Environmental legislation has “best chance ever” of passage, New Mexico Environmental Law Center predicts

by Kathleen Sloan | January 19, 2021
7 min read
Flaring in the Permian Basin oil fields of Eddy County
Bills under consideration would (among other things) enable individuals to sue polluters; allow the state to impose stricter regulations than federal laws permit; expand the definition of hazardous waste to include "produced water"; and plan for the state's transition to a diversified green economy. Photograph of Eddy County, New Mexico, oil fields courtesy of the National Resources Defense Council

Doug Meiklejohn, founder of the New Mexico Environmental Law Center, said the legislative session that opens today offers the “best chance ever” of passing environmental legislation since his Santa Fe-based organization, founded in 1987 to fight for environmental justice, began working with the legislature in 1989.

NMELC held an online “legislative priorities” preview event on Jan. 14, with Meiklejohn and several staff members and staff attorneys explaining the five bills it has written and will advance during the 60-day legislative session ending March 20.  

Sizing up the prospects for success, NMELC Staff Attorney Gail Evans explained this legislative session looks promising because there is a “very strong environmental, Democratic caucus in the Senate. The real fight is going to be in the House.”

It is likely Governor Michelle Lujan Grisham will sign environmental legislation that reaches her desk. Very early in her term, Grisham issued an executive order requiring “all state agencies to contribute to a statewide climate strategy and incorporate climate mitigation and adaptation practices into their programs and operations.”

 “New Mexico will join the U.S. Climate Alliance, fully embracing the goals set by the 2015 Paris Agreement, aligning New Mexico with the U.S. governors and states that have committed to a climate conscious future and moves to protect people, natural resources and cultural heritage,” a press release explaining the Jan. 29, 2019, executive order stated.

FIVE BILLS NMELC IS ADVANCING

RIGHT OF PRIVATE ACTION FOR CERTAIN STATUTES

House Bill 50. Representative Georgene Louis, D-District 26, is the sponsor.

Currently a private individual can only bring suit for environmental pollution against a party that violates the state Mining Act. The bill will create “private rights of action,” allowing individuals to bring suit for violations of the state Air Quality Control Act, the Water Quality Act, the Hazardous Waste Act, the Solid Waste Act and the Oil and Gas Act.

“As it stands now,” NMELC Staff Attorney Eric Jantz said, “only state agencies have the right to enforce environmental law,” with the exception of mining and coal laws.

“For example, if wells are polluted, the people affected must persuade the state agency to make the polluter follow the New Mexico Water Quality Act. That is a problem if you can’t get the environment department to move,” Jantz said. “An individual can sue the polluter directly if this legislation passes.”

The bill includes provisions for granting “relief” to the harmed individual, as well as recovering the cost of litigation, including experts’ and attorneys’ fees, Jantz said. Environmental equity is more likely to be achieved, Jantz said, by making it affordable for disadvantaged communities—so often chosen as the sites for heavy manufacturing plants—to fight against pollution.

STRINGENCY LEGISLATION

No number has yet been assigned to this bill. Senator Peter Wirth, D-District 25, is the sponsor and Representative Andrés Romero, D-District 10, has agreed to carry it in the House.  

Currently there are clauses in the state Air Quality Control Act and the Hazardous Waste Act “that prevent New Mexico from setting its own standards,” NMELC Staff Attorney Maslyn Locke said. Enforcement is limited to the federal government standards. She referred to the U.S. Environmental Protection Agency as “the distant wizard in Washington, D.C.” that controls local enforcement from afar.  

Under the provisions of this bill, local governments could pass regulations more stringent than the federal government’s, Locke said, and the people “can propose standards to the New Mexico Environment Department and pressure them to pass more stringent laws.”

One area the NMED could be pressured to regulate is oil and gas industry emissions, a NMELC press release on its legislative priorities states. Reducing the release of hydrocarbons and nitrogen oxides—known as ozone “precusors“—“effectively reduces methane emissions, and combats climate change.”  

INCREASE MAXIMUM CIVIL PENALTIES

No number has yet been assigned to this bill. Senator Siah Correa Hemphill, D-District 28, and Senator Jeff Steinborn, District 36, will co-sponsor the bill.

