{ "id": 4248331, "name": "ALBUQUERQUE BERNALILLO COUNTY WATER UTILITY AUTHORITY, Appellant, v. NEW MEXICO PUBLIC REGULATION COMMISSION, Appellee, and Public Service Company of New Mexico, et al., Intervenors; New Mexico Industrial Energy Consumers, Appellant, v. New Mexico Public Regulation Commission, Appellee, and Public Service Company of New Mexico and Attorney General of the State of New Mexico, Intervenors", "name_abbreviation": "Albuquerque Bernalillo County Water Utility Authority v. New Mexico Public Regulation Commission", "decision_date": "2010-03-19", "docket_number": "Nos. 31,268, 31,273", "first_page": "21", "last_page": "50", "citations": [ { "type": "official", "cite": "148 N.M. 21" }, { "type": "parallel", "cite": "2010-NMSC-013" }, { "type": "parallel", "cite": "229 P.3d 494" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2006-NMSC-042", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3670835 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 38" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0440-01" ] }, { "cite": "2009-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245434 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0182-01" ] }, { "cite": "2000-NMCA-057", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217176 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0262-01" ] }, { "cite": "2000-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106550 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0728-01" ] }, { "cite": "101 N.M. 549", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586333 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "553" }, { "page": "961" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0549-01" ] }, { "cite": "2003-NMSC-028", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77202 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0472-01" ] }, { "cite": "115 N.M. 521", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725399 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "531", "parenthetical": "\"Allowing municipalities to contract with utilities for service rates to their inhabitants does not, ipso facto, violate Section 62-8-6.\"" }, { "page": "358", "parenthetical": "\"Allowing municipalities to contract with utilities for service rates to their inhabitants does not, ipso facto, violate Section 62-8-6.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0521-01" ] }, { "cite": "116 N.M. 456", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727616 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "463" }, { "page": "1084" }, { "page": "463" }, { "page": "1084" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0456-01" ] }, { "cite": "2000-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217143 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 68" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0001-01" ] }, { "cite": "115 N.M. 471", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725453 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "473" }, { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0471-01" ] }, { "cite": "2009-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243054 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 9" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0024-01" ] }, { "cite": "1999-NMSC-021", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257625 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 27" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0120-01" ] }, { "cite": "2003-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15945 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0097-01" ] }, { "cite": "2005-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2550199 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0133-01" ] }, { "cite": "1999-NMSC-040", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106526 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0309-01" ] }, { "cite": "115 N.M. 784", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725400 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "787", "parenthetical": "citation omitted" }, { "page": "1266", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0784-01" ] }, { "cite": "2004-NMCA-040", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1428015 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 34" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0365-01" ] }, { "cite": "489 U.S. 688", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12033050 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "701", "parenthetical": "internal quotation marks and citations omitted" }, { "parenthetical": "internal quotation marks and citations omitted" }, { "parenthetical": "internal quotation marks and citations omitted" }, { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/us/489/0688-01" ] }, { "cite": "431 U.S. 407", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1565 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "416", "parenthetical": "\"The Equal Protection Clause requires that legislative districts be of nearly equal population, so that each person's vote may be given equal weight in the election of representatives.\"" }, { "parenthetical": "\"The Equal Protection Clause requires that legislative districts be of nearly equal population, so that each person's vote may be given equal weight in the election of representatives.\"" }, { "parenthetical": "\"The Equal Protection Clause requires that legislative districts be of nearly equal population, so that each person's vote may be given equal weight in the election of representatives.\"" } ], "opinion_index": 0, "case_paths": [ "/us/431/0407-01" ] }, { "cite": "1998-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 18647 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0670-01" ] }, { "cite": "99 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584653 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "7", "parenthetical": "per curiam" }, { "page": "507", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0001-01" ] }, { "cite": "96 N.M. 155", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577300 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "249", "parenthetical": "\"Rulings adverse to a party do not necessarily evince a personal bias or prejudice on the part of the judge against it even if the rulings are later found to have been legally incorrect.\"" }, { "page": "325", "parenthetical": "\"Rulings adverse to a party do not necessarily evince a personal bias or prejudice on the part of the judge against it even if the rulings are later found to have been legally incorrect.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0155-01" ] }, { "cite": "115 N.M. 6", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725504 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "20", "parenthetical": "holding that \"[p]ersonal bias cannot be inferred from an adverse ruling\"" }, { "page": "326", "parenthetical": "holding that \"[p]ersonal bias cannot be inferred from an adverse ruling\"" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0006-01" ] }, { "cite": "510 U.S. 540", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 235096 ], "weight": 7, "year": 1994, "pin_cites": [ { "page": "541", "parenthetical": "\"[J]udicial rulings alone almost never constitute valid basis for a bias or partiality recusal motion.\"" }, { "parenthetical": "\"[J]udicial rulings alone almost never constitute valid basis for a bias or partiality recusal motion.\"" }, { "parenthetical": "\"[J]udicial rulings alone almost never constitute valid basis for a bias or partiality recusal motion.\"" }, { "page": "555" }, { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/us/510/0540-01" ] }, { "cite": "144 N.E.2d 3", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "pin_cites": [ { "page": "5", "parenthetical": "\"[I]n the absence of a 'clear' revelation that the administrative body 'made no independent appraisal and reached no independent conclusion', its decision will not be disturbed.\"" } ], "opinion_index": 0 }, { "cite": "165 N.Y.S.2d 1", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1957, "pin_cites": [ { "parenthetical": "\"[I]n the absence of a 'clear' revelation that the administrative body 'made no independent appraisal and reached no independent conclusion', its decision will not be disturbed.\"" } ], "opinion_index": 0 }, { "cite": "3 N.Y.2d 188", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2246083 ], "year": 1957, "pin_cites": [ { "parenthetical": "\"[I]n the absence of a 'clear' revelation that the administrative body 'made no independent appraisal and reached no independent conclusion', its decision will not be disturbed.\"" } ], "opinion_index": 0, "case_paths": [ "/ny-2d/3/0188-01" ] }, { "cite": "163 Colo. 462", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 4620632 ], "weight": 2, "year": 1967, "pin_cites": [ { "parenthetical": "en banc" }, { "page": "777", "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/colo/163/0462-01" ] }, { "cite": "212 Kan. 315", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 41137 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "1202" } ], "opinion_index": 0, "case_paths": [ "/kan/212/0315-01" ] }, { "cite": "869 P.2d 1170", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10366102 ], "year": 1994, "pin_cites": [ { "page": "1179", "parenthetical": "holding that an administrative officer's attendance at evidentiary hearings is \"not necessary\" so long as the officer reviews the transcript and documentary evidence prior to rendering a decision" } ], "opinion_index": 0, "case_paths": [ "/p2d/869/1170-01" ] }, { "cite": "142 Vt. 446", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 2399952 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "1387" } ], "opinion_index": 0, "case_paths": [ "/vt/142/0446-01" ] }, { "cite": "18 A.L.R.2d 606", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1951, "pin_cites": [ { "page": "\u00a7 3" } ], "opinion_index": 0 }, { "cite": "107 N.M. 278", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597157 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "286", "parenthetical": "\"The presumption ... is that the [agency's] decision was reasonable.\"" }, { "page": "566", "parenthetical": "\"The presumption ... is that the [agency's] decision was reasonable.\"" }, { "page": "286" }, { "page": "566", "parenthetical": "\"The presumption ... is that the [agency's] decision was reasonable.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0278-01" ] }, { "cite": "424 U.S. 319", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12026449 ], "weight": 6, "year": 1976, "pin_cites": [ { "page": "335" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/us/424/0319-01" ] }, { "cite": "114 N.M. 103", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731622 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "111" }, { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0103-01" ] }, { "cite": "100 N.M. 434", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588644 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "436", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "1147", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0434-01" ] }, { "cite": "116 N.M. 548", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727644 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "549", "parenthetical": "applying independent judgment to claimed constitutional violation" }, { "page": "1193", "parenthetical": "applying independent judgment to claimed constitutional violation" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0548-01" ] }, { "cite": "1999-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257693 ], "weight": 15, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 29" }, { "page": "\u00b6 25" }, { "page": "\u00b6 41" }, { "page": "\u00b6 44" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0254-01" ] }, { "cite": "2005-NMSC-006", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929161 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 19" }, { "page": "\u00b6 32" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0161-01" ] }, { "cite": "2009-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243724 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0453-01" ] }, { "cite": "120 N.M. 579", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558975 ], "weight": 4, "year": 1995, "pin_cites": [ { "page": "582" }, { "page": "31" }, { "page": "583" }, { "page": "32", "parenthetical": "noting that \"it is the function of the courts to interpret the law\"" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0579-01" ] }, { "cite": "2007-NMSC-053", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692262 ], "weight": 24, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 13" }, { "page": "\u00b6 19" }, { "page": "\u00b6 20" }, { "page": "\u00b6 31" }, { "page": "\u00b6 31" }, { "page": "\u00b6 31" }, { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0533-01" ] } ], "analysis": { "cardinality": 2601, "char_count": 95872, "ocr_confidence": 0.676, "pagerank": { "raw": 2.507436380812323e-07, "percentile": 0.8101414406785878 }, "sha256": "c1178d2eee5503350beab4c54eb41158a035b351bef2b318b300d6843793b363", "simhash": "1:3e418596e194cb52", "word_count": 15448 }, "last_updated": "2023-07-14T17:58:33.542282+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PATRICIO M. SERNA, CHARLES W. DANIELS, Justices, and RICHARD C. BOSSON, Justice (dissenting)." ], "parties": [ "ALBUQUERQUE BERNALILLO COUNTY WATER UTILITY AUTHORITY, Appellant, v. NEW MEXICO PUBLIC REGULATION COMMISSION, Appellee, and Public Service Company of New Mexico, et al., Intervenors. New Mexico Industrial Energy Consumers, Appellant, v. New Mexico Public Regulation Commission, Appellee, and Public Service Company of New Mexico and Attorney General of the State of New Mexico, Intervenors." ], "opinions": [ { "text": "OPINION\nMAES, Justice.