HOW GOVERNOR MARTINEZS BIG BUSINESS AGENDA ENDANGERS NEW MEXICANS

About Food & Water Watch

Food & Water Watch is a non-profit organization working with grassroots organizations around the world to create an economically and environmentally viable future. Through research, public and policymaker education, media and lobbying, we advocate policies that guarantee safe, wholesome food produced in a humane and sustainable manner and public, rather than private, control of water resources including oceans, rivers and groundwater. For more information, visit www.foodandwaterwatch.org. Food & Water Watch 1616 P St. NW, Suite 300 Washington, DC 20036 tel: (202) 683-2500 fax: (202) 683-2501 info@fwwatch.org www.foodandwaterwatch.org Copyright September 2011 by Food & Water Watch. All rights reserved. This report can be viewed or downloaded at www.foodandwaterwatch.org.

HOW GOVERNOR MARTINEZS BIG BUSINESS AGENDA ENDANGERS NEW MEXICANS

Executive Summary ................................................................................................................................................. 1 The Governors Small Business-Friendly Task Force Neither Small Nor Friendly .............................................. 2 Undermining Pollution Controls for Factory Farms ................................................................................................. 3 Attempt to Abolish the Water Quality Control Commission, and Retribution for Speaking Out .............................5 Paving Over the Pit Rule .......................................................................................................................................... 7 Rolling Back the Energy Efficient Building Code ...................................................................................................... 8 New Mexico Environment Department Tampers with Emails on Uranium Decision .............................................. 9 Governor Pocket-vetoes Local Food Procurement Bill .......................................................................................... 10 Firing the State Labor Board .................................................................................................................................. 10 Veto of Unemployment Benefits ........................................................................................................................... 11 A Different Way Forward ....................................................................................................................................... 11 Endnotes ............................................................................................................................................................... 12

EXECUTIVE SUMMARY

From the moment she became New Mexicos governor on January 1, 2011, Susana Martinez has worked overtime to dismantle key protections that the state put in place for the benefit of New Mexicans and the air, water and land they cherish.
In her first six months, Governor Martinez has already managed to undo several rules and regulations that safeguard New Mexicos environment, working families, and communities and has displayed a great enthusiasm for unraveling many more. The governor has filled new advisory groups with big business lobbyists and reoriented state departments to promote business interests, in many cases endangering the public interest. The new administration also established an Office of Business Advocacy within the Economic Development Department designed for chopping down those regulatory weeds.1 Already, Governor Martinez has targeted the Dairy Waste Rule, enacted to safeguard drinking water sources located near nitrate-rich manure lagoons of factory farms; the Pit Rule, which protects groundwater from oil and gas drilling waste; the 2009 New Mexico Energy Conservation Code, adopted to increase energy efficiency in new construction by 20 percent; and the states Public Employee Labor Relations Board, which protects public workers from unfair treatment. Governor Martinez rapidly sandbagged these New Mexico rules and regulations that only went into effect after
Food & Water Watch September 2011

months of public hearings, public comment and expert scientific testimony. And they were enacted for a reason: to protect and benefit all New Mexicans not just the ones who can afford a place at the governors table. Unfortunately, Governor Martinez, who swept into office with the help of campaign donations from oil and gas, mining, mega-dairy and other big industries, has demonstrated little restraint granting the wishes of those who want to see the states environmental protections rolled back. Time after time, advocates and others who care about keeping New Mexicos air, water and land pristine have seen their concerns go unheard by Governor Martinez, while lobbyists and big players from oil and gas, mining and dairy get the inside track. Perhaps this preferential access is unsurprising, since oil and gas, industrialized dairy, mining and the construction industries all were big financial supporters of the Martinez gubernatorial campaign. Oil and gas gave more than $1 million to candidate Martinez, homebuilders and general contractors gave $621,000 and the livestock and dairy industry gave $267,900.2 (See Figure 1.)

Fig. 1: Top Industry Campaign Contributions to Gov. Martinez

Oil & Gas Homebuilders & General Contractors Real Estate Securities & Investments Livestock & Dairy Lawyers & Lobbyists Health Professionals Business Services Insurance Special Trade Contractors Air Transport

$1,039,660 $620,991 $464,141 $347,276 $267,858 $249,044 $187,279 $157,221 $131,352 $116,730 $114,404
Source: National Institute of Money in State Politics

mine whether they are proper and necessary.5 These were the first pieces of Governor Martinezs agenda to dismantle New Mexicos protections for its citizens and its essential resources. This task force represented anything but small business. The Small Business-Friendly Task Force was filled with lobbyists for the oil and gas, mining and dairy industries, including such small enterprises as BP, Chesapeake Energy, Shell Oil and Freeport-McMoran Copper & Gold LLC.6 The task force roster provides a virtual index of special interests that are seeking and getting lighter regulatory oversight of their businesses. (See Table 1.)

Industry advocates have downplayed their influence and concealed their meetings with government officials, but their unfettered access to Governor Martinez has been revealed repeatedly through inadvertent disclosures and public information requests. This Food & Water Watch report catalogues the probusiness and anti-consumer, anti-environment and antiworker agenda of Governor Susana Martinezs first six months in office. It chronicles her attempts to roll back New Mexicos important environmental, labor and public health protections and the special interest influences that motivated these attacks on the public interest.