Currently penalties that can be collected under the state’s environmental statutes are 30 to 40 years old. Attorney Maslyn Locke hammered home the need to increase penalty fees to present-day standards by comparing 1990 gas prices to today’s. The per-gallon price was about 70 cents then and is about $2.30 now.

The bill would double penalties under the Air Quality Control Act, the Water Quality Act, the Hazardous Waste Act, the Solid Waste Act and the Mining Act. It would not cover the Oil and Gas Act, since that law’s penalty provision was amended just last year.

PROTECTION FROM OIL AND GAS WASTE WATER

No number has yet been assigned to this bill. Senator Antoinette Sedillo Lopez. D-District 16, is the sponsor.

Attorney Gail Evans said that for every gallon of oil produced, four to 10 gallons of liquid waste are created—a process “using hundreds of millions of gallons of fresh water” every year in drought-ridden New Mexico. The bill requires oil and gas producers to conserve fresh water by reusing polluted waste water on site.

In addition, the bill prohibits the use of waste water (i.e. “produced water”) outside of oil and gas production, unless the producer can show that it will not result in water pollution.

Evans said “produced water is a misnomer,” since the waste water is “literally radioactive,” containing uranium, lead, mercury and other dangerous pollutants.

­­­­GREENHOUSE GAS EMISSIONS

No number has yet been assigned to this bill. Representative Melanie Stansbury, D-District 28, and Senator Peter Wirth, D-District 25, are the sponsors.

Noting that former Governor Susana Martinez repealed legislation controlling greenhouse gas emissions, Attorney Eric Jantz explained this bill mandates the creation of a climate change leadership council, whose role would be to “assist local communities in developing resiliency to climate change, to adopt policies creating job diversity so we are not so dependent on oil and gas. Most importantly, it requires the New Mexico Environment Department and other government agencies to adopt regulations to reduce greenhouse emissions by industry.” For example, methane emission limits could be established specifically for the oil and gas industry, Jantz said.

In addition, this legislation, if passed, will ensure that certain aspects of Governor Lujan Grisham’s executive order on the Paris Climate Agreement are enshrined in law. This provision ensures policy continuity, Jantz said, “since executive orders are easily repealed by the next governor.”

BILLS NMELC SUPPORTS

HOUSE BILL 26

This bill would prohibit “tax increment development districts” from being created in previously undeveloped areas.

“TIDDs were originally established to help failed communities, not new development,” NMELC founder Douglas Meiklejohn said. TIDDs divert tax revenue away from local governmental entities, putting the revenue into a qualifying economic development project.  A baseline tax revenue is established and frozen, and any incremental increase in tax revenue is diverted away from schools, counties and cities within the tax district and given to the economic development project for 10 to 30 years.

NMELC has been working to prevent a TIDD from forming in the West Mesa areas of Albuquerque and Bernalillo designated for a planned community called “Santolina.” The development, which will build housing for about 95,000 people on 14,000 acres of “greenfield,” would strain local government entities if they were denied sufficient tax revenues to cover the extension of infrastructure and services to the new community, Meiklejohn said.

HOUSE BILL 76

This bill would add a “bad actor” provision to the state’s Air Quality Act and other environmental acts. Currently the New Mexico Environment Department cannot reject applications for a factory, for example, from corporations or businesses or people who have a history of violating pollution laws. Bad actors would be rejected at the outset, ending present policies that allow them to move into the state or expand their operations here.

EXPANSION OF HAZARDOUS WASTE DEFINITIONS TO INCLUDE “PRODUCED WATER”

No number yet has been assigned to this bill.

Currently the oil and gas industries’ “produced water” is excluded as a pollutant under the state’s Hazardous Waste Act, therefore the toxins it contains are not measured or controlled. This legislation would strike produced water from the list of exemptions.

STRATEGIC PLAN FOR A SUSTAINABLE ECONOMY

No number has yet been assigned to this bill.

The bill requires the New Mexico Economic Development Department to draft a plan to transition the state’s economy away from reliance on the gas and oil industry and encourage diversification through the development of green industries. Training for employment in sustainable industries, such as green construction, is part of the bill.

“We are not going to get there unless we plan for it,” Attorney Gail Evans said.