\n{1} Albuquerque Bernalillo County Water Utility Authority (ABCWUA) and New Mexico Industrial Energy Consumers (NMIEC) appeal from the Final Order of the New Mexico Public Regulation Commission (the PRC), claiming that the PRC improperly awarded an emergency fuel and purchased power cost adjustment clause to the Public Service Company of New Mexico (PNM) under NMSA 1978, Section 62-8-7(E)(l) (2003, as amended through 2007) and 17.9.550.1 to 550.17 NMAC (Recompiled 12/30/2001) (hereinafter Rule 550). We affirm the Final Order of the PRC.\nI. FACTS AND PROCEDURAL HISTORY\n{2} On February 21, 2007, PNM filed a rate case with the PRC seeking a rate increase and a fuel and purchased power cost adjustment clause (FPPCAC) pursuant to Section 62-8-7(E)(l) and Rule 550. A FPPCAC \u201cflow[s] through to the users of electricity the increases or decreases in Applicable Fuel and Purchased Power costs,\u201d Rule 550.6(D) NMAC and, therefore, \u201cprovide[s] for the stability of utility earnings when electric fuel costs and purchased power costs are rising and permit[s] prompt credits to customers when electric fuel costs and purchased power costs are declining.\u201d Rule 550.6(B). Rule 550.17(A)(l)-(3) provides that \u201c[n]o utility shall have a FPPCAC included in its tariff\u2019 unless the utility demonstrates that\n(1) the cost of fuel and purchased power are a significant percentage of the total cost of service;\n(2) the cost of fuel and purchased power contains costs which periodically fluctuate and cannot be precisely determined in a rate case;\n(3) the utility\u2019s fuel and purchased power policies and practices are designed to assure that electric power is generated and purchased at the lowest reasonable cost.\nSee also \u00a7 62 \u2014 8\u20147(E)(1) (providing that FPPCACs must be \u201cconsistent with the purposes of the Public Utility Act, including serving the goal of providing reasonable and proper service at fair, just and reasonable rates to all customer classes\u201d).\n{3} The PRC assigned the case to a hearing examiner. See NMSA 1978, \u00a7 8-8-4(C)(3)(a) (1998). On March 6, 2008, following extensive discovery and two weeks of hearings, the hearing examiner issued a Recommended Decision, which included proposed findings and a recommendation that PNM\u2019s request for a FPPCAC should be denied because PNM had failed to fulfill the regulatory requirements set forth in Rule 550. Specifically, the hearing examiner found that (1) it is doubtful whether PNM\u2019s fuel and purchased power costs constitute a significant percentage of the total cost of service, (2) PNM failed to establish that its fuel mix \u201cconsists of fuels with volatile or [fluctuating] prices\u201d and that \u201cits fuel and purchased power costs are so unpredictable that they cannot be calculated in a rate case and call for an FPPCAC instead,\u201d and (3) the proposed FPPCAC fails to provide reasonable and proper service at fair, just and reasonable rates and is not designed to ensure that electric power is generated and purchased at the lowest reasonable cost. See Rule 550.17(A)(l)-(3). Thirteen days later, PNM filed exceptions to the Recommended Decision, claiming, in relevant part, that it was entitled to a FPPCAC under Rule 550. See 1.2.2.37(C)(1)(a) NMAC (09/01/2008).\n{4} On March 20, 2008, PNM and the International Brotherhood of Electrical Workers, Local No. 611, filed a joint motion requesting an Emergency FPPCAC. Attached to the joint motion was the affidavit of Charles N. Eldred, Executive Vice President and Chief Financial Officer of PNM. Eldred averred that, following the issuance of the Recommended Decision rejecting PNM\u2019s request for a FPPCAC, PNM\u2019s credit rating was downgraded, its stock price hit a fifty-two week low, and it was unable \u201cto access the commercial paper market\u201d or \u201cto issue long term debt.\u201d Eldred expressed his belief that a FPPCAC \u201cis absolutely necessary if PNM is to avoid further deterioration of its credit rating to junk bond status.\u201d\n{5} The Emergency FPPCAC differed materially from the FPPCAC previously submitted to the hearing examiner. Specifically, the Emergency FPPCAC contained the following conditions suggested by the Attorney General and the PRC\u2019s Utility Division Staff (Staff): \u201c(a) ... prior approval of purchased power agreements (\u2018PPAs\u2019) with terms greater than one year; (b) replacement power due to plant outages [would] not be recovered through the FPPCAC; and, (c) demand charges [would] not be recovered through the FPPCAC.\u201d Additionally, the Emergency FPPCAC contained other\nconditions which are designed to mitigate the impact on customer bills during peak periods and provide additional incentives to PNM management to control costs to the extent they are controllable. Among them are that the fuel factor charged pursuant to the Emergency FPPCAC will be capped at $.01 per [kilowatt] and that replacement power costs due to plant availability lower than a weighted average plant availability factor cannot be recovered without prior approval of the [PRC]. Also included in the Emergency FPPCAC is a condition that all costs recovered through it will be subject to audit and refund if the costs are determined by the [PRC] to have been imprudently incurred.\n{6} In light of the serious financial concerns raised by PNM, the PRC established the following expedited procedural schedule for the consideration and review of the Emergency FPPCAC.\nPublic Notice March 31, 2008\nPNM Direct Testimony March 28, 2008\nDeadline for intervention April 8, 2008\nStaffTntervenor Testimony PNM Rebuttal Testimony April 9, 2008 April 14, 2008\nHearing April 15, 2008\nAdditionally, the PRC severed the Emergency FPPCAC from the underlying rate case, reasoning that \u201cthe Emergency FPPCAC essentially is a new FPPCAC that is significantly different from the FPPCAC [previously] proposed by PNM\u201d and that \u201cthe record [in the rate case] is now closed.\u201d Although the PRC established a new docket number for the Emergency FPPCAC, No. 08-00092-UT, it noted that it would, \u201cof course, take administrative notice of any evidence relevant to the Joint Motion and the Emergency FPPCAC that is in [the rate case] to the extent permitted by 17.1.2.37(D) NMAC.\u201d The PRC also ordered PNM to address certain issues in its direct testimony and suspended the implementation of the Emergency FPPCAC \u201cuntil and including May 7, 2008.\u201d\n{7} ABCWUA and NMIEC filed objections to the expedited procedural schedule and a joint motion for extension of time, requesting sixty days from the filing of PNM\u2019s direct testimony to file a response. Essentially, they requested \u201cthat the deadline for the fifing of their testimony be extended to at least May 27, 2008, or approximately 48 days beyond the original April 9 deadline.\u201d ABCWUA and NMIEC claimed that the expedited procedural schedule did \u201cnot allow the Staff and Intervenors sufficient time to propound discovery and adequately analyze PNM\u2019s responses before the fifing deadline for their own testimony,\u201d thereby effectively denying them due process of law. The PRC entered a procedural order extending the deadline five days, to April 14. Following oral argument, the PRC entered a second procedural order extending the deadline an additional twenty-five days, to May 9. The PRC found that \u201ca 30-day, rather than the requested 48-day, extension of time from the original April 9 deadline for the fifing of Staff and Intervenor testimony, should give Staff and Intervenors sufficient time, consistent with their due process rights, to take discovery and prepare their testimony.\u201d\n{8} After holding public hearings from May 12 through May 17, 2008, a majority of the PRC Commissioners issued a Final Order granting PNM\u2019s request for an Emergency FPPCAC. First, the PRC found that PNM\u2019s fuel and purchased power costs constitute 20.167% of its total costs of service. Although the PRC had \u201cnot yet determined what constitutes a \u2018significant percentage\u2019 of a utility\u2019s total cost of service for the purposes of 17.9.550.17(A)(1),\u201d applying the ordinary meaning of the term \u201csignificant,\u201d the PRC determined that \u201c20% is a significant percentage of PNM\u2019s total cost of service.\u201d The PRC noted that its conclusion was bolstered by the fact that PNM\u2019s \u201cBase Fuel Cost is the second largest category of cost\u201d and, therefore, \u201ca relatively small percentage change in those costs can have a significant impact on PNM.\u201d\n{9} Second, the PRC found that PNM had \u201cmade the requisite showing that its purchased power and fuel costs periodically fluctuate and cannot be precisely determined in a rate case.\u201d See Rule 550.17(A)(2). The PRC held that \u201cRule 550 does not require a showing that purchase power and fuel costs are \u2018volatile\u2019, or fluctuate more than some other cost of providing service.\u201d Accordingly, \u201c[although PNM\u2019s coal and nuclear costs historically have.fluctuated less than the cost of natural gas,\u201d the PRC determined that these costs, nonetheless, \u201c\u2018periodically fluctuate\u2019 under the plain meaning of that phrase.\u201d The PRC rejected ABCWUA\u2019s and NMIEC\u2019s assertions that PNM\u2019s fuel and purchased power costs are predictable, noting that neither ABCWUA nor NMIEC had identified \u201cin any way ... what those predictable future costs are and what methodology could be used to precisely determinen those future costs in this or in any other rate proceeding.\u201d\n{10} Lastly, to ensure that PNM\u2019s electric power is generated and purchased at the lowest reasonable cost, see Rule 550.17(A)(3), the PRC exercised its authority under Rule 550 to \u201cimpose the condition on the Emergency FPPCAC that PNM shall pay for the costs of a prudency review of its fuel and purchase power costs.\u201d The PRC ordered that\n[t]he prudency review shall be conducted by an auditor or team of auditors to be selected by, and under the direction of, the [PRC]. The prudency review shall be commenced as soon as practicable after PNM implements its Emergency FPPCAC and shall continue until all of the costs flowed through to its customers under that FPPCAC have been subject to the review. All prudency review costs paid by PNM shall be treated as a regulatory asset by PNM and recovered from its ratepayers through the rates established in PNM\u2019s next general rate proceeding.\n{11} The PRC rejected ABCWUA\u2019s and NMIEC\u2019s claim that the Emergency FPPCAC constitutes \u201cpiecemeal ratemaking\u201d because it does not offset increases in PNM\u2019s fuel and purchased power costs against decreases in PNM\u2019s other costs. The PRC explained that \u201cthe Legislature, when it enacted [Section] 62-8-7(E), created a statutory exception to the general prohibition against piecemeal ratemaking by expressly giving the [PRC] the authority to promulgate rules governing the use of, among other matters, fuel and purchased power adjustment clauses.\u201d Additionally, the PRC noted that nearly \u201cevery utility in New Mexico has a fuel clause\u201d and that \u201c[n]o party in this case or in [the rate case] has presented any legal or factual arguments to justify ignoring several years of precedent and treating PNM or the Emergency FPPCAC [differently] from all of these other utilities or their FPPCACs.\u201d\n{12} The PRC also rejected ABCWUA\u2019s and NMIEC\u2019s claim that the Emergency FPPCAC, which recovers fuel purchased power costs through a uniform per kilowatt hour charge, results in unreasonable and inequitable rates. The PRC noted that its long-standing policy, as reflected in Rule 550, has been to require fuel and purchased power costs to be recovered on a uniform per kWh basis. As a result, every FPPCAC in effect in New Mexico recovers those costs in that manner. Adopting UNM\u2019s proposal would represent a significant and abrupt departure from that long-standing policy and practice that could affect the interests of other utilities and their ratepayers, and thus are beyond the scope of this proceeding.\n{13} Two of the five PRC Commissioners did not join the Final Order. Commissioner Ben R. Lujan, PRC Chairman and representative for District 1, \u201cVoted no\u201d on the Final Order and Commissioner Jason Marks, representative for District 3, filed a dissent. Commissioner Marks agreed with the majority that \u201cPNM has met the threshold statutory requirements for a fuel clause,\u201d but dissented from the Final Order because the Emergency FPPCAC failed to contain \u201can additional condition retaining a portion of the fuel and purchased power risk for PNM.\u201d Specifically, Commissioner Marks would have imposed \u201can 80/20 split on the fuel clause, with PNM being at risk for 20% of the difference between allowable fuel costs in its most recent rate case and currently claimed costs.\u201d\nII. ISSUES ON APPEAL\n{14} Following the denial of their motions for reconsideration, ABCWUA and NMIEC appealed directly to this Court from the Final Order of the PRC. See NMSA 1978, \u00a7 62-11-1 (1993) (providing a right of direct appeal from the final order of the PRC). ABCWUA and NMIEC raise a variety of claims, many of which overlap substantially. For the purpose of economy and clarity, we have combined their claims into two broad general categories enumerated below.\nA. Constitutional Claims\n{15} ABCWUA and NMIEC claim that the PRC deprived them of procedural due process of law in violation of the Fourteenth Amendment to the Federal Constitution because (1) the public notice, which emphasized PNM\u2019s dire financial condition, was inadequate and misleading because the PRC ultimately decided that PNM\u2019s financial condition was \u201cnot relevant to the issue of whether PNM should be granted the Emergency FPPCAC\u201d; (2) the expedited procedural schedule did not provide sufficient time to allow for adequate discovery, review, or analysis of the Emergency FPPCAC; (3) Commissioners David King and Carol K. Sloan improperly failed to attend many of the proceedings, thereby depriving ABCWUA of a full and fair opportunity to be heard; and (4) Commissioners King and Sandy Jones improperly failed to recuse themselves from the proceedings, thereby depriving NMIEC of a fair and impartial hearing. Additionally, ABCWUA claims that the PRC\u2019s failure to defer to the vote of the two dissenting Commissioners, who \u201crepresent a significantly greater number of PNM customers than the remaining three Commissioners,\u201d deprived the \u201ccustomers in those districts [of] adequate representation and equal protection of the laws\u201d in violation of the Fourteenth Amendment to the Federal Constitution.