New Mexico Lawsuit Challenges Constitutionality of Oil Drilling, Judge Allows Industry Intervention

A lawsuit is progressing through the courts in New Mexico that could have national implications on oil drilling. New Mexico is the nations 2nd largest oil producer. The United States ranks number 1, as the world largest oil producer. New Mexico lawsuit D-101-CV-202301038 alleges that State’s authorization of oil and gas development violates the New Mexico state Constitutional protections.

New Mexico Political Report ran a story explaining that Paul and Mary Ann Atencio sometimes hear a loud boom. This boom, they have been told, occurs when an 18-inch high pressure pipeline that runs down the road by their house is cleaned out. They aren’t told when this will occur and, when it does, they say that they can hear and smell the gaseous fumes being released.

The Atencios live in a part of eastern Navajo Nation where there’s a checkerboard of land and mineral ownership.

Paul and Mary Ann Atencio joined in a case D-101-CV-202301038 with other Navajo community members as well as the Pueblo Action Alliance, Youth United for Climate Crisis Action, the Center for Biological Diversity and WildEarth Guardians in suing the state of New Mexico to stop oil drilling.

The plaintiffs allege that New Mexico has failed in its constitutional duty to protect the environment and frontline communities from the impacts of oil and gas. This case marks the first time the state constitution’s pollution-control clause has been the basis of such a legal claim. The 1971 amendment mandates that New Mexico prevent the despoilment of air, water and other natural resources. The lawsuit is based on a 1971 amendment to the state’s constitution, Article 20 Section 21. This clause requires that the state prevent “despoilment of the air, water and other natural resources of this state, consistent with the use and development of these resources for the maximum benefit of the people,” and that very defination is up to interpretation by the courts.

The plantiffs want oil and gas permitting to be suspended until the state implements “a statutory, regulatory and enforcement scheme that ensures the protection of New Mexico’s beautiful and healthful environment,” the lawsuit reads.

New production, the plaintiffs say, have increased impact on the environment because companies must drill deeper or use methods like hydraulic fracturing to access the oil and gas.

"The smell of the pollutants from oil and gas development is very strong and, even wearing a mask, visitors who are not accustomed to the pollution quickly get a headache and some feel nauseous,” the complaint states. “People in the Atencio family have asthma and other health problems which they believe are due to oil and gas pollution.”

The case has slowly been rolling through the court process. Efforts to stop oil and gas development in the Chaco area and in southeastern New Mexico have mostly been fought in federal court, with U.S. land management policies being the focus. Recent claims have centered on the Bureau of Land Management and whether the agency has been taking a cumulative look at the potential effects of permitting more wells.

Both the New Mexico Chamber of Commerce and the Independent Petroleum Association of New Mexico filed motions to intervene in the case, arguing that their members, and the economy of the state more broadly, would be badly affected if the environmentalists' case were successful.

Judge Matthew Wilson of the First Judicial Court heard arguments for the petroleum group's motion from Jeff Wechsler.

"IPANM members have invested hundreds of millions of dollars in their oil and gas businesses, interests, permits, facilities," he said. "They depend on the continuation of the current regulatory scheme for their livelihoods."

Mark Barron, representing the Chamber of Commerce, argued per reporting by KUNM.org: "The expertise and analysis that the Chamber can bring to the public health and economic benefits of the oil and gas industry that's at issue here is special and unique and justifies their participation in the case."

On March 29th, 2024, a New Mexico district court ruled that oil and business interests can intervene in a landmark lawsuit against the state for failing to uphold its constitutional duty to control rising oil and gas pollution.

“The oil and gas industry shouldn’t have any role in this case, but we respect the court’s decision,” said Gail Evans, attorney with the Center for Biological Diversity and lead counsel for the plaintiffs. “Fossil fuel companies are terrified they’ll lose their huge profits if we win this constitutional case and their involvement shows just how badly this lawsuit is needed. We’re eager to make our case on behalf of every New Mexico resident against the state and this greedy, polluting industry. We look forward to defending our constitutional rights in court.”

The ruling by the New Mexico First Judicial District Court said the Independent Petroleum Association and the Chamber of Commerce could intervene in Atencio v. State of New Mexico because oil and gas companies have an interest in the case’s outcome.

“I’m disheartened that the oil and gas industry is joining the state to fight our case when all we’re seeking is compliance with the New Mexico Constitution,” said Daniel Tso, a plaintiff in the case from Eastern Navajo Agency. “Our constitution is clear that the state has a duty to control pollution and protect our beautiful and healthful environment. We’re going to hold our leaders accountable to that.”

When the case was first filed Nw Mexico Lujan Grisham’s office said that her administration was proud of its record on the environment.

“Frankly, this is a misguided lawsuit that will only serve to distract the state from conducting additional work on environment and climate solutions and from enforcing the nationally leading regulations this administration fought hard to get on the books,” said Caroline Sweeney, the governor’s spokesperson to the Associated Press

State officials have filed another motion, this one to dismiss the case entirely, and a hearing on that is expected to be held on April 12.

The United States has become the leading global oil producer in the modern oil environment, holding the top spot followed by Saudi Arabia and Russia. Iran, Kuwait, and Iraq all rank highly in the top 10 oil-producing countries. With regards to oil production, the U.S. has held the top spot since 2018.

The U.S. has seen a growth in oil production thanks to technological developments such as hydraulic fracturing and horizontal drilling. This growth has improved the country’s energy security, boosted the economy, and altered the dynamics of the world oil market.

The United States currently produces an unprecedented 13.5 million barrels of crude oil per day, setting a national and possibly global record. With advances in well efficiency, the country’s oil production is expected to continue its upward trajectory over the next two years. The pending lawsuit would have a devastating effect on that trajectory if successful.

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