Western Water and Power Production Limited LLC filed a legal challenge in New Mexico state court of appeals in December 2010 challenging the state's decision to rescind millions of dollars worth of taxpayer subsidies for its biomass energy facility.
The Petition for Writ of Certiorari (see below) filed with the appeals court in Santa Fe is a last ditch attempt by the biomass proponents to retain nearly $30 million of subsidies for "clean energy production," despite the fact that burning our forests for energy is a dirty form of energy and non-0-sustainable. See the website Stop Spewing Carbon for good information challenging the biomass myth. http://www.stopspewingcarbon.com/.
It will now be incumbent upon the state to defend its decision and I have it on fairly good word this will be the situation. I wish the state luck in this important legal case.
04 9 No:
FIRST JUDICIAL DISTRICT
STATE OF NEW MEXICO
COUNTY OF SANTA FE
IN THE MATTER OF THE APPLICATION
OF WESTERN WATER AND POWER
PRODUCTION LIMITED, LLC, FOR
RENEWABLE ENERGY TAX CREDITS
WESTERN WATER AND POWER
PRODUCTION LIMITED, LLC,
JAMES A. NOEL, CABINET SECRETARY
OF THE NEW MEXICO ENERGY, MINERALS
AND NATURAL RESOURCES DEPARTMENT, AND
THE NEW MEXICO ENERGY, MINERALS AND
NATURAL RESOURCES DEPARTMENT,
PETITION FOR WRIT OF CERTIORARI
Petitioner Western Water and Power Production Limited, LLC ("WWPP") hereby
petitions the Court, pursuant to Rule 1-075 NMRA, to issue a writ of certiorari to review the
Secretary's Order Adopting Hearing Examiner's Findings of Fact, Conclusions of Law and
Order Denying Application and Waiver Request, issued by Respondent Secretary of the New
Mexico Energy, Minerals and Natural Resources Department ("EMNRD") on November 9,2010
("Secretary's Order"). The Secretary's Order denied WWPP alternative energy tax credits under
NMSA 1978, §7-2A-19 (Supp. 2009). A copy of the Secretary's Order is attached hereto as
"Exhibit A." Pursuant to the requirements ofRule 1-075(C) NMRA, WWPP states the following
in support of its Petition:
The New Mexico Renewable Energy Act NMSA 1978 §§ 62-16-1 et seq. contains the
following Legislative findings:
(l) the generation of electricity through the use of renewable energy presents
opportunities to promote energy self-sufficiency, preserve the state's natural
resources and pursue an improved environment in New Mexico;
(2) the use of renewable energy by public utilities subject to commission
oversight in accordance with the Renewable Energy Act can bring significant
economic benefits to New Mexico ...
NMSA 1978, § 62-16-2(A)(l) and (2). Like many states, that Act also requires public utilities in
New Mexi~o to have a renewable energy portfolio that is "diversified as to the type of renewable
energy resource . . . " NMSA 1978 62-16-4(A)(4). Consistent with these Legislative
determinations, ENMRD is required to take action to utilize "incentives to encourage biomass
use," thereby "reducing the overabundance of woody [fire-prone] vegetation ... and
encourag[ing] biomass energy use." NMSA 1978, § 9-5A-IO.
To accomplish the preceding goals, the Legislature enacted a comprehensive statute
designed to encourage biomass (and other alternative energy) electricity production through a
series of tax incentives. The statutory incentive grant for corporations is codified in NMSA
1978, § 7-2A-19 (Supp. 2009). WWPP met the requirements of § 7-2A-19 and, in 2008,
EMNRD deemed it to be a "qualified energy generator" eligible for in excess of $27 million in
refundable! tax credits over a ten-year period once production begins (projected in two years).
wwpp thereafter commenced construction upon a $100,000,000 biomass production plant (35
megawatt capacity) in Torrance County near Estancia. It executed a letter of intent for financing
and expects to have permanent financing arranged in March or April, 2011. It negotiated a
supply contract with Southern California Edison, a utility subject to similar alternative energy
requirements as those applicable to New Mexico utilities, as referenced above. WWPP expects
to be eligible for federal tax credits.
Notwithstanding this history, the decision ofEMNRD and its Secretary for which review
is now sought effectively holds that WWPP is now ineligible for New Mexico tax credits. To
explain, the amount of tax credits for all "qualified energy generator[s]" statewide for wind and
biomass is $400 million with a cap at $40 million per year. NMSA 1978, § 7-2A-19(C) and (G).
