Eisenfeld [email protected]; Ray Gifford [email protected]; Sonia Grant [email protected]; Heather Allen [email protected]; Carol Davis [email protected]; Joan Drake i [email protected]; [email protected]; Robyn Jackson Lisa Tormoen Hickey-­ [email protected]; [email protected]; Germaine R. Chappell Jason Marks [email protected]; Jane Yee [email protected]; Matthew Gerhart [email protected]; Saif Ismail [email protected]; Katherine Lagen [email protected]; Steven Gross [email protected]; Ramona Blaber Ramona. [email protected]; Martin R. Hopper [email protected]; Camilla Feibelman [email protected]; James R. Dittmer [email protected]; N ann M. Winter [email protected]; Daniel R. Dolan [email protected]; [email protected]; [email protected]; Keith Herrmann Robb Hirsch Dahl Harris [email protected]; Noah Long [email protected]; Peter Auh [email protected]; [email protected]; Mariam Wheir Jody Garcia [email protected]; John W. Boyd [email protected]; Andrew Harriger [email protected]; Joseph A. Herz i [email protected]; Steven S. Michel [email protected]; Caitlin Liotiris [email protected]; Glenda Murphy [email protected]; Kathleen Fraser [email protected]; Pat O'Connell [email protected]; Richard Mertz [email protected]; Douglas J. Howe [email protected]; Jim Dauphinais [email protected]; Mariel Nanasi [email protected]; Brian Andrews [email protected]; David Van Winkle [email protected]; Thomas Manning [email protected]; Aaron El Sabrout [email protected]; Chris Hunter Chris@comerstoneresul ts. com; [email protected]; [email protected]; Bruce C. Throne Josh Finn [email protected]; Rob Witwer A. Peters [email protected]; Jeffrey Albright [email protected]; Donald E. Gruenemeyer [email protected]; Amanda Edwards [email protected]; Marcos D. Martinez [email protected]; Michael I. Garcia [email protected]; Senator Steve Neville [email protected]; Greg Sonnenfeld [email protected]; Rep. James Strickler [email protected]; Ned Parker [email protected]; Anthony Allison [email protected]; Charles F. Noble N [email protected]; Senator Carlos Cisneros [email protected]; Stephanie Dzur [email protected]; Senator William Sharer [email protected]; Anna Sommer [email protected]; Rep. Rod Montoya [email protected]; Chelsea Hotaling [email protected]; Rep. Paul Bandy [email protected]; Tyler Comings [email protected]; Rep. Patricia A. Lundstrom [email protected]; Don Hancock [email protected]; John M. Brittingham [email protected]; Cholla Khoury [email protected]; Melissa Buttler [email protected]; Gideon Elliot [email protected]; Josh Combs [email protected]; Robert F. Lundin [email protected]; Bob Edwards [email protected]; Elaine Heitman [email protected]; Eric Koontz [email protected]; Andrea Crane [email protected]; Kiran Mehta [email protected]; Douglas Gegax [email protected]; David Getts [email protected]; Randy S. Bartell [email protected]; Adam Baker [email protected]; Sharon T. Shaheen [email protected]; Antonio Paez [email protected]; John F. McIntyre [email protected]; Jay Kumar [email protected]; Marvin T. Griff Marvin. [email protected]; Pete Lewis [email protected]; Lorraine Talley ltalley@montand-:com; Jennifer Breakell [email protected]; Vicky Ortiz [email protected]; Michael C. Smith [email protected]; Peter J. Gould [email protected]; Bradford Borman Bradford.Borman@state .nm.us; Kelly Gould [email protected]; John Bogatko John.Bo gatko@state .nm. us; Michael Gorman [email protected]; Beverly Eschberger [email protected]; Georgette Ramie [email protected]. us; Dhiraj Solomon Dhiraj. So [email protected]; Anthony Sisneros Anthony. [email protected]. us;

DATED this July 25, 2019

NEW MEXICO PUBLIC REGULATION COMMISSION

19-00018-UT I Initial Official Service List 2 BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) CONSOLIDATED APPLICATION FOR ) APPROVALS FOR THE ABANDONMENT, ) Case No. 19-00195-UT FINANCING, AND RESOURCE REPLACEMENT ) FOR SAN JUAN GENERATING STATION ) PURSUANT TO THE ENERGY TRANSITION ACT ) ______)

PROCEDURAL ORDER

THIS MATTER comes before the Hearing Examiners in this proceeding pursuant to

NMSA 1978, § 8-8-14 and New Mexico Public Regulation Commission (Commission or NMPRC)

Rules of Procedure 1.2.2.24 and 1.2.2.29 of the New Mexico Administrative Code (NMAC).

Being fully informed, the Hearing Examiners FIND and CONCLUDE:

1. On July 1, 2019, Public Service Company of New Mexico (PNM) filed its

Consolidated Application for the Abandonment, Financing and Replacement of the San Juan

Generating Station pursuant to the Energy Transition Act, NMSA 1978, §§ 62-18-1 to -23 (2019)

(ETA). On July 10, 2019, however, the Commission issued an order separating the Commission's

review of PNM's Application into two proceedings. The replacement resource issues will be

addressed in this proceeding, Case No. 19-00108-UT. The abandonment and securitization issues

will be addressed in Case No. 19-00195-UT. A separate notice and hearing schedule are being

established for Case No. 19-00195-UT.

