Guest Feature

A Spotlight on the Rulemaking Process

by Tammy Fiebelkorn, local environmental economist & owner of eSolved, Inc.

In 2011, New Mexico has charted a new and dangerous course.

The process used to develop and adopt rules is a great example of how the Martinez administration has dramatically changed the way government goes about its work. One recent rule change–the repeal of the original 2009 New Mexico Energy Conservation Code (NMECC) and the adoption of a new NMECC–-highlights just how much things have changed.

Compare and Contrast: The Richardson Way

The original 2009 NMECC was a model in terms of energy savings, benefits to New Mexicans, and code development process.  The original code was the result of a 2-year process that was open to the public and provided anyone who wanted input into code content to propose measures and be a part of the development process. A Code Change Committee was assembled with 20 representatives including construction industry professionals, building inspectors, government representatives and an energy efficiency advocate. The code change committee met weekly for over a year. Hundreds of proposals were considered to create a code that is specific to the unique needs of New Mexico. Each code proposal was analyzed for technical feasibility, energy savings and economic benefits. The proposals were also reviewed and approved by separate Technical Advisory Committees for technical feasibility and applicability to New Mexico. These analyses were documented in a report issued by the state that outlined the participants, rationale, and process behind the final recommended code. That report was submitted to the Construction Industries Commission (CIC) along with the proposed code for approval.

Compare and Contrast: The Martinez Way

On its first day in office, the Martinez administration attempted to block the publication of the original 2009 NMECC, along with a plethora of other environmental safeguards, via Executive Order 2011-001. A number of environmental organizations were forced to sue the administration to protect the rights of New Mexicans; Sierra Club filed suit over the failure to publish the building codes. After losing two similar lawsuits that resulted from this illegal order, the Martinez administration settled with Sierra Club and agreed to publish the code in compliance with the law. The code was finally published in the State Register on Valentine’s Day–February 14, 2011.

The Martinez administration’s Small Business-Friendly Task Force (also formed via Executive Order 2011-001) met a few times to develop a “hit list” targeting environmental and labor safeguards that are “troublesome” to big business, and to outline strategies to overturn them. Two of the members of the Governor’s task force were then appointed to the CIC. Regulation and Licensing Department Superintendent, J. Dee Dennis–whose department is the home agency of CIC–was also on the Governor’s task force.

Mr. Dennis then spearheaded the use of state staff time and resources to develop a proposal to repeal the original 2009 NMECC and replace it with a new, inferior code. Staff members were instructed to develop this proposal in secret–out of sight of the public and other government agencies. The process was completed by a few Construction Industry Division (CID) staffers and did not include a financial analysis, energy use analysis or technical feasibility study. No consideration was given to the specific needs and circumstances of New Mexico. The public had no input. Industry experts had no input.

At the first meeting of the new CIC on Earth Day (April 22, 2011), staff presented this secretly-developed proposal and one of the task force members/new CIC commissioners made the motion to accept the proposal. There was almost no discussion from the other newly-appointed commissioners before the code repeal was accepted for public comment.

The public comment sessions were held simultaneously in four New Mexico communities and consisted of interested parties being given two minutes to say if they supported or opposed the repeal of the original 2009 NMECC and adoption of the new NMECC. Individuals were also allowed to submit written comments.  No evidence was presented to the public and there was no opportunity to discuss any portion of the proposed new code. The public comments were audio recorded, and copies were provided to Commissioners. Both verbal and written comments were overwhelmingly in favor of keeping the original 2009 NMECC. It’s unknown if Commissioners took the time to read the hundreds of written comments and the 12 hours of public comments that resulted from those meetings.

The next week, the Commission met and voted 7-1 in favor of the repeal. There was no discussion by the Commissioners on the repeal and its effect on New Mexicans. No justification for the decision was provided by either CIC or CID.

How’s that for open and transparent government?

–July 2011