Green Building Debate in New Mexico
Public construction projects in New Mexico were among the country’s first to utilize progressive energy conservation guidelines, such as the LEED rating system. As part of a broad pro-business agenda, Gov. Susana Martinez (R) replaced these codes with a less-stringent code established in 2003 that many other states and municipalities have adopted.
This code reversal is the subject of recent litigation in New Mexico. In January 2012, a group of environmental advocates, including the Sierra Club, filed a brief with the New Mexico State Court of Appeals challenging the method which the “replacement codes” where recently adopted by the New Mexico Construction Industries Commission. Here is their argument.
The environmental groups allege members of the Commission came to conclusions on how to vote on the replacement codes prior to their meeting, not at the meeting, in violation of the New Mexico Open Meetings Act. The Open Meeting Act is known as a “sunshine law.” Such laws are motivated by the belief that the democratic ideal is best served by a well-informed public.
In their brief, those challenging the Commission findings state “The Act provides that decisions of state agencies that are not made in open meetings are invalid.” According to the Open Meetings Act 2008 Compliance Guide, this subsection of the statute seems to arrive at a different conclusion.
The guidance instructs us that the Act establishes “a presumption that actions taken by public bodies have been taken at meetings that conform to the requirements of the Act. Where this is shown not to be the case, the actions of a public body may be held invalid.”
The language in the Attorney General guidance implies a presumption of conformance when an action is taken by the Commission. The Attorney General adds, it is “always possible that a court faced with the same issues would disagree…”
What is your opinion on the Commission’s actions and the “replacement codes”? What about the environmental challenge?
Dena Wurman is a practicing Attorney at Law specializing in legal issues surrounding land, construction, housing, and other areas related to construction and immigration. Visit her website here: NOTE: The purpose of this column is to provide an educational resource for readers. Receipt of e-mail or other electronic communication will not create an attorney-client relationship and any such e-mail or communication will not be treated as confidential. No reader should act or refrain from acting on the basis of information presented in this column without seeking legal advice of counsel in the relevant jurisdiction. The publisher expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this column.