These resources are allocated among the various "qualified energy generator[s]" by a first-intime-
first-in-right methodology based upon the date in which a particular electricity generator
first submitted its application. NMSA 1978, § 7-2A-19(G) and (L). This group of qualified
alternative energy generators is referred to in EMNRD parlance as the "queue." The Secretary's
Order removed WWPP from the "queue" because its Estantia plant was not generating power
within a two year "milestone" after it became "qualified," as allegedly required by EMNRD
regulation 220.127.116.11(B)(3) and (4) NMAC. A copy of the regulation is attached as Exhibit B.
1 The tax credits are payable regardless of whether a "qualified energy resource" earns sufficient
income to offset them. See NMSA 1978, § 7-2A-19(K).
The issue upon which this Petition seeks review is straightforward: does EMNRD's
regulation imposing a two-year commercial operation requirement conflict with the applicable
statute, NMSA 1978, 7-2A-19(B), which provides in pertinent part:
7-2A-19. Renewable energy production tax credit; limitations; definitions;
claiming the credit.
B. A person is eligible for the renewable energy production tax credit if the
(1) holds title to a qualified energy generator that first produced electricity on
or before January 1, 2018; or
(2) leases property upon which a qualified energy generator operates from a
county or municipality under authority of an industrial revenue bond and if the
qualified energy generator first produced electricity on or before January 1, 2018.
A. Jurisdictional Grounds.
1. Rule 1-075 provides a means to obtain review of an agency decision when there is
no statutory provision for an appeal or other form of review, in order to assure compliance with
the requirements of the New Mexico Constitution, Article VI, Section 2, giving an aggrieved
party an absolute right to one appeal.
2. EMNRD's authority to review and grant or deny applications for renewable
energy tax credits, and to determine placement in the "queue," is derived from the Corporate
Income and Franchise Tax Act, NMSA 1978, §§ 7-2A-l et seq.; see NMSA 1978, § 7-2A-
19(G)(H) (I - K).
3. Under the provisions of NMSA 1978, § 7-2A-13, "[t]he Corporate Income and
Franchise Tax Act shall be administered pursuant to the provisions of the Tax Administration
Act [7-1-1 NMSA 1978]." (second brackets in originalj'
4. The net result is a statutory disconnect: an unsuccessful applicant for renewable
energy tax credits is left without any statutory remedy for appeal. Specifically:
a. The Tax Administration Act provides for a hearing of tax protests and tax
refund cases by a hearing examiner "designated" by the "Secretary of Taxation and Revenue."
NMSA 1978, §§ 7-1-24(A)(E), 7-1-3(T). The hearing examiner in this case was designated by
the Secretary ofEMNRD, not the Secretary of Taxation and Revenue.
b. WWPP's challenge to the Secretary's Order involves WWPP's entitlement
to tax credits and its placement in the "queue," not any protest of taxes actually assessed or claim
for refund of taxes actually paid.
c. The only appellate authority in the Tax Administration Act provides:
If the protestant or secretary is dissatisfied with the
decision and order of the hearing officer [designated by the
secretary of taxation and revenue], the party may appeal to
the court of appeals for further relief, but only to the same
extent and upon the same theory as was asserted in the
hearing before the hearing officer. All such appeals shall
be upon the record made at the hearing and shall not be de
novo. All such appeals to the court of appeals shall be
2 Although it is not necessary to the decision regarding this Court's jurisdiction in this matter, it
should be noted that § 7-2A-13 violates the plain language of N.M. Const. Article IV, § 18,
which provides: "No law shall be revised or amended, or the provisions thereof extended[,] by
reference to its title only ... " Section 7-2A-13 violates this constitutional prohibition by
"extend[ing]" the provisions of the Tax Administration Act to the Corporate Income and
Franchise Tax Act through incorporation by reference exclusively to the title of the Act. See
State v. Armstrong, 31 N.M. 220, 243 P.333 (1924)(extending another statute by its title only
renders former statute void).
taken within thirty days of the date of mailing or delivery
of the written decision and order of the hearing officer to
the protestant, and, if not so taken, the decision and order
NMSA 1978, § 7-1-25(A).
d. The above-quoted language contains no mechanism for appeal of the
Secretary's Order, thus invoking the provisions ofN.M. Const., Art. VI, Section 2 and Rule 1-
5. The Secretary's Order removing WWPP from the queue is a final administrative
action. Unless that Order is vacated WWPP cannot be restored to the queue and other generators
will be allocated tax credits reserved for WWPP. See Exhibit A, Order, ~ 4.