2. Accordingly, of the approvals PNM requested in its Consolidated Application, the following matters will be addressed in this case:

(A) PNM's proposal for new generating resources to replace the retired 497 MW of capacity and energy produced by PNM's share of the San Juan Generating Station (SJGS),

ATTACHMENT J including: (1) twenty-year purchased power agreements and energy storage agreements (PPAs) for the output from a 50 MW solar facility located on Jicarilla Apache tribal lands combined with a 20

MW battery storage agreement (the Jicarilla PPA) and for the output from a 300 MW solar facility located in McKinley County combined with a 40 MW battery storage agreement (the Arroyo PPA); and (2) issuance of certificates of public convenience and necessity (CCNs) for 40 MW and 30

MW utility-owned energy storage systems, referred to as the Sandia and Zamora facilities, respectively, located at two existing utility sites in Bernalillo _County and for 280 MW of utility­ owned natural gas-fired generating units, referred to as the Pinon Gas Plant, located in Waterflow,

New Mexico at the SJGS site; and

(B) In addition to the approvals for 1;1-ew resources to replace SJGS~PNM requests that consideration be given to a proposed PNM-owned 20 MW sohr-facility to be installed at the

- ~ SJGS -site as a means of fulfilling PNM's obligation under Paragraph 40 of the Modified

Stipulation approved in Case No. 13-00390-UT.

3. Additional details regarding the fo!~gqing proposals are set forth in the Notice of

Proceeding and Hearing on San Juan Replacement Resources attached to this Order.

4. PNM's Application states, in pertinent part, that the Jicarilla and Arroyo PPAs have approval deadline provisions of April 30, 2020 written into those PPAs to "ensure the renewable tax credits can be fully utilized." Application at 18. The Application further states that Sandia and

Zamora storage projects and the Pinon Gas Plant have approval deadline provisions of September

30, 2020 to "ensure project engineering and equipment purchases can occm to meet the 2022 installation dates." Id.

5. In its July 10, 2019 Order, the Commission recognized that the six-month time limit for approval of long-term PPAs under 17.9.551.10 NMAC may apply to the Application's request

PROCEDURAL ORDER - 2 - Case No. 19-00195-UT for approval of the replacement resources. The Commission found, however, that since the timeframe of 17.9.551.10 NMAC appears to conflict with the timeframe provisions set forth in the

ETA, the applicability of 17.9.551.10 NMAC to this matter should be waived in order to permit consideration of all potential replacement resources in a single proceeding.

6. Further, the Commission's July 10, 2019 order established a fifteen-month timeframe for review of the PNM requests at issue in this proceeding. The order also appointed the undersigned as Hearing Examiners and directed them to "endeavor to issue recommended decision for consideration by the Commission in sufficient time for the Commission to render a decision within the timeframes sought by PNM where appropriate, but definitely within the applicable statutory timeframes and as established by this Order." Corrected Order on Consolidated

Application, Cases Nos. 19-00018-UT and 19-00195-UT (July 10, 2019), at~ 18 and ordering~ B.

7. The Hearing Examiners hel_d a prehearing conference in this case and Case No. 19-

00018-UT on July 23, 2019. Representatives of the following parties attended the conference:

PNM, Albuquerque Bernalillo County Water Utility Authority, the Coalition for Clean Affordable

Energy, the Inte1west Energy Alliance, IUOE Local 953, New Energy Economy, the New Mexico

Attorney General, the New Mexico Industrial Energy Consumers, the San Juan Citizens Alliance and Dine CARE, San Juan County, the Sierra Club, Southwest Generation Operating Company,

Western Resource Advocates, and the Utility Division Staff ("Staff') of the Commission.

8. The Hearing Examiners and the parties discussed procedural schedules, procedures for the electronic service of filings and discovery requests and responses, and related matters.

9. The Commission has jurisdiction over the parties and the subject matter of this case.

10. The procedural schedules discussed at the prehearing conference on July 23, 2019 and related details set forth below should be adopted for this proceeding.

PROCEDURAL ORDER - 3 - Case No. 19-00195-UT IT IS THEREFORE ORDERED:

A. Except as set forth in~ B below for consideration of the Jicarilla and Arroyo PPAs, the following schedule is adopted for this proceeding:

1) PNM shall cause, at its sole expense, a copy of the Notice of Proceeding and

Hearing on San Juan Abandonment and Securitization of Energy Transition Costs (Notice) appended to this Order as Attachment A and incorporated by reference to be published once in newspapers of general circulation sufficient for availability in every county where PNM provides service on or before August 14, 2019. PNM shall, at its sole expense, post a copy of the Notice on its public website (http://www.PNM.com/regulatory) on or before August 1, 2019. PNM shall also, at its sole expense, mail to its customers (by bill stuffer or separately) a copy of the Notice by no later than September 3, 2019. PNM shall promptly file affidavits reflecting such publication, posting, and mailing with the Commission.

