This morning we filed a Motion to Disqualify Tainted WQCC Commissioners and Dismiss WATR Petition

Photo by Anni Hanna

New Energy Economy and Navajo Elder Daniel Tso today jointly filed a sweeping motion with the Water Quality Control Commission (WQCC) seeking to disqualify seven commissioners, vacate the Commission’s July 8 order setting a hearing on the WATR Alliance petition to allow discharge of fracking waste, and restore the public’s right to an impartial, science-based process. 

The motion documents the previously reported internal emails showing that Governor Michelle Lujan Grisham’s office and Environment Secretary James Kenney met with other department heads before July 7th and instructed Commissioners to support the oil and gas industry’s produced-water petition before the public meeting. This coordination violates state law, constitutional due process, and the Commission’s own rules requiring impartiality. 

In May the Commission concluded an 18-month rulemaking process and determined that oil and gas waste - known as “produced water” - cannot safely be discharged or reused outside the oilfield. Less than 30 days later, the WATR Alliance petition sought to undo those science-based protections. Internal emails show that the Governor’s Office pressured Commissioners to fast-track the petition, pick an oil-patch venue for the hearing, and require Cabinet Secretaries themselves—not designees—to vote as instructed. 

Our Motion argues that the Commission 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 related to the WATR Alliance petition because:  

1. The Instructions from the Governor’s Office Deprived the Public of Due Process 

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. This, in combination with Secretary Kenney’s refusal to make Environment Department scientists available for the proceedings further demonstrate that political loyalty—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 becomes a sham and the public loses the ability to influence the process— striking at the heart of constitutional due process protections. 

2. Participation by Commissioners tainted by a Reasonable Appearance of Bias Violates Due Process and Voids Commission Action 

The Water Quality Commission Rule 20.1.6.102 NMAC 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 Commission actions on the WATR petition. If members who were required to recuse themselves participate anyway, the Commission’s quorum is unlawfully constituted, and any vote fails for lack of legal authority. This is not discretionary. When recusal is required but ignored, any vote taken is unlawful because it violates a binding procedural rule. 

The appearance of bias is not only from our perspective, it is proven by the more than 60 people who showed up at NMED offices last week calling for Secretary Kenney's resignation, and by the important editorial published yesterday by the Santa Fe New Mexican Editorial Staff: Produced Water? Stick to earlier decision, in which the Editorial Board wrote:

"It’s clear the administration is in an all-out effort to get the petition “over the finish” line, as one staffer wrote in an email. That included “huddles” behind closed doors with commission members. Most unseemly, and potentially violations of how the Water Quality Control Commission should be run under state law."

We requested that the Commission hold a meeting to address our Motion in October 2025. If the Commissioners fail to recuse and dismiss the WATR petition, we will seek further redress from the courts.

The Governor, Secretary Kenney and other Commissioners not only violated the rights of New Mexicans, they conspired to allow the powerful oil and gas industry another chance to get discharge of fracking waste authorized despite the fact that this toxic and radioactive waste has not been fully characterized, that testing methodologies for many of its 1,400+ potential contaminants has not been developed, and that treatment technologies have not been adequately tested, especially not continuously and at scale. The consequences of authorizing discharge without sufficient scientific evidence of safety cannot be overstated.

As Daniel Tso, our Joint Movant, put it: “When we had a fair group of commissioners who made their decisions based on science they voted for protections, so oil and gas came at us again, this time with the force of the Governor behind them. We deserve a fair process! It brings me deep sadness to know that this Governor has fixed the outcome. Fixing the outcome is obviously a betrayal of public trust: cabinet secretaries are working in secret with oil and gas to dispose toxic waste onto communities like mine that already bear the burden of contaminated land and water. Are they banking on our suffering? The poison is forever after."

This is a moral and ethical crisis that risks the health of all New Mexicans. Governor Michelle Lujan Grisham is ignoring science, stacking the deck for her fossil fuel campaign donors, and running roughshod over democracy and the rule of law. New Mexicans deserve honest government and a fair process, not secret huddles to get the petition ‘over the finish line’ for oil and gas donors.