The New Mexico Environmental Law Center’s Top 10 Issues
For the last two years, this annual article has highlighted actions of the Trump administration. That is the case this year as well. However, we are starting to see the results of New Mexico’s new administration in state-level policies and rules that could actually protect the air, land and water for our communities. Here are some of the top stories to watch in 2020.
1) Trump Withdraws from the Paris Agreement… and Youth Lead the Resistance
On Nov. 4, 2019, President Trump announced that the U.S. was withdrawing from the Paris Agreement on climate change. It takes one year after the official announcement for a country to finally withdraw, meaning Nov. 4, 2020, or one day after the 2020 presidential election. The Trump administration’s approach to climate change is clear:
While the U.S. pushes accelerated carbon extraction, the response domestically and internationally has been aggressive action on climate change, much of it youth-led. In New Mexico, one of the most visible climate organizations is Earth Care’s YUCCA (Youth United 4 Climate Crisis Action, www.youthunited4climatecrisisaction.org), a Santa Fe-based nonprofit that trains young activists and supports intergenerational campaigns in social and environmental justice organizing. Earth Care’s YUCCA co-curated this issue of Green Fire Times in order to spotlight important environmental justice issues in our state as we begin the new year. 2020 will surely see the continued increase in numbers and strength of the climate crisis movement.
2) Trump Administration Gutting the Clean Water Act
The Clean Water Act (CWA) gives the federal Environmental Protection Agency (EPA) and the Army Corps of Engineers the responsibility to regulate water pollution in “waters of the United States” (WOTUS). In September 2019, the EPA finalized a new rule that significantly limits federal protections in “traditional navigable waters” and eliminates protections for ephemeral waters — waters that flow only with rainfall or snowmelt. The New Mexico Environment Department (NMED) has estimated that as much as 96 percent of the stream miles in the state might lose federal protections under the new definition.
The EPA has also proposed changes to regulations that implement Section 401 of the CWA, which allows a state — or a tribe with CWA authorization — to verify that a discharge under a federal permit or license complies with existing state or tribal water quality rules. New Mexico would be particularly affected by changes to 401 certifications because it is one of only three states that do not have authorization from the EPA to administer National Pollution Discharge Elimination System (NPDES) permits and are dependent on the EPA for that.
With these two regulatory changes, New Mexico’s waters will have drastically reduced protection under the Clean Water Act, and even where federal permits may be issued, the state and tribes could lose the ability to intervene if their water quality standards are not being met under the federal permit. The Law Center has filed comments on both of these regulatory changes on behalf of our client, Amigos Bravos.
3) Tererro Mine in Pecos Watershed
A proposed new mine in the Upper Pecos watershed near Tererro shows what early and sustained community mobilization can accomplish. On April 4, 2019, New World Cobalt announced it had acquired land near the site of the previous Tererro Mine. The community, led by the Upper Pecos Watershed Association (UPWA, represented by the Law Center), organized to resist proposed new mining by Comexico, a subsidiary of New World Cobalt. The proposed mine site is almost entirely in Santa Fe County, but the impacts to water resources and communities are in San Miguel County, with tributaries running east to the Pecos River.
Comexico has submitted an application to the Mining and Minerals Division of the Energy, Minerals & Natural Resources Department for exploratory drilling. Because it would be on federal Forest Service land, the proposed mine also needs to go through the National Environmental Policy Act (NEPA) process. On Dec. 2, 2019, the Forest Service issued a Scoping Letter on the proposed exploratory drilling project, and is seeking public comments. The Scoping Letter is the first step in the NEPA process. You can comment on the Scoping Letter by going to the Forest Service website for the proposed mine (see below.)
4) Gila Diversion
On Dec. 20, 2019 the U.S. Department of the Interior told the New Mexico Entity of the Central Arizona Project that the federal agency was cutting off access to over $56 million in funding because the state had failed after 15 years to identify a feasible diversion project on the Gila River, and, because of this, the Bureau of Reclamation was unable to complete its draft Environmental Impact Statement before the Dec. 31 deadline. However, community organizing has led to alternative proposals for sustainable supply of irrigation and drinking water to the area while leaving the Gila free-flowing. The state Interstate Stream Commission could use other funds to try to complete a diversion project or it could support the community-based approaches.
5) Kirtland Air Force Base Consent Decree In the 20 years since a jet fuel leak was discovered at Kirtland Air Force Base (KAFB), progress in dealing with the groundwater contamination, especially from ethylene dibromide, a known carcinogen, has been slow. There continue to be doubts that the
plume is under control and that treatment is working. The SouthWest Organizing Project (SWOP) and other organizations and individuals, represented by the Law Center, are working to force KAFB to take decisive, effective action. They filed a Notice of Intent (NOI) in 2019 and the Air Force has begun discussions. As a result, the Law Center prepared a draft Consent Decree for review by the Air Force, and there could be a response in 2020.