At the outset, the groups stated agenda was to provide seemingly objective justification and political cover to roll back environmental and other regulatory safeguards, including those for construction, labor, water quality, oil and gas, air quality and virtually every area of environmental health regulated by the state. From the task forces February mid-point report: The goal is to provide the Governor and/or agencies cover when repealing or revising a rule or regulation thus avoiding litigation if possible. The final report to the Governor will include a roadmap of short and long-term tactics and strategies, including the use of executive orders and legislative efforts. Each troublesome regulation identified will be accompanied by a recommendation on the best way to reduce their negative impacts.7

The Governors Small Business-Friendly Task Force Neither Small nor Friendly
Governor Martinez promised New Mexicans in her inaugural address that, Your government will serve no interest but yours, but she quickly pivoted to service corporate interests.3 Minutes after being sworn in on January 1, 2011, Governor Martinez issued an executive order halting pending or proposed regulations for 90 days.4 Her first day in office, Martinez also established a Small Business-Friendly Task Force (SBFTF) to review those rules with a common sense approach to deter-

By April, the task force published a deregulatory wish list recommending that the state revise, repeal or rescind nearly 50 public interest rules devised to protect New Mexicans. They include rules and laws governing everything from swimming pools to liquid waste from construction sites, petroleum storage tanks, surface water quality, groundwater quality, hazardous waste, air quality, radiation control and food and water preparation and processing.8

Private Profits, Public Threats How Governor Martinezs Big Business Agenda Endangers New Mexicans

Governor Martinez has begun granting these wishes. Already, the Martinez administration has tried to eliminate the Water Quality Control Commission, attempted to re-write the Pit Rule to oil and gas industry specifications and rolled back the 2009 New Mexico Energy Conservation Code following the deregulatory road map provided by the task force. Many of the ensuing examples of Governor Martinezs blatant attempts to erode the public health and safety protections for New Mexicans emanated from this so-called Small BusinessFriendly Task Force.

Table 1: Martinez Small Business-

Friendly Task Force

Small Business-Friendly Task Force Member

2011 Lobbying Client National Utility Contractors Association of New Mexico, New Mexico Business Coalition, New Mexico Utility Shareholders Alliance Neutron Energy, Next Era Energy, New Mexico Appraisers Coalition (among others) BP America Inc., Dairy Producers of New Mexico, El Paso Corporation, Freeport-McMoran Copper & Gold LLC, Occidental Petroleum Corp., Biotechnology Industry Organization (among others) Chesapeake Energy, Energen, Shell Oil Company (among others) New Mexico Cattle Growers Association, New Mexico Wool Growers Inc. Associated Builders and Contractors Inc. NM Chapter

Carla J. Sonntag

Undermining Pollution Controls for Factory Farms

Governor Martinez acted swiftly to stall a regulation aimed at reducing water pollution from New Mexicos mega-dairies.9 In the past 20 years, Americas dairy industry has shifted from a local network of farms and processors to mega-dairies. This transformation is due in large part to the consolidation in the dairy industry, where the increased size and power that large dairy cooperatives, fluid-milk processors and dairy-product manufacturers exert over dairy farms have often driven down the price of milk for farmers (although consumer prices for milk and cheese decline only modestly, if at all).10 As part of these trends, the industry also has migrated from traditional dairy areas like Wisconsin and New England to Western states.11 New Mexico is part of that migration. The average New Mexico factory-farmed dairy has nearly 2,400 cows, and there is one factoryfarmed dairy cow for every six people in New Mexico.12 In one area along Interstate 10 near Las Cruces, 30,000 cows are housed at 11 back-to-back dairies.13 The rise of factory farms in New Mexico has not come without a price. Many of the farms use manure lagoons to store nitrogen-rich decomposing cattle waste and the water used to clean barns and milking equipment, which can leak into surrounding groundwater.14 In 2010, the New Mexico Environment Department estimated that groundwater near roughly two-thirds of the states dairies was contaminated.15 Given that 88 percent of New Mexicos drinking water is drawn from groundwater sources, widespread water pollution can flow out of everyones faucet.16 These public health risks are especially pronounced in the lower-income, mostly Hispanic communities where many of the mega-dairies are located, demonstrating the disproportionate impacts on marginalized communities.
Food & Water Watch September 2011

Minda McGonagle

Anthony T.J. Trujillo

Karin Foster

Caren Cowan

Roxanne D. Rivera-Wiest

Source: New Mexico Secretary of State Index of Registered Lobbyists 2011

For example, in Doa Ana County, in south-central New Mexico, there are nearly 53,000 dairy cows on large operations with more than 500 cows, according to U.S. Department of Agriculture figures.17 Most dairies were located in lower-income and predominantly Hispanic parts of the county, according to a Food & Water Watch analysis of U.S. Census Bureau, New Mexico Environment Department and U.S. Environmental Protection Agency dairy farm discharge data.18 (See Figures 2 and 3.)

After the rules were blocked, New Mexico environFig. 2: Median Household Income & Dairy Location The Dairy Waste Rule Stetson Dairy in Doa Ana County, New Mexico groups promptly sued Governor Martinez in the mental in Doa Ana County, New Mexico Nutt Dairy and the Martinez Rollback Las Uvas Valley Dairies
Median Household Income In 2009, the New Mexico By Census Tract legislature authorized the New < $20,000 Median Mexico Water Quality Control $20,000 - $ 30,000 Household Commission to adopt regulaIncome $30,000 $40,000 by Census Tract tions to limit water pollution > $40,000 from mega-dairies.19 The so-calledF & A Dairy Products Rule Dairy Waste was finalized late in Governor Gonzalez Dairy Bill Richardsons term after a Dominguez Dairy Buena Vista Dairy Sunset Dairy more than two-year regulatory Valley View Dairy Bright Star Dairy Del Norte Dairy Mountain View process, including statewide Dairy Desertland Dairy Stetson Dairy Buena Vista Dairy Nutt Dairy hearings to collect input Del Oro Dairy Sun Valley Dairy and Las Uvas Valley Dairies recommendations from the dairy industry and other stakeholders in New Mexico.20 One provision of this rule would have required factory farms with manure lagoons to use a synthetic liner to keep the nitrogen-rich waste from seeping into the groundwater.21 The rule F & A Dairy Products which would have protected residents living near mega-dairies was filed with the New Gonzalez Dairy Dominguez Dairy Mexico State Records Center in Buena Vista Dairy Sunset Dairy Valley View Dairy late December 2010.22 Bright Star Dairy
Mountain View Dairy Del Norte Dairy