\nB. Statutory and Regulatory Claims\n{16} ABCWUA and NMIEC also claim that the Emergency FPPCAC violates various state statutes and regulations governing public utilities. Specifically, ABCWUA and NMIEC claim that (1) the Emergency FPPCAC violates Section 62-8-7(E) because it is inconsistent \u201cwith the purposes of the Public Utility Act, including serving the goal of providing reasonable and proper service at fair, just and reasonable rates\u201d; (2) the Emergency FPPCAC \u201cdiscriminates against customers with the lowest cost responsibility,\u201d in violation of NMSA 1978, Section 62-8-6 (1993, prior to 2008 amendments); (3) the PRC improperly permitted PNM to treat the costs of the audit as a regulatory asset, thereby requiring consumers to pay twice for regulation, in violation of NMSA 1978, Section 62-8-8 (2005); (4) the independent audit lacks sufficient regulatory oversight, in violation of Rule 550; (5) PNM failed to file new schedules showing the proposed rate changes, in violation of Section 62 \u2014 8\u20147(B); and (6) the Emergency FPPCAC violates Rule 550.17(A)(2), because PNM failed to establish that its \u201ccost of fuel and purchased power contains costs which periodically fluctuate and cannot be precisely determined in a rate ease.\u201d\nIII. STANDARD OF REVIEW\n{17} The party challenging the PRC\u2019s decision bears the burden to demonstrate that the decision \u201cis arbitrary and capricious, not supported by substantial evidence, outside the scope of the agency\u2019s authority, or otherwise inconsistent with law.\u201d N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm\u2019n, 2007-NMSC-053, \u00b6 13, 142 N.M. 533, 168 P.3d 105 (NMIEC) (internal quotation marks and citation omitted); see also NMSA 1978, \u00a7 62-11-4 (1965) (\u201cThe burden shall be on the party appealing to show that the order appealed from is unreasonable, or unlawful\u201d). In reviewing the PRC\u2019s decision, \u201cwe \u2018begin by looking at two interconnected factors: whether the de-\ncisi\u00f3n presents a question of law, a question of fact, or some combination of the two; and whether the matter is within the agency\u2019s specialized field of expertise.\u2019 \u201d NMIEC, 2007-NMSC-053, \u00b6 13, 142 N.M. 533, 168 P.3d 105 (quoting Morningstar Water Users Ass\u2019n v. N.M. Pub. Util. Comm\u2019n, 120 N.M. 579, 582, 904 P.2d 28, 31 (1995)).\n{18} \u201cWith respect to questions of fact, we look to the whole record to determine whether substantial evidence supports the [PRC\u2019s] decision.\u201d Id. \u00b6 24.\nIn reviewing the whole record, the court must be satisfied that the evidence demonstrates the reasonableness of the decision. No part of the evidence may be exclusively relied upon if it would be unreasonable to do so. The reviewing court needs to find evidence that is credible in light of the whole record and that is sufficient for a reasonable mind to accept as adequate to support the conclusion reached by the agency.\nId. (citation omitted). Although we view the evidence in the light most favorable to the PRC\u2019s decision, we will uphold the decision only if it is supported by substantial evidence. Id. \u201cSubstantial evidence on the record as a whole is evidence demonstrating the reasonableness of an agency\u2019s decision, and we neither reweigh the evidence nor replace the fact finder\u2019s conclusions with our own.\u201d DeWitt v. Rent-A-Center, Inc., 2009-NMSC-032, \u00b6 12, 146 N.M. 453, 212 P.3d 341 (citation omitted).\nIY. DISCUSSION\nA. Constitutional Claims\n{19} The constitutionality of the PRC\u2019s rulings present this Court with a question of law, which we review de novo. See Archuleta v. Santa Fe Police Dep\u2019t, 2005-NMSC-006, \u00b6 19, 137 N.M. 161, 108 P.3d 1019 (applying de novo standard of review to due process violations); U S West Commc\u2019ns, Inc. v. N.M. State Corp. Comm\u2019n, 1999-NMSC-016, \u00b6 15, 127 N.M. 254, 980 P.2d 37 (holding that an agency\u2019s rulings with respect to whether a party was \u201cafforded the process it is due under the Fourteenth Amendment to the United States Constitution are subject to de novo review\u201d); U S West Commc\u2019ns, Inc. v. N.M. State Corp. Comm\u2019n, 116 N.M. 548, 549, 865 P.2d 1192, 1193 (1993) (applying independent judgment to claimed constitutional violation).\n1. Whether Public Notice was Inadequate and Misleading\n{20} ABCWUA and NMIEC claim that the public notice in the present case was inadequate and misleading, in violation of their right to procedural due process of law. Specifically, ABCWUA argues that \u201c[t]he parties, who spent significant time and resources addressing the financial issue, were denied due process and unfairly prejudiced by the lack of notice that the [PRC] no longer considered the proceeding an emergency and viewed PNM\u2019s financial condition irrelevant.\u201d Additionally, NMIEC argues that the case \u201cchanged from an emergency, interim relief case into a routine rate application,\u201d and \u201cdue process required it to be re-noticed to reflect that change.\u201d\n{21} \u201cIt is well settled that the fundamental requirements of due process in an administrative context are reasonable notice and opportunity to be heard and present any claim or defense.\u201d Jones v. N.M. State Racing Comm\u2019n, 100 N.M. 434, 436, 671 P.2d 1145, 1147 (1983) (internal quotation marks and citation omitted). Notice \u201cshould be more than a mere gesture; it should be reasonably calculated, depending upon the practicalities and peculiarities of the case, to apprise interested parties of the pending action and afford them an opportunity to present their case.\u201d U S West Commc\u2019ns, Inc., 1999-NMSC-016, \u00b6 29, 127 N.M. 254, 980 P.2d 37 (internal quotation marks and citation omitted). General notice of the issues to be presented at a hearing is sufficient to comport with due process requirements. Santa Fe Exploration Co. v. Oil Conservation Comm\u2019n, 114 N.M. 103, 111, 835 P.2d 819, 827 (1992).\n{22} On March 29, 2008, the PRC published notice of the proceedings in the present case in the Albuquerque Journal. The notice reprinted in its entirety the PRC\u2019s March 25, 2008 Order Establishing Procedural Schedule and Opening New Docket. The notice stated that, on March 20, 2008, PNM had filed a joint motion asking the PRC to implement\nwhat [PNM] characterizes] as an Emergency FPPCAC, which, [PNM] eontend[s], [addresses and takes] into consideration the suggestion of the [PRC\u2019s] Utility Division Staff (\u201cStaff\u2019) in PNM\u2019s pending rate case in Case No. 07-00077-UT, and include[s] conditions that are designed to mitigate the impact on customer bills during peak periods and provide additional incentives to PNM management to control costs to the extent they are controllable....\nIn support of [its] request [PNM has] submitted the Affidavit of Charles N. Eldred, PNM\u2019s Executive Vice President and Chief Financial Officer with the Joint Motion. According to [PNM], Mr. Eldred\u2019s Affidavit demonstrates that PNM is experiencing serious cash flow problems, is at risk of losing its investment grade ratings and is experiencing a loss of overall financial integrity____\nOne of the primary reasons for PNM\u2019s weakened financial condition, Mr. Eldred contends, is the lack of appropriate recovery of -rapidly escalating fuel and purchased power costs____\nMr. Eldred states that approving an FPPCAC would send a positive message to the financial community that the [PRC] is serious about properly balancing the interest of investors with those of ratepayers and, hopefully, quiet the concerns to some extent about PNM\u2019s financial condition. Without an FPPCAC, Mr. Eldred believes, it is \u201cinevitable\u201d that PNM\u2019s credit rating will be downgraded to junk bond status.\n{23} \u201cIn light of the serious concerns raised by [PNM]\u201d and \u201cas a matter of protecting the public interest,\u201d the notice stated that the PRC had\nestablished] an expedited procedural schedule for the consideration and review of the Emergency FPPCAC. However, because the Emergency FPPCAC essentially is a new FPPCAC that is significantly different from the FPPCAC proposed by PNM in Case No. 07-00077-UT, and because the record in Case No. 07-00077-UT is now closed, the [PRC] finds the Joint Motion should be considered in a separate docket. Accordingly, the [PRC] has opened a new docket, Case No. 08-00092-UT, and will move the Joint Motion into that case. All further pleadings and filing regarding the Joint Motion should be filed solely in Case No. 08-00092-UT. The [PRC] will, of course, take administrative notice of any evidence relevant to the Joint Motion and the Emergency FPPCAC that is in Case No. 07-00077-UT to the extent permitted by 17.1.2.37(D) NMAC. All other relevant evidence must be filed in Case No. 08-00092-UT.\n{24} The foregoing notice properly informed the public of the arguments raised in PNM\u2019s application for an Emergency FPPCAC and the expedited procedural schedule established by the PRC. Contrary to the assertions of ABCWUA and NMIEC, nothing in the notice indicated that PNM\u2019s financial condition was relevant to the substantive issue of whether PNM is entitled to an Emergency FPPCAC on the merits under Section 62-8-7(E)(l) and Rule 550. Rather, the notice plainly stated that PNM\u2019s financial condition was relevant to the expedited procedural schedule adopted by the PRC. Specifically, the notice explains that, \u201c[i]n light of the serious concerns raised\u201d by PNM regarding an imminent financial crisis, the PRC had decided to \u201cestablish an expedited procedural schedule for consideration and review of the Emergency FPPCAC\u201d to \u201c[protect] the public interest.\u201d Accordingly, we conclude that the notice was neither inadequate nor misleading.\n{25} Alternatively, NMIEC claims that the notice was constitutionally deficient because it \u201cinformed the public that the case involved a request for interim relief.\u201d We disagree. Nothing in the public notice indicated that the proceedings before the PRC pertained exclusively to interim relief under Section 1.2.2.27 of the Administrative Code. Indeed, if interim relief was the only issue before the PRC, then a public hearing would not have been required. See 1.2.2.27(D) NMAC (\u201c[Requests for interim relief other than interim rate relief may be acted upon with or without public hearing.\u201d). NMIEC appears to argue, however, that the notice was misleading because it referred to an \u201cEmergency FPPCAC,\u201d which it believes is the same as an \u201cInterim FPPCAC.\u201d We are not persuaded. The terms \u201cemergency\u201d and \u201cinterim\u201d are not synonymous. The term \u201cemergency\u201d is defined as \u201c[a] serious situation or occurrence that happens unexpectedly and demands immediate action,\u201d whereas the term \u201cinterim\u201d is defined as \u201c[a]n interval of time between one event, process, or period and another ... temporary.\u201d The American Heritage Dictionary of the English Language 584, 913 (4th ed.2000). Thus, an \u201cEmergency FPPCAC\u201d is an FPPCAC issued on an expedited procedural basis, whereas an \u201cInterim FPPCAC\u201d is a temporary FPPCAC, issued pending a final decision of the PRC. Because the PRC properly informed the public of the general issues to be decided, we conclude that the notice comported with due process requirements.\n{26} Our conclusion on this point also disposes of NMIEC\u2019s claim that the PRC \u201cignored its own procedures and rules regarding interim rate relief.\u201d The PRC did not award interim rate relief to PNM and, therefore, the procedures delineated in Section 1.2.2.27 were inapplicable to the present case. See 1.2.2.27(A) (\u201cExcept as provided in Sections 65-2A-11 and 70-3-16 NMSA 1978, in addition to the usual contents of a pleading, the pleading must allege such extaordinary facts of immediate and irreparable injury as would justify the commission\u2019s exercise of discretion by granting interim relief prior to a final decision.\u201d). We therefore reject NMIEC\u2019s claim.\n2. Whether the Expedited Procedural Schedule Deprived ABCWUA and NMIEC of Procedural Due Process of Law\n{27} ABCWUA and NMIEC next argue that the expedited procedural schedule deprived them of procedural due process of law. Specifically, they claim that the PRC granted them an insufficient period of time in which to conduct \u201cadequate discovery and to prepare and file the expert testimony needed to rebut PNM\u2019s application for an [E]mergency FPPCAC.\u201d\n{28} \u201cIn general, the right to due process in administrative proceedings contemplates only notice of the opposing party\u2019s claims and a reasonable opportunity to meet them.\u201d Archuleta, 2005-NMSC-006, \u00b6 32, 137 N.M. 161, 108 P.3d 1019 (internal quotation marks and citation omitted). Thus, \u201cdue process is flexible in nature and may adhere to such requisite procedural protections as the particular situation demands.\u201d U S West Commc\u2019ns, Inc., 1999-NMSC-016, \u00b6 25, 127 N.M. 254, 980 P.2d 37 (internal quotation marks and citation omitted). A reviewing court\u2019s\ndetermination of what process is due in an administrative proceeding results from a balancing of (1) \u201cthe private interest that will be affected by the official action\u201d; (2) \u201cthe risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards\u201d; and (3) \u201cthe [g]overnment\u2019s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.\u201d\nId. \u00b6 26 (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). In balancing these interests, we must \u201cconsider the proceedings as a whole.