6) Air Force PFAS
Per- and polyfluoroalkyl substances (PFAS) have been used in many industries since the 1940s. There is substantial scientific evidence that PFAS pose significant human health and ecological risks. The Air Force began testing its facilities around the country for PFAS in 2009 and in 2018 detected PFAS at the Schaap family dairy near Cannon Air Force Base in Clovis along with about 10 other sites in the area. The New Mexico attorney general and NMED filed litigation to get the U.S. Air Force to conduct prompt cleanup of toxic pollutants at both Cannon and Holloman Air Force bases. The soil, groundwater and surface water at the bases are contaminated with PFAS contained in fire-fighting foam used at the bases.
The Air Force is arguing that it is protected by the “sovereign immunity” of the federal government and that federal law prevents a lawsuit that challenges an ongoing Superfund cleanup. However, the federal government has explicitly waived immunity under two relevant environmental laws, and the Air Force is not currently engaged in an ongoing cleanup. Three members of the state Legislature, Sen. Mimi Stewart, Sen. Antoinette Sedillo Lopez and Rep. Andrés Romero, represented by the Law Center, filed an Amici Curiae — “Friends of the Court” — brief in support of the NMED litigation with the U.S. District Court.
7) LANL 2016 Consent Order
In 2005 Los Alamos National Laboratory (LANL) management entered into a Consent Order, agreeing to fully characterize all of its historical waste sites and clean up its legacy waste within 10 years. LANL failed to meet that deadline, but rather than enforce the 2005 Order, the Martínez administration issued a new consent order in 2016 in response to the threat of litigation by Nuclear Watch New Mexico (NWNM), with representation by the Law Center and others, with, potentially, over $272 million in fines for violations of the Resource Conservation and Recovery Act (RCRA). A U.S. District Court judge ruled in July 2018 that parts of the lawsuit could move forward. There will likely soon be a ruling on the outstanding motions for summary judgment that the judge allowed to proceed.
8) Produced Water
In 2019, the Legislature passed, and the governor signed, HB546, the Produced Water Act, which requires new rules allowing use of produced water outside of oil and gas production. Produced water is a byproduct of oil and gas operations and is typically re-used in fracking operations. It always contains oil and is usually very saline. It often has heavy metals and what is called “NORM” (naturally occurring radioactive material). In other words, PW is an industrial waste and, in many cases, a hazardous waste. A coalition of environmental and public health organizations has formed to ensure that PW meets stringent water quality standards and that use stays within oil and gas operations. The NMED, along with the Energy, Minerals and Natural Resources Department (EMNRD) and the Office of the State Engineer (OSE) held meetings around the state to get public input on this critical issue. Draft rules could come out in 2020, with opportunities for further public comment.
9) Methane Rule
The Trump administration withdrew the 2015 Obama administration federal methane rule that required best industry practices at oil and gas operations on federal land in order to reduce methane releases from leaks, venting and flaring of methane. Environmental organizations and Gov. Lujan Grisham are now developing a state methane rule. The Methane Advisory Panel — made up of agency, environmental and industry representatives (including Staff Attorney Charles de Saillan of the Law Center) — released its draft technical document (https:// www.env.nm.gov/new-mexico-methane-strategy/wp-content/uploads/sites/15/2019/08/ MAP-Draft-Technical-Report-December-19–2019.pdf) for public comment in December,
with comments due Feb. 20, 2020. Comments may be submitted to nm.methanestrategy@ state.nm.us or sent by mail to: 1190 St. Francis Dr., Santa Fe, NM 87505 (Attention: Sandra Ely). Following public comment, the agencies and panel members will host public meetings to discuss options for reducing methane identified in the technical report.
10) Regulatory Clout
New Mexico went through eight years of environmental- and environmental justice-deregulation under the Martinez administration and is now entering the fourth year of deregulation at the federal level under Trump. The state needs significant re-regulation supported by large increases in budgets and staffing for agencies whose work impacts the environment. Federal actions (or inaction) have left or will leave the state vulnerable to deterioration of water and air quality. These will require the state to find ways to assert its own authority to protect New Mexico’s air, land, and water.
Much of the work to protect the environment comes from frontline communities, usually low-income communities of color, which have long carried the disproportionate burden of environmental contamination in their communities. This will continue to be the case, and the state needs to work with and support these efforts, rather than — as has often been the case — ignore these voices or subvert them. By uniting with diverse communities, the state can find and assert its own way forward in the face of a federal government determined to destroy the environment for the benefit of corporate interests. The Trump administration’s environmentally destructive policies and actions have motivated individuals and organizations to mobilize and push back. This is a very hopeful sign and maybe the biggest story to watch in 2020.