2) As also provided for in the Procedural Order issued on this date in Case No.

19-00018-UT, on or before August 7, 2019, PNM shall file a document in this case identifying and designating by page and line number the portions of its pre-filed testimony pertaining to the replacement resource matters being addressed in this case and the abandonment and securitization issues being addressed in Case No. 19-00018-UT.

3) As provided for in the Procedural Order issued on this date in Case No. 19-

00018-UT, PNM shall file a legal brief on or before August 23, 2019 regarding the issue of the extent to which N.M. Const. Article IV, § 34 prevents the application of the Energy Transition Act,

NMSA 1978, §§ 62-18-1 to -23 (2019), to the issues in this case. PNM may also file supplemental testimony regarding the foregoing issue on or before August 23, 2019.

PROCEDURAL ORDER - 4 - Case No. 19-00195-UT 4) As also reflected in the Procedural Order issued on this date in Case No. 19-

00018-UT, PNM shall make its best efforts to conduct all face-to-face public community meetings described in ordering paragraph C below with the affected government entities by no later than

September 3, 2019.

5) On or before August 1, 2019, PNM shall send the Notice by certified mail to the proper regulatory officials or agencies of the affected government entities identified in ordering paragraph C below. PNM shalLpromptly file in this docket and Case No. 19-00018-UT an affidavit confirming such service by certified mail and listing the names and addresses of each official or agency so served.

6) Any person desiring to become a party ("intervenor") in this case shall file a motion for leave to intervene in conformity with Rules l.2.2.23(A) and l.2.2.23(B) NMAC by no later than September 24, 2019.

7) Responses to the PNM legal brief filed on August 23 , 2019 as provided under ,r ·

A(3) above shall be filed on or before October 18, 2019. Testimony responsive to the issues addressed in the legal brief and supplemental testimony filed by PNM on August 23, 2019 regarding the applicability of the Energy Transition Act to the current proceeding may also be filed at this time.

8) The following testimony shall be filed by Staff and may be filed by intervenors on or before January 10, 2020: (a) testimony responsive to the testimony in PNM's Application; and (b) in the event the Energy Transition Act is ultimately determined not to apply to this proceeding, testimony on the merits of Staff and Intervenors' claims (if any) regarding the most cost effective resources to replace the capacity lost with the abandonment of the San Juan Units 1 and 4 under the statutes effective prior to the Energy Transition Act.

PROCEDURAL ORDER - 5 - Case No. 19-00195-UT 9) Rebuttal testimony shall be filed on or before February 15, 2020.

10) All motions in limine, motions to strike testimony, and other prehearing motions shall be filed on or before February 21, 2020.

11) A prehearing conference will be held, if necessary, beginning at 9:30 a.m. on

February 25, 2020 in the Ground Floor Hearing Room of the Commission in the P.E.R.A.

Building, 1120 Paseo de Peralta, Santa Fe, New Mexico 87501.

12) A public comment hearing in this matter shall be held pursuant to 1.2.2.23(F)

NMAC beginning on March 2, 2020, commencing at 9:30 a.m. MT in the Ground Floor Hearing

Room of the Commission, P.E.R.A. Building, 1120 Paseo de Peralta, Santa Fe, New Mexico.

13) The evidentiary hearing in this matter shall be held beginning on March 3,

2020 commencing at 9:00 a.m. MT in the Ground Floor Hearing Room of the Commission,

P.E.R.A. Building, 1120 Paseo de Peralta, Santa Fe, New Mexico, and shall continue as necessary until March 13, 2020.

B . . As for consideration of the Jicarilla and Arroyo PPAs, the following schedule is adopted for this proceeding:

1) Should a settlement be reached among all or some of the parties, a stipulation may be filed by no later than October 25, 2019.

2) Testimony supporting the stipulation shall be filed on or before November 1,

2019. Alternatively, if a stipulation is not filed as provided above, direct testimony of Staff and intervenors shall be filed on or before November 1, 2019.

3) Testimony opposing the stipulation shall be filed on or before November 19,

2019. Alternatively, if a stipulation is not filed as provided above, rebuttal testimony shall be filed on or before November 19, 2019.

PROCEDURAL ORDER - 6 - Case No. 19-00195-UT 4) The evidentiary hearing shall be held on December 2, 2019 commencing at

9:00 a.m. MT in the Ground Floor Hearing Room of the Commission, P.E.R.A. Building, 1120

Paseo de Peralta, Santa Fe, New Mexico, and shall continue as necessary on December 3, 2019.

C. As also provided for in the Procedural Order issued on this date in Case No. 19-

00018-UT, PNM shall conduct face-to-face public community meetings in accordance with the

Commission's Orders of July 10 and 12, 2019 with affected government entities, including specifically the Nenahnezad Chapter, the Tse daa K'aan (Hogback) Chapter, the Shiprock Chapter, the San Juan Chapter and the Navajo Nation Council, to educate and provide answers to the public, including affected coal miners, concerning PNM's plans and intentions with regard to the proposed shutdown-of the San Juan Generating Station.

