New PRC member says he won’t recuse from cases involving old firm

Jan. 9—Less than two weeks after leaving a prominent Roswell law firm, the state’s newest utility regulator found himself on the other side of the dais from his former partners Thursday.

Former state senator Greg Nibert was sworn in as a public regulation commissioner Thursday morning, and within the hour a vote came up in a commission case involving his recent employer, Hinkle Shanor LLP.

Nibert abstained from voting on the measure — a commission order concerning the implementation of the statewide community solar program — but he said his abstention was not due to the involvement of the law firm where he worked for 41 years.

Nibert said he was abstaining from the vote because he had not yet been able to access the “voluminous” record in the case.

“I find myself unable to cast a vote with sufficient knowledge,” he said.

Nibert, a former Republican lawmaker and a longtime oil and gas attorney, acknowledged his career with Hinkle Shanor — which is representing Southwestern Public Service Co. in the community solar case — ended only 10 days before he was sworn in to serve on the commission. But he said his relationship with the firm’s attorney and Santa Fe office was “very slight.”

“I’ve not worked on any matters that have come before the commission, and I’ve not had any personal relationship with those matters,” he said. “I don’t feel that that would be a reason to abstain.”

In an interview after the meeting Thursday, Nibert said he had only been in the same room as his “so-called partner” at the firm, Dana Hardy — who represents Southwestern Public Service Co. and others before the commission — a dozen or fewer times.

“We don’t have a relationship, and one that I would feel would be such that I would not be capable of looking at issues and rendering an unbiased decision,” Nibert said, adding he did not intend to recuse himself from cases in which Hardy is involved.

Hinkle Shanor has for years represented Southwestern Public Service Co. in many of the utility’s cases before state regulators. The utility, which provides electricity to Roswell, Carlsbad, Clovis and parts of Texas, is a subsidiary of Xcel Energy.

Hardy — and Hinkle Shanor LLP — are also, according to filings submitted to the commission, representing the Louisiana-based private equity firm Bernhard Capital Partners in the firm’s bid for commission approval to purchase New Mexico Gas Co., the state’s largest natural gas utility.

On the three-person commission, a recusal by just one commissioner in any given case could lead to a deadlocked vote if the other two commissioners disagree. Retired attorney Bruce Throne, who argued regulatory cases before the commission for years, said the question of whether Nibert should recuse from cases involving Hinkle Shanor wasn’t as simple as whether or not Nibert “worked with” the attorneys involved.

“I would assume that might be something others will raise in those cases if they’re contested,” Throne said. “This should’ve been considered as a potential problem during the appointment process. … If you go to court in a civil case and find out the judge was a law partner with the firm against you, would you think they’re conflicted? The answer would almost definitely be yes.”

Gov. Michelle Lujan Grisham spokesperson Jodi McGinnis-Porter did not answer whether a potential conflict of interest concerning Nibert’s law firm was considered during the appointment process.

“Regulating public utilities requires industry expertise to understand and oversee complex utility matters, rate cases, and infrastructure decisions,” she wrote in response to questions Thursday.

“It is common for PRC commissioners to have prior experience or relationships with regulated entities,” McGinnis-Porter wrote. “To maintain public trust and regulatory independence, commissioners must balance transparency with managing the perception of conflicts of interest.”

A news release from the Governor’s Office announcing the New Year’s Day appointment included a statement from Nibert promising “to regulate our utilities according to the laws of the land, which includes, first and foremost, the Energy Transition Act,” and acknowledging the commission’s “crucial role in ensuring we meet the renewable energy targets set forth in statute for the betterment of our state.” While in the Legislature Nibert voted against the Energy Transition Act, a 2019 law setting deadlines for electric utilities to transition to carbon-free generation, and Conservation Voters New Mexico was publicly pushing two of the other candidates for the seat.

Nibert said in an interview Thursday he had worked on energy projects throughout his career, including solar, wind, coal, oil and gas, and “all forms of natural resources that go into making our nation productive.” He also mentioned a role he held on the executive board of the Energy Council for about six years.

“I’ve been engaged in those issues for many years at a high level, and I want to continue those relationships, so I bring that to the table,” he said. “So while I haven’t had regulatory practice in front of the PRC, I have substantial experience in administrative law, primarily at the federal government, Interior Board of Land Appeals and dealing with administrative agencies.”

He said when he received a call from Lujan Grisham about serving on the commission, the governor said she did not want New Mexico to miss out on “opportunities” such as data centers or other kinds of developments because of the commission “dragging its feet” on approval.

“I understand how the regulatory environment can be an impediment to projects and how important it is for agencies not just to have regulations, but to have regulations that allow consistent application,” Nibert said. “How the regulatory process has to be fair, and how it has to be responsive.”

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