Mar. 11—The New Mexico Supreme Court swiftly ruled against three investor-owned electric utilities in their challenge of the state’s community solar program.
In a Monday decision issued by Chief Justice C. Shannon Bacon just hours after hearing oral arguments in the case, justices upheld rules for the program approved by state regulators in recent years.
Solar energy advocates and some state lawmakers have cast the utilities’ appeal as part of a larger effort to stall a community solar initiative at every stage.
Attorney and former PRC member Jason Marks told the Supreme Court at Monday’s hearing community solar projects around the state have been left “in limbo” while the utility companies’ appeal is pending. They lacked access to construction financing because of uncertainty created by the litigation, he said.
The Legislature approved the Community Solar Act, establishing a program aimed at reducing energy costs in low-income communities, in 2021. Commissioners approved the first round of 45 community solar projects across the state in May, totaling 200 megawatts.
Those projects were chosen according to rules approved by the commission, Marks said. “If you were a financier, you wouldn’t put $20 [million] or $50 million in one of these projects. Even though the appeal looks one-sided — it’s an appeal and anything can happen in court.”
Marks argued on behalf of the national Coalition for Community Solar Access as well as the Renewable Energy Industries Association of New Mexico, the Coalition of Sustainable Communities New Mexico, New Energy Economy and the city of Las Cruces.
The justices noted in their ruling “uncertainty created by this appeal has frustrated attempts to implement the Community Solar Program because of the possibility that the Community Solar Rule may be vacated and annulled.” The order states the commission “should be affirmed without further delay” to implement the program.
Attorney Dana Hardy argued on behalf of lead plaintiff Southwestern Public Service Co. as well as Public Service Company of New Mexico and El Paso Electric. She said the commission violated the Community Solar Act by approving program rules that could allow for subsidization of transmission costs by non-subscribers.
Hardy also argued the commission had deprived Southwestern Public Service Co. of due process by rejecting two of the utility’s proposed community solar projects that included transmission costs.
Justices questioned Hardy’s representation of transmission costs as a subsidy, noting upgrades would potentially provide benefits to all of a utility’s customers.
“If there’s a shared benefit, it seems to me it could create a situation where these community solar facilities are actually subsidizing the utilities,” Justice Briana Zamora told Hardy.
Signup bonus from