\u201d Id. (internal quotation marks and citation omitted).\n{29} PNM averred that it was facing an immediate and critical financial crisis due, at least in part, to \u201cthe lack of appropriate recovery of rapidly escalating fuel and purchased power costs.\u201d Indeed, PNM claimed that its financial condition was so severe that it was \u201cexperiencing difficulties in dealing with counterparties to procure power supplies and natural gas to serve customers.\u201d Thus, PNM\u2019s application for an Emergency FPPCAC implicated the substantial public interest in an efficient and uninterrupted supply of electric power and natural gas. See NMSA 1978, \u00a7 62-3-1(A)(1) (1967, prior to 2008 amendments) (recognizing that public utilities affect the public interest in that they render \u201cessential public services to a large number of the general public\u201d).\n{30} However, this public interest must be balanced against ABCWUA\u2019s and NMIEC\u2019s private interest in just and reasonable utility rates. See \u00a7 62-3-1 (B) (recognizing the private interest in \u201creasonable and proper service\u201d at \u201cfair, just and reasonable rates\u201d). Accordingly, we turn to the second prong of the Mathews test to determine \u201cthe probable value, if any, of additional or substitute procedural safeguards.\u201d Mathews, 424 U.S. at 335, 96 S.Ct. 893.\n{31} We conclude that additional extensions of time would have had little, if any, probative value in the present ease. First, the record reflects that the parties had ample opportunity to present evidence regarding PNM\u2019s entitlement to an FPPCAC under Section 62-8-7(E)(l) and Rule 550 in the underlying rate case and that the PRC took administrative notice of this evidence. Second, the PRC granted ABCWUA and NMIEC two extensions of time, extending the time period in which they were required to file their responsive testimony from twelve to forty-two days. This was substantially longer than the three-day time period in which PNM was required to file its direct testimony, and only eighteen days shy of the sixty-day time period originally requested by ABCWUA and NMIEC in their Joint Motion for an Extension of Procedural Schedule. Under the present circumstances, we cannot conclude that the PRC\u2019s denial of a third extension of time was arbitrary, capricious, or unreasonable. See Nat\u2019l Council on Comp. Ins. v. N.M. State Corp. Comm'n, 107 N.M. 278, 286, 756 P.2d 558, 566 (1988) (\u201cThe presumption ... is that the [agency\u2019s] decision was reasonable.\u201d).\n3. Whether the Absence of Commissioners King and Sloan from the Public Hearings Deprived ABCWUA of Procedural Due Process of Law\n{32} ABCWUA claims that it was deprived of its procedural due process right to a full and fair hearing because \u201cCommissioners King and Sloan, who voted in favor [of the Emergency FPPCAC,] did not personally attend many of the proceedings and did not listen to the testimony telephonically.\u201d Additionally, ABCWUA questions whether Commissioners King and Sloan even \u201creviewed the record of the hearings they failed to attend prior to rendering their decision.\u201d\n{33} The record reflects that the PRC conducted public hearings on PNM\u2019s application for an Emergency FPPCAC on May 12, 15,16, and 17, 2008. Commissioner King did not attend the hearings held on the afternoon of May 12, 2008, the morning of May 16, 2008, or the morning or afternoon of May 17, 2008. Commissioner Sloan did not attend the hearings held on the morning of May 12, 2008, or the morning or afternoon of May 17, 2008. Despite their absence, both Commissioner King and Sloan voted in favor of the Final Order awarding PNM an Emergency FPPCAC.\n{34} In the absence of a statutory provision to the contrary, neither due process nor the concept of a fair hearing requires \u201cthat the actual taking of testimony be before the same officers as are to determine the matter involved.\u201d E.H. Sehopler, Annotation, Administrative Decision by Officer Not Present When Evidence Was Taken, 18 A.L.R.2d 606, \u00a7 3 (1951). Rather, \u201cthe majority of cases hold that in order to comply with due process it is only required that members not present when testimony is taken review the testimony before participating in the decision.\u201d Lewandoski v. Vermont State Colleges, 142 Vt. 446, 457 A.2d 1384, 1387 (1983); see also Schmidt v. Beeson Plumbing & Heating, Inc., 869 P.2d 1170, 1179 (Alaska 1994) (holding that an administrative officer\u2019s attendance at evidentiary hearings is \u201cnot necessary\u201d so long as the officer reviews the transcript and documentary evidence prior to rendering a decision); Clairborne v. Coffeyville Mem\u2019l Hosp., 212 Kan. 315, 510 P.2d 1200, 1202 (1973) (\u201c[A]n administrative decision is not invalid merely because, due to- a change in personnel because of illness, death, resignation, transfers, or similar reasons, an officer who was not present when the evidence was taken, made or participated in the decision, provided he was considered and acts upon the evidence received in his absence.\u201d).\n{35} The burden is on ABCWUA to show that the Final Order is unreasonable or unlawful because Commissioners King and Sloan failed to review the evidentiary record prior to rendering a decision. See \u00a7 62-11-4. \u201c[M]ere allegation that the commissioners did not consider the entire record [is] insufficient.\u201d Pub. Utils. Comm\u2019n v. District Court, 163 Colo. 462, 431 P.2d 773, 777 (1967) (en banc); see also Nat\u2019l Council on Comp. Ins., 107 N.M. at 286, 756 P.2d at 566 (\u201cThe presumption ... is that the [agency\u2019s] decision was reasonable.\u201d); Taub v. Pirnie, 3 N.Y.2d 188, 165 N.Y.S.2d 1, 144 N.E.2d 3, 5 (1957) (\u201c[I]n the absence of a \u2018clear\u2019 revelation that the administrative body \u2018made no independent appraisal and reached no independent conclusion\u2019, its decision will not be disturbed.\u201d). However, ABCWUA has failed to present this Court with any evidence to support its claim that Commissioners King and Sloan failed to review the evidentiary record prior to rendering a decision. Accordingly, we reject ABCWUA\u2019s due process claim.\n{36} Although we are not persuaded that a due process violation occurred, we nonetheless find the repeated absences of Commissioners King and Sloan, as well as Commissioner Ben R. Lujan, from the evidentiary hearings conducted by the PRC to be a cause for concern. The Commissioners of the PRC have a constitutional and statutory obligation to participate actively and fully in the proceedings before them. See N.M. Const, art. XI, \u00a7 1; \u00a7 8-8-4. Where the PRC does not delegate its authority to a hearing examiner, but, rather, conducts an evidentiary hearing before a full complement of Commissioners, unexplained absences should be the exception, rather than the rule.\n4. Whether Commissioners King and Jones Improperly Failed to Recuse Themselves in Violation of the Due Process Clause\n{37} NMIEC claims that Commissioners King and Jones \u201cprejudged the outcome of the case prior to receiving all the evidence\u201d and, therefore, improperly failed to recuse themselves in violation of NMIEC\u2019s procedural due process right to a fair and impartial hearing.\n{38} The following additional facts are relevant to NMIEC\u2019s claim. At a hearing conducted on April 24, 2008, Commissioner King proposed that PNM should be granted interim relief on its application for an Emergency FPPCAC. Commissioner Jones responded that, in lieu of interim relief, the PRC should render a final decision on PNM\u2019s application for an Emergency FPPCAC immediately following the conclusion of the public hearings. Commissioner Jones explained that\nI just fear that we get in \u2014 here\u2019s what my concern is. We\u2019re really not giving them a decision [on their request for a FPPCAC in the rate case]. I think all of us understand that the possibility exists that we could be convinced that they need a fuel clause. That\u2019s about as easy a way to say I\u2019m not convinced yet. If we go to a \u2014 if we go to May 15th [for the public hearings], take several days to render a decision and it\u2019s adverse and gets appealed, then I think that we\u2019ve tied our hands into putting into any kind of an interim relief pending appeal. I could see this thing going on a year. I don\u2019t think \u2014 my opinion is ... PNM doesn\u2019t have a year. I\u2019ve seen enough stuff from Standard & Poors. These people have been in here begging, pleading and crying. There\u2019s no question in my mind PNM needs some relief here. How do we keep from killing a company if this goes through an appeal process and is there a way that in the event of an appeal that we can provide interim relief? That\u2019s my question. Because that\u2019s a question that I\u2019m weighing right now is whether or not to give them an interim fuel clause.\n{39} Commissioner Jones acknowledged that his alternate proposal might have \u201cdilute[d]\u201d or \u201cmuddied\u201d Commissioner King\u2019s motion for interim relief and, therefore, he moved for consideration of Commissioner King\u2019s original motion. Commissioners King and Jones voted in favor of granting PNM interim relief. Commissioner King explained that\nWe\u2019re not crying wolf. We have a very, very serious situation today. That\u2019s not going to gloss over. It\u2019s going to get worse in the days ahead if we don\u2019t take decisive action today. There\u2019s not any debate in my mind about that. I think we\u2019re going to see in the next few days when Moody comes forward, it\u2019s going to be worse still and so I think we need to take action.\nHowever, the remaining Commissioners did not vote in favor of the motion and, consequently, interim relief was not granted.\n{40} Thereafter, NMIEC filed a motion requesting Commissioners King and Jones to recuse themselves from the present ease, claiming that they had \u201cprejudged the outcome of this case in favor of [PNM] before the full evidentiary record [had] been developed.\u201d In support of its motion, NMIEC argued that the Commissioners\u2019s votes in favor of interim relief, as well as their accompanying statements, \u201cclearly establish that [they] have already made up their minds about the emergency fuel clause.\u201d\n{41} Commissioners King and Jones denied NMIEC\u2019s motion, explaining that they could and would \u201cmake a fair and impartial decision based on the record to be developed.\u201d They believed that\nNMIEC may have completely misunderstood Commissioner Jones\u2019 comments during the April 24 meeting. Contrary to NMIEC\u2019s assertions, neither Commissioner Jones nor Commissioner King voted to approve, on its merits, the Emergency Fuel Clause proposed by PNM in this case.\nRather, we both supported granting PNM an INTERIM rate clause that would be in effect until a final decision were issued in this case on PNM\u2019s Emergency Fuel Clause....\nWe supported giving PNM an interim fuel clause solely as a way to give PNM some interim relief until we and the rest of the [PRC] had the opportunity to determine, based on the record in this case, whether a more permanent fuel clause or some other relief should be given to PNM.\n{42} It is well established that adverse rulings do not constitute a valid basis for disqualification based on personal bias or prejudgment of a disputed factual issue. See, e.g., Liteky v. United States, 510 U.S. 540, 541, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (\u201c[J]udicial rulings alone almost never constitute valid basis for a bias or partiality recusal motion.\u201d); State v. Hernandez, 115 N.M. 6, 20, 846 P.2d 312, 326 (1993) (holding that \u201c[p]ersonal bias cannot be inferred from an adverse ruling\u201d); United Nuclear Corp. v. Gen. Atomic Co., 96 N.M. 155, 249, 629 P.2d 231, 325 (1980) (\u201cRulings adverse to a party do not necessarily evince a personal bias or prejudice on the part of the judge against it even if the rulings are later found to have been legally incorrect.\u201d). Accordingly, we reject NMIEC\u2019s claim that Commissioners King\u2019s and Jones\u2019s votes in favor of interim relief mandated their disqualification from all further proceedings.\n{43} Nonetheless, NMIEC claims that the Commissioners\u2019s comments during the April 24 hearing demonstrated that they \u201chad already made up their minds\u201d about the merits of the present case. We recognize that \u201ccomments by a Commissioner which constitute prejudgment may constitutionally taint any subsequent hearing so as to invalidate the ensuing order of the [PRC].\u201d Mountain States Tel. & Tel. Co. v. Corp. Comm\u2019n, 99 N.M. 1, 7, 653 P.2d 501, 507 (1982) (per curiam); see also NMSA 1978, \u00a7 8-8-18(A)(l) (1998) (\u201cA commissioner or hearing examiner shall recuse himself in any adjudicatory proceeding in which he is unable to make a fair and impartial decision or in which there is reasonable doubt about whether he can make a fair and impartial decision, including ... when he has ... prejudged a disputed evidentiary fact involved in a proceeding prior to hearing.\u201d). However, \u201cnot all allegations of bias or prejudice are of the type that render a proceeding fundamentally unfair or require the disqualification of a decisionmaker.\u201d U S West Commc\u2019ns, Inc., 1999-NMSC-016, \u00b6 41, 127 N.M. 254, 980 P.2d 37.\n{44} To determine whether a Commissioner\u2019s remarks constitute prejudgment sufficient to violate the constitutional right to due process of law,\n[t]he inquiry is not whether the [eommission]ers are actually biased or prejudiced, but whether, in the natural course of events, there is an indication of a possible temptation to an average [person] sitting as a judge to try the ease with bias for or against any issue presented to him [or her]. This inquiry measures allegations of bias or prejudice by an objective standard ....