An important NM Supreme Court decision on climate, and a pivotal hearing to decide if tainted WQCC Commissioners must be disqualified
- New Energy Economy
- Nov 12
- 5 min read
We are thrilled to report that the NM Supreme Court has agreed to hear the landmark lawsuit filed in 2023 by a coalition of Indigenous, frontline, youth and environmental organizations and community members over the state’s failure to protect public health and the environment from the harms of oil and gas pollution, as required by the state constitution.
The lawsuit, Atencio v. State of New Mexico, is the first to challenge the state for violating the pollution control clause of the New Mexico Constitution, Article 20, Section 21, which requires the state to prevent the “despoilment of air, water and other natural resources” and protect New Mexico’s “beautiful and healthful environment.” The decision means the NM Supreme Court will be the final arbiter of the meaning and enforceability of this clause, and will determine whether the plaintiffs can proceed to trial to prove that the state has abdicated its duty to control oil and gas pollution.
With the New Mexican side of the Permian the most productive oil play in the United States, the country exporting the most oil and gas in the world, this is an important moment for both New Mexicans and humanity. Read more about the decision here.
TOMORROW IS ALSO A PIVOTAL HEARING IN THE ONGOING FIGHT TO PREVENT OIL AND GAS FROM DUMPING THEIR TOXIC FRACKING WASTE INTO OUR WATERS
At tomorrow's meeting the WQCC will decide how to respond to the Motion to Disqualify that New Energy Economy and Daniel Tso filed in September after the Commission voted to allow an oil and gas funded produced water discharge petition to proceed before the ink on our hard-fought discharge prohibition rule had even dried.
A group calling itself the Water Access Treatment and Reuse Alliance “WATR” filed a new petition again seeking to authorize discharge of “treated” fracking waste to land and waterways in thirteen New Mexico counties. This industry front group includes employees of ExxonMobil, Chevron and Occidental, as well as executives from seven oil and gas waste treatment companies based in Texas, Colorado, Virginia and France. These are essentially the identical parties or in close relationship with intervenors in the first WQCC rulemaking - the New Mexico Oil and Gas Association or the NM Produced Water Research Consortium - and some even testified as experts in that case. It is illegal for a party to relitigate an issue under a different name until they get the desired result, and Water Quality Act rules require compelling scientific evidence to underpin any new rulemaking. No such evidence was presented.
The public stood up to defend our water and oppose their attempted end run around our democratic process, but the Commission process was subverted. Internal emails show that the Governor’s Office pressured Commissioners to fast-track the oil and gas funded WATR Alliance petition, pick Jal, an oil-patch venue, for the hearing, and require Cabinet Secretaries themselves (political appointees)—not designees (actual scientists, engineers, etc.)—to sit on the Commission and vote as instructed. This coordination violates state law, constitutional due process, Separation of Powers between the Governor and Legislature, and the Commission’s own rules requiring fairness and impartiality.
Our motion argues that the WQCC must disqualify the Commissioners named in these emails - the Secretary of Environment James Kenney, the Secretary of Health Gina DeBlassie, the Director of the Department of Game and Fish Michael Sloane, the State Engineer Elizabeth Anderson, Secretary of Agriculture Jeff Witte, the Secretary of Energy, Minerals, and Natural Resources Department Melanie Kenderdine, and their designees; and vacate July 8th and August 12th votes regarding a hearing for the WATR Alliance petition.
Commissioners will also respond to two additional motions calling for disqualification and dismissal of the WATR petition - by Center for Biological Diversity and Mario Atencio , by Amigos Bravos, Sierra Club and Western Environmental Law Center, and our reply brief.
We will argue that:
1. The Trumpian Instructions from the Governor’s Office to ignore science and approve a new hearing on fracking waste discharge without any new evidence deprived the public of our due process rights. The Governor’s direction was to get this “over the finish line” and to have the cabinet secretaries sit themselves, not their designees, thereby replacing independent Water Quality Control Commissioners with political loyalists. Politics—not science—dictated the process and the outcome. When a decision has been prejudged behind closed doors, and the outcome dictated from the top, the “public” hearing is a sham and the public loses the ability to influence the process — striking at the heart of constitutional due process protections.
2. The decision to allow a hearing on the WATR Alliance petition to proceed was made by Commissioners tainted by the appearance of bias. The law states that “No commission member shall participate in any action in which his or her impartiality or fairness may reasonably be questioned, and the member shall recuse himself or herself … by announcing this recusal on the record.” The failure of the tainted Commissioners to recuse themselves voids any Commission actions on the WATR petition and the decision to hold a hearing must be vacated.
3. The appearance of bias is not just alleged by intervenors and the few members of the public who come to these meetings - it has been publicly called out by the Santa Fe New Mexican editorial board, by multiple NM state legislators at public hearings, and in op-eds and Letters to the Editor across the state. Any decision by this body to proceed with produced water treatment and discharge will be viewed with suspicion until trust in the process and the decision makers has been restored. The Governor, Secretary Kenney and other cabinet secretaries’ joint conspiracy to predetermine the outcome is evidence of bias; especially, when the WATR Petition before them is deficient on its face because it is unscientific and without merit due to the fact that it doesn’t include any scientific evidence to overturn WQCC’s prior ruling.
4. New Mexicans expect any rule related to protection of our water to be based on science and the precautionary principle. A 2024 study by lead scientists from the Produced Water Research Consortium found that after distillation “Organics, metals, metalloids, nonmetals, radionuclide, ionic and other inorganic constituents were detected in the distillate,” and “based on the organic chemical characterization carried out in the present study, about 96.78% of the organic fraction present in the distillate remained unidentified.” We cannot accept any discharge until and unless scientists can AT LEAST identify what is in their treated waste, because the oil and gas industry refuses to divulge this information.
The WQCC cannot set science-based standards for each of these constituents to protect human health and the environment without knowing whats in the fracking waste. For the largest majority of these chemical constituents no standards have yet been established. The consequences of discharge without these safeguards risk contaminating our precious and dwindling water supply, our land, and human health.
5. Integrity and public trust is on the line. In these times, when the rule of law is under attack, we need the WQCC to adhere to legal and ethical requirements and to act with impartiality. The Commissioners who voted to hold a hearing on the WATR Alliance petition must recuse themselves and the WATR Alliance petition must be dismissed.
This is a decisive moment for New Mexico. Agua es Vida! If the WQCC can’t stand up to protect our water and for the rule of law then we could lose everything.
The meeting will take place at the Capital Building (490 Old Santa Fe Trail) in Room 307, and online via the WebEx platform. If we can pack the room that sends a powerful message. Can you be there? If not, here's the login information for virtual comment.
Meeting number: 2863 271 3956Password: vwUbna9PR62
Join by phone415-655-0001 Access code: 2863 271 3956
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