Fight over constitutional provisions to guard against oil, gas pollution moves ahead in New Mexico

SANTA FE, N.M. -- A New Mexico judge cleared the way Monday for a landmark lawsuit to proceed that alleges the state has failed to meet its constitutional obligations for protecting against oil and gas pollution.

Environmental groups and Native Americans who live near oil wells in the No. 2 producing state in the U.S. initially filed the case in 2023. They are seeking compliance with a “pollution control clause” in the New Mexico Constitution.

Judge Matthew Wilson denied a motion by the state to dismiss the case, saying there needs to be more scrutiny of New Mexico's responsibilities under the constitution and that granting the state's request would short-circuit that examination.

Attorneys for the plaintiffs celebrated the judge's ruling, saying it will allow residents of New Mexico who have been living with the consequences of more oil and gas development in opposite corners of the state to have their day in court.

“The case can go forward on the undisputed facts about the extent of the pollution and the extent of the state's failure to control that pollution,” said Gail Evans, an attorney with the Center for Biological Diversity.

She said plaintiffs have cleared a critical hurdle in the judicial process to bring forward evidence of constitutional violations.

"I’m confident the court will definitively enforce the constitutional protection of our state’s beautiful and healthful environment on behalf of the plaintiffs and every resident of New Mexico,” Evans said.

Lujan Grisham's administration has in recent years adopted rule changes aimed at limiting emissions from the oil and gas industry. However, environmental groups have raised concerns that enforcement isn't keeping pace despite fines being levied against out-of-state energy companies and major settlements being inked to address air pollution.

A spokesman for Democratic Gov. Michelle Lujan Grisham said Monday evening that the administration was still reviewing the judge's decision.

“We will continue to vigorously defend these claims,” said Michael Coleman, communications director to the governor.

Attorneys for the Legislature did not immediately respond to requests for comment. Two major business associations — the New Mexico Chamber of Commerce and the Independent Petroleum Producers Association of New Mexico — have formally intervened in court proceedings, unsuccessfully urging dismissal of the lawsuit.

The administration and lawmakers also are facing a backlash over their push to develop rules that would regulate the treatment and reuse of oil industry fracking water.

Environmental advocates including the group New Energy Economy on Monday documented what it said were undisclosed financial ties between a member of the state's Water Quality Control Commission and a privately oil and natural gas production company based in Farmington, New Mexico. Advocates urged the official's disqualification from rulemaking proceedings on the treatment and reuse of fracking water. A complaint also was filed with the State Ethics Commission.

According to the lawsuit, oil production in New Mexico’s portion of the Permian Basin — one of the largest oilfields in the world — has increased nearly tenfold since 2010, leading to a surge in pollution. In northwestern New Mexico, lead plaintiff Mario Atencio, who is Navajo, said his family's lands are at risk from spills at well and processing sites within the San Juan Basin.