Median Household Income and Dairy Location

Median H

By Census

<$

$2

$3

>$

Desertland Dairy Although the rule had been Buena Vista Dairy finalized and filed when GoverDel Oro Dairy Sun Valley Dairy nor Martinez took office, it had not been officially published in the record. On her first day in office, Martinez issued an executive order attempting to block enactment of a number of environmental regulations Source: Food & Water Watch analysis of data from U.S. Census Bureau, U.S. Environmental Protection Agency, and New Mexico Environment Department including the dairy rule that had been completed during the The New Mexico Supreme Court challenged her right administration of her immediate predecessor, Governor to stop the publication and enactment of pending, final 23 Richardson. rules. Specifically, two suits were filed by the New New Mexico dairy interests opposed the drinking water Mexico Environmental Law Center, one on behalf of protections, contending that the rule could force half the nonprofit organization New Energy Economy rethe states dairies out of business.24 The dairy sector garding a rule to reduce carbon emissions, and the other gave $88,750 to Martinezs campaign for governor, on behalf of a coalition of water quality groups regardincluding more than $73,000 from dairy farms across ing the Dairy Waste Rule.27 Governor Martinezs office 25 contended that the executive order merely postponed New Mexico. (See Figure 4.) And the Small Business-Friendly Task Force established the same day as rules that had not been published in the states register, the executive order halting the dairy rule also recomwhich did not run afoul of requirements that rules be mended rescinding the Dairy Waste Rule.26 published in a timely manner.28

Private Profits, Public Threats How Governor Martinezs Big Business Agenda Endangers New Mexicans

Fig. 3: HIspanic Population & Dairy Location

in Doa Ana County, New Mexico

Percent Hispanic
By Census Block Group

< 20%

by Census Block Group

Percent Hispanic

20 - 40% 40 - 60% 60 - 80% > 80%

Shortly after the ruling, documents obtained by the New Mexico Environmental Law Center during the lawsuit appeared to show that attorneys and lobbyists from the dairy industry provided the Martinez administration with legal and strategic advice about how to keep the rules from becoming law including language for the executive order freezing the rule.31 Walter Bradley, a lobbyist with Dairy Farmers of America and former New Mexico Lieutenant Governor,32 wrote to a top Martinez executive staffer on January 12: Our attorneys (for the Dairy Group) Dal Moellenberg and [Small-Business Friendly Task Force member] TJ Trujillo of Gallagher & Kennedy drafted some language for the ex. order. We all assumed the environmentalist groups would sue and obviously they have. In speaking with TJ and Dal we want to offer any help you may ask for as we are very supportive of this nic Percent Hispaaction and are willing 33 Census defend it. By to help Block Group

F & A Dairy Products

< 20% Although the strategy subsequently taken by Governor 40% 20 - Martinez was exactly what the dairy industry lobbyists and lawyers 40 - 60% had recommended, the Martinez adminis60 - 80% tration denied ever taking their advice.34 In July 2011, the New Mexico Environ> 80% ment Department announced a compromise on the Dairy Waste Rule that would require all dairies to install water quality monitoring wells and would require synSource: Food & Water Watch analysis of data from U.S. Census Bureau, thetic liners to be installed only in dairies U.S. Environmental Protection Agency, and New Mexico Environment Department that have had leaking lagoons as well as But New Mexicos highest court overruled Governor in all newly constructed dairy facilities.35 The comMartinez, saying that she had no right to halt the pubpromise will regulate dairy waste discharges into New lication of the rules. The court ordered the rules to be Mexico groundwater for the first time. published immediately and made effective as law.29

New Mexico Chief Justice Charles Daniels ruled that the records administrator was required to publish the rules promptly and that the governor could not delay the process, noting: Each branch of government and various agencies of the government have separate defined powers under the rule of law, and the rule of law cant work if agencies that dont have that power intrude on the powers of other entities.30
Food & Water Watch September 2011

Attempt to Abolish the Water Quality Control Commission, and Retribution for Speaking Out

During the 2011 state legislative session, New Mexico Representative Andy Nuez, an ally of Governor Martinez, introduced HB 225, a bill that would undermine the states water quality rules, including abolishing the states Water Quality Control Commission and shift-

Fig. 4: New Mexico Dairies and Campaign Contributions to Governor Martinez

2010 Martinez Campaign Contributions
San Juan Rio Arriba

Taos

Colfax Union

2010 Martinez Campaign Contributions (continued)

$1,000 $1,000 Gonzalez Dairy Hide A Way Dairy Highland Dairy Mid Frisian Dairy Midway Dairy North Point Dairy Nutt Dairy Opportunity Dairy Parkland Dairy Providence Dairy Route 77 Dairy South Slope Dairy Southern Draw Dairy Southern Skies Dairy Southwind Dairy Starks & Sons Dairy W Diamond Dairy Wayne Palla Dairy Western Star Dairy Heritage Dairy El Dorado Dairy Buena Vista Dairy Rajen Dairy Goff Dairy Quality Milk Sales Select Milk Producers

$250 $500 $500 $500 $500 $500 $500 $700 $700 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000

Arroyo Dairy Breedyk Dairy Del Norte Dairy Del Oro Dairy Desertland Dairy James Idsinga Sr. & Son Dairy Sunset Dairy Dominguez Farms & Dairy SAS Dairy 4-Way Dairy Amistad Dairy Anderson Dairy Bonestroo Dairy Brouwer Dairy C & S Dairy Supply Caballo Dairy Carters Milk Factory Cheyenne Dairies Clover Knolls Cooper Legacy Dairy Cross Country Dairy Crosswinds Dairy Desert Star Dairy Dutch Valley Farms Edeal Dairy
Hidalgo Luna Doa Ana Grant Otero Eddy Sierra Catron Socorro De Baca Cibola Valencia Torrance Bernalillo Guadalupe Curry Quay McKinley Los Alamos Sandoval Santa Fe San Miguel Mora

