On Monday, the New Mexico Supreme Court agreed to take up a first-of-its-kind lawsuit that accuses the governor, legislators, and state agencies of failing to protect both the public’s health and the environment from oil and gas industry emissions.
The lawsuit, Atencio v. New Mexico, was first filed by a slew of environmental groups, advocates, youth, and community members in May 2023, and centers around just two sentences of text within New Mexico’s state constitution.
Dubbed the “pollution clause,” Article 20, Section 21 is a short paragraph that outlines the legislature “shall” protect and preserve New Mexico’s beauty and environment by managing the pollution of water, air, and other resources for the benefit of all peoples.
New Mexicans voted to add the language to the constitution more than 50 years ago.
“We have a strong constitution in New Mexico and I’m confident the Supreme Court will uphold New Mexicans’ right to protection of our health and our environment,” wrote Gail Evans, general counsel and attorney for the Center for Biological Diversity, in a news release.
This is where Evans contends that the state has fallen short on its constitutional responsibilities by pumping more crude oil than it has ever before. In the month of August alone, just over 71,000 barrels of oil came out of the ground across New Mexico.
Plaintiff Mario Atencio, whose namesake is also the case’s title, told KUNM last year that he has seen first-hand how oil and gas development has hurt the place where he grew up in rural New Mexico.
“We're proud New Mexicans, and we're afforded certain rights,” Atencio said. “Our environment out there, the landscape, is not safe or healthy. We have to rise and take action. We can't just shake our fists, we need to do something.”
Atencio said the unprecedented drilling is devastating the state’s air and water – heavily polluting the oil-rich San Juan Basin in the state’s northwestern corner – and New Mexico’s portion of the gigantic Permian Basin in the southwest, one of the world's largest oilfields.
Oil and gas operations emit hazardous chemicals – including benzene, formaldehyde, and naphthalene – which are known to cause cancer. Scientific studies have also found a connection between living near natural gas wells and increased birth defect rates.
The newly revived suit calls for the state to stop issuing new permits for oil drilling and to ramp up rules and regulations to manage industry pollution.
On the other hand, the impacts of oil and gas production are nothing to scoff at. They’re a huge economic driver for New Mexico, creating record levels of tax revenue.
But it won’t last much longer. Legislative analysts predict oil and gas production could slowly start to plateau in the coming decades, and eventually decline – potentially leaving New Mexico in a tough economic bind.
The decision by the New Mexico Supreme Court is just the latest in a long back-and-forth saga between oil and gas industry interests, the state, and the environmental coalition.
Shortly after filing the case in 2023, a judge allowed industry groups to participate in the lawsuit after they argued the legal proceedings could threaten their business interests.
Evans was quick to discount these claims, telling KUNM in March 2024 that these groups do not deserve a seat at the negotiation table as she was suing the state – not private industry.
Additionally, the state legislature, Gov. Michelle Lujan Grisham, various state agencies, and the New Mexico Chamber of Commerce asked for the case to be dismissed before trial.
A New Mexico judge eventually allowed it to proceed, but the state appellate court dismissed it entirely this summer. The environmental coalition immediately pledged to appeal.
While the state’s highest court has agreed to take up the appeal petition, justices have yet to set a briefing schedule or issue any special instructions.
Because the case currently does not allege a violation or issue of federal law, this will be the environmentalists' last shot at using the pollution clause to challenge the state of New Mexico and its heavy reliance on fossil fuels.
Despite this, plaintiffs remain hopeful for a favorable outcome – predicting it would be a “monumental” step towards keeping New Mexico accountable for what they call “out of control” pollution.
Advocates won a similar lawsuit in Montana last year.
