On May 10, a group of 15 plaintiffs filed suit in Santa Fe District Court against the state of New Mexico, its Legislature, the state’s two environmental regulatory agencies, their directors and, pointedly, Gov. Michelle Lujan Grisham for not upholding their constitutional duties to protect the environment, natural resources and citizens’ health from despoilment by oil and gas production. The group, led by lawyers from the Center for Biological Diversity and WildEarth Guardians, “seeks a complete overhaul of the statutory, regulatory and enforcement scheme for oil and gas,” says Gail Evans, lead attorney on the case for CBD. “This problem has risen to crisis levels as oil and gas production and the resulting pollution has exploded in the state,” she says.
“How much louder do we have to yell?” asks Zephyr Jaramillo, from the Pueblos of Isleta and San Felipe, campaign organizer with youth-based climate group YUCCA and a co-plaintiff in the case. “Legal action is our last recourse. It’s time to demand accountability.”
For decades, environmental groups and individuals have sued oil and gas production companies for violating environmental laws. But this latest lawsuit takes aim at New Mexico itself, using the state’s own constitution to sue its leaders. It’s a strategy shift that could force elected officials to dramatically increase oilfield enforcement in the second-largest oil-producing state in the nation. Oil output in New Mexico has risen tenfold since 2010, while natural gas production has more than doubled. “This means that New Mexico plays a major role in the climate crisis,” Jaramillo says.
“The governor gets appointed for these committees and whatnot, and they look up to her as a climate champ. It’s just not the reality.”~ Jeremy Nichols, WildEarth Guardians
Many state politicians, from the governor on down, have worked to change that, not always successfully. Work on the lawsuit began well before the New Mexico Legislature session that ended in March. That session left a slew of environmental, climate and industry regulatory legislation unpassed — and often undebated. Then, Lujan Grisham used her office’s line-item veto power to strike large swaths of the budget, including most of the climate work that did pass, baffling and enraging many longtime supporters in the environmental movement. The ramifications may be bigger than just hurt feelings.
In an email response to questions about the lawsuit, Lujan Grisham’s press secretary, Caroline Sweeney, responded, “This administration is proud of its record on the environment, including when it comes to regulating the state’s oil and gas industry. Frankly, this is a misguided lawsuit that will only serve to distract the state from conducting additional work on environment and climate solutions and from enforcing the nationally leading regulations this administration fought hard to get on the books.”
The plaintiffs don’t agree. “Our governor isn’t walking the talk on climate,” Jaramillo says.
Lujan Grisham has made a name for herself nationally and internationally for her climate initiatives. She took high-profile trips to the last two United Nations Climate Change Conferences in Glasgow, Scotland, and Sharm el Sheikh, Egypt. There, she talked up state rules designed to dramatically reduce the amount of natural gas lost in fossil fuel operations — on paper New Mexico’s are some of the strongest such rules in the country. Days before the constitutional lawsuit was filed, Lujan Grisham was named a co-chair elect to the U.S. Climate Alliance, a coalition of 25 governors fighting climate change. Earlier this year Biden appointed her to his Council of Governors, and two weeks ago she joined Biden’s 2024 campaign advisory board.
“The governor gets appointed for these committees and whatnot, and they look up to her as a climate champ,” says Jeremy Nichols, director of the Climate and Energy Program at WildEarth Guardians. “It’s just not the reality,” he says, and “that’s why we need the courts.”
That’s because the state’s regulations don’t appear to be having much effect. In May 2021, the Oil Conservation Division (part of the Energy, Minerals and Natural Resources Department [EMNRD]) banned regular venting and flaring of natural gas in oil and gas operations as part of its Methane Rule — a cornerstone of Lujan Grisham’s climate and environmental messaging. At the same time, the rule required more stringent venting, flaring and leak reporting from oil and gas producers. Methane, the main component of natural gas, is 80 times more effective at trapping atmospheric heat than carbon dioxide, making it a potent climate warmer. And when burned, natural gas releases plumes of CO2, the most common greenhouse gas, as well as other lung-damaging pollutants.
“Ideally … this case would not be necessary. We’d have a government that took action to protect us all from the grave risks and harms of oil and gas pollution.”~ Gail Evans, attorney, Center for Biological Diversity
A Capital & Main review of oil and gas spill data from the OCD shows that between October 2021, five months after the Methane Rule went into effect, and March 2023, the most recent month with complete data, reported monthly venting and flaring volumes have bounced around, but clearly increased overall: The amount of flared natural gas in New Mexico doubled while vented amounts had risen fourfold by the end of last year.