Harding

$1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000 $1,000

Gra

Lincoln

Pecos Riv er

nde

Roosevelt

$1,000 $1,000 $1,000 $1,000 $1,000 $1,000

Chaves

Rio

Lea

$1,000 $1,500 $1,800 $2,000 $3,500

Dairy Rivers and streams

$5,000 $5,000 $15,000

Source: Food & Water Watch analysis of data from National Institute of Money in State Politics

ing rulemaking authority from regulators to politically appointed state cabinet secretaries.36 The legislation, which a state legislative analysis said was potentially unconstitutional, died after failing to gain bipartisan support.37 The Chief of the Water and Wastewater Division of the New Mexico Environment Department, Marcy Leavitt, submitted her analysis of HB 225, which was highly critical of the legislation.38 The analysis described how abolishing the Water Quality Control Commission could harm public health, violate the state constitution and cost the state more money by duplicating services among state agencies.39 The memo noted that: Transferring rulemaking and oversight for dairies and mines could lead to inconsistency in water quality protection and potentially less effective protection of water quality statewide.40 In May 2011, Leavitt was abruptly transferred to a position in the Petroleum Storage Tank Bureau. In an interview shortly afterward with the Santa Fe Reporter, Leavitt said, I cant talk because Im concerned that,

if I do, I will get into additional trouble with the management thats here now.41 A spokesperson for Environment Department Secretary F. David Martin had no explanation for the personnel move, calling it an executive decision by the secretary.42 Leavitt was not the only regulatory cop pulled off the beat by the Martinez administration. Several other high-level environmental regulators who could not be removed arbitrarily by the governor (known as classified employees) also were transferred to jobs unrelated to their expertise.43 Neutralizing regulators who opposed slashing environmental protections falls in line with the Small Business-Friendly Task Force recommendation to mitigate employees with an anti-business agenda. From the February task force report: Beyond changing a rule or regulation is the enforcement and handling of regulations and rules, particularly with permitting, by mid-level classified employees. An overarching theme we have observed is the difficulty working with mid-level classified managers at NMED and other departments who still have an

Private Profits, Public Threats How Governor Martinezs Big Business Agenda Endangers New Mexicans

anti-business political agenda despite changes in leadership at the exempt-employee level. The committee is looking for ways to mitigate this situation.44 These abrupt transfers seem to have been made in retaliation for speaking out, and will now cost New Mexico citizens the loss of decades of invaluable environmental expertise in their state regulatory agencies.45

Paving Over the Pit Rule

Throughout her campaign for governor, Martinez promised oil and gas producers in and outside of New Mexico that she would do whatever she could to repeal the Pit Rule, adopted by the state Oil Conservation Commission in 2008 to protect New Mexicos groundwater.46 New Mexicos Pit Rule (officially the Pits, Closed Loop Systems, Below Grade Tanks, and Sumps rule) requires oil and gas producers to provide liners for their wells, or pits, in order to preserve groundwater quality.47 The rule also puts the responsibility for cleaning up toxic spills at the drilling sites on the oil and gas producers that drilled the wells, not on taxpayers or the state.48 In 2007, a top state Oil Conservation Division official testified that New Mexico had experienced hundreds of incidences of groundwater contamination from leaking pits.49 Candidate Martinez vowed that, As governor, I would absolutely remove the Pit Rule as a regulation, speaking before an audience in the oil-rich town of Hobbs during a campaign speech in September 2009. Regulation that is imposed by the government has to be reduced. The folks in the oil industry are good stewards of the Earth. They take care of where they live. To continually regulate them is to regulate them out of the state.50 This must have been music to the ears of the energy and natural resources interests that donated $1.15 million to Martinezs gubernatorial campaign the largest contribution from any industry.51 The oil and gas industry has vilified the Pit Rule as unnecessary and too costly, suggesting that it would cause oil and gas producers to avoid or abandon New Mexico.52 Although the industry contended that the Pit Rule drove production rigs out of New Mexico in 2009, the former secretary of New Mexicos Energy, Minerals and Natural Resources Department noted that any production downturn in New Mexico was related to a global slump in oil and gas
Food & Water Watch September 2011

prices, and that nearby drilling states without similar environmental protection also saw a decline in drilling as prices fell in 2009.53 Nonetheless, Martinez sought swiftly to make good on her campaign pledge. In February 2011, the Small Business-Friendly Task Force singled out the Pit Rule as one of the examples of onerous legislation that the state should review.54 In April, the task force identified the Pit Rule as a priority for regulatory review.55 Industry capitalized on the governors deregulatory zeal. The industrys plans were fleshed out in notes taken by the Western Energy Alliance during several meetings of the New Mexico Basin Advisory Network, a private trade group of oil and gas producers, including the New Mexico Oil and Gas Association (NMOGA). Secret minutes of the meetings marked Confidential, For Western Energy Alliance Members Only and Do Not Distribute, but readily available by searching the Internet for NMOGA and confidential as late as July 2011 reveal the scope of the backstage lobbying efforts. From the written minutes of the groups January 13, 2011 meeting: Pit Rule & Surface Waste Rule: NMOGA has a subcommittee working on language changes to both

rules to make them more palatable for industry that will be submitted to the new administration, which will likely trigger a new round of technical hearings. Karin [Foster] reported on the result of the court hearing regarding the pit rule legislation that occurred in December and is not very encouraged by the lack of understanding by the judge who is new to the position. The new Secretary of Energy & Minerals is receptive to considering an industry-written rule to replace the current rule.56 Karin Foster is a lobbyist for the Independent Petroleum Association and other energy groups and a member of the Governors Small Business-Friendly Task Force.57 The new Secretary of Energy & Minerals apparently referred to Harrison Schmitt, a former astronaut who rejects human-caused climate change, who was Martinezs Energy, Minerals and Natural Resources Department secretary-designee at the time.58 In February 2011, Schmitt withdrew his nomination after refusing to submit to a routine background check by the legislative committee in charge of confirming his appointment.59 By the date of the Basin Advisory Networks April 2011 meeting, the industry had made progress with the Martinez administration. From the April 7 meeting minutes: Pit Rule & Surface Waste Rule: New OCD staff recently indicated their intention to revise the pit rule and remove its most arduous provisions. The original litigation challenging the rule is still pending, but Karin [Foster] believes it will probably end up in the Court of Appeals and could take five or more years to resolve. An industry committee has been formed to work with the OCD to revise the rules and companies can participate if they provide financial support. The group will work to make the rule more palatable for industry and will submit a revised rule to the new administration, which will likely trigger a new round of technical hearings.60 All these efforts appear to be bearing deregulatory fruit. In July 2011, the New Mexico Oil and Gas Association told the Albuquerque Journal that oil and gas producers are currently working on a proposal to rewrite or repeal the Pit Rule, which the industry may present to the states Oil Conservation Commission by the end of the summer of 2011.61