\nId. \u00b6 42 (internal quotation marks and citation omitted). In conducting this inquiry, we are mindful that\n[o]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of the trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.\nId. \u00b6 44 (quoting Liteky, 510 U.S. at 555, 114 S.Ct. 1147).\n{45} The timing of Commissioners King\u2019s and Jones\u2019s remarks indicate that they were based on the evidence adduced in the rate case, as well the direct testimony filed by PNM in the present case. Absent evidence to the contrary, we will not presume that these remarks \u201cwere based on information obtained ... outside the course of the proceedings.\u201d Id.; see also Siesta Hills Neighborhood Ass\u2019n v. Albuquerque, 1998-NMCA-028, \u00b6 19, 124 N.M. 670, 954 P.2d 102 (upholding a city councilor\u2019s refusal to disqualify herself because the appellant had failed to produce any evidence indicating that the councilor prejudged the merits of the case). Because these remarks do not \u2018\u201cdisplay a deep-seated favoritism or antagonism that would make fair judgment impossible,\u2019 \"U S West Commc\u2019ns, Inc., 1999-NMSC-016, \u00b6 44, 127 N.M. 254, 980 P.2d 37 (quoting Liteky, 510 U.S. at 555, 114 S.Ct. 1147), we conclude that Commissioners King and Jones properly declined to recuse themselves.\n5. Whether the PRC\u2019s Failure to Defer to the Vote of the Dissenting Commissioners Violated the Equal Protection Clause\n{46} ABCWUA claims that the PRC improperly failed to defer to the votes of the two dissenting Commissioners, \u201cwho represent a significantly greater number of PNM customers than the remaining three Commissioners,\u201d thereby depriving the \u201ccustomers in those districts [of] adequate representation and equal protection of the laws\u201d in violation of the Fourteenth Amendment to the Federal Constitution.\n{47} The PRC is composed of five Commissioners, each of whom is elected from a different district. See NMSA 1978, \u00a7 8-7-2 (1997). The boundaries of the five different districts are \u201cestablished pursuant to the Precinct Boundary Adjustment Act [1-3-10 to 1-3-14 NMSA 1978] and revised and approved by the secretary of state as of August 31, 2001.\u201d NMSA 1978, \u00a7 8-7-5(A) (2001); see NMSA 1978, \u00a7\u00a7 8-7-6 to -10 (2001) (codifying the boundaries of the five PRC districts).\nThe purpose of the Precinct Boundary Adjustment Act [1-3-10 to 1-3-14 NMSA 1978] is to comply with the criteria established pursuant to the provisions of Subsection (c) of Section 141 of Title 13 of the United States Code in order to obtain an enumeration of the populations of election precincts by the bureau of the census in the federal decennial census and in order to provide such enumeration data to the New Mexico legislature for purposes of legislative reapportionment.\nNMSA 1978, \u00a7 1-3-11 (1995). Pursuant to Section 8-8-4(D), only \u201ca majority vote of the commission is needed for a final decision of the commission.\u201d\n{48} Essentially, ABCWUA claims that Sections 8-7-6 through 8-7-10 violate the one person, one vote principle of the equal protection clause because the PRC districts are not equally apportioned on the basis of population. Cf. Connor v. Finch, 431 U.S. 407, 416, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977) (\u201cThe Equal Protection Clause requires that legislative districts be of nearly equal population, so that each person\u2019s vote may be given equal weight in the election of representatives.\u201d). \u201cIn calculating the deviation among districts, the relevant inquiry is whether the vote of any citizen is approximately equal in weight to that of any other citizen, the aim being to provide fair and effective representation for all citizens.\u201d Board of Estimate of City of New York v. Morris, 489 U.S. 688, 701, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989) (internal quotation marks and citations omitted); id. at 703, 109 S.Ct. 1433 (holding that a population deviation of 78% violated the \u201cone-person, one-vote ideal\u201d).\n{49} The record is devoid of any evidence regarding the relative population density of each of the five PRC districts or the maximum deviation among the districts. The burden is on ABCWUA to provide this Court with an adequate record to review the merits of its claims on appeal. See \u00a7 62-11^4 (\u201cThe burden shall be on the party appealing to show that the order appealed from is unreasonable, or unlawful.\u201d); see also Brown v. Trujillo, 2004-NMCA-040, \u00b6 34, 135 N.M. 365, 88 P.3d 881 (noting parenthetically that \u201cthe party seeking review has the burden of providing an adequate record to review the issues on appeal\u201d). Because ABCWUA has failed to fulfill its burden, we will not review its equal protection claim.\nB. Statutory and Regulatory Claims\n{50} The PRC\u2019s \u201cdecisions requiring expertise in highly technical areas, such as utility rate determinations, are accorded considerable deference. Less deference, however, is warranted when reviewing determinations outside the realm of the [PRC]\u2019s expertise.\u201d El Vadito de Los Cerillos Water Ass\u2019n v. N.M. Pub. Serv. Comm\u2019n, 115 N.M. 784, 787, 858 P.2d 1263, 1266 (1993) (citation omitted). Statutory construction \u201cis not a matter within the purview of the [PRC]\u2019s expertise\u201d and, therefore, \u201c\u2018we afford little, if any, deference to the [PRC] on this matter.\u2019\u201d NMIEC, 2007-NMSC-053, \u00b6 19, 142 N.M. 533, 168 P.3d 105 (quoting Pub. Serv. Co. of N.M. v. N.M. Pub. Util. Comm\u2019n, 1999-NMSC-040, \u00b6 14, 128 N.M. 309, 992 P.2d 860). Accordingly, we apply a de novo standard of review to the PRC\u2019s rulings regarding statutory construction. Id.\n{51} By contrast, \u201c[t]his Court will generally defer to an agency\u2019s reasonable interpretation of its own ambiguous regulations,\u201d In re Rhino Envtl. Servs., 2005-NMSC-024, \u00b6 13, 138 N.M. 133, 117 P.3d 939, especially where the subject of the regulation implicates agency expertise, Rio Grande Chapter of Sierra Club v. N.M. Mining Comm\u2019n, 2003-NMSC-005, \u00b6 17, 133 N.M. 97, 61 P.3d 806. However, we are not bound by the agency\u2019s interpretation and we may substitute our own independent judgment for that of the agency \u201cif the agency\u2019s interpretation ... is unreasonable or unlawful.\u201d Morningstar Water Users Ass\u2019n, 120 N.M. at 583, 904 P.2d at 32 (noting that \u201cit is the function of the courts to interpret the law\u201d). The canons of statutory construction guide our interpretation of administrative regulations. Johnson v. N.M. Oil & Conservation Comm\u2019n, 1999-NMSC-021, \u00b6 27, 127 N.M. 120, 978 P.2d 327.\n{52} \u201cWhen construing statutes, our guiding principle is to determine and give effect to legislative intent.\u201d NMIEC, 2007-NMSC-053, \u00b6 20, 142 N.M. 533, 168 P.3d 105. \u201cIn discerning the Legislature\u2019s intent, we are aided by classic canons of statutory construction, and [w]e look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended.\u201d Marbob Energy Corp. v. N.M. Oil Conservation Comm\u2019n, 2009-NMSC-013, \u00b6 9, 146 N.M. 24, 206 P.3d 135 (internal quotation marks and citation omitted). \u201cStatutory language that is clear and unambiguous must be given effect.\u201d V.P. Clarence Co. v. Colgate, 115 N.M. 471, 473, 853 P.2d 722, 724 (1993). \u201cOnly if an ambiguity exists will we proceed further in our statutory construction analysis.\u201d Marbob Energy Corp., 2009-NMSC-013, \u00b6 9, 146 N.M. 24, 206 P.3d 135.\n1. Whether the Emergency FPPCAC Violates Section 62-8-7(E)\n{53} ABCWUA and NMIEC claim that the Emergency FPPCAC violates Section 62-8-7(E) because it fails to ensure \u201creasonable and proper service at fair, just and reasonable rates.\u201d Section 62-8-7(E). Specifically, ABCWUA and NMIEC argue that the Emergency FPPCAC unlawfully permits PNM \u201cto pass on increased fuel and purchased power costs without an examination of the other areas in which its costs may have decreased or its revenues increased,\u201d thereby requiring consumers to pay increased costs while PNM enjoys increased profits.\n{54} Section 62-8-7(E) plainly and unambiguously provides that \u201ctaxes or cost of fuel, gas or purchased power\u201d may be recovered automatically via a FPPCAC. Section 62-8-7(E); see also NMIEC, 2007-NMSC-053, \u00b6 31, 142 N.M. 533, 168 P.3d 105. \u201cThe purpose of a [FPPCAC] is to flow through to the users of electricity the increases or decreases in Applicable Fuel and Purchased Power costs per kilowatt-hour of delivered energy above or below a Base Cost.\u201d Rule 550.6(D). FPPCACs \u201cprovide for the stability of utility earnings when electric fuel costs and purchased power costs are rising and permit prompt credits to customers when electric fuel costs and purchased power costs are declining.\u201d Rule 550.6(B). Thus, utilities only \u201ccollect through the FPPCAC the amount actually expended for fuel and purchased power costs.\u201d Rule 550.6(C).\n{55} Automatic cost recovery is \u201ca narrow exception\u201d to the general rule requiring \u201cnotice, hearing, and approval\u201d in rate cases. NMIEC, 2007-NMSC-053, \u00b6 31, 142 N.M. 533, 168 P.3d 105. In determining whether a FPPCAC is appropriate in a particular case, Section 62-8-7(E) requires the PRC to consider, inter alia, \u201cwhether the existence of a particular adjustment clause is consistent with the purposes of the Public Utility Act, including serving the goal of providing reasonable and proper service at fair, just and reasonable rates to all customer classes.\u201d See also \u00a7 62-3-l(B) (\u201cIt is the declared policy of the state that the public interest, the interest of consumers and the interest of investors require the regulation and supervision of such public utilities to the end that reasonable and proper services shall be available at fair, just and reasonable rates____\u201d).\n{56} FPPCACs, by their very nature, authorize the direct and automatic recovery of a utility\u2019s actual fuel, gas, and purchased power costs. Indeed, the purpose of a FPPCAC is to place the burden of volatile fuel costs on the consumer; thereby providing the public utility with a stable income stream, while at the same time ensuring that the consumer only pays for the fuel and purchased power costs actually incurred. See Rule 550.6(B)-(D). To require a utility to offset its fuel and purchased power costs against cost-savings in other areas would undermine the direct and automatic nature of the cost recovery system inherent in FPPCACs. By enacting Section 62-8-7(E), which explicitly permits FPPCACs, the Legislature plainly has determined that the benefits of such an efficient cost recovery system outweigh the possible burdens that it might impose on consumers and \u201cis consistent with the purposes of the Public Utility Act, including serving the goal of providing reasonable and proper service at fair, just and reasonable rates to all customer classes.\u201d\n{57} ABCWUA and NMIEC claim, however, that Section 62-8-7(E) must be construed narrowly to prohibit the cost-shifting mechanism inherent in a FPPCAC. In support of their claim they rely on NMIEC, in which this Court held that renewable energy certificates are not eligible for automatic cost recovery because Section 62-8-7(E) plainly and unambiguously limits allowable costs to \u201ctaxes or cost of fuel, gas or purchased power.\u201d NMIEC, 2007-NMSC-053, \u00b6 31, 142 N.M. 533, 168 P.3d 105 (internal quotation marks and citation omitted). \u201cIn light of [this] plainly exclusive language, we interpreted] Section 62-8-7(E) narrowly and decline[d] to read into it language which is not there.... \u201d Id. \u00b633 (internal quotation marks and citation omitted).\n{58} NMIEC did not hold, as ABCWUA and NMIEC suggest, that the entire statutory scheme governing FPPCACs is subject to narrow construction. Rather, it simply held that the statutory phrase \u201ctaxes or cost of fuel, gas or purchased power\u201d must be construed narrowly, consistent with its plain and unambiguous language. Id. \u00b6\u00b6 31-33. Because the Emergency FPPCAC, in the present case, limits automatic cost recovery to \u201ctaxes or cost of fuel, gas or purchased power,\u201d we reject ABCWUA\u2019s and NMIEC\u2019s claim.\n{59} However, ABCWUA claims in its reply brief that the Emergency FPPCAC violates Section 62-8-7(E) because it relies on forecasted increases in PNM\u2019s fuel and purchased power costs, rather than the historical test year method, whereby the PRC \u201cevaluates a utility\u2019s operating costs for a specified preceding twelve-month period and uses the utility\u2019s past experience as a guide to the utility\u2019s future revenue requirement.\u201d In re PNM Gas Servs., 2000-NMSC-012, \u00b6 6, 129 N.M. 1, 1 P.3d 383. During the pendency of this appeal, the PRC filed a motion to strike ABCWUA\u2019s claim, arguing that it had not been raised in ABCWUA\u2019s brief-in-chief. Our review of ABCWUA\u2019s brief-in-chief reveals that, although ABCWUA raised this argument in support of its procedural due process and substantial evidence claims, it failed to raise the issue as a separate basis for reversal of the PRC\u2019s Final Order. It is well established that we will not address issues \u201craised for the first time in the reply brief.\u201d State v. Fairweather, 116 N.M. 456, 463, 863 P.2d 1077, 1084 (1993). Accordingly, the PRC\u2019s motion to strike is hereby granted.\n2. Whether the Emergency FPPCAC Violates Section 62-8-6\n. {60} ABCWUA next claims that the Emergency FPPCAC violates Section 62-8-6 because it establishes and maintains \u201cunreasonable differences as to rates of service.\u201d Specifically, ABCWUA argues that the Emergency FPPCAC improperly discriminates against \u201cefficient-use customers with high load factors and customers who consume [electricity during] off-peak\u201d hours because it recovers fuel and purchased power costs through a uniform per kilowatt hour charge.