PNM, the state's largest utility, contends such third-party arrangements within its exclusive service area are illegal.
It is the first time in recent memory, and perhaps the first time ever, that legislators have filed a brief with the state Public Regulation Commission in their official capacities as elected lawmakers. "It is unusual," PRC member Jason Marks said.
Rep. Brian Egolf Jr., D-Santa Fe, said 26 legislators so far have signed on to the brief he wrote, from House Speaker Ben Luján, D-Nambé, to the other side of the political spectrum, Sen. Clinton Harden, R-Clovis. "Renewable energy is important enough that legislators were willing to put their names on this," Egolf said.
Gov. Bill Richardson also supports third-party agreements for renewable energy.
A third-party power purchase agreement is a long-term contract that allows an energy developer to install, own and operate a solar photovoltaic system — for example, on rooftops belonging to another utility's customer such as a city or business. The energy developer charges the customer for kilowatt hours produced and in return benefits from federal and state tax credits.
The Public Regulation Commission is conducting a hearing on whether third-party energy developers are public utilities and whether they can own and operate solar energy systems that serve another utility's customers.
Renewable-energy advocates and the legislators say the third-party arrangement is a critical financing method to help boost renewable energy use among municipalities and nonprofits such as schools and hospitals.
The city of Santa Fe and energy developer SunEdison are working on the kind of third-party arrangement that's brought the debate to the fore. The city of Santa Fe is a PNM customer. Santa Fe's City Council approved a 20-year power agreement June 24 with SunEdison to place solar photovoltaic systems on eight city-owned properties that will be tied into the electric grid serviced by PNM.
SunEdison will sell the generated solar power at a fixed rate to the city and can benefit from state and federal tax credits. SunEdison applied to PNM for a 15-cent per kilowatt hour renewable energy credit. PNM is required to provide a certain amount of renewable power.
Egolf said the third-party question is critical to helping hospitals, churches, schools, cities and nonprofits benefit from renewable energy. "They don't qualify for the tax rebates and credits," Egolf said. "When you lose the third party, you lose one of the most successful financing mechanisms."
But Don Brown, a PNM spokesman, said, "We think the deal Santa Fe is trying to do is actually not legal under state law. When you have a third party producing power and selling it to a PNM customer, that represents deregulation."
Marks said if the PRC rules third-party arrangement are illegal, state legislators can change the law.