The Oil Conservation Commission got it wrong: We filed a Joint Brief at the Appellate Court to Prevent PFAS in All Oil and Gas Downhole Operations

With everything going on, we have been remiss in reporting on an ongoing dispute with the Oil Conservation Commission over the final wording of the PFAS prohibition in Oil and Gas operations that was litigated in November of 2024. The application filed by Wild Earth Guardians and supported by New Energy Economy in 2023 sought to prohibit the use of PFAS compounds in all downhole oil and gas operations and require community notification of chemical disclosures. The final rule adopted by the OCC, however, improperly worded the prohibition on PFAS to apply only to well completion and recompletions, leaving out operations like oil and gas well drilling, treatment and maintenance, and enhanced oil recovery, a significant change to the rule that was not contemplated during the hearing.

Yesterday we filed a Joint Brief at the New Mexico Appellate Court with Wild Earth Guardians after the Commission ignored a Motion for Clarification and a Motion for Rehearing earlier this year. Our brief argues that the Commission's decision to limit the PFAS prohibition to well completions and recompletions was arbitrary and capricious because it was not based on any evidence or arguments made during the hearing. In fact the Oil Conservation Division itself affirmatively supported a PFAS prohibition in all downhole operations.

“An agency’s action is arbitrary and capricious if it provides no rational connection between the facts found and the choices made, or entirely omits consideration of relevant factors or important aspects of the problem at hand.” Albuquerque Cab Co. v. N.M. Pub. Regul. Comm’n, 2017-NMSC-028.

NMOGA was the only party that argued in its closing brief that PFAS should be limited only to well completion and recompletions, but it did not cite to any evidence in the record to hyper-limit the ban to these activities. NMOGA didn't cite to any evidence because there was none. On the other hand, Wild Earth Guardians and New Energy Economy submitted substantial evidence to ban PFAS in all downhole operations.

Our brief also seeks to remedy the final rule's failure to include an effective date for the provision requiring oil and gas producers to provide notification to community and government entities of required chemical disclosures, leaving only a placeholder reading

"[DATE]" and failing to provide any reason for this omission in its final decision.

The OCC's final rule and decisions to ignore the Motion for Clarification and Motion for Rehearing are unconscionable and representative of the industry influence at our regulatory agencies. Uncontroverted hearing evidence showed that PFAS has been used in New Mexico oil and gas operations. Between January 1, 2013 and September 29, 2022, the oil and gas industry in New Mexico injected 261 wells with 9,005 pounds of PFAS compounds. Under the rule as adopted, that poisoning of New Mexico land and water can continue.

Evidence in the case underscored the significant risk to communities and the environment from PFAS use in oil and gas operations. Any PFAS used downhole can return to the surface with flowback and produced water, which are mixed for purposes of disposal. PFAS chemicals persist in the environment for decades, bioaccumulate in human and animal tissue, and pose severe health risks including cancer, reproductive harm, and immune system suppression. Loss of well integrity, tens of thousands of spills annually, and disposal of fracking waste via injection wells can introduce PFAS into New Mexico waterways and underground aquifers. Many PFAS move quickly and widely from their point of discharge or disposal. PFAS can even become volatilized, spreading through the air around surface ponds and spill sites!

The Commission’s arbitrary decision to limit PFAS to completions and re-completions limits the prohibition on PFAS to only a fraction of oil and gas activities. Naturally NMOGA is objecting to our appeal on procedural grounds, but we are confident the law is on our side and we are certain that the people are as well! Our regulatory agencies must be held accountable to the people, and the oil and gas industry must not be allowed to poison our land and water with impunity.