D. To prevent the Commission from being placed in the untenable position of issuing an order rejecting a stipulatiop and then having insufficient time remaining in the statutory review period to adequately consider PNM's Application, the parties are put on notice that, if any parties request consideration of a stipulation, the Hearing Examiners may refuse to consider the stipulation . or condition consideration of the stipulation on the stipulating paiiies' agreement to toll the running of the nine-month review period established by the Commission for the period of time between the filing of the stipulation and the Commission's final action thereon.

E. Timely motions to intervene in this docket shall be accepted and treated as motions to intervene in Case No. 19-00018-UT.

F. Interested persons may appear at the time and place of hearing and make oral or written comment pursuant to l.2.2.23(F) NMAC without becoming an intervenor. However, pursuant to Commission Rule l .2.2.23(F) NMAC, comments shall not be considered as evidence in this case.

PROCEDURAL ORDER - 7 - Case No. 19-00195-UT G. Written comments, which shall reference Case No. 19-00195-UT, must be sent to the

Commission at: New Mexico Public Regulation Commission; Attention: Melanie Sandoval,

Records Management Bureau, P.E.R.A. Building, 1120 Paseo de Peralta, P.O. Box 1269, Santa Fe,

NM 87504-1269, Telephone: (505) 827-6968.

H. PNM's Application, together with the supporting pre-filed direct testimony, and any exhibits and related papers, may be examined by any interested person on PNM's website at https://www.pnm.com/regulatory or in person at the offices of PNM at the following address:

Public Service Company of New Mexico 414 Silver Avenue, SW Albuquerque, New Mexico Telephone: 505-241-2700

I. The public record for this case may be examined in person at the Commission's

Records Bureau in the P.E.R.A. Building, 1120 Paseo De Peralta, Santa Fe, New Mexico, (505) 827-

6968, or under "Case Lookup E-docket" on the Commission's website at http:/II 64.64.85 .108/.

J. Any person filing prepared testimony on behalf of a party shall attend the hearing and submit to examination under oath. See 1.2.2.35(1) NMAC.

K. Unless otherwise ordered or approved by the Hearing Examiners, at the public hearing only pre-filed prepared written testimony, in question and answer form and verified by the witness, and examination of witnesses on such pre-filed testimony shall be accepted, considered for admission, and received in evidence along with other relevant and otherwise admissible testimony, documents, and other materials.

L. Unless expressly permitted, questioning by a party sponsoring a witness shall be limited on direct examination to the authentication and verification of the witness's pre-filed testimony, and subsequently, to permissible redirect examination.

PROCEDURAL ORDER - 8 - Case No.19-00195-UT M. Friendly cross-examination prohibited: Cross-examination in which the advocate questions the witness of a non-adverse party to elicit testimony favorable to, aligned with, or supportive or cmroborative of the advocate's position or side of the controversy shall be prohibited unless expressly allowed by the Hearing Examiners; if not allowed, an offer of proof may be made in lieu of such examination.

N. Each witness at the hearing, and each witness's attorney, shall have readily available to him or her at the hearing a copy of the pre-filed testimony of each witness.

0. Parties shall ensure that they have served prior to the evidentiary hearing copies of all exhibits (including but not limited to pre-filed testimony, if any, and other documents) to the

Hearing Examiners and all other parties before formally requesting admission of such exhibits.

P. If a party or Staff shows a witness a document during cross-examination, a copy of the document shall be provided to the Hearing Examiners, all other parties, and Staff at the time of such cross-examination.

Q. The filing and service of pleadings and other documents in this case are subject to applicable Commission rules (see, e.g., 1.2.2.10 NMAC), this Order, and rulings in this case.

R. Anyone filing pleadings, testimony, and other documents shall file either in person with the Commission's Records Management Bureau in the P.E.R.A. Building in Santa Fe, New

Mexico, or by mail addressed to: New Mexico Public Regulation Commission; Attention: Melanie

Sandoval, Records Management Bureau, P.E.R.A. Building, 1120 Paseo de Peralta, P.O. Box 1269,

Santa Fe, NM 87504-1269. The following physical address shall be used only for special or hand deliveries: Records Management Bureau's fourth floor office, 1120 Paseo de Peralta, Santa Fe, NM

87501.

PROCEDURAL ORDER - 9 - Case No. 19-00195-UT S. The Certificate of Service for this case is attached to this Order. Subject to subsequent revision pursuant to 1.2.2.10(C)(4) NMAC, the attached service list shall be used for service of all pleadings, testimony and other documents in the manner indicated to the individuals and addresses listed thereon.

T. Pleadings, testimony, and other filings shall be served by email only. However, upon requesting such service from the filing party, the requesting party shall receive hard copy (paper) service of testimony and exhibits thereto from the filing party.

U. All filings shall be emailed to the Hearing Examiners on the date filed at [email protected] and [email protected] by no later than 5:00 p.m. MT.

