NM Court of Appeals reinstates “green” building codes

Several news reports, including this one from KRQE, state that the New Mexico Court of Appeals has reinstated the “green” building code regulations enacted during the last days of Governor Bill Richardson’s administration. The regulations were revoked in 2011 after Governor Susana Martinez took office, but the Court of Appeals, in an opinion written by Judge Michael Bustamante, held that the Construction Industries Commission did not offer any reasons for revoking the regulations. New Mexico law requires that administrative agencies explain the reasons for their decisions, and holds that the separation of powers doctrine prohibits a reviewing court from supplying reasons to uphold an agency’s decision.

The opinion has not been posted on the Court of Appeals’ website because it is non-precedential, but the New Mexico Environmental Law Center (who represented the successful parties), has made a copy of the decision in Southwest Energy Efficient Project v. New Mexico Construction Industries Commission available on its website.

This victory for environmentalists who have challenged the green building codes may be short-lived, however, because the Court remanded the case to the Commission “for reconsideration, a new vote, and a statement of reasons for the vote, preferably in written form.” Should the Commission offer reasons for its decision in writing, it will enjoy a deferential standard of review if the challengers appeal again.

The obvious takeaway from this case is that if you are representing a party in an administrative rulemaking, and obtain a favorable decision from the agency, you should do your best to persuade the agency to provide a clear, written statement of reasons in support of its decision.

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