GREEN AMENDMENT TO THE STATE CONSTITUTION

If this legislation passes, the voters will be asked to approve a constitutional amendment that will make clean air, land and water a right of New Mexican citizenship.

Furthermore, if the “private right of action” bill (referenced above) also passes, it will lay out legal procedures for defending the individual rights granted by the Green Amendment.

“The New Mexico Supreme Court interpretation of the law asserts the status quo: an individual must go to the administering agency and ask it to pass legislation on water, land and air pollution,” Attorney Eric Jantz explained. The Green Amendment is needed, he said, to empower the individual and protect the disenfranchised.

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Kathleen Sloan is the Sun’s founder and chief reporter. She can be reached at kathleen.sloan@gmail.com or 575-297-4146.
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HAVE YOU SEEN?

Understanding New Mexico's proposed new social studies standards for K-12 students

“The primary purpose of social studies is to help young people develop the ability to make informed and reasoned decisions for the public good as citizens of a culturally diverse, democratic society in an interdependent world.”
—National Council for the Social Studies 

Reader Michael L. Hayes of Las Cruces commented: What impresses me is that both the proposed standards and some of the criticisms of them are equally grotesque. I make this bold statement on the basis of my experience as a peripatetic high school and college English teacher for 45 years in many states with many students differing in race, religion, gender and socioeconomic background, and as a civic activist (PTA) in public education (My career, however, was as an independent consultant mainly in defense, energy and the environment.)

The proposed social studies standards are conceptually and instructionally flawed. For starters, a “performance standard” is not a standard at all; it is a task. Asking someone to explain something is not unlike asking someone to water the lawn. Nothing measures the performance, but without a measure, there is no standard. The teacher’s subjective judgment will be all that matters, and almost anything will count as satisfying a “performance standard,” even just trying. Students will be left to wonder “what is on the teacher’s mind?” or “have I sucked up enough.”

Four other quick criticisms of the performance standards. One, they are nearly unintelligible because they are written in jargon. PED’s use of jargon in a document intended for the public is worrisome. Bureaucrats often use jargon to confuse or conceal something uninformed, wrong or unworthy. As a result, most parents, some school board members and more than a few teachers do not understand them.

Two, the performance standards are so vague that they fail to define the education which teachers are supposed to teach, students are supposed to learn, and parents are supposed to understand. PED does not define words like “explain” or “describe” so that teachers can apply “standards” consistently and fairly. The standards do not indicate what teachers are supposed to know in order to teach or specify what students are supposed to learn. Supervisors cannot know whether teachers are teaching social studies well or poorly. The standards are so vague that the public, especially parents or guardians, cannot know the content of public education.

Three, many performance standards are simply unrealistic, especially at grade level. Under “Ethnic, Cultural and Identity Performance Standards”; then under “Diversity and Identity”; then under “Kindergarten,” one such standard is: “Identify how their family does things both the same as and different from how other people do things.” Do six-year-olds know how other people do things? Do they know whether these things are relevant to diversity and identity? Or another standard: “Describe their family history, culture, and past to current contributions of people in their main identity groups.” (A proficient writer would have hyphenated the compound adjective to avoid confusing the reader.) Do six-year-olds know so much about these things in relation to their “identity group”? Since teachers obviously do not teach them about these other people and have not taught them about these groups, why are these and similar items in the curriculum; or do teachers assign them to go home and collect this information?

Point four follows from “three”; some information relevant to some performance measures requires a disclosure of personal or family matters. The younger the students, the easier it is for teachers to invade their privacy and not only their privacy, but also the privacy of their parents or guardians, or neighbors, who may never be aware of these disclosures or not become aware of them until afterward. PED has no right to design a curriculum which requires teachers to ask students for information about themselves, parents or guardians, or neighbors, or puts teachers on the spot if the disclosures reveal criminal conduct. (Bill says Jeff’s father plays games in bed with his daughter. Lila says Angelo’s mother gives herself shots in the arm.) Since teacher-student communications have no legal protection to ensure privacy, those disclosures may become public accidentally or deliberately. The effect of these proposal standards is to turn New Mexico schools and teachers into investigative agents of the state and students into little informants or spies.