Such filings shall include the Word or other native version of the filing (e.g., Excel or Power Point) if created in such format. All PDF doGuments provided to the Hearing Examiners shall be text­ searchable. Any filings not emailed to the Hearing Examiners in compliance with the foregoing requirements are subject to being summarily rejected and stricken from the record in the Hearing

Examiners' discretion.

V. Except as expressly provided in this Order or subsequently ruled, discovery matters, and any discovery disputes shall be governed by the Commission's discovery rules at 1.2.2.25

NMAC. The parties shall raise any disputes, questions, or concerns regarding discovery with the

Hearing Examiners at the earliest available opportunity so that all such issues may be considered well in advance of the hearing.

W. Discovery responses and objections to discovery requests shall be served within eleven (11) days after service of the request under 1.2.2.25 NMAC.

PROCEDURAL ORDER - 10 - Case No. 19-00195-UT X. Service of discovery requests and responses shall be by email only. Likewise, exhibits to discovery responses shall be served electronically at the same time as such responses.

PNM may post its responses to discovery requests on PNM's Collaboration website.

Y. Discovery requests (interrogatories, requests for production of documents, and requests for admissions, but not the pleading, instructions, etc.) and responses thereto shall be provided in Word or another native format.

Z. _ An_order of the Hearing Examiners or Commission is not required for agreements between or among any of the participants regarding discovery matters. All other participants shall be notified of such agreements.

AA. Motions regarding any discovery dispute shall not be considered unless accompanied by a statement that the participants made a good faith effort to resolve the dispute but were unable to do so.

BB. The procedural dates and requirements established in this Order are subject to further order or ruling of the Hearing Examiners or Commission. The Commission's Rules of

Procedure, 1.2.2 through 1.2.2.40 NMAC, shall apply in this case except as modified or varied by order of the Hearing Examiners or Commission. The Rules of Procedure can be obtained from the offices of the Commission or from the official NMAC website at http://www.nmcpr.state.nm.us/nmac/.

CC. Interested persons should contact the Commission at (505) 827-6956 for confirmation of the hearing date, time, and place since hearings are occasionally rescheduled or, if deemed not required or necessary, canceled at the discretion of the Hearing Examiners or

Commission.

PROCEDURAL ORDER - 11 - Case No. 19-00195-UT ANY PERSON WITH A DISABILITY REQUIRING SPECIAL ASSISTANCE IN ORDER TO PARTICIPATE IN THIS PROCEEDING SHOULD CONTACT THE COMMISSION AT LEAST 24 HOURS PRIOR TO THE COMMENCEMENT OF THE HEARING, AT EITHER (505) 827-4500 OR 888-427-5772.

ISSUED at Santa Fe, New Mexico this 25th day of July 2019.

NEW MEXICO PUBLIC REGULATION COMMISSION

Anthony F. Mede os Ashley C. Schan auer Hearing Examiners

PROCEDURAL ORDER - 12 - Case No. 19-00195-UT BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO'S ) Case No. 19-00195-UT CONSOLIDATED APPLICATION FOR ) APPROVALS FOR THE ABANDONMENT ) FOR SAN JUAN GENERATING STATION ) PRUSUANT TO THE ENERGY ) _T_R_A_N_S_I_T_IO_N_ A_C_T______)

CERTIFICATE OF SERVICE I CERTIFY that on this date I sent to the parties and individuals listed here, via email only, a true and correct copy of the Hearing Examiners' Procedural Order and Notice of Proceeding and Hearing on

San Juan Replacement Resources.

