By Christie Chisholm
One of Gov. Susana Martinez’ first actions after being sworn into office on Jan. 1 was to start a controversy.
Minutes after taking the oath, Martinez issued an executive order to halt all “proposed or pending” rules at executive branch agencies for 90 days so they could be reviewed. Many rules were affected by this order, but two have garnered a lot of attention—one would curb greenhouse gas emissions annually by 3 percent, and another would better control dairy farm discharge.
The New Mexico Environmental Law Center is suing the governor, the secretary of theEnvironment Department and the New Mexico state records administrator over both rules, claiming it was illegal to halt the regulations since they weren’t “proposed or pending” but already approved and awaiting publication. As the story unwinds, it may serve as a bellwether for how the Martinez administration will handle environmental issues.
Martinez, who received hundreds of thousands of dollars from the oil and gas industries during her campaign, made it clear as part of her platform that she doesn’t believe in the link between human activity and global warming. She also described greenhouse gas regulation as burdensome to industry and the state’s economy.
The greenhouse gas rule would require facilities that emit more than 25,000 metric tons of greenhouse gases per year to reduce their emissions by 3 percent annually, based on 2010 numbers. To put that in perspective, 25,000 metric tons is equal to the weight of water in about 10 Olympic-sized swimming pools. In 2008, 63 facilities in New Mexico emitted more than this amount. Together, they emitted 23.4 million metric tons of greenhouse gases, which accounted for about 97 percent of all total reported emissions in the state. That’s 9,356 Olympic-sized swimming pools
Reducing that amount by 3 percent every year “sounds difficult to meet,” says Laura E. Sanchez, an attorney with the air and energy program at the Natural Resources Defense Council, “but there are ways to do it that aren’t difficult.” Sanchez says the easiest way to meet that goal is upgrading outdated equipment. Plus, she says the rule is actually more lenient than most emissions regulations—it allows businesses in financial hardship to request a waiver.
The dairy farm regulation is the result of two-plus years of hearings and meetings on the part of the dairy industry, environmental organizations and independent citizens. The proposed change came about after the dairy industry requested that rules be made specifically for it, since it previously had to adhere to rules made for hazardous waste sites and landfills. The final regulation clearly lays out requirements for dairy operations, stating what kinds of documents it has to make available to the public and what infrastructure it needs to build. The regulation won’t affect existing operations until their permits expire and they need to reapply.
Michael Jensen, communications director for Amigos Bravos, one of the organizations involved in the extensive dairy hearing process, says the rule doesn’t require much beyond what most dairy operations already do. “It’s just telling them how to do it in the best way to protect the public health and the environment,” he says. That kind of legislation is extremely important in New Mexico, he says, where dairy operations have the highest numbers of animals per farm of any state in the country, and where, according to the New Mexico Environment Department, 63 percent of dairies in the state are operating in violation of existing regulations.
Both rules were approved in December—the dairy regulation by the Water Quality Control Commission and the greenhouse gas rule by the Environmental Improvement Board. They were set to be published in the next state register, which was printed on Jan. 14. Around the time Martinez ordered the rules halted, she also sent e-mails to all seven members of the Environmental Improvement Board, firing them immediately. New members will be selected by Martinez and will have to be approved by the state Senate.
Law and Executive Orders
The New Mexico Environmental Law Center filed a lawsuit Jan. 11 on behalf of the New Energy Economy and another on Jan. 13 on behalf of the Citizens Coalition, a group that includes Amigos Bravos. They state that neither the governor, the secretary of the Environment Department nor the state records administrator has the authority to halt rules that are “final and filed.” The suits also mention that a total of 32 such rules were affected by Martinez’ order. “Respondents are thus engaged in a concerted and comprehensive effort to circumvent the lawful process,” the first petition states. Bruce Frederick, a staff attorney with the New Mexico Environmental Law Center, says Martinez is “interfering, and she has no right to and no power to.”
As of press time, the Governor’s Office had not yet offered an explanation for why the rules were halted, though it did issue a general response to the lawsuits. Martinez’ spokesperson, Scott Darnell, argued that the Governor’s Office was following the law and that the rules were only temporarily postponed to allow for review. It goes on to state, “The executive order does not seek to avoid or cancel publication, nor does it seek to amend or repeal the rule.” The Governor’s Office did not respond to followup questions.
Frederick doesn’t take any comfort in Darnell’s statement, saying, “he clearly doesn’t know the law.” He adds, “it’s just a very basic element of how public laws are created, and she’s unconstitutionally interfering with that, rather arbitrarily.”
John Martinez, director of the Administrative Law Division of the State Records Center, says the office’s only response to the lawsuits is to “wait and see how the Supreme Court handles it.” The Environment Department is deferring all comments to the Governor’s Office.
The state Supreme Court will hear the case on Jan. 26 at 9 a.m.