\n{61} Section 62-8-6 provides, in relevant part, that\n[n]o public utility shall, as to rates of services, make or grant any unreasonable preference or advantage to any corporation or person within any classification or subject [to] any corporation or person within any classification to any unreasonable prejudice or disadvantage. No public utility shall establish and maintain any unreasonable differences as to rates of service either as between localities or as between classes of service.\n\u201c[This] section does not prohibit variations in rates, nor does it require \u2018equal service.\u2019 Rather, it prohibits \u2018unreasonable differences\u2019 in rates of service between localities. Section 62-8-6 thus forbids arbitrary variations in rates, while permitting variations due to differing costs of service to different areas.\u201d Albuquerque v. N.M. Pub. Serv. Comm\u2019n, 115 N.M. 521, 531, 854 P.2d 348, 358 (1993) (\u201cAllowing municipalities to contract with utilities for service rates to their inhabitants does not, ipso facto, violate Section 62-8-6.\u201d); see also Albuquerque v. N.M. Pub. Serv. Comm\u2019n, 2003-NMSC-028, \u00b6 25, 134 N.M. 472, 79 P.3d 297 (holding, in relevant part, that a utility properly may apportion undergrounding costs to those \u201ccustomers located within the jurisdiction requiring the undergrounding\u201d).\n{62} John D. Olmstead, Rates Manager for PNM, submitted testimony concerning the \u201ccustomer impacts of PNM\u2019s Emergency FPPCAC.\u201d Olmstead explained that a FPPCAC that implements different rates based on different customer classifications is an inappropriate method of rate recovery because\n1) PNM\u2019s Emergency FPPCAC proposal specifically requests recovery of increases in fuel expenses above what was allowed in NMPRC Case 07-00077-UT. The amount charged to customers for base fuel does not vary by rate class, and to vary the recovery of those additional expenses by class is not consistent with the rate design adopted in NMPRC Case 07-00077-UT or cost justified.\n2) Having an FPPCAC that varies by rate class mil cause some customers to change rate classes on the basis of the combined cost of their base rate bill plus their FPPCAC charge. This results in a revenue shortfall to PNM that cannot be corrected under the true-up provision of the Emergency FPPCAC. If a class-by-class FPPCAC were adopted by the [PRC], the amount of the shortfall from rate switching could exceed $0.5 million.\n3) An FPPCAC that varies by rate class could result in some rates that exceed the $0.01 per kWh FPPCAC cap that PNM has proposed in this case to limit customer impacts. This would not allow PNM to recover some FPPCAC costs even though they had been approved for recovery at a company level. If a class-by-class FPPCAC were adopted by the [PRC], the amount of the shortfall due to cap limits could exceed $1.7 million.\nWhen asked whether the Emergency FPPCAC fairly apportions cost recovery across different rate classes, Olmstead answered, \u2018Yes. Increased fuel costs are allocated on a per kWh basis in a manner entirely consistent with cost causation principles.\u201d\n{63} In addition to Olmstead\u2019s testimony, the record reflects that the PRC has a \u201clongstanding policy ... to require fuel and purchased power costs to be recovered on a uniform per kWh basis.\u201d Indeed, \u201cevery FPPCAC in effect in New Mexico recovers those costs in that manner.\u201d This longstanding policy is reflected in Rule 550, which provides that \u201c[t]he Fuel and Purchased Power Cost Adjustment Factor shall be expressed in $ per kWh, and the resultant monthly charge or credit shall be shown on each customer\u2019s monthly bill.\u201d Rule 550.16.\n{64} However, ABCWUA points out that John C. Tysseling, Ph.D., President of E3e, Inc. (d/b/a Energy, Economic and Environmental Consultants), testified that \u201ca disproportionate impact occurs on the larger customer rate classes\u201d \u201cwhen the proposed Emergency FPPCAC surcharge is applied on a per kWh basis.\u201d Specifically, Tysseling explained that\n[t]he larger customer rate classes (generally) have lower fixed cost rate elements (per kWh of usage) ... than is the case in smaller customer classes. Thus, when these Emergency FPPCAC ... revenues are recovered on a per kWh basis \u2014 without consideration of the class revenues that are otherwise recovered on a \u201cfixed\u201d basis (e.g., Customer Charges) \u2014 there is a significant distortion in the cost responsibilities between rate classes. This is a classic \u201crate design\u201d issue. In fact, if the [PRC] were to adopt the \u201cper kWh\u201d proposal it would send dramatically incorrect price signals to the larger customer classes.\n{65} Viewing the foregoing evidence in the light most favorable to the PRC\u2019s decision, we conclude that the Emergency FPPCAC is supported by substantial evidence. See NMIEC, 2007-NMSC-053, \u00b6 24, 142 N.M. 533, 168 P.3d 105 (\u201cWe view the evidence in the light most favorable to the [PRC]\u2019s decision and draw every inference in support of the [PRC]\u2019s decision, but we will not uphold the decision if it is not supported by substantial evidence.\u201d (citation omitted)). Olmstead\u2019s testimony, the long-standing policy of the PRC, and the plain language of Rule 550, amply support the PRC\u2019s determination that a uniform per kilowatt hour charge is the most equitable and efficient method of cost recovery. Athough conflicting evidence existed, it is well established that \u201cevidence of two conflicting opinions in the record does not mean that the decision arrived at is unsupported by substantial evidence.\u201d Attorney General of N.M. v. N.M. Pub. Serv. Comm\u2019n, 101 N.M. 549, 553, 685 P.2d 957, 961 (1984). Accordingly, we conclude that the Emergency FPPCAC does not violate Section 62-8-6.\n3. Whether the FPPCAC Violates Section 62-8-8\n{66} ABCWUA and NMIEC claim that the Emergency FPPCAC improperly permits PNM to treat the costs of the independent audit as a regulatory asset, which may be recovered from the ratepayers through PNM\u2019s base rates. Specifically, they claim that Section 62-8-8 already imposes an inspection and supervision fee on utilities, which may be recovered from the ratepayers through their base rates and, therefore, the Emergency FPPCAC forces ratepayers to pay twice for utility regulation.\n{67} The following additional background is necessary for our review of this claim. In its Final Order, the PRC found that a prudency review of the Emergency FPPCAC was necessary \u201c[i]n order to provide the parties and PNM customers assurances that PNM\u2019s electric power is generated and purchased at the lowest reasonable cost.\u201d However, the PRC had \u201cneither the resources nor the expertise to conduct an adequate prudency review\u201d of the Emergency FPPCAC. Consequently, the PRC held that the prudency review must \u201cbe conducted by an auditor or team of auditors to be selected by, and under the direction of, [the PRC].\u201d The PRC ordered PNM to \u201cpay for the costs of the prudency review,\u201d but permitted PNM to treat those costs \u201cas a regulatory asset\u201d that may be recovered \u201cfrom its ratepayers through the rates established in PNM\u2019s next general rate proceeding.\u201d\n{68} The PRC \u201chas an obligation to allow a utility expenses that are necessary in providing utility service, that benefit ratepayers, and that are prudently incurred.\u201d In re PNM Gas Servs., 2000-NMSC-012, \u00b6 68, 129 N.M. 1, 1 P.3d 383 (internal quotation marks and'citation omitted). For example, federal taxes and the expenses associated with a rate case are all legitimate operating costs that a utility may recover from its ratepayers through its base rates. See id. (\u201cBecause rate proceedings are a part of the normal course of business for a utility and because rate proceedings, by establishing just and reasonable rates, are conducted for the benefit of both ratepayers and shareholders, it is widely accepted that rate case expenses are one aspect of a utility\u2019s operating costs and are recoverable in a general rate proceeding.\u201d); In re Zia Natural Gas Co., 2000-NMSC-011, \u00b6 11, 128 N.M. 728, 998 P.2d 564 (\u201c[A] regulatory body cannot arbitrarily disallow federal taxes that a company has paid or is obliged to pay, by assuming a tax savings under a capital structure which does not exist.\u201d). Because the independent audit is necessary for the proper administration of the Emergency FPPCAC and is beneficial to consumers by ensuring that PNM\u2019s electric power is generated at the lowest reasonable cost, we conclude that the costs of the audit are a legitimate operating expense that PNM may recover from its ratepayers through its base rates.\n{69} However, ABCWUA and NMIEC claim that PNM\u2019s ratepayers will be required to pay twice for utility regulation under Section 62-8-8. Section 62-8-8 imposes an \u201cinspection and supervision fee\u201d on \u201c[e]ach utility doing business in this state and subject to the control and jurisdiction of the commission with respect to its rates or service regulations.\u201d \u201c[T]he inspection and supervision fees are in fact fees charged for the services of the Public Service Commission in supervising and inspecting these rural electric cooperatives.\u201d United Waterworks, Inc. v. N.M. Pub. Util. Comm\u2019n, 2000-NMCA-057, \u00b6 11, 129 N.M. 262, 5 P.3d 584 (quoting N.M. Att\u2019y Gen. Op. 62-16 (1962)). However, the amount of the fee is not based on the PRC\u2019s actual costs of operation, or on the amount of regulation that a utility receives, but, rather, on a percentage of the utility\u2019s \u201cgross receipts from business transacted in New Mexico for the preceding calendar year.\u201d Section 62-8-8 (providing that the amount of the fee is five hundred six thousandths percent of a utilities annual gross receipts). Additionally, the fee is not paid directly to the PRC, but, rather, is deposited \u201cdirectly into the State general fund,\u201d where it \u201cmay be appropriated by the Legislature as it sees fit.\u201d N.M. Att\u2019y Gen. Op. 78-10 (1978); cf. NMSA 1978, \u00a7 63-7-21 (1957) (\u201cAll moneys collected under the provisions of Chapter 194, Laws of 1951 ..., shall be deposited with the state treasurer and by him credited to the general fund.\u201d).\n{70} The inspection and supervision fee is an administrative fee intended to defray the PRC\u2019s costs of operation by levying a tax or tariff on the annual gross receipts of the utilities subject to the PRC\u2019s supervision and control. The amount of the fee has nothing to do with a utility\u2019s cost of regulation, and the amount of money generated by the fee has nothing to do with the money allocated to the PRC by the Legislature. Thus, the utility and supervision fee does not recover, either directly or indirectly, the PRC\u2019s costs of regulation. Although ABCWUA\u2019s and NMIEC\u2019s claim may be rejected on this basis alone, we note that, in the present case, the prudency review will be conducted by an independent auditor, rather than the PRC. As such, the costs of the prudency review will not be borne by the PRC or recovered by the State through the inspection and supervision fee. Accordingly, we conclude that the Emergency FPPCAC properly permits PNM to treat these costs as a regulatory asset that may be recovered from the ratepayers through PNM\u2019s base rates.\n4. Whether the Independent Audit Lacks Sufficient Regulatory Oversight\n{71} ABCWUA claims that the independent audit lacks sufficient regulatory oversight because the PRC failed to \u201cspecify any details, it did not indicate how the audit would be conducted to protect ratepayers, and it did not explain or describe the timing or mechanics of the audit process.\u201d Without sufficient regulatory oversight, ABCWUA argues that the Emergency FPPCAC violates Rule 550 because it fails to ensure that \u201cthe utility\u2019s fuel and purchased power policies and practices are designed to assure that electric power is generated and purchased at the lowest reasonable cost.\u201d Rule 550.17(A)(3).\n{72} The following additional background is necessary to our resolution of this claim. After the issuance of the PRC\u2019s Final Order, the PRC submitted a seventy-seven page Request for Proposals (RFP) in Case No. 08-00330-UT. The purpose of the RFP was \u201cto select a qualified [auditor] to provide professional auditing and prudence review services of PNM\u2019s fuel and purchased power costs, fuel clause filings and related documentation for the period of June 1, 2008 through May 31, 2009.\u201d The RFP summarized the scope of the audit as follows:\n\u2022 All cost elements of PNM\u2019s fuel clause shall be audited and reviewed for accuracy and compliance by the [auditor] selected by the [PRC] to ensure that only appropriate costs are being recovered from retail ratepayers. PNM files Rule 550 Form 1 on a monthly basis along with a number of supporting schedules showing the fuel clause related expenses and the balancing account.\n\u2022 Data shall be collected, organized and maintained so that future audits can be conducted by the [PRC] staff.\n\u2022 Written reports and presentations shall be made to the [PRC] each quarter and at the end of the audit time period. Additional reports and presentations may be requested by the [PRC] or its designated agent or recommended by the [auditor].\n\u2022 The [auditor] may, be required to prepare and submit written testimony and to stand for cross examination on its work related to the audit and prudence review. As needed, the [auditor] is to be available as a witness, assist with the drafting of direct testimony, cross-examination questions, briefs and motions, and other regulatory activities.\n{73} The RFP summarized the scope of the prudence review as follows:\n\u2022 The major elements of the utility fuel clause shall be reviewed for prudence by an [auditor] selected by the [PRC] to ensure that reasonable and accurate costs are being recovered from retail ratepayers. The [auditor] should review PNM practices and policies, procedures and compliance with regulations on all major components of fuel costs included in the fuel clause.