3 ELR 20231 | Environmental Law Reporter | copyright © 1973 | All rights reserved

Begay v. Public Service Commission

No. 1018 (N.M. Dist. Ct. September 29, 1972)

The Public Service Commission's approval of a transmission line location is not sufficiently important to warrant an environmental impact statement under the New Mexico Environmental Protection Act. The Act, however, does require a determination by the Commission that the location is justified in light of important environmental values.

Counsel for Plaintiffs
Joseph J. Brecher
Native American Rights Fund
1506 Broadway
Boulder, Colorado 80302

Richard Collins
Navaho Legal Services
Window Rock, Arizona 86515

Counsel for Defendants
John D. Robb, Jr.
William C. Schaab
Rodey, Dickason, Sloan, Akin & Robb
P.O. Box 1888
Albuquerque, New Mexico 87103

James L. Parmelee, Jr.
New Mexico Public Service Commission
Santa Fe, New Mexico 87501

[3 ELR 20231]

Zinn, J.


THE COURT: I think counsel on both sides have correctly stated the issues, the legal issues, without regard to some of the oration that went into the presentation.

The problem brought to the Court by the two petitions in the two cases, one by the New Mexico Environmental Improvement Agency and the other by Mr. Begay and a number of other individual Navajos and the Navajo Chapters, which are recognized groups of Indians, was to review and evaluate the decision made by the New Mexico Public Service Commission approving the location of a proposed transmission line sought to be built by Tucson Gas and Electric Company through western New Mexico.

The Court has one job to do here, either to affirm the decision or annul it. It's a go or no go situation, much the same as the Public Service Commission had. They had to decide whether to allow it or not; that was all. And it is important for some of the people that have been listening to the oration to understand that the Court is not here to judge the need of that line or the wisdom of it, or adjudge the wisdom of its location, or to consider the values that it might destroy, or the people that might be helped.

In addition, the Court is not here adjudicating personal rights of individuals. Those things have yet to come, from the standpoint of whether their property individually is affected. It is not here to consider, for example, the overall effect on the Navajo people. This mightbe considered by the Tribe itself and the BIA when they go up to bat on this decision in this matter, but it is not the Court's job, even though we get a lot of requests to consider a lot of these things, and my sympathy with the result or animosity towards it has got nothing to do with it.

The basic challenge here to the decision is on two points. Both cases contend that the Commission did not base its decision on acceptable facts when it determined that the location would not, and I'll quote the language of the State, would not "unduly impair important environmental values." And they contend, as does the — both of them contend that it does not meet the requirements of the Environmental Protection Act insofar as having as a part of it a proper environmental statement.

Well, let's talk about the statutes with which we deal. First, the basic authority of the Public Service Commission to approve these line locations was contained in a 1971 enactment, which is 68-7-1.2, New Mexico Statutes, and the ones that follow; it includes the Court review from which this case arises. It's an addendum to the total utility act.

The Environmental Improvement Act is something else again. It was an added factor. The same legislature imposed a new responsibility, as it did on all state agencies, but it doesn't define them, and we come to the conclusion that that yet needs some better definition.

There is no question that the Public Service Commission is a state agency, but it directs them to include in every major decision or recommendation an environmental statement. And we have to look at that. The respondent TG&E contends the requirements of the Environmental Improvement Act don't apply in this case. They challenge the validity of the Act for constitutional legislative imperfections as to its title.

I think we don't need to decide that issue, although there is a more recent decision that Justice Stephenson wrote arising out of Curry County that hits this thing even harder than you did. I think that the contention that the Act does not apply to this particular operation or function of the Public Service Commission is correct.

I think there is no requirement that the Public Service Commission itself, from the time it makes a decision, is a semi-judicial body, quasi-judicial determinations, any more than it would if this Court [3 ELR 20232] had to set one out every time it made a major decision. To interpret that in that fashion is ridiculous and contrary to the purpose of the Act.

I note the Federal act hasn't yet been applied to every decision of every major agency when they are dealing with adjudication of correlative rights or applications. It has largely to do with major undertaking by the government for the adoption of major new regulations that affect large bodies of people, not to every little decision that might be made on an application before it.

Certainly the obligation of the Commission is spelled out in the statute to consider these environmental things. That is what the whole act is all about, and for them to require any applicant to present fully all information that would have a bearing on this would, in effect, gather into its record and for its consideration all the things that could go in an environmental statement, because that is nothing more than an agency evaluation of the pros and cons and all the things that are presented.

There's nothing wrong with that, and I think they very properly opened up the record to allow all the people that had an interest in the matter to present their views on these particular issues. Mr. Parmelee's indication to us that guidelines of what should be in an environmental statement are the kind of things to look at by the Commission, is fine. That's a good place to go for what you ought to look at, what they ought to consider; but for themselves to be required to include in every decision they make, an environmental statement is ridiculous.

It completely misses the point of what their job is — what the Commission is there for. They are much like the courts in that regard. If we would adhere to your idea of every agency in the state making all kinds of decisions of this kind, it would have to go to the State Corporation Commission every time it had a rate hearing, or the Oil Conservation Commission every time it considered a well location adjustment, or to the Parole Hearing Board every time they decided to pull somebody in or let them out, would be constrained by your act.

I think you are trying to throw a lot wider loop than was intended by the legislature, so I hold that it doesn't apply.

I think one thing we can do, and that is, inquire as to whether the Commission reached its conclusion on unsound facts or without facts. They reached a conclusion that the location would not unduly impair important environmental values, which is what the special act required. Without that act, they wouldn't have been able to even look at this particular operation.

We can only inquire into whether the decision was reached fraudulently, arbitrarily or capriciously or reached without supporting evidence. Obviously, that some impairment of environmental values is expected, is implied in the language of the Act and by common sense, and the judgment of the Commission, that it will not be an undue impairment, implies some weighing of benefits against harm to decide the question.

My dictionary, and with the benefit of what Mr. Parmelee gave me from Black's law dictionary, talks about the meaning of the word "unduly." We assume the impairment, so we decide what we mean by "unduly." Well, the quote I got from the Oxford dictionary, Third Edition, is as being "without due cause or justification or unrightlfully or undeservedly."

Mr. Parmelee gave me the quotation from Black's as to undue being merely more than necessary. Either one requires a subjective judgment based on the record, and I think the Commission exercised it. I see nothing that says this was fraudulent, I see nothing that indicates capriciousness, and the only allegation as to arbitrariness was that they didn't come out with an impact statement and was thus arbitrarily a void one, and these obligations, under the law, I don't believe they have that obligation.

So I find that the action was taken on a sound basis, and I don't say I agree with them. I don't have to. I don't write letters to the editors in these decisions. In any event, it is not my job to impose its judgment on the facts before the Commission, nor can I impose any duty of review or reconsideration on it. I can only affirm a decision or annul it, and on the record, I must affirm it.

I think a simple order will accomplish all that's necessary, a judgment affirming that decision. If counsel don't have any great objection, I'll write my own order, unless you've got one written.

MR. ROBB: We happen to have one, your honor.

THE COURT: Well, I hope it's real short.

MR. ROBB: It is, your honor.

THE COURT: I don't want to confuse the issues, because this Court has no obligation to make findings.It's sufficient, and I'll sign it. The rules take care of what you do next, gentlemen.

3 ELR 20231 | Environmental Law Reporter | copyright © 1973 | All rights reserved