State Land Commissioner rejects Spaceport Data Center and NM Attorney General supports our petitions against Project Jupiter at NM Supreme Court. But PRC passes rules to limit rights at hearings.

Today the State Land Commissioner, Stephanie Garcia Richard, informed the Sierra County Commission that the State Land Office will respect Sierra County's recently passed data center moratorium ordinance and "will not be approving any data centers, including the proposed Aetherion sublease at Spaceport America." This principled stance is important because Spaceport operates on state trust lands and, in general, local governments cannot regulate state activities on state lands. However, as the Commissioner pointed out in her letter, Spaceport's lease includes a "Compliance with Laws" provision that requires them to comply with local government ordinances.

This announcement comes after an extraordinary story broke in the Abq Journal yesterday revealing how Spaceport and data center developers schemed in a secretly recorded private meeting to get around open meeting laws to influence Commissioners to amend the moratorium ordinance. That recording was obtained via an IPRA request by our friends at Project Consequences in Truth or Consequences, who led the call for the moratorium.

NM ATTORNEY GENERAL TODAY FILED BRIEFS ASKING NM SUPREME COURT TO GRANT OUR PETITION FOR A WRIT OF MANDAMUS IN THE PROJECT JUPITER AIR PERMIT CASE AND SUPPORTING CENTER FOR BIOLOGICAL DIVERSITY'S PETITION CHALLENGING PROJECT JUPITER'S WATER PERMIT

Today we welcomed New Mexico Attorney General Raúl Torrez’s filings in the New Mexico Supreme Court supporting the Center for Biological Diversity's challenge to the OSE's expedited approval of a well for Project Jupiter construction purposes, arguing that “Delay in the construction of a private data center does not rise to the level of a genuine emergency,” and another supporting NEE’s Emergency Request for a Stay and Petition for Writ of Mandamus challenging the rushed air permitting process for Project Jupiter. 

The Attorney General’s filing is unequivocal: the New Mexico Environment Department violated NEE’s (and other opponents’) constitutional due process rights by abruptly accelerating the hearing schedule and then eliminating discovery in an extraordinarily complex proceeding. The AG asks the Supreme Court to grant NEE’s Petition and continue the stay until the writ proceeding is resolved.  

Most importantly, the Attorney General rejects any suggestion that Project Jupiter can be treated like an ordinary air permit, emphasizing: 

“the unprecedented nature of so many of these fuel cells in one location, which prohibit comparison to another facility already in operation as there are none—in the world.” (Emphasis in the original.) 

That point goes to the heart of NEE’s case. New Mexico law recognizes that due process is not one-size-fits-all. As the New Mexico Court of Appeals held: 

“In administrative proceedings[,] due process is flexible in nature and may adhere to such requisite procedural protections as the particular situation demands.” State ex rel. Battershell v. City of Albuquerque, 108 N.M. 658, 662, 777 P.2d 386, 390 (Ct. App. 1989).

Project Jupiter is not a dry cleaner proposed for the corner of Main Street and First Avenue. It is a proposed 1,400-acre hyperscale AI data center campus with enormous consequences for New Mexico’s air, water, climate, public health and neighboring communities. The risk could hardly be greater, yet the Hearing Officer violated our due process rights in multiple ways, including imposition of an extremely compressed schedule and reversal on our right to discovery.

The Attorney General concludes that these circumstances create a “high probability that an incorrect and unfair outcome will result” without constitutionally adequate procedures, and rejected unequivocally Project Jupiter's arguments about artificial permit approval deadlines, writing  

“NMED’s interest is defined by its non-discretionary duties to New Mexicans—not by the profit margin of a private company.” 

We could not agree more.

Meanwhile NMED's new privately contracted lawyers (Rael Robles) filed a motion arguing that, should the NM Supreme Court agree to take up the petition and grant the Writ of Mandamus, it would violate separation-of-powers and invade NMED's Executive authority as a branch of the administration.

The argument is absurd on its face - the legislature makes the laws and the Executive branch must follow the law. The purpose of the Judiciary is to determine whether people, including the Executive, are doing so. That is the literal purpose of the Judiciary, and every individual citizen has the right to petition the court to fulfill that role.

What does all of this mean? It means that it matters who we elect. It matters that the people pay attention and demand that the people we elect follow the law and fulfill their responsibilities to the public - when we take action they are forced to take action. Most importantly, it matters that our democratic rights to question the actions of the Executive and the Legislature and Regulators is preserved.

And those rights are at risk - in the coming election, and at the PRC, where the Commission has passed an outrageous new rule to limit the ability of the public and intervenors to participate in regulatory hearings. 

More on that, and what we, and you, can do about it next week...