The plaintiffs in a lawsuit alleging that New Mexico has not done enough to protect communities from oil and gas pollution laid out their priorities for the upcoming legislative session Monday evening.

The groups and individuals who call themselves NMLAWS—New Mexico Land, Air, Water and Sacred—said during a webinar this week that they have three pieces of legislation they hope to see passed and are working with Rep. Debra Sariñana, D-Albuquerque, in that effort.

The first one is what they call children’s health protection zones. This would require new oil and gas wells to be built at least a mile away from schools. That is already the practice on state trust land. Additionally, the protection zones would require that existing wells within a mile of a school be closed and remediated by 2028.

This would impact thousands of wells in New Mexico. One elementary school—Mettie Jordan Elementary School in Eunice—has more than 200 active wells within a mile of it, according to a map that Silas Grant with the Center for Biological Diversity displayed during the webinar.

However, that could run into some legal challenges as the oil and gas operators have entered into lease agreements that give them the right to develop leases and extract fossil fuels for a certain period of time. For example, oil and gas leases through the U.S. Bureau of Land Management are generally 10 year leases.

Gail Evans, an attorney representing the plaintiffs in the lawsuit, said that if the legislation becomes law there would need to be an administrative procedure in place for the Oil Conservation Division to properly apply that law.

The second piece of legislation that the plaintiffs hope to see passed this session they described as increasing accountability for oil and gas companies. That means when a spill happens there would be mandatory penalties and communities that might be impacted by the spill would have to be notified.

Mario Atencio, a plaintiff in the lawsuit, spoke about a produced water spill on his family’s land in the Eastern Agency of the Navajo Nation near Counselor.

Finally, the plaintiffs say a third piece of legislation would prohibit the use of freshwater in oil and gas extraction in areas where produced water or recycled water can be used.

Jozee Zuniga, a Permian Basin resident and a member of Youth United for Climate Crisis Action, said oil and gas operations are putting community members’ health at risk.

“I can personally speak to the air quality issues by saying, I’m sick, my neighbors are sick, my friends, my family, we’re all sick. And it started maybe two, three years ago where people started getting sicker and no one knew why,” she said.

Air pollution from oil and gas has been linked to increased rates of respiratory illness.

Lawsuit update

As for the lawsuit the plaintiff filed, the state of New Mexico has filed a motion to dismiss and the New Mexico Chamber of Commerce has filed a motion to intervene. 

The hearing on the motion to intervene by the New Mexico Chamber of Commerce is scheduled for February. Meanwhile, the plaintiffs are still waiting on a hearing about the state’s motion to dismiss.

Evans said the case has a lot in common with the Yazzie v. Martinez lawsuit where plaintiffs argued that the state’s public education department had failed to ensure students were receiving the educational programs and services they were entitled to under the state constitution.

Evans was also the lead counsel on that case. She said in both instances the state filed a motion to dismiss arguing that the case did not belong in courts. In the pollution case, she said the argument the state is making is that the legislature and executive agencies should be left to determine how best to control pollution. But Evans said the state constitution includes a pollution control clause.

“The court has a duty to interpret the constitution and to enforce the constitution,” Evans said, adding that neither the executive nor the legislative branch is above the law and that “they’re certainly not above the mandates of the constitution.”

She said oil and gas has been exempted from pollution control by the state legislature.

For their part, the governor and various state agencies have taken steps in recent years to address pollution from the oil and gas sector while also being cognizant of the role the industry plays in funding New Mexico’s budget. The New Mexico Environment Department has implemented ozone precursor rules and the Energy, Minerals and Natural Resources Department implemented methane regulations that served as a template for the new federal methane regulations.

The state has also taken measures to reduce the use of freshwater in extraction and to prevent new oil and gas wells from being drilled on state lands within a mile of schools.