State argues court doesn't have powers to rule for relief on oil and gas lawsuit

Apr. 12—The state wants a Santa Fe judge to dismiss a major lawsuit that alleges oil and gas production and pollution allowed by New Mexico violates the Constitution.

Arguments to allow the dismissal, or not, went on for about three hours Friday in Santa Fe County 1st Judicial Court. Judge Matthew Wilson said he will issue a decision in due course.

Lawyers for the state argued the court would violate separation of powers by allowing a limit on new oil and gas leases until the state adheres to environmental rights in the Constitution.

Environmental and Indigenous advocacy groups and other individuals filed the lawsuit in May, alleging the state is failing to comply with constitutional duties to provide for and protect a healthy environment. It's based on a clause in the New Mexico Constitution calling for the protection of "the state's beautiful and healthful environment" and the legislature's duty to control pollution.

The constitutional clause states: "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."

Not enforcing the clause and allowing oil and gas production and pollution is hurting frontline communities, Indigenous people, youth and environmental organizations, according to the lawsuit. So the plaintiffs asked the court to cease new oil and gas production until the state and its officials "have established and implemented a statutory, regulatory and enforcement framework" that's consistent with the Constitution.

The suit is against the state of New Mexico, state agencies and divisions, and state officials, including Gov. Michelle Lujan Grisham.

In September 2023, attorneys for the state and its officials asked the court to dismiss the complaint on the basis of the separation of powers and the court's lack of authority to take over legislative matters. And that's largely what the state's lawyers focused on Friday when arguing for dismissal.

Elizabeth Radosevich, an attorney for the state, argued the court doesn't have the authority to issue the relief without intruding on the Legislature's authority.

"Because the court cannot wield legislative powers, just as the executive cannot wield those legislative powers, the judiciary is going to need to step back and allow the legislature to make policy decisions in this area," she said.

Radosevich also said things change quickly on the climate front over time. She said when the constitutional clause was passed in the 1970s, climate change was a theoretical or scientific question .

"In this case, plaintiffs are asking the court to step into an area where the science is changing very fast, where the technology is changing very fast," she said. "And that is precisely the type of area where administrative fact-finding and rulemaking is appropriate because it can adjust to those changing facts, highly technical facts over time."

Legislature attorney Thomas Hnasko said the judiciary doesn't have scientific expertise to look at these matters. He also referenced various statutes legislators have passed for oil and gas regulations.

He said it's obviously a separation of powers issue as well.

"It's a lack of respect for the legislative function," he said. "It really flies in the face of what the Legislature is supposed to do."

Hnasko said there are mechanisms in place for people to change regulations of the oil and gas industry, like petitioning the Legislature.

"If they want a change, they can get a change," he said.

Radosevich also said plaintiffs failed to prove there's a fundamental right in the constitution to a judicially defined level of pollution control or contamination-free environment.

Plaintiff attorney Gail Evans said arguments on the substantive content of the lawsuit isn't what the court was considering on Friday. The court was considering only a motion to dismiss the case, she said, with the judge testing the legal sufficiency of the case.

"The court is not deciding today whether plaintiffs win or lose," she said.

She said the plaintiffs have substantive due process and equal protection claims, even if the judge ultimately rules there's not a constitutional right to a beautiful and healthy environment.

Evans said relief wouldn't violate the principles of separation of duty, and the case is within the bounds of the court. She said the court's fundamental duty is to interpret and enforce the state Constitution, even if the Legislature is referenced.

"Your Honor, plaintiffs are not asking you to rewrite statutes or rewrite regulations. ... What we are asking from this court is a declaration that the state is not fulfilling its constitutional duties under the pollution control clause," she said.

She referred to Yazzie v. Martinez, a historic education lawsuit, in which the court had to determine what a constitutionally sufficient system of education is.

"Likewise, here, Your Honor could interpret what does it mean to say you're going to control pollution, and you're going to develop resources? What does 'maximum benefit of the people' mean in that context? And then Your Honor could look at what the state has done," she said.

Evans said the judge could issue a declaration that the state isn't adhering to its constitutional duty, which would mean "the state should then get into action and get into compliance with their duty, and that's what we would fully expect them to do."

After the hearing, New Mexico Energy, Minerals and Natural Resources department spokesperson Sidney Hill said the state can't comment on pending litigation but appreciated the opportunity to present its merits through counsel.

"There was a robust argument before the court," he said via email. "As we have said before, the State will vigorously defend this matter, and we look forward to the judge's ultimate ruling."

Evans told the Journal the state seems to think it has the right to define its constitutional duty is and if it's fulfilled, "and that's clearly not the law." She said the state's position undermines the authority of the court.

"I think it's clear that the state has a duty and that our case is strong," she said. "And I'm hopeful that the court agrees."

The hearing happened the same day the U.S. Department of the Interior announced a ruling to revise federal oil and gas leasing regulations, updating the oil and gas onshore leasing program for the first time in in over three decades. As a result, oil and gas companies will have to pay more to drill on federal lands and follow more stringent clean-up standards.