Rolling Back the Energy Efficient Building Code

In 2010, the state of New Mexicos Construction Industries Commission (CIC) adopted changes to the states building code requiring all newly constructed homes to be 20 percent more energy efficient starting in July 2011 and commercial buildings to be 20 percent more energy efficient by 2013.62 In addition to helping slow the states contribution to global warming by reducing the use of fossil fuels, the new building code was projected to save the average homeowner almost $170 annually in energy costs.63 Unlike other states, New Mexicos energy efficient construction standards accounted for the states many climatic zones and traditional and unique building methods and materials, such as Kiva fireplaces and passive solar features.64 The Construction Industries Commission adopted the code after conducting more than a year of outreach efforts that sought input from various stakeholders, including the states construction industries.65 Public hearings were held across the state to accommodate the concerns of builders and businesses.66 The state produced manuals and software containing the codes new standards and used them to train builders and inspectors statewide.67

Private Profits, Public Threats How Governor Martinezs Big Business Agenda Endangers New Mexicans

In April 2011, the Small Business-Friendly Task Force recommended that the governor roll back the Energy Conservation Code and restore the states less rigorous former building code.68 On April 22, 2011, Kevin Yearout, a mechanical contractor whom Martinez appointed to the Construction Industries Commission as well as the Small Business-Friendly Task Force, proposed that the CIC roll back the code.69 Unlike the year of stakeholder hearings that developed the efficiency standards, the commission stampeded the proposal to unravel the code. The commission held four simultaneous public hearings on June 2, 2011 in Roswell, Farmington, Las Cruces and Albuquerque, making it difficult for supporters of the building codes to attend each hearing.70 Nonetheless, public statements ran strongly in favor of keeping the standards approximately 82 percent of the people who spoke at the Albuquerque hearing opposed rolling back the rules.71 Eight days later, the commission put the issue to a vote. Without debate or deliberation, the committee voted 7-1 to roll back the states code.72 Tammy Fiebelkorn of Southwest Energy Efficiency Project told the Santa Fe New Mexican that the commissions action showed a blatant disregard for public process and the efforts of hundreds of New Mexicans who participated in the open and fair code development process that lasted over a year.73 In July, the New Mexico Environmental Law Center filed an appeal in the state Court of Appeals seeking to have the decision overturned.74

NMELC alleged that the department bypassed the states normal regulatory process to benefit Hydro Resources, Inc. by allowing the company to conduct mining operations before the state made a decision on the companys discharge permit application. According to emails that the NMELC obtained during the suit, an Environment Department employee revised a key portion of an email communication to Hydro Resources Inc. originally written by Groundwater Quality Bureau chief Bill Olson.76 Olsons original March 23, 2011 email informed the company that it had not submitted a timely application to renew its discharge permit, which required the department to approve a new permit before the company could commence mining operations. In response, the company requested that the department revise its records to suggest a timely renewal application submission.77

New Mexico Environment Department Tampers with Emails on Uranium Decision

Governor Martinez political appointees may have intervened to protect a uranium mining company that failed to meet a regulatory filing deadline. Consumers who miss billing dates or contract renewal requirements rarely get such generous interventions. On July 15, 2011, the New Mexico Environmental Law Center (NMELC) filed suit in District Court against the New Mexico Environment Department on behalf of the Eastern Navajo Din Against Uranium Mining, a Navajo group fighting uranium mining on Native American land near Church Rock. The suit sought a preliminary injunction to prevent the Environment Department from allowing Hydro Resources, Inc. from discharging waste materials from the companys uranium mining operation in Church Rock.75
Food & Water Watch September 2011

In May, while Olson was on vacation, Environment Departments George Schuman revised and re-sent Olsons email to Hydro Resources removing the sentence about the missed application renewal deadline. Schuman sent

the revised email to deputy Environment Department secretary Raj Solomon, who approved it.78 On June 2, Olson sent a letter to Hydro Resources, Inc. saying: On May 27, 2011, while I was on vacation, a revised and reissued letter was sent to HRI under my signature and signed on my behalf without my knowledge, review or approval. [.] For the record of HRI discharge permit D)-558, the May 21, 2011 NMED letter to HRI was issued without the knowledge of the GWQB Bureau Chief and is not an action of the GWQB Bureau Chief.79

products is usually cheaper and almost always fresher than distantly grown food.81 However, this innovative attempt to create jobs in New Mexico by relying upon New Mexican farmers and businesses was dashed when Governor Martinez failed to sign the bill within 20 days after the legislative session ended consigning the bill to a pocket veto.82 Her actions, unfortunately, did much to undermine an innovative attempt to truly support small businesses independent ranchers and farmers in New Mexico.

Firing the State Labor Board

New Mexicos public employees police the streets, educate children, put out fires and administer to the sick and injured. These public servants have been under attack in New Mexico as in other states. Governor Martinez does not support the rights of public employees to join unions but has not tried to roll back these rights so far.83

Governor Pocket-vetoes Local Food Procurement Bill

Its no secret that our food system is broken. Many consumers lack access to safe, healthy, sustainable food and many family farmers cannot get their crops into local stores and restaurants. Local and state governments can use their purchasing power to strengthen local food systems for farmers and consumers by procuring food from local farmers and ranchers for cafeterias at schools, hospitals and other public institutions. This increased demand for local food can create jobs, support independent businesses and deliver healthy food into the community. During the 2011 legislative session, New Mexico legislators set out to do just that when they approved SB 63, a bill that would require state agencies and local public bodies to purchase at least 2 percent of the food they buy from local growers or processors by July 2012, 5 percent by July 2014 and 10 percent by July 2016.80 According to local foods proponent Kathleen Gonzalez of New Mexico Farm to Table, many states have local food preference laws in place, but no other state has ever passed a requirement for public bodies to buy local produce. In New Mexico, locally produced food particularly melons, apples, chilies and some dairy