6. A protective appeal has been filed with the New Mexico Court of Appeals in the
event that it is determined that § 7-1-25 of Tax Administration Act does provide an appellate
remedy in these circumstances. Further, a "Protest" has been filed with the Secretary of
Taxation and Revenue in case she is determined to have authority under the Tax Administration
Act to review the decisions of the EMNRD Secretary.
7. Venue is proper in this district pursuant to the provisions ofNMSA 1978, § 38-3-
B. Agency Proceedings.
8. This matter arises as a result of the Secretary's Order enforcing EMNRD
Regulation 18.104.22.168B(3) and (4) NMAC ("24 Month Rule") with regard to WWPP's Estancia
biomass plant. The Secretary's Order removes WWPP from the "queue" for renewable energy
tax credits because it failed to generate electrical power and achieve commercial operation
demonstrating at least ten megawatts generating capacity within 24 months of the Division's
approval ofthe application. Exhibit A, Order ~ 4.
9. On March 16,2007, WWPP filed with EMNRD its initial application for 274,000
Mw/hrs per year of Renewable Energy Production Tax Credits (hereinafter "PTC" or "the PTC
Program") for its proposed Estancia Basin Biomass Project (hereinafter "the Project") to be
located in Torrance County, New Mexico.
10. On April 17, 2007, EMNRD's Energy Conservation and Management Division
(hereinafter "the Division"), which is charged with the responsibility under the Department's
applicable rules to administer the PTC Program under the Corporate Income and Franchise Tax Act,
NMSA 1978, § 7-2A-19, rejected the WWPP application as being incomplete under the PTC
11. On August 28, 2007, WWPP re-submitted its PTC application with the
12. On September 25, 2007, the Division again rejected the WWPP application, this
time primarily on the asserted ground that WWPP had not demonstrated a sufficient available
supply of biomass material to operate the Project at a capacity sufficient to justify the amount of
13. On October 10, 2007, WWPP filed an appeal to the Secretary of the Department
from the Division's denial of the WWPP application on the grounds that the application was in fact
complete under the PTC Program rules and that the WWPP Project was a "qualified energy
resource" under the PTC Act.
On February 21, 2008, the Division Director issued a letter confirming the
14. On January 25, 2008, a hearing was held on the WWPP appeal in front of two
hearing examiners appointed by the Secretary.
15. On February 14, 2008, the Secretary issued a decision overturning the Division's
denial of WWPP's application and ordered the Division "to accept WWPP's application for
renewable energy production tax credit as complete, and [to] accept WWPP's estimate of the annual
power-generating potential of the proposed facility," i.e. 274,000 MWH which translates to a total
allowable credit of $27,400,000. See NMSA 1978, § 7-2A-19(C). In rendering her decision, the
Secretary stated: "The renewable energy production tax credit act should be considered in light of
other statutes addressing renewable energy development, which were designed to create a consistent
policy on renewable energy development in New Mexico." Order of the Secretary, February 14,
2008, ~ 27.
17. The regulatory delay experienced by WWPP from the date of its initial PTC
application until its ultimate acceptance by the Department was approximately ten months instead
of the thirty days contemplated by the Department's PTC Program regulations. See 22.214.171.124(B)
and (E) NMAC.
18. A further project delay of approximately one-year was occasioned when the
Division questioned whether WWPP had commenced construction on the Project as required by
126.96.36.199(2) NMAC, but then decided on January 29, 2010 that this regulatory "milestone" had
19. On February 19, 2010, WWPP filed a Motion with the Division, asserting, inter
alia, that the 24 Month Rule was void as conflicting with the controlling statute from the Tax Act
quoted above (NMSA 1978, § 7-2A-19(B)(1)), the plain language of which allows a "qualified
energy generator" until January 1,2018 to commence producing electricity.
20. On March 12, 2010, without any explanation or reasons therefor, the Division
Director wrote WWPP a letter denying the Motion and stating only that: "we do not find the
information in the request supports such a waiver or your request for a hearing," thus rejecting the
Project's PTe application because ofWWPP's failure to meet the 24 Month Rule.
21. On March 29,2010, WWPP timely filed its appeals with both the Secretary and the
Division Director pursuant to the March 12, 2010 letter of the Director and the PTe Program
22. On April 19, 2010, the Division Director denied WWPP's appeal and determined
that the 24 Month Rule was not contrary to the Tax Act provision, NMSA 1978, § 7-2A-19B(1).
23. On April 29, 2010, WWPP filed a timely appeal to the Secretary. An EMNRD
employee was appointed as hearing examiner.