This PED proposal for social studies standards is a travesty of education despite its appeals to purportedly enlightened principles. It constitutes a clear and present danger to individual liberty and civil liberties. It should be repudiated; its development, investigated; its PED perpetrators, dismissed. No state curriculum should encourage or require the disclosure of private personal information.

I am equally outraged by the comments of some of T or C’s school board members: Christine LaFont and Julianne Stroup, two white Christian women, who belong to one of the larger minorities in America and assume white and Christian privileges. In different terms but for essentially the same reason, both oppose an education which includes lessons about historical events and trends, and social movements and developments, of other minorities. They object to the proposal for the new social studies standards because of its emphasis on individual and group identities not white or Christian. I am not going to reply with specific objections; they are too numerous and too pointed.

Ms. LaFont urges: “It’s better to address what’s similar with all Americans. It’s not good to differentiate.” Ms. Stroup adds: “Our country is not a racist country. We have to teach to respect each other. We have civil rights laws that protect everyone from discrimination. We need to teach civics, love and respect. We need to teach how to be color blind.”

Their desires for unity and homogeneity, and for mutual respect, are a contradiction and an impossibility. Aside from a shared citizenship, which implies acceptance of the Constitution, the rule of law and equality under the law, little else defines Americans. We are additionally defined by our race, religion, national origin, etc. So mutual respect requires individuals to respect others different from themselves. Disrespect desires blacks, Jews or Palestinians to assimilate or to suppress or conceal racial, religious or national origin aspects of their identity. The only people who want erasure of nonwhite, non-Christian, non-American origin aspects of identity are bigots. Ms. LaFont and Ms. Stroud want standards which, by stressing similarities and eliding differences, desire the erasure of such aspects. What they want will result in a social studies curriculum that enables white, Christian, native-born children to grow up to be bigots and all others to be their victims. This would be the academic equivalent of ethnic cleansing.

H.E.L.P.

This postmortem of a case involving a 75-year-old women who went missing from her home in Hillsboro last September sheds light on the bounds of law enforcement’s capacity to respond, especially in large rural jurisdictions such as Sierra County, and underscores the critical role the public, as well as concerned family and friends, can play in assisting a missing person’s search.

Reader Jane Debrott of Hillsboro commented: Thank you for your article on the tragic loss of Betsey. I am a resident of Hillsboro, a friend of Rick and Betsey, and a member of H.E.L.P. The thing that most distresses me now, is the emphasis on Rick’s mis-naming of the color of their car. I fear that this fact will cause Rick to feel that if he had only gotten the facts right, Betsey may have been rescued before it was too late. The incident was a series of unavoidable events, out of everyone’s control, and we will never know what place the correct color of her car may have had in the outcome. It breaks my heart to think that Rick has had one more thing added to his “what ifs” concerning this incident.

Diana Tittle responded: Dear Jane, the Sun undertook this investigation at the request of a Hillsboro resident concerned about the town’s inability to mount a prompt, coordinated response to the disappearance of a neighbor. From the beginning, I shared your concern about how our findings might affect Betsy’s family and friends. After I completed my research and began writing, I weighed each detail I eventually chose to include against my desire to cause no pain and the public’s right to know about the strengths and limitations of law enforcement’s response and the public’s need to know about how to be of meaningful assistance.

There was information I withheld about the state police investigation and the recovery. But I decided to include the issue of the car’s color because the individuals who spotted Betsy’s car emphasized how its color had been key to their identification of it as the vehicle described in Betsy’s Silver Alert. Because the misinformation was corrected within a couple of hours, I also included in this story the following editorial comment meant to put the error in perspective: “The fact that law enforcement throughout the state was on the lookout in the crucial early hours after Betsy’s disappearance for an elderly woman driving a “light blue” instead of a “silver” Accord would, in retrospect, likely not have changed the outcome of the search” [emphasis added].

I would also point to the story’s overarching conclusion about the inadvisability of assigning blame for what happened: “In this case, a perfect storm of unfortunate circumstances, many of them beyond human control, hindered the search that it would fall to Hamilton’s department to lead.”

It is my hope that any pain caused by my reporting will eventually be outweighed by its contribution to a better community understanding of what it will take in the future to mount a successful missing person’s search in rural Sierra County.

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