Three companies that sued The New Mexican to stop publication of documents that they said were confidential told a judge Thursday that they want to drop the case.
State District Judge David Thomson of Santa Fe declined to grant a restraining order against the newspaper because the companies now want to withdraw their lawsuits.
Asking to drop the lawsuits were Public Service Company of New Mexico and two mining companies, Westmoreland Coal and BHP Billiton.
The state Public Regulation Commission last week also sued The New Mexican after it gave the newspaper hundreds of pages of documents that the agency had deemed confidential. The documents were related to the controversial San Juan Generating Station near Farmington. Commission staff members said they released the documents to The New Mexican by accident.
PNM and the two mining companies intervened in the regulatory agency’s lawsuit. PNM runs the San Juan Generating Station, and the two coal companies figure into PNM’s proposal for operating the power plant.
The New Mexican published on its website Thursday the two major contracts that the Public Regulation Commission and the companies wanted to keep secret.
Those are the coal purchase agreement between PNM and Westmoreland, and the stock purchase agreement between BHP Billiton and Westmoreland for the San Juan Coal Mine, located adjacent to the power plant. Westmoreland is buying the plant from BHP for $125 million.
Victor Marshall, attorney for The New Mexican, which still is pursuing monetary damages from the plaintiffs in a countersuit, criticized the Public Regulation Commission and the three companies.
Speaking after the hearing, Marshall said they “made a direct attack on the First Amendment, a direct attack on The New Mexican and what you do, and a direct attack on the public’s right to know what they’re going to be paying for their electric bills.”
Public Regulation Commission member Valerie Espinoza, D-Santa Fe, attended the court hearing. Afterward, she told a reporter, “I counted 11 lawyers in that room. Who is going to pay for that?”
Espinoza, who has been critical of PNM’s plan for the coal-burning San Juan Generating Station, has said from the beginning she was opposed to the lawsuit by the Public Regulation Commission against the newspaper. She has said she was never consulted by anyone before the commission filed the suit.
In court filings, the commission staff and PNM said publication of the documents would be devastating. The commission argued that disclosure could lead to higher electrical rates. PNM claimed the documents contain “confidential business information and trade secrets belonging to PNM and its coal suppliers,” and that the utility would “suffer actual and irreparable harm” if that information were disclosed.
Asked about that after the hearing, PNM’s lawyer, Rick Alvidrez, said he couldn’t comment. “Call PNM,” he said.
The company replied with a statement that said: “PNM’s involvement in the lawsuit has been to protect the confidential trade secrets of BHP Billiton and Westmoreland Coal Company. Those companies made this information available to PNM and intervenors in the San Juan case with the understanding the information would be kept confidential, and there is an order in that case requiring the parties to protect that confidentiality. However, since BHP Billiton and Westmoreland Coal Company have decided to withdraw [from the lawsuit], PNM is also withdrawing. Because we want to ensure there are no negative consequences to our customers we reserve our right to take legal action in the future.”
At Thursday’s hearing, Alvidrez told the judge that the mining companies were the only ones who could be harmed by publishing the contracts.
Michael Smith, general counsel for the Public Regulation Commission, said previously any harm that might occur would be to PNM or the mining companies.
It was at a Public Regulation Commission meeting Wednesday when it became obvious that the legal action against the newspaper no longer had the support of the commission. Three of the five elected commissioners said that the lawsuit should be withdrawn.
They said that, because of the constitutional guarantee of freedom of the press, it was unlikely that the commission would prevail in court.
One commissioner, Patrick Lyons, R-Cuervo, said he didn’t believe the documents should have been secret in the first place. Espinoza has made similar comments.
Early this year, a hearing officer issued a protective order for contracts and other documents in the San Juan case, meaning none of the commissioners, their staff or organizations that have intervened in the lawsuit could reveal what was in the contracts.
But a reporter for The New Mexican received the contracts in a compact disc full of emails between the commission and PNM. The disc was prepared for the newspaper as part of a request for public records.
Vincent Martinez, the commission’s chief of staff, said he mistakenly thought the disc had been properly vetted by the staff.
PNM is asking the regulatory commission for approval to replace two units at the power plant with a combination of coal, wind, solar and nuclear power. The proposal has drawn criticism from groups that say it doesn’t include enough renewable energy.