August 30, 2017

State board rejects petition to regulate greenhouse gases

Laura Paskus

Flaring in the Four Corners

Last week, Samantha Ruscavage-Barz, an attorney with WildEarth Guardians, asked the New Mexico Environmental Improvement Board (EIB) to establish regulations to reduce greenhouse gas emissions in the state. That board, whose members are appointed by the governor, is responsible for rules related to public health issues like air quality, food safety and hazardous waste.

By a four-to-one vote, the EIB denied the petition Ruscavage-Barz brought on behalf of 28 New Mexico children and teens.

But she’s hopeful that there’s room for a conversation with the New Mexico Environment Department, the agency that was moving forward with strategies to reduce greenhouse gas emissions and address the impacts of climate change just six years ago.

Ruscavage-Barz said the board encouraged the group to work with the state agency and other stakeholders and come up with an enforceable plan. “In a way, that puts NMED on the spot,” she said. “We’re in a good position to now go to NMED and say, ‘if you’re serious about getting a greenhouse gas regulation program in place, we’d like to work with you on that.’”

The agency opposed the petition and wrote it was “structurally flawed” and contained only broad directives that, if implemented, would exceed the department’s authority.

Moreover, the agency said the petition ignored actions NMED and other state agencies are already taking and plan to take to address greenhouse gas emissions.

NM Political Report repeatedly reached out to NMED to learn more about these initiatives and programs at that agency and other state agencies. We look forward to updating this story if we receive responsive information within 24 hours of publication.

The agency opposed the petition, and within its response before the EIB, noted that the agency has tracked greenhouse gas estimates since 2000. The state’s attorneys also mentioned the federally-mandated retirement of two units at a coal-fired power plant owned by PNM, the state’s compliance with the federal Clean Power Plan and other federal regulations aimed at reducing emissions, such as the U.S. Bureau of Land Management’s rule to cut methane leaks from oil and gas development.

There’s no evidence, however, that NMED or other state agencies are actively addressing greenhouse gas emissions or climate change beyond the the federal initiatives cited in the response—and the future of those is in question under the current presidential administration.

The Clean Power Plan, for example, is currently stayed by the U.S. Supreme Court and earlier this year, the head of the U.S. Environmental Protection Agency told states they can ignore it. As for the BLM’s methane rule, in June, U.S. Department of the Interior Secretary Ryan Zinke, whose department oversees BLM, suspended that rule.

Problem won’t ‘go away’

During the administration of Gov. Bill Richardson, the EIB had enacted rules to cut carbon emissions in the state. But when Gov. Susana Martinez took office in January 2011, she immediately acted to overturn the rules and also replaced the board’s membership.

On January 5, Martinez told each of the members they would no longer be on the board in a four-sentence email. In a press release, she explained her actions, saying that “the majority of EIB members have made it clear that they are more interested in advancing political ideology than implementing commonsense policies that balance economic growth with responsible stewardship in New Mexico.”

WildEarth Guardians attorney Samantha Ruscavage-Barz

That year, Ruscavage-Barz represented then-16-year old Akilah Sanders-Reed in a lawsuit against Martinez and the state of New Mexico—trying to compel the state to control and reduce carbon emissions. The suit alleged that the governor and the state had violated their duties under the Public Trust Doctrine in the state constitution to manage the atmosphere as a trust asset, similar to water and wildlife, and protect it from the impacts of greenhouse gas emissions

Under the Public Trust Doctrine, natural resources are the common property of all citizens of a state, and must be preserved and protected by state governments.

But judges didn’t agree with Ruscavage-Barz’s argument, and they eventually lost the case. In 2015, the New Mexico Court of Appeals agreed that the state’s constitution recognizes a public trust duty for the protection of natural resources, including the atmosphere. But it also ruled that protection should come through the process already established by the state’s Air Quality Control Act and not through legal challenges.

In other words, the courts can’t intervene in the state’s business, as there’s already a procedure to implement regulations. The judges also wrote that people can participate in the EIB process and the legislative process during the session—”and voters have the opportunity to exercise their desire for political change regarding complex environmental issues at the ballot box during each election cycle.”

That lawsuit, and the current petition, are part of a strategy launched by the nonprofit group Our Children’s Trust. The organization has campaigns in states across the country to compel agencies to align carbon emissions reductions with what scientists say is necessary to avoid catastrophic and irreversible warming.

Fighting back against the lawsuit, the state disavowed the need to address greenhouse gas emissions, adding that in the grand scheme of things, New Mexico isn’t a huge contributor compared to emissions across the entire planet.

“In our lawsuit, we said, ‘You can’t just wash your hands of it. You can’t just say because it’s a big problem that New Mexico alone can’t solve, that you’re not going to do anything,’” Ruscavage-Barz said. “That’s not how you solve a problem.”

That’s when they decided to propose a new rule.

With Our Children’s Trust, they started putting together a petition. “Even though with this administration, we didn’t feel like there was much support, we didn’t feel like we could afford to wait,” she said. “Rulemaking is a long process, so we’re going to start engaging the state and find a path forward to reducing New Mexico’s greenhouse gas emissions.”

In addition to NMED, the New Mexico Association of Commerce and Industry and Tri-State Generation and Transmission Association also opposed the petition.

“New Mexico needs to act, they can’t just sit back and say it’s somebody else’s problem, or keep up with this excuse that it’s more appropriate for federal action,” Ruscavage-Barz said. “We’re not under any illusion that New Mexico can solve the entire problem itself, but it can step up for its greenhouse gases and its share of the problem.”

She worries about the burden today’s inaction puts on young people. “The impacts of this are going to be felt by this next generation, they’re going to live with the state’s failure to act now,” she said. “It’s a political issue and it shouldn’t be.”

Scientists know that climate change is occurring due to human activity, and the impacts are becoming increasingly clear all the time.

“If you look at the climate science, it’s definitive this is a problem and it’s only going to get worse without action by the states and the federal government to reduce greenhouse gas emissions,” she said. “It’s always discussed as a political issue because there’s an economic aspect to it. But the science is clear and the problem is not going to go away.”