In her second month in office, Governor Martinez effectively dismantled a key board that oversees disputes between public employees and public agencies, including the governors office. In February 2011, Governor Martinez removed all three members of the Public Employee Labor Relations Board and the boards executive director.84 The Labor Board enforces public employees legal right to join unions and bargain collectively with state, county and municipal employers as well as adjudicate complaints between workers and public employers.85

10

Private Profits, Public Threats How Governor Martinezs Big Business Agenda Endangers New Mexicans

By sacking all the members of the labor board, Governor Martinez stopped the board from hearing 43 workplace complaints, including 17 against the governors staff members.86 State union leaders noted that the power to arbitrarily dismiss labor board members could be used to block complaints against the governor or her agencies.87 The New Mexico Federation of Labor AFL-CIO and other unions sued Governor Martinez in New Mexico Supreme Court, asking to reinstate two of the fired board members one who was nominated by organized labor, and one who was nominated by other members of the board.88 (Under New Mexico law, labor unions representing state employees nominate one member of the board. Public employers, such as municipal governments or school districts, nominate another. Those two board members jointly nominate the third board member.89) On April 13, 2010, New Mexicos highest court ruled unanimously against Governor Martinez, ordering her to reinstate the two board members.90 The court said that the governor could not arbitrarily fire labor board members because the independent board could hear complaints against the governor or administration.91 To fairly hear disputes between employees and public employers, the court ruled that the board must remain free from the control of the executive.92

On April 8, 2011, Governor Martinez used her line-item veto power to nix the unemployment insurance levy on employers but let the decrease in benefits to recipients stand.98 A spokesman for her office called any increase on employer contributions a job-killing tax increase on small businesses.99 Six New Mexico legislators sued Governor Martinez in New Mexico Supreme Court, paying for the separationof-powers suit out of their own pockets.100 They contended that the governor could only use the line-item veto to prevent state spending measures, and the tax was a revenue measure.101 The state Legislative Council Service reported to the legislature that the governors selective use of the line-item veto can be viewed as an attempt to expand the powers of the executive branch at the expense of the legislative branch.102 On July 15, 2011, the New Mexico Supreme Court announced that it would put the case on hold until after the governor and the state legislature can revisit the issue in a special session in the fall of 2011.103 By the summer of 2011, the state unemployment fund seemed more solvent, as the unemployment rate declined and benefits were reduced, but the continued limbo over the unemployment insurance tax created uncertainty for workers as well as employers over future costs.104

A Different Way Forward

This chronicle of Governor Martinezs words and deeds during her first eight months in office makes her strategy quite clear shes taken campaign cash from big industry, shes appointed those industry players to key posts in state government and now shes cutting the protections that keep New Mexicans and their precious air, water, food and land safe from those industries. New Mexico needs a different way forward: prioritizing renewable energy projects in the place of hydraulic fracturing; investing in our public water and wastewater infrastructure; and breaking up the corporate consolidation of our food system and rebuilding the local food infrastructure that has disappeared with the concentration of our food system. In these ways, we can create green jobs, support local businesses and make our communities healthy. Governor Martinez must lead in these directions. We can construct this future with an informed, active citizenry where all New Mexicans not just the largest corporations from various industries are involved in setting policy and holding their elected officials accountable.

Veto of Unemployment Benefits

The economic downturn has hit New Mexicans especially hard. But Governor Martinez also exercised a line-item veto to eliminate funding to shore up the state unemployment insurance fund a measure that was passed overwhelmingly by the state legislature and that was supported by business.93 During the 2011 New Mexico Legislative Session, both houses passed a bill that would raise employer taxes for unemployment insurance while reducing unemployment benefits for recipients.94 The bill aimed to restore solvency to the states unemployment fund that was projected to run out of funds by March 2012.95 If the unemployment insurance fund were depleted, the state would have to borrow money from the federal government to provide unemployment benefits to laid-off workers, which would cost business even more than the proposed unemployment insurance tax.96 Immediately after the session, Governor Martinez promised to veto the bill. The business community was dismayed, calling Martinezs plan a risky gamble.97
Food & Water Watch September 2011

