By KAY MATTHEWS
While New Mexico, under Susana Martinez’s dominion, hasn’t sunk to the depths of reactionary governance that Wisconsin, Kansas, and Indiana have, it’s not because she hasn’t tried. La Jicarita has documented her attempts—and successes—to eviscerate environmental regulations. She rolled back climate change mitigation plans because it hurt industry. She repealed a dairy pit rule that promised to protect groundwater because it cost commercial farmers too much money. She gutted the oil and gas pit rule and stacked the Water Quality Control Commission that rewrote the copper pit rule exempting the industry from environmental regulation. She fired members of the Environmental Improvement Board and filled key positions at the New Mexico Environment Department (including former mining attorney Ryan Flynn as chief counsel) with anti-environmental loyalists.
In the ongoing behavioral health system debacle, the Santa Fe New Mexican reported a few days ago about the departure of the second Arizona-based agency brought in to serve the system after Susana cut Medicaid funding to local agencies she accused of fraud. Two of those agencies have been cleared of wrong doing by the Attorney General’s Office and there have been no charges filed against any of the other providers. Meanwhile, thousands of clients are scrambling to find services.
Other regressive agendas she couldn’t push through without legislative approval reared up in the 2015 session. Once again she sought to repeal drivers licenses for undocumented workers, third grade retention (and Education Secretary Designate Hanna Skandera’s confirmation), and “Right to Work.”
The 2015 legislature’s ability to defeat this agenda head on was hindered by the newly established Republican majority in the House but also by the sheer number of regressive bills introduced by Martinez’s corporate compañeros. Many of them focused on the pre-emption of local governments, which is becoming a national trend. According to The New York Times, “[P]re-empting the power of local governments is becoming a standard part of the legislative playbook in many states where Republicans who control statehouses are looking to block or overturn the actions of leaders, and even voters, in municipalities that are often more liberal.”
Oil and Gas Regulation
First in line was the oil and gas industry that clogged the legislative works with at least four pre-emption bills that would have denied county or municipal regulation of oil and gas development. Several of them would have denied local regulation altogether while several others would have financially punished counties that increased industry costs through regulations. That so many of these bills appeared in the 2015 session was largely due to the promulgation of the Mora County Community Rights Ordinance passed in 2013 that banned any oil and gas development within the county. This controversial ordinance was promoted by County Commissioner John Olivas, in conjunction with the Community Environmental Legal Defense Fund (CELDF), a Pennsylvania-based law firm that works in a national arena and sees itself as taking the high road, a radical approach to social change that asserts the “rights” of communities and ecosystems and works towards “federal constitutional change.” CELDF executive director Thomas Linzey has stated: “It all comes down to what our theory of social change is. Can we be obedient folks petitioning our legislatures to do the right thing for us, or is it time to take back our own control and do it ourselves, no matter what the cost.” This “in your face tactic,” all well and good in theory, led to two lawsuits against the county by several oil and gas industries, along with several private landowners, putting the county in financial straights. In the hearing on the SWEPI lawsuit, a Royal Dutch Oil subsidiary, the courts struck down the ban as unconstitutional. The newly constituted 2015 county commission—Olivas was defeated for reelection in 2014—rescinded the ordinance several weeks ago, which should effectively dismiss the second lawsuit still pending.
The Mora County Ordinance isn’t the only reason the industry got legislators to introduce so many anti-regulation bills: many New Mexico counties have recently enacted regulations that severely restrict oil and gas development. Fortunately, due to the efforts of those who successfully worked in their counties and municipalities to enact locally-generated and site specific restrictions to protect communities and resources from hydraulic fracking, and their testimony before the Senate Democrats who voted against these bills in committee, none of them passed into law.
Just like the bills introduced to pre-empt local control over oil and gas development, Senator Ron Griggs, Doña Ana, Eddy, and Otero counties Republican, introduced a bill in direct response to communities and activists challenging water appropriations and transfers from their areas of origins downhill to money. His bill would have extended the time frame of 40 years for water rights acquired but not put to beneficial use as well as maximizing the amount of water in transfer applications where the water has also not been put to beneficial use. Most significantly, however, the bill would have made it more difficult to protest water transfer and appropriation applications before the Office of the State Engineer. The bill included these requirements: (1) Evidence of a protestant’s standing must be provided in the written protest; (2) If arguing that the application is contrary to conservation or the public welfare the protestant must provide evidence that he or she will be “substantially and specifically” affected by the granting of the application; and (3) If the protestant is arguing conservation or public welfare, “alleged impairment to the protestant’s water right cannot also be the basis to claim the protestant is substantially and specifically affected by granting the application.”
