Court considers arguments to toss constitutional O&G pollution suit

A New Mexico district judge heard arguments to dismiss a civil lawsuit alleging that the state has failed to meet its constitutional duty to protect air, water and environment from oil and gas pollution.

First District Judge Matthew Wilson said Friday he would issue a written order at a later date to determine the fate of the lawsuit Mario Atencio, et al v. the State of New Mexico, et al.

It’s unclear when Wilson’s judgment will come down.

Plaintiffs in the case, which include both individuals and organizations representing young people, frontline and Indigenous communities, allege that the New Mexico legislature and executive government failed to create laws and invest in regulatory agencies to properly limit the impact from oil and gas pollution – contrary to a state constitutional amendment.

Their attorney defended that stance in the Santa Fe courtroom Friday morning, arguing that the groups are classes that have been disproportionately impacted by this inaction.

“The state has a positive duty to control pollution, and the state isn’t meeting that duty when it comes to oil and gas pollution,” attorney Gail Evans said.

Attorneys representing the executive branch and the legislature asked the judge to toss the case, arguing a judgment would infringe on the legislature’s role to make laws and create a separation of powers issue.

Elizabeth Radosevich, the attorney representing the executive branch, said the legislature had to maintain a balance of developing oil and gas and addressing pollution.

“Ultimately, that is the kind of core policy judgment value judgment that the legislature, and not the courts, has to take on,” she said.

Lawsuit: State allowance on oil and gas violates New Mexico Constitution

State argues voters, not judges, should resolve issues

The language at the heart of the lawsuit is a 1971 amendment to the Constitution of the State of New Mexico in Article XX Section 21.

That section states: “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. 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.”

Radosevich further argued that the constitution did not lay out an individual right in the state’s role in pollution control and contrasted that with court cases laying out constitutional rights of education and voting.

“To the extent that the people of New Mexico believe the legislature has failed to strike the right balance between pollution control and resource development, they can correct course, through the mechanism of voting,” she said. “They can elect different representatives and a new legislature can enact different policy.”

She said the case’s arguments don’t rise to civil rights violations, arguing the plaintiffs’ classes of frontline and youth are not protected classes, and that there’s no allegations of discriminatory intent.

“That language ‘for the maximum benefit of the people’ is not a matter that can ever be decided through in this courtroom as a matter of fact or law,” she said.

Thomas Hnasko, the attorney representing the state legislature, echoed Rodosevich. He said the plaintiffs could change the laws through pressuring lawmakers in the legislative process, or by changing administrative rules, which govern oil and gas regulation and pollution.

“I know plaintiffs say ‘that’s insufficient, that doesn’t’ work,’” Hnasko said. “Well, it might not be, and if it doesn’t work, you know, maybe that’s a different lawsuit – but it’s not this one.”

Daniel Rubin, who represents the state Environmental Improvement Board, argued that if the lawsuit  moved forward it would allow the oil and gas industry a window to potentially sue under the same argument of determining the “maximum benefit” of the people.

“It is the same problem, I do not think those plaintiffs would want that result,” Rubin said.

Atencio plaintiffs response

In response, Gail Evans, the lead attorney for plaintiffs, said the hearing was not the time and place to judge the merits of the case, or potential relief from the courts.

Evans argued that the court has the authority to interpret and enforce the constitution, and use it to hold the legislative and executive branches accountable.

“There is nothing different about your fundamental duty to interpret and enforce that clause,” she said.

Evans rejected comparisons to climate cases in states such as Montana, Alaska and Pennsylvania, which she characterized as asking courts to find a right to a climate sustainable of supporting human life, and force the state to make policy changes on global climate change.

The Atencio case, she said, is instead an argument measured by the New Mexico constitution.

“Plaintiffs are asking you, after hearing all the evidence, to measure the legislative and executive branches’ action by the yardstick of the Constitution, meaning the pollution control clause,” she said.

The lawsuit, she said, is also asking the court to find a constitutional right for a healthful and beautiful environment.

Evans said the plaintiffs have valid claims that their rights to “liberty, property safety and happiness,” are harmed by oil and gas and its pollution.

She said pollution permitted by the state had resulted in air quality out of compliance, and tens of thousands of inactive oil and gas wells that continue to pollute air, water and land.

Evans, pushing further against the state’s argument, said energy operations, such as fracking, harm youth and Indigenous people’s health with known and obvious risks more than other New Mexicans.

“We would show that the state does not have a rational basis to permit oil and gas production and pollution in this manner, that inflicts this level of harm on the plaintiff groups,” Evans said.

Evans concluded her time in court by urging the judge not to be cowed by state arguments that any judgment issued by a court would be too sweeping.

“Constitutional cases do sometimes ask for a seismic change, something big would need to happen from the plaintiff’s position,” Evans said.