\n\u2022 Data shall be collected, organized and maintained so that future prudence reviews can be conducted by the [PRC] staff.\n\u2022 A status report should be made to the [PRC] each month outlining key activities and summarizing current prudence review findings. At the end of the review, a report summarizing the prudence review and areas of concern will be required. Additional reports and presentations may be requested by the [PRC] or its designated agent or recommended by the [auditor].\n\u2022 The [auditor] may be required to prepare and submit written testimony and to stand for cross examination on its work related to the audit and the prudence review. As needed, the [auditor] is to be available as a witness, assist with the drafting of direct testimony, cross-examination questions, briefs and motions, and other regulatory activities.\n{74} As the foregoing record reflects, the independent audit is subject to extensive regulatory oversight in Case No. 08-00330-UT. We therefore reject ABCWUA\u2019s claim that the Emergency FPPCAC violates Rule 550.\n{75} Nonetheless, ABCWUA argues, for the first time in its reply brief, that \u201cwaiting until after the emergency hearing and the Final Order to set forth the details of the audit significantly impaired the parties\u2019 ability to ensure that the audit will result in a meaningful review of PNM\u2019s policies and practices and that its electric power is generated and purchased at the lowest reasonable cost.\u201d As previously explained, we will not address issues \u201craised for the first time in the reply brief.\u201d Fairweather, 116 N.M. at 463, 863 P.2d at 1084. We therefore decline to review ABCWUA\u2019s claim.\n5. Whether the Emergency FPPCAC Violates Section 62-8-7(B)\n{76} ABCWUA claims that PNM improperly failed to file new schedules in violation of Section 62-8-7(B). Section 62-8-7(B) provides that,\n[u]nless the commission otherwise orders, no public utility shall make any change in any rate that has been duly established except after thirty days\u2019 notice to the commission, which notice shall plainly state the changes proposed to be made in the rates then in force and the time when the changed rates will go into effect and other information as the commission by rule requires. The utility shall also give notice of the proposed changes to other interested persons as the commission may direct. All proposed changes shall be shown by filing new schedules that shall be kept open to public inspection. The commission for good cause shown may allow changes in rates without requiring the thirty days\u2019 notice, under conditions that it may prescribe.\n(Emphasis added.) The purpose of the statute is to provide both the PRC and the public with advance notice of any proposed rate changes before those changes go into effect.\n{77} In the present case, PNM notified the PRC of the changes proposed in the Emergency FPPCAC on March 20, 2008, the date on which it filed its joint motion for an Emergency FPPCAC. The public was notified of these changes on March 29, 2008, the date on which public notice was published in the Albuquerque Journal. The Emergency FPPCAC, as modified by the PRC\u2019s Final Order, went into effect on June 2, 2008, approximately sixty days later.\n{78} With respect to the filing of new schedules, the record reflects that PNM filed new schedules in the underlying rate case in accordance with Section 62-8-7(B). However, the proceedings in the present case were severed from the underlying rate case. PNM did not file another set of new schedules until after the issuance of the Final Order granting its request for an Emergency FPPCAC. Specifically, the Final Order required PNM to file new schedules for the \u201cEmergency FPPCAC containing terms and conditions consistent with [the] Final Order[,] ... no later than 5 days after the date this Final Order is issued.\u201d PNM timely filed new schedules on May 27, 2008, and the Emergency FPPCAC went into effect six days later, on June 2, 2008.\n{79} We conclude that PNM complied with the substantive requirements of Section 62-8-7(B). First, PNM gave the PRC and the public approximately sixty days notice of the rate changes proposed in the Emergency FPPCAC. Second, PNM filed new schedules in accordance with the Final Order before the Emergency FPPCAC went into effect. We therefore reject ABCWUA\u2019s claim that the Emergency FPPCAC violates Section 62-8-7(B).\n6. Whether the Emergency FPPCAC Violates Rule 550.17(A)(2)\n{80} ABCWUA and NMIEC next claim that the PRC improperly concluded that PNM\u2019s \u201ccost of fuel and purchased power contains costs which periodically fluctuate and cannot be precisely determined in a rate case.\u201d Rule 550.17(A)(2). First, ABCWUA and NMIEC challenge the PRC\u2019s construction of Rule 550, claiming that the PRC improperly concluded that \u201cRule 550 does not require a showing that purchase power and fuel costs are \u2018volatile\u2019 \u201d and \u201cimproperly shifted the burden of proof from PNM ... [to] Staff and Intervenors to show that PNM\u2019s fuel and purchased power costs could be precisely determined\u201d in a rate case. Second, ABCWUA and NMIEC challenge the sufficiency of the evidence, claiming that the evidence was insufficient to establish that PNM\u2019s fuel and purchased power costs periodically fluctuate and cannot be precisely determined in a rate case.\na. Whether the PRC Improperly Construed Rule 550.17(A)(2)\n{81} We begin our analysis with the plain language of Rule 550, which provides that\nA. No utility shall have a FPPCAC included in its tariff unless it complies with the requirements of NMPSC Rule 550 [17.9.550 NMAC] in the design of its FPPCAC and tariff and files an application with the Commission requesting approval of its use of a FPPCAC. The utility shall submit testimony along with its initial tariff filing and application under NMPSC Rule 550 [17.9.550 NMAC] showing that all of the purposes stated in of [17.9.550.6 NMAC] are met by its tariff and that:\n(2) the cost of fuel and purchased power contains costs which periodically fluctuate and cannot be precisely determined in a rate case.\nRule 550.17(A)(2). The rule imposes a burden of proof on the utility to prove that (1) its \u201ccost of fuel and purchased power contains costs which periodically fluctuate,\u201d and (2) these fluctuating costs \u201ccannot be precisely determined in a rate ease.\u201d Id.\n{82} Because the phrase \u201cperiodically fluctuate\u201d is not defined in Rule 550, we turn to the dictionary to ascertain its common and ordinary meaning. Cf. State v. Nick R., 2009-NMSC-050, \u00b6 18, 147 N.M. 182, 218 P.3d 868 (noting that when a \u201cterm is not defined separately in the statutes\u201d the court \u201cmust consider the ordinary meaning most likely to have been in the minds of the enacting legislators\u201d). The term \u201cperiodic\u201d is defined as \u201c[h]appening or appearing at regular intervals ... Recurring or reappearing from time to time; intermittent.\u201d The American Heritage Dictionary of the English Language 1307 (4th ed.2000). The term \u201cfluctuate\u201d is defined as \u201c[t]o vary irregularly ... To rise and fall in or as if in waves.\u201d Id. at 677. Thus, fuel and purchased power costs \u201cperiodically fluctuate\u201d if they rise and fall irregularly from time to time. In light of the plain language of the rule, we conclude that the PRC properly determined that \u201cRule 550 does not require a showing that purchase power and fuel costs are \u2018volatile\u2019, or fluctuate more than some other cost of providing service.\u201d\n{83} We next address ABCWUA\u2019s argument that the PRC improperly shifted the burden of proof to Staff and Intervenors to prove that PNM\u2019s fuel and purchased power costs can be precisely determined in a rate case. In its Final Order, the PRC held that PNM had fulfilled its burden of proof, stating that it was \u201cpersuaded by PNM\u2019s arguments that its fuel and purchased power costs [could not] be precisely determined in a rate case.\u201d With respect to the contrary arguments raised by the opposing parties, the PRC noted that these arguments\nare undercut by [the opposing parties\u2019] failure to in any way identify what those predictable future costs are and what methodology could be used to precisely determined those future costs in this or any other rate proceeding. Similarly, none of the parties advance any arguments or evidence showing whether and how the previous fluctuations in price shown by PNM could have been precisely, or even reasonably, determined in a rate case. The [PRC] further agrees with PNM\u2019s contention that any future projection of fuel and purchased power costs is made substantially more difficult by the fact that PNM\u2019s fuel and purchased power costs can and will be affected by load growth, changes in customer demand, and changes in off-system sales revenues.\n(Citations omitted.) Thus, the PRC did not shift the burden of proof to the opposing parties; the PRC simply held that the opposing parties had failed to discredit or rebut PNM\u2019s evidence demonstrating that its fuel and purchased power costs periodically fluctuate and cannot be precisely determined in a rate case.\nb. Whether the Emergency FPPCAC is Supported by Substantial Evidence\n{84} Lastly, ABCWUA and NMIEC claim that the evidence was insufficient to establish that PNM\u2019s fuel and purchased power costs periodically fluctuate and cannot be precisely determined in a rate case. In support of their claim, they point to evidence in the record indicating that (1) PNM had advance knowledge and/or the ability to predict future fuel and purchased power costs, (2) PNM\u2019s coal and nuclear fuel costs \u201care the subject of long-term contracts and relatively stable,\u201d and (3) \u201conly a tiny portion of PNM\u2019s fuel costs are volatile and that [PNM\u2019s] total annual fuel cost could be reasonably estimated.\u201d\n{85} The following additional evidence, which was adduced in the underlying rate ease and of which the PRC took administrative notice, is relevant to this claim. Hugh W. Smith, PNM\u2019s Senior Vice President of Energy Resources, offered direct testimony with respect to PNM\u2019s need for a FPPCAC. Smith explained that\nPNM has operated without a FPPCAC since 1994. In recent years, however, prices for all fuels \u2014 coal, nuclear and natural gas \u2014 have increased substantially and become more volatile. Increased volatility means that it is increasingly difficult to predict the future costs of fuel and purchased power for the purpose of establishing an appropriate fuel cost level in rates, one that will be reflective of the period when the approved rates will be in effect. A FPPCAC is the most effective way to match fuel costs with fuel revenues so that customers pay only for the actual fuel and purchased power costs incurred by PNM. In short, the FPPCAC eliminates the difficult and controversial task of predicting the level of these costs years into the future. Equally difficult to predict for rate setting purposes is the amount of off-system sales that will be generated and credited to customers during the period that rates are in effect. The availability of such sales and the level of margins derived from them depends upon future market prices, plant availability, and customers needs, which can vary significantly from year to year. The use of a FPPCAC, through which off-system sales credits flow, assures that customers are credited with the appropriate level of off-system sales during the period that rates are in effect, no more and no less. Finally, as discussed by Dr. Samuel Hadaway in his testimony, the financial markets perceive that any utility without a FPPCAC operates with greater risk compared to a utility that has a FPPCAC. Credit rating agencies and investors take that risk factor into account when determining a utility\u2019s credit rating and its cost of capital. Thus, a utility that does not have a FPPCAC is potentially at a competitive disadvantage in the financial markets.\n{86} Jeffrey E. Sterba, Chairman, President and Chief Executive Officer of PNM Resources, Inc. and its principal subsidiary, PNM, also offered direct testimony with respect to PNM\u2019s need for a FPPCAC. Sterba explained that\nGas will be an increasing percent of our fuel base. Purchased power agreements will likely have variable fuel costs based on natural gas prices. Replacement power prices are high and volatile due to national market prices for gas and coal. Gas price volatility is evidenced by 50% to 60% price swings. The current fixed base rate method of fuel cost recovery for PNM is based on historical prices and limited estimates of future prices. If the estimate is too low, the company cannot recover costs. PNM was unable to recover about $50 million in increased fuel and purchased power costs over the past two years due to the lack of a fuel clause. This is one of the factors adversely affecting our credit standing. Rating agencies and investors view the impact of replacement power expense on cash flows in the absence of a fuel clause as significant risk. Dr. Hadaway discusses this in further detail. The result of this perceived risk is a higher cost of capital that is ultimately passed on to customers. Under the current method, without a fuel clause, the only way the company\u2019s owners can be protected from high volatility is to project high prices in the base rate calculations and have it approved by the [PRC]. If the estimate is too high, however, the price risk shifts to the customers and they pay more than actual costs. The fixed method also fails to provide accurate price signals, which are important to encourage economic efficiency. Either way the fuel and purchase power prices move, higher or lower, someone absorbs the risk when a fixed base rate method is used. An adjustment clause fairly balances the risk and instead tracks costs accurately for customers and [PNM]. In sum, the existing regulatory model is no longer viable for customers of PNM because of the changes in our supply portfolio, market prices, the energy environment and the need to encourage DSM and energy efficiency.