Lawsuit claims state failing constitutional duty to curb oil pollution

Dec. 13—Conservationists and Indigenous advocates are pushing ahead with a lawsuit that claims the Legislature, regulators and the governor have failed in their constitutional duty to protect the environment and disadvantaged front-line communities from fossil fuel pollution.

Those who filed the lawsuit earlier this year met this week to review their complaints, strategies and the court battles ahead as they look to compel the state to toughen what they contend is lax oversight of an industry that generates hefty tax revenues and pollution.

Their lawsuit contends the state has violated a 1971 provision in the state constitution calling for the Legislature to control pollution and protect New Mexico's "beautiful and healthful environment."

The litigation comes as the state's oil and gas industry is having yet another record oil production year, giving lawmakers their all-time biggest revenues going into the next legislative session.

The industry contributed roughly 40% of the revenues to a state budget that has swelled to $12.77 billion, according to Legislative Finance Committee estimates.

And as state leaders cheer having more money for schools, social services and other vital programs, critics argue the fossil fuel expansion creates more pollution that can be harmful to the environment and residents while the state's regulations fail to keep up.

"We want the state to comply with its constitutional duty," said Gail Evans, an attorney with the Center for Biological Diversity. "We want the state to act to ensure that front-line community members, Indigenous people and youth are not injured and harmed from oil and gas pollution."

Evans said although the constitutional amendment calling for pollution control has been around for a half-century, this is the first lawsuit based on the provision.

The 107-page lawsuit offers detailed arguments, complete with data and statistics, about how state regulators have failed to hold the industry accountable and how the system itself is flawed — either by hampering enforcement or not allowing oversight at all.

It requests new oil and gas permitting be suspended until the state establishes "a statutory, regulatory and enforcement scheme" that it contends is now severely lacking.

The lawsuit names the Legislature, Gov. Michelle Lujan Grisham and state regulators, including the Environment Department, the Oil Conservation Division and Environment Department Secretary James Kenney.

Aside from the Biological Diversity Center, plaintiffs include Youth United for Climate Crisis Action, WildEarth Guardians, the Pueblo Action Alliance, Indigenous Lifeways and 10 activists and residents.

The constitutional amendment on which this legal action is based has broad language.

"The protection of the state's beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare," it reads. "The legislature shall provide for control of pollution and control of despoilment of the air, water and other natural resources of this state, consistent with the use and development of these resources for the maximum benefit of the people."

Regulators and the governor joined in filing a motion to dismiss the lawsuit, arguing it lacks legal merit. The Legislature filed a separate motion to dismiss.

"This lawsuit seeks to have the judiciary decide on issues that have historically been the responsibility of our state's legislative and executive branches,'" state Environment Department spokesman Matt Maez wrote in an email with the motion attached.

The Legislature has passed laws and the state has enacted rules that protect the climate, public health and natural resources, whether it's reducing emissions or requiring polluters to clean up waste, the motion said. It contended the plaintiffs fail to consider the complexity involved in balancing competing interests as the state looks to develop natural resources in a responsible manner, inviting public input as much as possible.

The plaintiffs want the court to resolve a political issue and intrude on legislative and executive authority, the motion said.

"With every decision the Legislature, Governor, and executive agencies make in this area, they leave some people happy and others convinced the State either went too far or should have gone further faster," the motion said.

Evans called the state's arguments misleading.

"The state is trying to say this is a political question that does not belong in the courts — and they are wrong," Evans said. "This is a constitutional question."

The complaint lists the state's environmental laws, such as the Hazardous Waste Act and Groundwater Protection Act, and says the oil and gas industry is exempt from nearly all of them to a large extent.

A big problem is state regulatory agencies lack the personnel to inspect and enforce the rules because they are not adequately funded, the lawsuit claimed, adding unlawful venting and flaring of natural gas increased in 2022 despite the state adopting a rule barring these releases except in emergencies.

And just because an agency gains authority doesn't mean it will use it, Evans said. The Oil Conservation Division was given the power to regulate fossil fuel waste in 2019, but hasn't issued a single penalty despite operators causing thousands of liquid waste spills since then, she said.

State Sen. Antoinette Sedillo Lopez, D-Albuquerque, is seeking a green amendment that would embed the right to a clean and healthy environment in the constitution.

The measure she said, would go into the state's bill of rights, creating firmer legal ground than this current amendment does for people to sue the government when it fails to protect the environment.

Sedillo Lopez, who has tried unsuccessfully three times to get the green amendment through the Legislature, plans to try again in the upcoming session. She said she hopes the groups win their lawsuit.

Mario Atencio, an Indigenous community organizer and plaintiff, said historically the industry's requests to drill have been rubber stamped, no matter what their potential impacts were on tribal lands.

The environmental injustice is blatant when poorer communities are the ones affected, he said, adding court actions are required to correct the problem.

"We are left holding all the costs associated with it — the human, public health costs," Atencio said.