[Update: Stuart Bluestone called us in response to our request for minutes showing he has recused himself from all discussions by the board of the NM Environmental Law Center concerning the proceeding before the Environmental Improvement Board to impose a cap on CO2 emissions. Our request for these minutes was referred to Mr. Bluestone by the AG's Communications Director, Phil Sisneros. Mr. Bluestone, in turn, has now referred our request to Douglas Meikljohn, the Executive Director of the NMELC. Our call to Mr. Meikljohn has not yet been answered.]
Stuart Bluestone wears two hats. He is Senior Counsel to Attorney General Gary King. He is also president of the board of directors of the New Mexico Environmental Law Center, the law firm representing petitioners pressing the Environmental Improvement Board to impose an unprecedented statewide cap on emissions of carbon dioxide and gases they claim are causing global warming.
Bluestone has served as a director of the New Mexico Environmental Law Center (NMELC) since 2007. During that time, he has also served as Senior Counsel to Attorney General Gary King. In January 2010 he was named as president of the board of the NMELC.
NMELC is a law firm that represents private individuals and organizations in a wide range of environmental matters across the state. It sues private and public entities, participates in appeals, intervenes in lawsuits and administrative proceedings, and seeks to influence and persuade administrative agencies in adjudications and rule-making. It is the legal counsel representing the petitioners who are pressing the EIB to impose a cap on gases they claim are causing global warming. The cap they seek would cut carbon dioxide and other emissions by 25% below 1990 levels, the most drastic such emissions cap in the country. Electric power utilities, representatives of manufacturing, mining and agricultural industries, chambers of commerce and others fear this cap will have a devastating impact on New Mexico’s economy and tax base.
The Attorney General’s office advises the EIB on both substantive law and procedural matters. The EIB’s legal authority to regulate carbon dioxide is being challenged in a lawsuit brought by the Public Service Company of New Mexico, other electric utilities, several state legislators and representatives of New Mexico’s agricultural and oil and gas industries. In an 2/7/20 interview with Mike Hartranft of The Albuquerque Journal, EIB member and its former chair, Gay Dillingham said, “We did not go into this petition blindly and took time to hear arguments on our statutory authority,” Dillingham said. “Our legal counsel from the AG’s Office determined we had authority, therefore we are holding a public hearing. … ”
The Assistant Attorney General currently assigned as adviser to the EIB is Steve Vigil. He has recently been given that assignment in place of Adrian Terry, an Assistant Attorney General still listed as the EIB’s legal advisor on the website of the NM Environment Department. The Civil Division of the AG’s office provides legal advice and representation to state boards, agencies and commissions. Each division is headed by a Deputy Attorney General.
The Senior Counsel to the Attorney General is assigned to the AG’s Executive Office, which, according to the AG’s website, “sets overall priorities and initiatives for the agency.” The site says this about Bluestone:
“Senior Counsel Stuart Bluestone is the main point of contact on legislative initiatives for the Attorney General. Because ethics reform has taken a prominent role in the Attorney General’s agenda, much of his work has been focused on the topic. In addition, serving at the AG’s chief policy advisor on multi-state actions is one of his primary responsibilities.”
Why No Conflict of Interest?
New Mexico Watchdog asked the Attorney General’s office why it does not have a conflict of interest in representing and advising the EIB since its Senior Counsel serves as the president of the law firm representing parties before the EIB in the CO2 emissions cap petition. We received the following response from Phil Sisneros, the AG’s Director of Communications:
“We do not believe there to be any conflict of interest. During his service on the Board of the NM Environmental Law Center Mr. Bluestone has had no role in the agency’s representation of the EIB. Additionally, in an over abundance of caution, when the matter came up for discussion at the NMELC, Mr. Bluestone recused himself from any discussions or voting on the matter, even though he has no role in that representation. And thirdly, Mr. Bluestone’s work with the NMELC has been fully disclosed to this office, consistent with our AGO policy.”