Stacey Goodwin [email protected]; Stephen Curtice [email protected]; Ryan Jerman [email protected]; Barry·W Dixon bwdixon9 [email protected]; Richard Alvidrez [email protected]; Shane Youtz [email protected]; Dan Akenhead [email protected]; Kyle .T. Tisdel [email protected]; Mark Fenton [email protected]; Erik Schlenker-Goodrich [email protected]; Carey Salaz [email protected]; Thomas Singer S [email protected]; Steve Schwebke [email protected]; Mike Eisenfeld [email protected]; Ray Gifford [email protected]; Sonia Grant [email protected]; Heather Allen [email protected]; Carol Davis [email protected]; Joan Drake [email protected]; chooshgai. [email protected]; Robyn Jackson Lisa Tormoen Hickey [email protected]; [email protected]; Germaine R. Chappell Jason Marks [email protected]; Jane Yee [email protected]; Matthew Gerhart [email protected]; Saif Ismail s [email protected]; Katherine Lagen [email protected]; Steven Gross [email protected]; Ramona Blaber Ramona. [email protected]; Martin R. Hopper [email protected]; Camilla Feibelman Camilla.F [email protected]; James R. Dittmer [email protected]; Nann M. Winter [email protected]; Daniel R. Dolan [email protected]; [email protected]; Keith Herrmann Robb Hirsch [email protected]; Dahl Harris dahlharris@ho tmail. com; Noah Long [email protected]; Peter Auh [email protected]; Mariam Wheir [email protected]; Jody Garcia [email protected]; John W. Boyd [email protected]; Andrew Harriger [email protected]; Joseph A. Herz [email protected]; Steven S. Michel [email protected]; Caitlin Liotiris [email protected]; Glenda Murphy [email protected]; Kathleen Fraser [email protected]; Pat O'Connell [email protected]; Richard Mertz [email protected]; Douglas J. Howe [email protected]; Jim Dauphinais [email protected]; Mariel Nanasi [email protected]; Brian Andrews [email protected]; David Van Winkle [email protected]; Thomas Manning [email protected]; Aaron El Sabrout [email protected]; Chris Hunter Chris@cornerstoneresul ts. com; [email protected]; Bruce C. Throne Josh Finn Joshua. finn@na va jopower . com; Rob Witwer [email protected]; A. Peters [email protected]; Jeffrey Albright [email protected]; Donald E. Gruenemeyer [email protected]; Amanda Edwards [email protected]; Marcos D. Martinez [email protected]; [email protected]; Michael I. Garcia Senator Steve Neville [email protected]; Greg Sonnenfeld [email protected]; Rep. James Strickler [email protected]; Ned Parker edwardgparker8 [email protected]; Anthony Allison [email protected]; Charles F. Noble N [email protected]; Carlos. [email protected]; Stephanie Dzur [email protected]; Senator Carlos Cisneros b [email protected]; Anna Sommer [email protected]; Senator William Sharer [email protected]; Chelsea Hotaling [email protected]; Rep. Rod Montoya [email protected]; Tyler Comings tyler. comings@aec lini c. org; Rep. Paul Bandy Patricia. [email protected]; Don Hancock [email protected]; Rep. Patricia Lundstrom [email protected]; Cholla Khoury [email protected]; John M. Brittingham [email protected]; Gideon Elliot [email protected]; Melissa Buttler Josh. [email protected]; Robert F. Lundin [email protected]; Josh Combs [email protected]; Elaine Heitman [email protected]; Bob Edwards [email protected]; Andrea Crane [email protected]; Eric Koontz [email protected]; Douglas Gegax [email protected]; Kiran Mehta [email protected]; Randy S. Bartell [email protected]; David Getts [email protected]; Sharon T. Shaheen [email protected]; Adam Baker [email protected]; John F. McIntyre [email protected]; Antonio Paez [email protected]; Marvin Griff Marvin. [email protected]; Jay Kumar [email protected]; Lorraine Talley [email protected]; Pete Lewis [email protected]; Vicky Ortiz [email protected]; Jennifer Breakell [email protected]; Peter J. Gould [email protected]; - Michael C. Smith [email protected]; Kelly Gould [email protected]; Bradford Borman [email protected]; Michael Gorman [email protected]; John Bogatko [email protected]; Beverly Eschberger [email protected]; Georgette Ramie [email protected]; Dhiraj Solomon Anthony. [email protected]; Anthony Sisneros

DATED this July 25, 2019. . r~

NEW ME_XICO PUBLIC :{{EGULATION COMMISSION

(.../"'Ana C. Kip,{enbrock, La~ Clerk

19-00195-UT I Initial Official Service List 2 BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO’S ) ABANDONMENT OF SAN JUAN ) GENERATING STATION UNITS 1 AND 4. ) CASE NO. 19-00018-UT ______) and

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO’S CONSOLI- ) DATED APPLICATION FOR APPROVALS FOR ) THE ABANDONMENT, FINANCING, AND ) RESOURCE RELACEMENT FOR SAN JUAN ) GENERATING STATION PURSUANT TO ) THE ENERGY TRANSITION ACT. ) ) PUBLIC SERVICE CO. OF NEW MEXICO, ) CASE NO. 19-00195-UT ) Applicant. ) )

WESTERN RESOURCE ADVOCATES’ MOTION TO PERMIT INTERLOCUTORY APPEAL OF ORDER ON MOTION FOR CLARIFICATION AND REQUEST FOR EXPEDITED RESPONSE TIME

COMES NOW Western Resource Advocates (“WRA”) by and through its attorney Steven S.

Michel, pursuant to §§1.2.2.30(B)(D) NMAC and 1.2.2.31 NMAC, and for its Motion to Permit

Interlocutory Appeal states the following:

1. On July 10, 2019 the Commission issued its Order, and then its Corrected Order on

Consolidated Application with respect the above-styled dockets.

2. On July 22, 2019 WRA filed a Motion for Clarification and Reconsideration and Request for Oral Argument. The basis for that Motion was that the transcript of the commissioner discussion leading up to those orders, as well as press reports following issuance of the orders, indicated that the

Commission intended to not apply the Energy Transition Act (ETA) to the abandonment and financing portions of PNM’s July 1, 2019 Application in Case 19-00195-UT. In fact, the stated basis for

Commissioner Espinoza’s support for the 19-00018-UT bifurcation was so that PNM’s Application would

ATTACHMENT K proceed under the prior law rather than the ETA. There did not appear to be any other rationale behind re- assigning the abandonment and financing portions of PNM’s Application to the 19-00018-UT docket.

WRA stated that whether the ETA applies to PNM’s Application was a dispositive legal matter that should be determined at the outset of both Cases: 19-00018-UT and 19-00195-UT.

