Court hears arguments in oil and gas pollution case

A district court judge heard arguments Friday about whether to dismiss a lawsuit that could have major implications for the oil and gas industry in New Mexico. The lawsuit comes from a coalition of youth, frontline and Indigenous advocates who say the state has failed in its constitutional duty to protect them from pollution associated […]

Court hears arguments in oil and gas pollution case

A district court judge heard arguments Friday about whether to dismiss a lawsuit that could have major implications for the oil and gas industry in New Mexico.

The lawsuit comes from a coalition of youth, frontline and Indigenous advocates who say the state has failed in its constitutional duty to protect them from pollution associated with oil and gas. 

“The court has the authority to interpret and enforce the constitution. And there is nothing different about the court’s authority or duty when it comes to the pollution control clause,” Gail Evans, an attorney from the Center for Biological Diversity who is representing the plaintiffs, said. 

She said the argument that the court must decide based on Friday’s hearing is whether the plaintiffs have constitutional claims against the state, not whether the state has fulfilled its constitutional duty under the pollution control clause.

The judge has not yet made a decision about dismissing the lawsuit.

“Plaintiffs are frontline community members, Indigenous people and youth that have all been harmed by the state permitting oil and gas production and the pollution that comes with that oil and gas production,” Evans said. “They breathe unhealthy air. Their land and water has been contaminated and depleted. Their cultural resources have been damaged. Their health has been harmed and their environment has been harmed including the loss of plants and animals. They brought this case because of skyrocketing pollution that is permitted by the state through oil and gas production.”

She said the state has not put in place an adequate statutory and regulatory framework to protect community members.

The suit was brought under Article 20 Section 21 of the state constitution, which reads: “The protection of the state’s beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare. The legislature shall provide for control of pollution and control of 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 defendants said that the proper venue for increasing protections is through the legislature and not the court.

Elizabeth Radosevich, an attorney representing the governor and two cabinet secretaries, argued that the plaintiffs have not brought a claim for relief that the court is able to grant. She said the court cannot step in and act in a legislative role.

She argued that there are three important elements in the second sentence of Section 21. First, she said, it assigns the responsibility “clearly and explicitly to the legislature.”

The sentence also requires “a balancing of interests between development of natural resources and pollution control,” she said.

Finally, she said the balance between development of natural resources and pollution control to provide the maximum benefit to people in New Mexico is not a decision that the court can decide but is rather a matter of policy, judgment and competing values. The language, she said, “provides no instruction as to the specific level of pollution control or development of natural resources that might be required.”

Tom Hnasko, an attorney representing the legislature, argued that the plaintiffs are requesting that the court make a “value judgment of a legislative nature.”

“I think it’s very important that everyone understands what the legislature has done in enacting both laws to develop the resources for the economic benefit of our citizens, but also to protect the environment,” he said.

He said the legislature has “spoken” and that the plaintiffs want something different.

“They want this court to take the absolutely unprecedented act of enjoining the legislature and telling them what to do,” Hnasko said.

But Evans argued that the oil and gas industry has been exempted from some important environmental laws such as the Water Quality Control Act. 

She said the plaintiffs are not asking the court to rewrite any statutes or regulations.

“We would like it if the state did that, if (the) state had statutes and regulations that comported with the constitution,” she said. “What we are asking from this court is a declaration that a state is not fulfilling its constitutional duties under the pollution control clause.”

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