11

ENDNOTES
1 2 Baker, Deborah. After six months on the job, hows she doing? Albuquerque Journal. July 10, 2011. National Institute of Money in State Politics. Candidate Summary: Susana Martinez 2010 campaign for governor. Table 2: Top 15 Industries: Top Industries. Available at www.followthemoney.org, accessed July 15, 2011. New Mexico Governor Susana Martinez. The Inaugural Address of New Mexico Governor Susana Martinez. January 1, 2011. Baker (July 10, 2011). New Mexico Governor Susana Martinez. Executive Order 2011-001, Formation of a Small Business-Friendly Task Force; Establishing a 90-Day Review Period for All Proposed and Pending Rules and Regulations. January 1, 2011 at 1-2. New Mexico Secretary of State. Ethics Office. Lobbyist Disclosure Index 2011. Available at http://ethics.sos.state.nm.us/LOBBY/LOB.HTM. Accessed July 2011. New Mexico Governor Susana Martinez. List of members. Small Business-Friendly Task Force. Available at www.governor.state.nm.us/Small_ Business-Friendly_Task_Force.aspx, accessed July 15, 2011. State of New Mexico. Economic Development Department. [Press release.] Small Business-Friendly Task Force. Mid-point report. February 18, 2011. State of New Mexico. Small Business-Friendly Task Force. Final report. April 1, 2011 at 8-13. New Mexico Governor Susana Martinez. Executive Order 2011-001. (January 1, 2011); Bryan, Susan Montoya. Court: Governor cant delay anti-pollution measures. Associated Press. January 26, 2011. USDA. Economic Effects of U.S. Dairy Policy and Alternative Approaches to Milk Pricing. Report to Congress. July 2004 at 17-18; see Food & Water Watch. Factory Farm Nation. November 2010 at 28-29. MacDonald, James M. and William D. McBride. USDA ERS. The Transformation of U.S. Livestock Agriculture: Scale, Efficiency,and Risks. EIB-43. January 2009. USDA. 2007 Census of Agriculture. Table 11. Cattle and Calves Inventory and Sales 2007 and 2002. December 2009 at 386; U.S. Census Bureau. Annual Estimates of the Population for the United States, Regions, States, and Puerto Rico: April 1, 2000 to July 1, 2007. (NST-EST2007-01). December 27, 2007. Burnett, John. New Mexico dairy pollution sparks manure war. Morning Edition. National Public Radio. December 9, 2009. See Arnold, Stephen D and Edward A Meister. Dairy feedlot contributions to groundwater contamination: A preliminary study in New Mexico. Environmental Health. September 1999 at 16-19. Holmes, Sue Major. N.M. dairy industry says new rules would ruin them. Associated Press. April 12, 2010. Longworth, John W. et al. New Mexico Office of the State Engineer. New Mexico Water Use by Categories 2005. Technical Report 52. June 2008 at 50. USDA. 2007 Census of Agriculture. New Mexico. Table 11. Cattle and Calves Inventory and Sales 2007 and 2002. December 2009 at 307. Food & Water Watch analysis of federal and state dairy operation data and U.S. Census Bureau demographic data. U.S. Census Bureau. American Community Survey. 2009 Income Estimates; U.S. Census Bureau. 2010 Redistricting Data (PL. 94-171 Summary File; U.S. Environmental Protection Agency. Permit Compliance System/National Pollutant Discharge Elimination System (NPDES). Available http://www.epa.gov/enviro/facts/pcs/search.html. Accessed June 2011; New Mexico Environment Department. In the Matter of the Proposed Amendment to 20.6.2 NMAC (Dairy Regulations). Docket Number: WQCC 09-13 (R). Exhibit 3221-1A. Wastewater Quality Data at Dairy Facilities: Magnitude Difference beween the Lowest and Highest Total Kjeldahl Nitrogen (TKN) Analysis. March 2010. New Mexico Senate Bill 206. Amending Sections of the Water Quality Act to Limit Rulemaking to Specific Authority of the Act. 2009 at 1(K). Fleck, John. Enviros: Dairies had in with Gov. Albuquerque Journal. January 28, 2011. See State of New Mexico. In the Matter of Proposed Amendment to 20.6.2 NMAC (Dairy Rule). New Mexico Environment Department, Petitioner. Proposed Statement of Reasons and Order. Water Quality Control Commission. January 14, 2011. Holmes (April 12, 2010); New Mexico Administrative Code. Supplemental Permitting Requirements for Dairy Facilities. 20.6.6.17D(4)-(6). New Mexico Register. Vol. XXII, No. 2. January 31, 2001. Noble, Charles F. Assistant General Counsel. New Mexico Environment Department. Email. December 23, 2010. 38 33 23 24 25 26 27 28 29 30 31 32 New Mexico Governor Susana Martinez. Executive Order 2011-001 (January 1, 2011); Bryan (January 26, 2011). Holmes (April 12, 2010). National Institute of Money in State Politics. Candidate Summary: Susana Martinez 2010 campaign for governor. State of New Mexico Small Business-Friendly Task Force. April 1, 2011 at 3. Bryan (January 26, 2011). Bryan, Susan Montoya. Lawsuit targets NM govs actions on the new rules. Associated Press. January 13, 2011. Bryan, Susan Montoya. NM Court orders publication of environmental rules. Associated Press. January 27, 2011. Ibid. Fleck (January 28, 2011); See New Energy Economy and Amigos Bravos, Caballo Concerned Citizens Group v. Martinez. January 25, 2011 at 2. Office of New Mexico Secretary of State. Ethics Office. Bradley, Walter Dwight. Lobbyist registration for Dairy Farmers of America. Lobbyist Disclosure Index 2011. Available at http://ethics.sos.state.nm.us/LOBBY/LOB.HTM. Accessed July 2011. Walter Bradley joins Dairy Farmers of America. New Mexico Business Weekly. August 5, 2004. New Energy Economy and Amigos Bravos, Caballo Concerned Citizens Group v. Martinez. Response of Petitioners Opposing Motions to Intervene. No. 32,806 and No. 32,811. January 25, 2011 at 2. Baker (July 10, 2011). New Mexico Environment Department. [Press release.] New Mexico Environment Department brokers dairy settlement. July 13, 2011; NM dairies, environmentalists agree on waste rules. Associated Press. July 14, 2011. New Mexico House Bill 225, Amending and Repealing Sections of the Water Quality Act to Move Rulemaking Authority to the Secretary of the Environment and to Streamline Administrative Procedures, www.nmleg.gov, January, 2011; Haussamen, Heath. Rep. Nuez becomes an independent. NMPolitics. net. January 26, 2011. Legislative Finance Committee. Fiscal Impact Report. New Mexico House Bill 225. January 2011; New Mexico Legislature. 2011 Regular Session. House Bill 225. Current Location: Action Postponed Indefinately. Available at http:// www.nmlegis.gov/lcs/_session.aspx?Chamber=H&LegType=B&LegNo=225&y ear=11. Dingmann, Tracy. Served cold. Santa Fe Reporter. May 18, 2011; Leavitt, Marcy. Legislative Finance Committee. Agency Bill Analysis of New Mexico House Bill 225. January 2011. Leavitt. January 2011. Ibid. at 4. Dingmann (May 18, 2011). Ibid. Bryan, Susan Montoya. Shake-up at environment department. Associated Press. May 13, 2011; Dingmann (May 18, 2011). State of New Mexico. Economic Development Department. February 18, 2011. Bryan (May 13, 2011). Hill, Levi. Martinez announces run. Hobbs News-Sun. September 25, 2009; New Mexico Administrative Code. Pits, Closed-Loop Systems, Below-Grade Tanks and Sumps. NMAC 19.15.17. June 16, 2008. NMAC 19.15.17; New Mexico Energy, Minerals and Natural Resources Department. Highlights of the Pit Rule. May 15, 2008. New Mexico Energy, Minerals and Natural Resources Department (2008) at 1. Massey, Barry. N.M. lawmakers fuming over states oil proposals. Associated Press. November 20, 2007. Hill (2009). National Institute of Money in State Politics. Susana Martinez 2010 campaign for governor Candidate Summary. Independent Petroleum Association of New Mexico. New Mexicos Pit Rule. 2011 at 1. Prukop, Joanna. Dont blame the pit rule for loss of revenue, state budget crisis. Former secretary, New Mexico Energy, Minerals and Natural Resources Department. Albuquerque Journal. January 4, 2010. State of New Mexico. Economic Development Department (February 18, 2011). State of New Mexico Small Business-Friendly Task Force. April 1, 2011 at 2.