3. On July 24, 2019 Commission Chair Becenti-Aguilar entered her Order on Motion for

Clarification, in which she effectively denied WRA’s Motion. The Order stated in paragraphs D and E that the Commission had not decided whether the ETA would apply to PNM’s Application, and that the

Hearing Examiners assigned to the Case “will be issuing a Scheduling Order that will encompass the issue of the law applicable to the approvals sought in PNM’s Consolidated Application for abandonment and issuance of a financing order.” Commission Chair Becenti-Aguilar issued the Order as the chair of the commission pursuant to §1.2.2.30 NMAC, Procedural Authority of a Single Commissioner, a rule generally intended to address procedural matters.

4. On July 25, 2019, following the prehearing conferences in both cases on July 23, 2019, the Hearing Examiners issued their Procedural Orders in each of the above-styled dockets. In both cases the Hearing Examiners’ orders reflected what they determined orally during the prehearing conferences: that initial PNM briefs on the issue of ETA applicability were to be filed August 23, 2019, with response briefs not to be filed until eight weeks later, on October 18, 2019. Eight weeks is an extraordinary amount of time for a single and critical legal issue to be briefed, with no contested facts bearing on the outcome of the legal analysis. This is especially true given the six- to nine-month statutory time-frame allowed for

Case 19-00018-UT pursuant to the ETA.

5. Furthermore, the date for response briefs was the same as the due date for staff and intervenor direct testimony, making it impossible for staff and intervenors to know whether the

Commission intended to apply the ETA when preparing and submitting their testimony. At the prehearing, both WRA and Interwest Energy Alliance pointed out the difficulty and unfairness to parties of having the

ETA applicability legal issue remain unresolved for what would likely be the duration of the proceeding.

Hearing Examiner Medeiros responded that the schedule would not be adjusted unless PNM waived the

2

ETA’s statutory deadlines for completing the case. This, in itself, was confusing given that the Order on

Motion for Clarification states the Commission has not yet determined whether the ETA applies (and thereby the statutory timeframes in the ETA).1 In sum, while Commission Chair Becenti-Aguilar, in rejecting WRA’s motion relied upon the Hearing Examiner to decide ETA applicability, the Hearing

Examiners will not make that determination in any meaningful time-frame.

6. Whether the ETA applies to PNM’s Consolidated Application is a controlling matter of law with substantial grounds for difference of opinion – given that Commissioner Espinoza repeatedly voiced her opinion at the Commission’s July 10, 2019 open meeting that the ETA would not apply to the abandonment and financing portions of PNM’s application if re-assigned from Case 19-00195-UT to Case

19-00018-UT, which is what the Commission voted to do. An immediate appeal of the Chair’s July 24,

2019 Order, with clarification of whether the Commission intends to apply the ETA in Case 19-00018-

UT, may materially advance the ultimate disposition of the proceeding.

7. Prompt Commission review of the Chair’s Order is needed because otherwise parties such as WRA will suffer irreparable harm. The ETA has specific statutory time-frames for issues to be resolved. If a legal issue of central importance, such as ETA applicability, is delayed until the end of the proceeding, and then decided wrong, those time-frames could be compromised – which would likewise compromise important features of the new law, such as acquisition and location of replacement resources, bond issuance dates, and the provision of worker retraining and economic development funds to regions impacted by PNM’s San Juan closure. Moreover, because of the added resources needed to litigate two very different legal scenarios, and the attendant costs of that litigation which is not trivial in a case of this importance, and because New Mexico law prohibits recovery of those costs from those responsible (§16-

13-3 NMSA), WRA and other parties will be irreparably harmed if the Chair’s July 24th Order stands.

8. Because of the importance and urgency of the issues involved and relief requested, WRA requests an expedited response time and order on this motion. It is in the public interest, and in the

1 Absent the ETA, PNM’s financing application would be governed by §§62-6-7 and 62-6-9, which require securities applications be approved unless inconsistent with the public interest, and to be disposed of promptly, i.e. within 30 days unless the Commission provides a full statement of why good cause exists for a longer period.

3

interest of administrative economy and efficiency, for this issue to be resolved at this early stage of the proceeding.

9. WRA has requested the concurrence and position of other parties on this Motion, with the following responses: Coalition for Clean Affordable Energy, Sierra Club, San Juan Citizens’ Alliance,

Dine CARE and Public Service Company of New Mexico support the motion. Interwest Energy Alliance does not oppose the motion. The New Mexico Industrial Energy Consumers, Commission Staff and the

New Mexico Attorney General take no position on the motion. New Energy Economy, Southwest

Generation and Bernalillo County oppose the motion. Several parties indicated an intent to respond.

WHEREFORE, for the foregoing reasons, Western Resource Advocates prays for an order from

Commission Chair Becenti-Aguilar permitting appeal, shortening the response time to this motion, and granting such other and further relief as this Commission deems just and proper.

