The New Mexico Environment Department (NMED) doesn’t have the authority to deny permits to companies for oil and gas facilities over concerns about impacts to already high levels of ozone in Eddy and Lea counties, according to an NMED spokesperson. 

Ozone levels in Eddy and Lea counties are in violation of the U.S. Environmental Protection Agency’s (EPA) National Ambient Air Quality Standards (NAAQS), while ozone levels in five other counties in the state—concentrated in the state’s two oil and gas producing zones in the northwest and southeast—are at 95 percent of the NAAQ standard. 

The environmental organization WildEarth Guardians has filed challenges against permits authorized by NMED, arguing that the department is violating state law by continuing to issue permits for new oil and gas facilities that will contribute to a growing air quality problem in the Permian Basin. WildEarth Guardians argued in its appeals that NMED approved three permits and one natural gas plant “without considering the cumulative impacts on air quality, and the subsequent impact on public health.”

State law holds that NMED “shall deny any application for a permit or permit revision” if, when considering emissions after controls, the permit activity “will cause or contribute to air contaminant levels in excess of any National Ambient Air Quality Standard or New Mexico ambient air quality standard.”

“It’s a pretty straightforward requirement, it says, if there’s a problem, don’t make it worse,” Jeremy Nichols, director of the climate and energy program at WildEarth Guardians, told NM Political Report. 

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But NMED told NM Political Report that ozone levels are not always considered in permit approvals for oil and gas facilities. 

Ozone is formed when volatile organic compounds (VOCs) and nitrous oxides (NO_x) are exposed to sunlight and warmer temperatures. While oil and gas facilities are known sources of VOCs and NO_x emissions, these ozone precursor pollutants are regulated differently than the other air contaminants that are considered in the NAAQS. 

“These sources are classified as major or minor, depending on the amount of pollutants they emit (in tons per year),” NMED said in an email. Applications for permits for facilities that are identified as “major” sources of VOCs and NO_x typically include air quality monitoring “to see how the emissions will impact ozone formation in the area where the source is located,” the Department said, but no modeling is done for minor sources on a facility-by-facility basis. 

Instead, NMED said it uses “protocols and guidance developed by EPA to determine if emissions from these sources meet significance levels considered to contribute to ozone concentrations.”

Ozone formation modeling is more complex than modeling for other types of air contaminants, because ozone is not directly emitted, but rather is the result of chemical reactions related to VOCs and NO_x emissions and sunlight. 

Sufi Mustafa, Modeling and Emissions Inventory Unit Manager at NMED’s Air Quality Bureau, said ozone formation must be evaluated in relation to emission sources that are “hundreds of miles away” that could also be contributing to ozone formation in New Mexico, in his testimony submitted to the Environmental Improvement Board, which handles appeals of permit applications for NMED under the state’s Air Quality Control Act. 

“Predicting an individual facility’s contribution to the ozone levels in a region is extremely difficult compared to the directly emitted pollutants,” Mustafa said in the testimony, adding that NMED’s modeling guidelines do not require source-specific ozone modeling for minor sources.

“None of the sources whose permits are being challenged by [WildEarth Guardians] have emissions that meet those significance levels,” the department told NM Political Report. “Thus, there is no technical or scientific evidence that these sources would cause or contribute to violations of the ozone NAAQS, and consequently no legitimate basis on which NMED could deny those permit applications.”

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In a Twitter thread posted August 5, NMED characterized WildEarth Guardians’ litigation as “misguided” and said the challenges are “delaying New Mexico’s progress in adopting new oil and natural gas rules” that limit methane, VOC and NO_x emissions. 

“Any litigation that will not improve air quality is misguided,” the department told NM Political Report. “The regulation of ozone is done on a regional basis, not a permit-by-permit basis; this is true in every state in the nation – not a single state approaches ozone regulation the way [WildEarth Guardians’] litigation argues NMED should.”

The department also claimed that the permit challenges are “tying up the resources of NMED and the [Environmental Improvement] Board.”

“The several lawsuits filed by [WildEarth Guardians] will take countless hours away from more meaningful work that could be done to protect New Mexico’s air quality, including drafting effective regulations for the oil and gas industry, bringing those rules to hearing before the EIB, and defending them against what are sure to be sophisticated and heavily-funded industry challenges,” the department said, pointing to budget cuts and staffing reductions during the last 10 years, and citing the “the significant legal and technical resources involved in defending litigation” brought by WildEarth Guardians. 

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Nichols said the aim of the litigation is to “hold them accountable to their requirements in their state regulations.”

“All of these challenges that we’re bringing forward stem from the fact that ozone monitors in Lea [County] and Eddy County are violating ambient air quality standards,” he said. “That’s a big deal for public health. It’s a crisis.”

NMED recently released draft rules targeting reductions in VOCs and NO_x emissions. The state also launched an Ozone Attainment Initiative to help address ozone levels in the seven counties that are currently experiencing high ozone levels. 

Nichols criticized the department for continuing to approve permits for new sources of pollution in areas where the air quality is already out of compliance with national standards. 

“NMED continues to propose new permits,” Nichols said. “We have submitted and will continue submitting many new comments on permits, because the environment department just doesn’t seem to be slowing things down at all. If anything, they seem to be continuing to permit the oil and gas industry at a frenetic pace.”