Contested New Mexico hearing officer for Project Jupiter air quality permit hearing recuses himself

The hearing officer presiding over the New Mexico Environment Department’s air quality permit hearing for the Project Jupiter data center has recused himself from the case, according to newly filed documents.

An NMED paralegal emailed several interested parties in the ongoing permitting process minutes before 12:30 p.m. Monday with an attached document that showed Hearing Officer Max Shepherd had recused himself.

Attorneys with the New Mexico Environmental Law Center and the Center for Biological Diversity in a filing last week sought to disqualify Shepherd, arguing that he “has failed in his duty to ‘conduct a fair and impartial proceeding.’”

Their complaint came after Shepherd rankled project opponents in late July by rescheduling the hearing for Project Jupiter’s pending air quality permit application. The data center’s developers are seeking a permit from the New Mexico Environment Department to operate a gas pipeline-fed fuel cell system as an on-site power source.

Shepherd initially scheduled the hearing for mid-October. When attorneys representing Project Jupiter developer Yucca Growth Infrastructure argued that it would leave NMED officials inadequate time to make their final decision on the permit by their Nov. 23 deadline, Shepherd responded that the case was highly technical and complex and said he would rather look into extending the November deadline.

Days later, however, he filed a scheduling order showing that he was moving the hearing up, consistent with the developer’s request.

The New Mexico Supreme Court on Sunday night issued an order that temporarily delays the hearing, after the Santa Fe-based clean energy organization New Energy Economy questioned whether the proceeding was premature, given that the pipeline needed to power the fuel cell system has yet to clear its own regulatory hurdles.

Opponents argued that Shepherd deprived involved parties of due process and left them with too little time to adequately prepare for the hearing.

Shepherd did not respond to Source NM’s request for comment. Typically, the New Mexico Environment Department secretary or leaders on the Environmental Improvement Board or Water Quality Control Commission appoint hearing officers to preside over public hearings. An environment department spokesperson did not respond to Source NM request for information on next steps.

New Mexico Environmental Law Center Senior Attorney Maslyn Locke, who signed the August filing seeking Shepherd’s ouster, on Monday told Source NM that she was encouraged by Shepherd’s departure.

“It’s pretty remarkable to see him disqualify himself, finally. It’s been such a fight to get any sort of due process in this hearing,” she said. “With the broader Project Jupiter fight, it’s been so hard to get transparency and community involvement in a way that is meaningful and actually impacts the decision-making.”