\n{87} E. James Ferland, who succeeded Smith as Senior Vice President of Energy Resources for PNM, offered rebuttal testimony disputing that PNM\u2019s nuclear' and coal costs \u201care usually obtained through long-term contracts so that future fuel prices are fairly predictable.\u201d Ferland testified that\n[w]hile it is true that nuclear fuel and coal are generally obtained through longer-term contracts, these contracts are not fixed-price contracts. Longer-term contracts are used to provide some security for fuel availability.\nFor uranium, purchases for Palo Verde are layered in over time, from a diverse set of suppliers, to avoid the delivery and price risk of buying fuel all from one supplier. Longer-term contracts and PNM\u2019s uranium purchasing strategy ensure a reliable fuel supply, but they do not prevent nuclear costs from fluctuating.\nLikewise, PNM\u2019s coal supply contract is not a fixed price contract. San Juan obtains all its coal from a single source. There are two main cost components for PNM\u2019s San Juan coal contract: the capital investment element and the operating cost reimbursement, which is over 70 percent of the total coal cost. Operating costs are affected by labor costs, prices for construction materials like steel and concrete and unforeseen events like the changing coal mine safety standards. These operating costs are passed directly through to PNM. The long-term contract does not prevent the cost of coal for San Juan from fluctuating. Please see PNM Exhibit EJF-1R, which shows costs on a dollar per megawatthour basis, to remove fluctuations due to changes in load. As can be seen, coal costs, even on a dollar per megawatthour basis, fluctuate month-to-month and year-to-year, and cannot be precisely determined in a rate case.\n{88} Ferland also offered rebuttal testimony disputing the \u201crelative}] stability]\u201d of PNM\u2019s nuclear costs. Ferland explained that the spot market price of uranium oxide (U808) \u201c[i]n the few years prior to 2004,\u201d was \u201crelatively stable, with prices between approximately $8 and $17 per pound.\u201d However,\n[s]ince 2004, there have been swift, dramatic spikes in the price of uranium, with the market seeing a tenfold price increase over that time, before making a quick retreat. With the rising level of concern about fossil fuel emissions, there is a growing level of consensus that the nuclear power industry in the U.S. will soon begin to expand, leading to increased demand for uranium. The market is not sure that supply will meet demand. As a result, we have clearly entered a new era of fluctuating nuclear fuel costs.\n{89} We conclude that the foregoing evidence amply supports the PRC\u2019s findings that PNM\u2019s fuel and purchased power costs periodically fluctuate and cannot be precisely determined in a rate case. Although conflicting evidence existed, the issue on appeal is not whether there was sufficient evidence to support a contrary result but, rather, whether the evidence supports the findings made by the PRC. See DeWitt, 2009-NMSC-032, \u00b6 25, 146 N.M. 453, 212 P.3d 341. Indeed, \u201c[t]he PRC\u2019s order is rejected only if conflicting evidence renders incredible the evidence in support of the decision.\u201d Qwest Corp. v. N.M. Pub. Regulation Comm\u2019n, 2006-NMSC-042, \u00b6 38, 140 N.M. 440, 143 P.3d 478 (internal quotation marks and citation omitted). Because the conflicting evidence fails to render incredible the evidence that supports the PRC\u2019s decision, we affirm the Final Order of the PRC.\nV. CONCLUSION\n{90} For the foregoing reasons, we conclude that the PRC properly granted PNM\u2019s request for an Emergency FPPCAC. We therefore affirm the Final Order of the PRC.\n{91} IT IS SO ORDERED.\nWE CONCUR: EDWARD L. CH\u00c1VEZ, Chief Justice, PATRICIO M. SERNA, CHARLES W. DANIELS, Justices, and RICHARD C. BOSSON, Justice (dissenting).\n. The International Brotherhood of Electrical Workers, Local No. 611 is not a party to this appeal.\n. In the underlying rate case, PNM found it \u201cunnecessary ... to address the merits of the [original] FPPCAC\u201d in light of \u201cPNM's filing of the Emergency FPPCAC and the relatively expedited procedural schedule\u201d attendant thereto. Although the PRC did not approve the original FPPCAC in its Final Order, it cautioned that its \u201cdisapproval should not be construed as adopting or approving any of the [Recommended Decision's] findings, conclusions, or orders.\u201d\n. To further ensure that PNM\u2019s electric power is generated and purchased at the lowest reasonable cost, the PRC exercised its authority to order the following additional modifications of the Emergency FPPCAC: (1) the weighted average capacity factor, below which PNM may recover fuel and purchased power costs, \"should be 86.4%, rather than the 82.9% proposed by PNM\u201d; (2) \u201cPNM should also be required to eliminate from the calculation of its FPPCAC Factor the effect of the S02 allowance sales\u201d; (3) significant upfront fuel and purchased power costs associated with PNM\u2019s Underground Coal Sales Contract with San Juan Coal Company, such as long wall moves, must be pro-rated \"over the same period that such costs benefit its ratepayers.\"\n. In its brief-in-chief, ABCWUA claims that it was deprived of procedural due process of law because the expedited procedural schedule did not permit sufficient time to explore the accuracy of PNM's projected increase in fuel and purchased power costs. We have rejected this claim for the reasons explained supra part IV.A.2. ABCWUA also claims that the Emergency FPPCAC is not supported by substantial evidence because it is based on projected, rather than historical, fuel costs. We reject this claim for the reasons hereinafter explained infra part IV.B.\u00f3.b.", "type": "majority", "author": "MAES, Justice." }, { "text": "BOSSON, Justice\n(dissenting).\n{92} The PRC conducted an expedited hearing on PNM\u2019s emergency request for an automatic fuel adjustment clause. During four days of testimony before the Commission, sitting en banc, the record reflects the following lack of participation by individual commissioners. One of the commissioners personally attended none of the hearings, and only participated by teleconference for a day and a half. Another commissioner attended one hearing and was absent for all the rest. Another commissioner attended for two days only. Only two of the five commissioners \u2014 a mere 40% of the PRC \u2014 personally attended all four days worth of hearings.\n{93} The PRC attempts to defend such a dismal performance by citing to its own regulations which permit commissioners to abstain from attendance when they appoint a hearing examiner to take testimony, receive evidence, and recommend a decision to the full Commission. The PRC may also appoint one of its own to \u201cpreside\u201d over hearings. Fair enough. The nagging little detail with this argument, of course, is that the Commission did not appoint a hearing examiner or one of its own to preside, but elected to hear the proceedings itself, the full PRC sitting en banc. Simply put, the Commission shouldered the responsibility of hearing this case from beginning to end, and that responsibility starts with the simple task of showing up for work.\n{94} The PRC parries with general legal principles that understandably excuse occasional and de minimus absences from commission or board proceedings, so long as members review the full record of proceedings before they vote on the matter at hand. In fact, as a general rule, boards and commissions enjoy a presumption to that effect. However, the desultory performance of these commissioners vastly exceeds the context from which these principles arise. No case cited to us involves absences on this grand of a scale. And we have no way of being assured that individual commissioners \u2014 the 60% who were absent from more than half of the hearings \u2014 actually did review a record of proceedings. Significantly, after four full days of hearings involving complex, technical matters, the commissioners voted a mere five days later \u2014 barely enough time, one would think, to prepare the full record, much less review it.\n{95} This is important. Members of boards and commissions are allowed to review the record and compensate for the occasional absence precisely because the alternative \u2014 voting on matters not reviewed \u2014 would deny due process of law to participants and the public alike. Faced with at least the potential for a due process violation, the PRC should do more than rely on a naked presumption that they reviewed the record, especially in light of the bothersome evidence suggesting that commissioners did no such thing.\n{96} The Commission\u2019s own Code of Conduct states the \u201cirrefutable principle\u201d that \u201ca public office is a public trust.\u201d It further states that the Commission \u201cneeds the public\u2019s respect and confidence that its power will be used on behalf of the community as a whole.\u201d Respect must be earned; it does not flow automatically upon assumption of office. In the face of this record, I am compelled to wonder how we can indulge these commissioners in any presumption that implies the faithful performance of their duties.\n{97} And, more importantly, that question permeates the remainder of this appeal. Recall that this fuel adjustment clause \u2014 -now granted PNM for the first time in many years- \u2014 came about in an expedited, emergency proceeding that necessarily truncated the normal deliberative process for considering such a weighty matter. PNM had just been through an exhaustive rate proceeding, in which the hearing examiner recommended against this very fuel adjustment clause or one very much like it. PRC staff and many other parties joined the opposition to automatic fuel adjustment, preferring instead that PNM prove its need in the ordinary course of a rate proceeding. The PRC had not yet ruled on the hearing examiner\u2019s recommended decision, when PNM seemingly aborted the normal appeal process and filed the present emergency petition declaring the need for immediate relief due to an impending fiscal crisis.\n{98} The PRC scheduled a hearing a mere two months away \u2014 a fraction of the time typically required to consider such a complex questions. Then, as the hearing drew near, PNM\u2019s fiscal emergency evaporated, yet the PRC kept to its emergency time-table and denied the protestants their requests for additional time and opportunity to prepare and analyze complex technical evidence. The PRC then based its decision to grant the fuel adjustment clause less upon the petition for emergency relief and more upon evidence in the initial rate proceeding that was still being appealed.\n{99} As judges, we take comfort when duties are performed in an orderly, routine manner consistent with normal practice and procedure. Under those circumstances, we rely on a presumption of regularity. Conversely, however, when matters fall outside the norm, experience teaches us to exercise a healthy dose of caution and circumspection. We are on notice of the need for further inquiry. I am at that point with the PRC.\n{100} This Court is the only constitutionally empowered body that can review the final orders of the PRC. As the majority rightly notes, we traditionally afford those decisions a high level of deference, affirming in all but the rarest circumstances. We defer to the PRC because, at least theoretically, the commissioners are in a better position to decide these types of issues \u2014 having been elected for that purpose and having acquired special expertise in these matters.\n{101} I am not convinced, however, that we are meeting our constitutional obligation when we defer to a commission that reaches its decisions under circumstances such as these. Let us not forget that PRC commissioners sit in a quasi-judicial capacity; they adjudicate complex, technical matters that go to the heart of the public interest of our state. We would never tolerate judicial conduct like this; I see no reason to be more permissive of PRC commissioners.\n{102} I would reverse this decision and remand for the PRC to reconsider its decision to grant PNM an automatic fuel adjustment clause, a decision that could ultimately be borne out, but only after a full proceeding in the ordinary course giving these protestants and others a full and adequate opportunity to present their case in opposition.", "type": "dissent", "author": "BOSSON, Justice" } ], "attorneys": [ "Sheehan, Sheehan & Stelzner, P.A., Nann M. Winter, Albuquerque, NM, for Appellant Albuquerque Bernalillo County Water Utility Authority.", "Peter Jude Gould, Santa Fe, NM, for Appellant New Mexico Industrial Energy Consumers.", "Robert Y. Hirasuna, Margaret Caffey-Moquin, David P. Barton, Santa Fe, NM, for Appellee.", "Patrick T. Ortiz, Benjamin Phillips, Albuquerque, NM, Miller Stratvert, P.A., Robert H. Clark, Albuquerque, NM, for Intervenor Public Service Company of New Mexico." ], "corrections": "", "head_matter": "2010-NMSC-013\n229 P.3d 494\nALBUQUERQUE BERNALILLO COUNTY WATER UTILITY AUTHORITY, Appellant, v. NEW MEXICO PUBLIC REGULATION COMMISSION, Appellee, and Public Service Company of New Mexico, et al., Intervenors. New Mexico Industrial Energy Consumers, Appellant, v. New Mexico Public Regulation Commission, Appellee, and Public Service Company of New Mexico and Attorney General of the State of New Mexico, Intervenors.\nNos. 31,268, 31,273.\nSupreme Court of New Mexico.\nMarch 19, 2010.\nSheehan, Sheehan & Stelzner, P.A., Nann M. Winter, Albuquerque, NM, for Appellant Albuquerque Bernalillo County Water Utility Authority.\nPeter Jude Gould, Santa Fe, NM, for Appellant New Mexico Industrial Energy Consumers.\nRobert Y. Hirasuna, Margaret Caffey-Moquin, David P. Barton, Santa Fe, NM, for Appellee.\nPatrick T. Ortiz, Benjamin Phillips, Albuquerque, NM, Miller Stratvert, P.A., Robert H. Clark, Albuquerque, NM, for Intervenor Public Service Company of New Mexico." }, "file_name": "0021-01", "first_page_order": 55, "last_page_order": 84 }