24. On August 3, 2010, a hearing was held "before the hearing examiner in Santa Fe,
New Mexico. The proceedings were not recorded or transcribed as was previously the practice in
other EMNRD proceedings related to WWPP.
25. During the course of the hearing, WWPP was denied the opportunity to have
administrative notice taken of certain relevant ENMRD records.
26. During the course of the hearing, WWPP was denied the right to fully crossexamine
adverse witnesses concerning their direct testimony or present proper rebuttal testimony.
27. The hearing was not conducted in accordance with the provisions of the Tax
Administration Act, as required by NMSA 1978, § 7-1-2(A)(17), and the applicable administrative
hearing procedures set forth in NMSA 1978, §§ 7-1-24, and 188.8.131.52,184.108.40.206 and 220.127.116.11 NMAC,
particularly those procedures relating to administrative notice, full cross- examination and
recording of testimony.
28. At the hearing, the following matters were the subject of testimony by the
a. "[A] hard deadline for the construction and commercial operation for a project" in
the electric generation and production business "is not always reasonable or feasible." Exhibit A,
Findings ~ 21(a).
b. "The [PTC] can be worth hundreds of thousands of dollars, in some cases millions
of dollars, and its availability can make a difference in whether a renewable energy project is
viable and/or in the type or amount of financing the project has available to it." Id. ~ 25.
c. In addition to regulatory delays of the type described above, the completion and
commercial operation of a $100 million electrical generating facility may be delayed by variable
force majeure economic conditions, such as the global financial meltdown in 2008, and difficulties
in obtaining financing. Id. ~ 21(b).
d. The Project, if built, will have a significant positive economic impact in Torrance
County, New Mexico's 4th poorest, and will, as well, provide benefits in the areas of forest fire
prevention, water conservation and cattle carrying capacity of the affected rangeland. Id. ~ 21(a)
e. The EMNRD treatment of the WWPP application was repeatedly inconsistent with
and contrary to the rules, policy and precedent of the EMNRD.
29. None of the factors set forth above (or anything remotely like them) were
considered by the Division, the hearing examiner or the Secretary in determining whether January
1, 2018, the date selected by the Legislature for "first produc[ing] electricity" was reasonable as
applied to biomass generators. E.g., id., Findings 22(a), Conclusion T.
30. At the close of the hearing, the hearing examiner ordered that the parties file briefs,
findings of fact and conclusions of law, and closing statements on September 17, 2010. The
hearing examiner did not allow the parties to file responsive pleadings to each other or pleadings
in opposition to a proposed order by the hearing examiner.
31. On November 9, 2010, the hearing examiner filed his Findings of Fact,
Conclusions of Law and Proposed Order with the Secretary. See Exhibit A. Throughout his
proposed Order, the hearing examiner mis-cited the applicable statute. Instead of NMSA 1978
7-2A-19 he cited NMSA 1978 7-2-18.18 as the controlling statute. Simultaneously with that
filing, the Secretary issued his Order Adopting Hearing Examiner's Findings of Fact,
Conclusions of Law and Order Denying Application and Waiver Request. In his Order, the
Secretary required the Division to make available to other projects the reserved PTC Credits
previously reserved for WWPP's Project. Exhibit A, Order' 4.
C. Parties to the Agency Proceedings.
A. Western Water and Power Production Limited, LLC, Applicant;
B. New Mexico Energy, Minerals and Natural Resources Department; and
C. Owaissa Wind, LLC, Intervenor.
D. WWPP is Entitled to Relief.
32. It is beyond the scope of the Secretary's authority to deviate from the time
prescription of the statute under the guise of rulemaking.
33. Neither the Hearing Officer's Findings of Fact and Conclusions of Law nor the
Secretary's Order contains any discussion of the alleged reasons(s) why the January 1, 2018
deadline for first producing electricity is not fully applicable and governing in this case.
34. In In re Camino Real Envtl. Ctr., Inc., 2010-NMCA-057, N.M. _, _ P.3d
_, attached as Exhibit C, the Court set aside a regulatory attempt to limit the duration of a
governmental approval (a landfill solid waste permit) to a time period less than that specified in
the governing statute for that type of permit.
35. In Camino Real, the Court stressed that the Legislature was entitled to specify a
binding permit duration given the fact that, as here, the "permit approval process requires
significant investments of time and resources. !d. ~ 19.
36. In reaching its decision in Camino Real, the Court relied upon "[t]he statute's
history and background [to] demonstrate legislative intent to limit the Secretary's discretion with
respect to permit duration." Id. ~ 18.