We followed up with a request for Mr. Bluestone to allow us to inspect minutes of the board meetings of the NMELC to confirm that he, in fact, did recuse himself from all discussions and reports on the CO2 emissions cap petition matter. Mr. Sisneros informed us he had forwarded that request to Mr. Bluestone. We have not received any response from Mr. Bluestone.
The Rules of Professional Conduct
As an attorney working in public service, Mr. Bluestone’s conduct is governed by the New Mexico Rules of Professional Conduct for attorneys. The rule of “imputed disqualification” imputes from him to the AG’s office and NMELC his own potential conflicts of interest, and vice versa. Rule 16-603 would seem to permit his participation as a director and officer of a legal services organization such as NMELC. But because the NMELC is appearing before a board represented and advised by the Attorney General’s office, Mr. Bluestone’s involvement with both groups simultaneously triggers further safeguards to protect the interests of the state of New Mexico, the clients of NMELC and the overall integrity of the administrative process.
Many rules specifically govern situations where lawyers move between the public and private sectors. A situation where a public attorney at such a high level of public responsibility and confidence as Mr. Bluestone simultaneously serving as president of a private law firm that litigates against public entities and seeks to influence administrative agencies is, on the other hand, rather unusual. Among other provisions that may apply to Mr. Blueston’e dual roles or provide guidance by way of analogy, Rule 16-111 provides:
“A lawyer in private practice shall not appear as an advocate before a governmental body or any division thereof, or governmental agency or commission, at any time when the lawyer is representing that same governmental body or division, agency or commission in another matter. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue advocacy in such a circumstance, unless:
(1) the disqualified lawyer is screened from any participation in the matter; and
(2) written notice is promptly given to the appropriate governmental agency and to any adverse party to enable such agency or party to ascertain compliance with this rule. Provided, however, that nothing in this rule shall be interpreted to prohibit an attorney appearing as an advocate before one division or an executive department while representing another division within the same department, so long as said attorney has not, during his representation of the division, advised or had significant contact with the secretary or other administrative head governing both divisions.”
Here, NMELC is conducting advocacy before the EIB, while Bluestone is part of both the law firm of NMELC and the “law firm” of the AG’s office. He is the disqualified lawyer in this case. NMELC is required to have taken steps to screen Bluestone from any participation in the matter. It would seem the AG’s office, in serving the public interest, would take similar steps on its end. Further, NMELC should have given written notice to the EIB and all adverse parties to allow them to ascertain whether Bluestone has in fact been screened from information, meetings, reports, and conversations that would cause a conflict of interest. “Screened “means that “appropriate steps shall be taken to insure that no information about the matter is, or shall be, transmitted to or from the disqualified lawyer.” Sometimes these steps are called erecting “a Chinese wall.”
In addition to the EIB, the New Mexico Environment Department, another agency represented and advised by the AG, has also become involved in this matter. It has filed briefs arguing that the EIB has jurisdiction to move forward and regulate CO2 emissions.
The docket of filings before the EIB does not contain any disclosure by NMELC of Mr. Bluestone’s situation.
The Bigger Picture
Aside from the strict contours of the Rules of Professional Conduct for attorneys, there remains the perhaps larger issue regarding a Senior Counsel to the Attorney General doubling as the president of a law firm that frequently litigates against the state and other public entities, and seeks to influence state policy and regulations at many levels.
In addition to requesting Mr. Bluestone to voluntarily disclose minutes of the NMELC board to confirm that he has been screened from the emissions cap petition matter, New Mexico Watchdog is submitting an inspection of public records request to the AG’s office for all documents discussing Mr. Bluestone’s involvement as a director and the president of NMELC, and all documents demonstrating, establishing or containing information about how he has been screened within the AG’s office from all matters in which the NMELC has represented clients before the EIB and other state agencies, boards, and commissions, as well as the Legislature.