3 4 5

7 8 9

34 35

10

11

36

12

37

13 14

15 16

39 40 41 42 43 44 45 46

17 18

47 48 49 50 51 52 53

19 20

21

54 55

22

12

Private Profits, Public Threats How Governor Martinezs Big Business Agenda Endangers New Mexicans

56 57

New Mexico Basin Advisory Network. Meeting notes. January 13, 2011. New Mexico Office of Secretary of State. Karin Foster, lobbyist registration, 2011 legislative session; Office of Governor. New Mexico. Small BusinessFriendly Task Force. Commission Members. Cole, Thomas J. Harrison Schmitt: in his words. Albuquerque Journal. January 12, 2011. Haussamen, Heath. Schmitt withdraws nomination for cabinet post. NMpolitics.net, February 10, 2011. New Mexico Basin Advisory Network. Meeting notes. April 7, 2011. Baker (July 10, 2011). Baker, Deborah. Energy efficiency rules targeted. Albuquerque Journal. May 16, 2011. eSolved, Inc. State Of New Mexico Energy Conservation Code 2009-2010 Code Update: Overview Of Process And Results. Prepared for State of New Mexico Regulation & Licensing Department Construction Industries Division. June, 2010, at 13. Baker (May 16, 2011). Abbot, Wren. Code (Double) Talkers. Santa Fe Reporter. June 8-June 14, 2011; CID seeks input on proposed codes. New Mexico Business Weekly. June 9, 2010. New Mexico Business Weekly (June 9, 2010). eSolved. (2011). State of New Mexico Small Business-Friendly Task Force (April 1, 2011). Baker (May 16, 2011); State of New Mexico, Office of the Governor. [Press release]. Governor Martinez announces nominations to construction industries commission. March 15, 2011. Baker (May 16, 2011). Abbot (June 8-June 14, 2011). Summary of public testimony on 2009 New Mexico Energy Conservation Code rollback, Construction Industries Committee, July 2010. Food & Water Watch interview with free-lance reporter Traccy Dingman, who attended the hearing. August 2, 2011. Clausing, Jeri. State commission repeals energy-efficient building codes. Associated Press. June 10, 2011. Repeal of NM building codes sparks legal fight. Associated Press. July 11, 2011. Lawsuit filed by New Mexico Environmental Law Center on behalf of the Eastern Navajo Dine Against Uranium Mining against the New Mexico Environment Department, First Judicial District Court, July 15, 2011 Ibid. at exhibits 8-15 (emails). Ibid. at exhibit 8 Olson email. Ibid. at exhibit 10 Olson email revised by Schuman; exhibit 12 Solomon email approving it. Ibid. at exhibit 13 Olson email. New Mexico Senate Bill 63, Government Food Purchasing Requirements, www.nmleg.gov, January 2011 at 2. New Mexico State Senate. Roll Call RCS# 321. March 9, 2011; New Mexico House of Representatives. Roll Call RCS# 3162. March 16, 2011.

81 82

Food & Water Watch interview with Kathleen Gonzalez, New Mexico Food to Table. July 12, 2011. New Mexico Legislature. 2011 Regular Session. Senate Bill 63. Current Location: Pocket Veto. Available at http://www.nmlegis.gov/lcs/_session.aspx?Cha mber=S&LegType=B&LegNo=63&year=11. Cole, Thomas J. Administration, labor board still at odds. Albuquerque Journal. July 23, 2011. Simonich, Milan. Supreme court rules on Gov. Martinez firings. Deming Headlight. April 15, 2011. Baker, Deborah. Unions challenge Martinez. Albuquerque Journal. March 17, 2011. Simonich (April 15, 2011). Baker, Deborah. Unions challenge Martinez. Albuquerque Journal. March 17, 2011. Ibid. Terrell, Steve. Court rules against Martinez in labor case. Santa Fe New Mexican. April 13, 2011. Ibid. Simonich (April 15, 2011). Baker, Deborah. High court orders 2 reinstated to labor board. Albuquerque Journal. April 14, 2011. Quigley, Winthrop. A session of plusses, minuses. Albuquerque Journal. April 4, 2011; Massey, Barry. State Supreme Court puts challenge to veto on hold. Associated Press. July 16, 2011. Massey, Barry. Governor wont budge on business-tax veto. Associated Press. March 24, 2011. Ibid. Simonich, Milan. New Mexico legislators claim Gov. Susana Martinez overstepped her authority. El Paso Times. June 20, 2011. Massey (March 24, 2011). Boyd, Dan. Line-item veto used on jobless benefits bill. Albuquerque Journal. April 9, 2011. Jennings, Trip. Line-item vetoes send governor back to high court. Santa Fe New Mexican. May 25, 2011. Simonich, Milan. Supreme Court showdown is Wednesday. El Paso Times. June 19, 2011. Massey, Barry. Lawmakers sue governor over line-item vetoes. Associated Press. May 25, 2011. Boyd, Dan. Dems to sue over item vetoes. Albuquerque Journal. May 20, 2011. Massey, Barry. State Supreme Court puts challenge to veto on hold. Associated Press. July 16, 2011. Massey, Barry. AP NewsBreak: NM unemployment fund outlook improves. Associated Press. July 22, 2011.

58 59 60 61 62 63

83 84 85 86 87 88 89 90 91 92 93

64 65

66 67 68 69

94 95 96 97 98 99 100 101 102 103 104

70 71

72 73 74 75

76 77 78 79 80

Food & Water Watch September 2011

13

Food & Water Watch

National Office 1616 P St. NW, Suite 300 Washington, DC 20036 tel: (202) 683-2500 fax: (202) 683-2501 info@fwwatch.org www.foodandwaterwatch.org