As I described in my previous La Jicarita article, “Dismissed as Protestant: It’s a Lawyer’s Game,” all three of these issues came up in my protest against the water appropriation application by El Prado Water and Sanitation District in Taos County as part of the Abeyta Settlement. I was pursuing a protest based upon the criteria in the Taos County Public Welfare Ordinance that the appropriation of water from two deep, new wells to increase the District’s water supply from 25 afy to 575 afy is not in the best interests of the citizens of Taos County. El Prado is represented by the Stein and Brockman law firm of Santa Fe (there are more applications pending that seek to transfer water rights as offsets for the wells), which is being paid through the Office of the State Engineer and the Interstate Stream Commission as part of the Abeyta Settlement. The law firm, which primarily represents municipalities and water users that depend upon the movement of agricultural water, has long been pushing the Office of the State Engineer to restrict due process for water appropriation and transfer protests. This bill reflected those restrictions. Due to the hard work of the acequia and agricultural communities that testified against the bill, it failed to pass.
Right to Work
Again, activists and the State Senate were able to kill the euphemistically titled “Right to Work” bill, which Senator Jacob Candelaria called “a cloud of rhetoric in search of solid ground.” The bill would have made it illegal for unions to negotiate contracts that require all workers covered by that contract to contribute to its negotiation and enforcement. New Mexico is already under served by unions; only 5.7 percent of New Mexico workers were represented by a union in 2014. The argument used by “Right to Work” proponents is that it will attract economic development to the state by those industries and businesses that, in other words, want to hire workers who will have the “right to work for less.” Paul Gessing, director of the libertarian-leaning Rio Grande Foundation, is one of main New Mexico cheerleaders for a “Right to Work” bill, but has been taken to task by UNM professor Tamara Kay, who points out that Gessing, and others like him, fail to factor in all the variables that contribute to economic growth. In contrast to their assertions, according the Kay, “the best research study we have, conducted by the current chief economist of the U.S. Department of Labor, controlled for 42 variables. It finds that right-to-work laws result in lower wages and a lower likelihood of health care and pensions for union and nonunion workers. It also shows right-to-work laws have no impact on economic growth.”
Hanna Skandera and the Privatization of Education
Paul Gessing is also one of the state’s strongest supporters of Hanna Skandera’s brand of “educational reform”: standardized testing, third grade retention, teacher’s evaluations, high-school graduation requirements, and virtual charter schools. After four years of stalling, the State Senate finally approved her appointment by Martinez as New Mexico Secretary of Education. Skandera arrived in New Mexico via the Jeb Bush-founded Foundation for Excellence in Education, which advocates for the privatization of education that benefits corporate giants like Pearson Education that sells all the testing services that are now de rigueur in our public schools. Gessing and the Rio Grande Foundation, with ties to the American Legislative Exchange Council (ALEC), the conservative, pro-privatization group that produces legislation for its corporate sponsors at the state level, tried to get state approval for a virtual charter school, also owned by Pearson. While five Senate Democrats capitulated and voted for Skandera’s confirmation, Senate Majority Leader Michael Sanchez had this to say: “Ms. Skandera’s tenure has been characterized by divisive partisanship and a failure to listen with respect to teachers, parents and school districts. This has been a lost opportunity for our children, and that is the tragedy. Now she is officially charged with leading our public schools system. Since she took over NMPED at the direction of Governor Susana Martinez, her record has been one of refusal to cooperate with stakeholders on key sensitive and critical issues about the way we educate children in our state.”
The good: defeating “Right to Work”, the oil and gas pre-emption bills, and the pre-emptive water bill to take away protestors’ due process. The bad: that so much time was wasted on these regressive measures. The ugly: that so-called “educational reform”, a euphemism for the private takeover of our public schools and the punishment of our teachers, gets a green light.