Furthermore, producers have reported an average monthly total of 820 major spills of oil, produced water or natural gas in that period. All of these flaring, venting and spill reports come from the producers themselves but are rarely independently verified. In fact, increasing satellite evidence indicates that venting and flaring are likely underreported.
Nichols says that the environmental and political repercussions of New Mexico’s oil and gas industry extend beyond state lines. Biden’s 2021 Infrastructure, Investment and Jobs Act included $8 billion to create hydrogen production hubs across the country, at least one of which will make hydrogen from natural gas. New Mexico has led a four-state push for a regional hub based on natural gas, centered in New Mexico. And last year, the Biden administration passed the Inflation Reduction Act, aimed squarely at reducing greenhouse gas emissions and fighting climate change. But buried within that legislation was a clause mandating the sale of oil and gas leases on 2 million acres of federal land. Some of the first federal fossil fuel leases offered were in New Mexico.
“What Michelle Lujan Grisham is doing, unfortunately,” Nichols says, is “leading the Biden administration to believe that it’s OK to just have unfettered oil and gas extraction everywhere and that that’s OK for the climate.”
The plaintiffs hope that Article XX, Section 21 of the New Mexico Constitution — 66 words in two brisk sentences — holds the solution to their environmental and climate fears:
“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.”
“Ideally … this case would not be necessary,” says Evans, the lawyer with CBD. “We’d have a government that took action to protect us all from the grave risks and harms of oil and gas pollution.”
The lawsuit also names Environment Department Secretary James Kenney and EMNRD Secretary Sarah Cottrell Propst. Neither would comment on the suit. Their agencies form the two guardrails for the state’s fossil fuel industry, but while oil and gas revenues make up about 40% of the state budget, both agencies have fought for years for enough funding to carry out their industry-policing missions. After the last legislative session, the OCD, the state’s oil and gas regulator, received a funding bump over the previous year’s budget. A funding increase for NMED, which polices air and water pollution across the state, was consumed by mandatory pay increases.
Even so, an argument can be made that the state is enforcing environmental regulations. In the past month NMED created an online database that names major polluters across the state. Dylan Fuge, EMNRD’s top lawyer, was named the new head of OCD. And OCD is in the process of penalizing six midstream companies for flagrantly violating the Methane Rule. The question is if actions like these are enough to fulfill the intent of the constitution.
“If I’m scared to think of a future that I might not have, what does that say for the little ones coming up behind me?”~ Zephyr Jaramillo, New Mexico resident
This echoes a legal near-precedent. In 2011, WildEarth Guardians filed suit against the state of New Mexico and then-Gov. Susana Martinez for not protecting the atmosphere by reducing New Mexico’s greenhouse gas emissions. The plaintiffs said the state had “a common law duty under the public trust doctrine to protect the atmosphere by regulating greenhouse gas emissions” and pointed to Article XX, Section 21 in its argument. Judges ruled against both the initial case and its appeal because — while the plaintiffs might not like how it works — the state had an Environmental Improvement Board that could make greenhouse gas regulations, and the plaintiffs could petition it to do so. And, in fact, the EIB did adopt a set of air pollution rules in 2010. It also repealed them two years later after Republican Gov. Martinez came to office.
Evans, however, is aiming for the success she had leading the landmark case Yazzie v. State of New Mexico. In that lawsuit the plaintiffs argued that the state was not upholding its constitutional duty to offer equal, effective education to all, and the case led to the restructuring of the funding for the state’s public school system. And while the goal of the 2011 WildEarth Guardians case was to protect the atmosphere, the current case “focuses on the fundamental rights of frontline community members, Indigenous peoples and youth to … not be disproportionately harmed by oil and gas pollution,” she says. In other words, the state is not creating an equally healthy environment and climate for all.
Kendra Pinto is one of the plaintiffs in the latest lawsuit, a member of the Navajo Nation and the Four Corners Indigenous community field advocate with the environmental group Earthworks. She has lived her whole life in the eastern reaches of the Navajo Nation, surrounded by the gas and oil wells that pepper the San Juan Basin. “There are areas that look completely different, and it’s shocking,” she says, comparing the present to the past. “There’s metal there instead of trees I remember. Waist-high yucca [the state flower] are completely gone.”
“I’m 21 years old. I’m pretty young, right?” asks Jaramillo of YUCCA. “I’ve experienced that fear, that anxiety and the stress of inheriting a world that’s already ravaged by climate disruption. And that’s devastating to think about.”
“If I’m scared to think of a future that I might not have,” Jaramillo continues, “what does that say for the little ones coming up behind me?”
“The governor has passed these [climate] rules that are supposed to be the strongest in the country,” Pinto says. “But if no one’s making sure those rules are being followed, it’s still a hazard to the health and safety of people.”
Opening arguments in the case have not yet been scheduled.
