May 11, 2023

Lawsuit says New Mexico has failed to protect the environment, communities from oil and gas

Kendra Chamberlain

A sign along state highway 550 in Counselor, New Mexico. Oil and gas development has steadily ramped up in the Great Chaco area in recent years.

Paul and Mary Ann Atencio sometimes hear a loud boom. This boom, they have been told, occurs when an 18-inch high pressure pipeline that runs down the road by their house is cleaned out. They aren’t told when this will occur and, when it does, they say that they can hear and smell the gaseous fumes being released.

The Atencios live in a part of eastern Navajo Nation where there’s a checkerboard of land and mineral ownership. 

They have joined other Navajo community members as well as the Pueblo Action Alliance, Youth United for Climate Crisis Action, the Center for Biological Diversity and WildEarth Guardians in suing the state. The plaintiffs say that New Mexico has failed in its constitutional duty to protect the environment and frontline communities from the impacts of oil and gas.

The lawsuit is based on a 1971 amendment to the state’s constitution, Article 20 Section 21. This clause requires that the state prevent “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.”

The lawsuit asks the district court to require New Mexico to suspend issuing permits for new oil and gas wells until there is a statutory, regulatory and enforcement structure and plan in place to prevent the pollution from impacting the environment and community health.

Oil and gas extraction has risen dramatically in recent years in New Mexico, the complaint notes. This increase in oil and gas extraction has contributed to the record budgets the state has experienced.

At the same time, the plaintiffs say that the Legislature has failed to “impose a legal, regulatory and enforcement framework to protect human health and the environment from the pollution caused by the oil and gas extraction and production activities.”

In addition to the more than 66,000, there are thousands of inactive and orphaned wells that remain unplugged. The state plugs about 40 to 50 orphaned wells annually. 

Related: Officials say plugging orphaned wells protects public health and environment

New production, the plaintiffs say, have increased impact on the environment because companies must drill deeper or use methods like hydraulic fracturing to access the oil and gas.

At the same time, some state laws such as the Solid Waste Act exempt oil and gas from the regulations.

The complaint states that oil and gas extraction occurs within “a stone’s throw” of the Atencios’ family home in Counselor.

In February 2019, a 42,000-gallon liquid waste and 12,500-gallon crude oil spill contaminated their land and water. This spill came from a state-permitted operation but no state official or agency notified the Atencios.

“No one from the State has ever contacted them about remediation of the massive spill on their land which contaminated groundwater,” the complaint states.

That spill was one of more than 1,300 that occurred in New Mexico that year and, since 2019, the number of spills have increased.

The Center for Western Priorities releases an annual spill tracker report. In 2022, there were more than 1,400 reported spills. That number includes both produced water spills and oil spills.

The state’s Groundwater Protection Act “does not control pollution from oil and gas development and is limited to attempting to regulate leakage from certain petroleum storage tanks,” the complaint states.

Additionally, the state’s Water Quality Act doesn’t apply to activities that fall under the Oil Conservation Commission’s jurisdiction.

The Atencios also have family land in the Torreon area. Both their Torreon and Counselor properties are surrounded by oil and gas extraction.

“The smell of the pollutants from oil and gas development is very strong and, even wearing a mask, visitors who are not accustomed to the pollution quickly get a headache and some feel nauseous,” the complaint states. “People in the Atencio family have asthma and other health problems which they believe are due to oil and gas pollution.”

The lawsuit comes as the state is implementing new rules to limit emissions from oil and gas. However, the New Mexico Environment Department and the Energy, Minerals and Natural Resources Department have not received enough funding in the state budget to enforce these rules. 

The plaintiffs highlight this lack of funding in the complaint, stating that neither department has “sufficient resources to conduct adequate inspections, enforce its own rules, or conduct effective rulemaking to control pollution created by the oil and gas industry.”

For example, the complaint states that in May 2022 the state’s Oil Conservation Division had just nine inspectors responsible for overseeing 66,000 wells.

The lawsuit also comes as environmental groups say the governor has not taken enough actions to address climate change, citing recent actions including vetoing tax credits intended to reduce emissions.

Related: Environmental groups criticize governor for a lack of leadership on climate in recent years

“Extractive industry is desecrating our ancestral homelands and imposing irreparable harm to our water, plant and animal relatives,” Julia Bernal, executive director of Pueblo Action Alliance, said in a press release. “It’s unacceptable that New Mexico is continuing the legacy of harm and pollution through our communities by its racist and inequitable policies.”

The lawsuit highlights various examples of environmental pollution related to oil and gas, including venting and flaring near Lybrook Elementary School in northwestern New Mexico.

The plaintiffs say that the oil and gas extraction further puts their physical safety at risk.

They refer to a 2016 oil field fire in the Nageezi area that burned for five days. Families were evacuated from their homes in the middle of the night as the fire spread from the well to the storage tanks. 

The plaintiffs also say that the industry threatens their sacred lands and traditions.

Counselor, where the Atencios live, is within the Greater Chaco region.

The Pueblo people have been pushing for greater protection for their ancestral land for years, including a permanent buffer zone preventing new oil and gas extraction near Chaco Culture National Historical Park.

The Navajo Nation previously supported such an initiative, but this year withdrew its support of the current federal government’s initiative to halt new mineral leasing on federal lands within 10 miles of the park for 20 years.

In the Permian Basin, Pastor David Rogers of First Christian Church in Carlsbad is also a plaintiff in the lawsuit.

In the complaint, he alleges that he “has been and continues to be exposed to water and air pollution, which contains dangerous carcinogenic chemicals, like benzene, and other volatile organic compounds that were not present before oil and gas drilling began near his home and property and in other areas he routinely uses in New Mexico’s Permian Basin.”