37. In contrast, in the EMNRD proceedings here, the Division and the hearing
examiner expressly refused to consider factors such as: (i) legislative findings concerning the
public benefits from biomass electricity production; (ii) the statutorily expressed need to promote
alternative production from a variety of renewable resources including biomass; and (iii) the
testimony concerning the infeasibility of developing biomass generated electricity under the
constraints of the 24 Month Rule, given the need for financing and the variability of economic
conditions. E.g., Exhibit A, Finding ~22 (a), Conclusion T.
38. The fact that the Legislature contemplated long-term eligibility for biomass
renewable energy projects is underscored by NMSA 1978, § 7-2A-I9(E), which provides:
A taxpayer eligible for a renewable energy production tax credit pursuant to
Subsection B of this section shall be eligible for the renewable energy production
tax credit for ten consecutive years, beginning on the date the qualified energy
generator begins producing electricity.
39. The decision in Camino Real relied upon the plain (and mandatory) language of
the statute's duration limitation in holding that, absent an explicit statutory exception, an agency
"lacks authority to deviate from a duration provision" for approvals specified in the agency's
governing statute. 20IO-NMCA-057, ~I6.
40. Here, the duration limitation in § 7-2A-I9(B) (quoted on p. 4 of this Petition)
contains mandatory language confirming a person's eligibility for the PTC if only one condition
is met, namely, if the person "holds title to a qualified energy generator that first produced
electricity on or before January 1,2018."
41. Until January 1, 2018 has come and gone, it is premature to determine whether
WWPP is ineligible for the PTCs.
42. The hearing examiner found that WWPP's application to be a qualified energy
generator had been "approved." Id. Conclusion P.
43. The Secretary acknowledged that "credits [were] reserved for the WWP[P]
project" as a qualified energy resource. Exhibit A, Order ~ 4.
44. The Secretary's Order previously granting WWPP's application concluded that
"WWPP [was] a qualified energy generator under the Act" (Order dated 2/14/08, Conclusion 50)
and no suggestion or evidence was presented at the hearing that WWPP's status in that regard
45. There is no dispute that WWPP "holds title" to the Project.
46. The hearing examiner's decision and the Secretary's Order were contrary to law.
47. Because the hearing was conducted in an arbitrary and capricious fashion,
contrary to law and regulation, all as noted above, the Secretary's Order should be vacated and
WWPP's application and place in the "queue" should be reinstated.
48. No certificate of satisfactory arrangements for the preparation of the transcript of
the hearing as contemplated by Rule 1-075(E)(3) has been filed because, as noted, the hearing
was not recorded so there is no transcript.
E. Relief Sought.
WWPP requests that the Court grant WWPP the following relief:
a. an order declaring that 18.104.22.168(B)(3) and (4) NMAC are contrary to law
because they conflict with the plain language ofNMSA § 1978 7-2A-19(B);
b. an order reversing the Secretary's Order on the grounds that EMNRD acted
arbitrarily and capriciously, without substantial evidence, beyond the scope of its authority, and
otherwise not in accordance with law in denying the WWPP PTC Application and removing it
from the "queue";
c. an order vacating the Secretary's Order and directing the Secretary to reinstate the
WWPP Application and place in the "queue"; and
d. such other and further relief in its favor that the Court deems just and proper.
COMEAU, MALDEGEN, TEMPLEMAN
& INDALL, LLP
Williahl P.~mplelfu.an -,
Stephen J. Lauer
Post Office Box 669
Santa Fe, NM 87504-0669
David S. Cohen
Cohen & Cohen, P.A.
P.O. Box 789
Santa Fe, NM 87501
Attorneysfor Western Water and Power
Production Limited, LLC
CERTIFICATE OF SERVICE
It is hereby certified that on December 9,2010, a true and correct copy of the foregoing
Petition for Writ ofCertiorari was deposited in the United States Mail at Santa Fe, New Mexico,
first class, postage prepaid, addressed to:
Timothy R. Van Valen, Esq.
201 Third Street, N. W. Suite 1700
Albuquerque, NM 87102
Mark A. Smith, Esq.
Energy Conservation and
New Mexico Energy, Minerals and
Natural Resources Department
1220 S. Saint Francis Drive
Santa Fe, NM 87505-4225
James A. Noel, Esq.
New Mexico Energy, Minerals and
Natural Resources Department
1220 S. Saint Francis Drive
Santa Fe, NM 87505-4225
K:\WESTERN WATER PETITION CERT 1554-01\Pleadings\Petition for Writ ofCert.doc