Respectfully submitted,

WESTERN RESOURCE ADVOCATES

______Steven S. Michel, Attorney for WRA 409 East Palace Avenue, Unit 2 Santa Fe, NM 87501 T: (505) 820-1590 [email protected]

4

BEFORE THE NEW MEXICO PUBLIC REGULATION COMMISSION

IN THE MATTER OF OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO’S ) ABANDONMENT OF SAN JUAN ) GENERATING STATION UNITS 1 AND 4. ) CASE NO. 19-00018-UT ______)

and

IN THE MATTER OF PUBLIC SERVICE ) COMPANY OF NEW MEXICO’S CONSOLI- ) DATED APPLICATION FOR APPROVALS FOR ) THE ABANDONMENT, FINANCING, AND ) RESOURCE RELACEMENT FOR SAN JUAN ) GENERATING STATION PURSUANT TO ) THE ENERGY TRANSITION ACT. ) ) PUBLIC SERVICE CO. OF NEW MEXICO, ) CASE NO. 19-00195-UT ) Applicant. ) )

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Western Resource Advocates Motion to Permit Appeal was sent as indicated on July 29, 2019 to the following:

Stacey Goodwin [email protected]; Stephen Curtice [email protected]; Ryan Jerman [email protected]; Barry W. Dixon [email protected]; Richard Alvidrez [email protected]; Shane Youtz [email protected]; Dan Akenhead [email protected]; Kyle J. Tisdel [email protected]; Mark Fenton [email protected]; Erik Schlenker-Goodrich [email protected]; Carey Salaz [email protected]; Thomas Singer [email protected]; Steve Schwebke [email protected]; Mike Eisenfeld [email protected]; Ray Gifford [email protected]; Sonia Grant [email protected]; Heather Allen [email protected]; Carol Davis [email protected]; Joan Drake [email protected]; Robyn Jackson [email protected]; Lisa Tormoen Hickey [email protected]; Germaine R. Chappell [email protected]; Jason Marks [email protected]; Jane Yee [email protected]; Matthew Gerhart [email protected]; Saif Ismail [email protected]; Katherine Lagen [email protected]; Steven Gross [email protected]; Ramona Blaber [email protected]; Martin R. Hopper [email protected]; Camilla Feibelman [email protected]; James R. Dittmer [email protected]; Nann M. Winter [email protected]; Daniel R. Dolan [email protected]; Keith Herrmann [email protected]; Robb Hirsch [email protected]; Dahl Harris [email protected]; Noah Long [email protected]; Peter Auh [email protected]; Mariam Wheir [email protected]; Jody García [email protected]; John W. Boyd [email protected]; Andrew Harriger [email protected]; Joseph A. Herz [email protected]; Steven S. Michel [email protected]; Caitlin Liotiris [email protected]; Glenda Murphy [email protected]; Kathleen Fraser [email protected]; Pat O’Connell [email protected]; Richard Mertz [email protected]; Douglas J. Howe [email protected]; Jim Dauphinais [email protected]; Mariel Nanasi [email protected]; Brian Andrews [email protected]; 5

David Van Winkle [email protected]; Thomas Manning [email protected]; Aaron El Sabrout [email protected]; Chris Hunter [email protected]; Bruce C. Throne [email protected]; Josh Finn [email protected]; Rob Witwer [email protected]; A. Peters [email protected]; Jeffrey Albright [email protected]; Donald E. Gruenemeyer [email protected]; Amanda Edwards [email protected]; Marcos D. Martinez [email protected]; Michael I. Garcia [email protected]; Senator Steve Neville [email protected]; Greg Sonnenfeld [email protected]; Rep. James Strickler [email protected]; Ned Parker [email protected]; Anthony Allison [email protected]; Charles F. Noble [email protected]; Senator Carlos Cisneros [email protected]; Stephanie Dzur [email protected]; Senator William Sharer [email protected]; Anna Sommer [email protected]; Rep. Rod Montoya [email protected]; Chelsea Hotaling [email protected]; Rep. Paul Bandy [email protected]; Tyler Comings [email protected]; Rep. Patricia A.Lundstrom [email protected]; Don Hancock [email protected]; John M. Brittingham [email protected]; Cholla Khoury [email protected]; Melissa Buttler [email protected]; Gideon Elliot [email protected]; Josh Combs [email protected]; Robert F. Lundin [email protected]; Bob Edwards [email protected]; Elaine Heltman [email protected]; Eric Koontz [email protected]; Andrea Crane [email protected]; Kiran Mehta [email protected]; Douglas Gegax [email protected]; David Getts [email protected]; Randy S. Bartell [email protected]; Adam Baker [email protected]; Sharon T. Shaheen [email protected]; Antonio Paez [email protected]; John F. McIntyre [email protected]; Jay Kumar [email protected]; Marvin T. Griff [email protected]; Pete Lewis [email protected]; Lorraine Talley [email protected]; Jennifer Breakell [email protected]; Vicky Ortiz [email protected]; Michael C. Smith [email protected]; Peter J. Gould [email protected]; Bradford Borman [email protected]; Kelly Gould [email protected]; John Bogatko [email protected]; Michael Gorman [email protected]; Beverly Eschberger [email protected]; Georgette Ramie [email protected]; Dhiraj Solomon [email protected]; Anthony Sisneros [email protected];

______Glenda Murphy

6 ATTACHMENT L