Fight over constitutional provisions to protect against oil and gas pollution advances in New Mexico

SANTA FE, NM — A New Mexico judge cleared the way Monday for a historical process to proceed, alleging that the state failed to meet its constitutional obligations to protect against oil and gas pollution.

Environmental groups and Native Americans living near oil wells in the No. 2 producing state in the U.S. initially filed the case in 2023. They are seeking enforcement of 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 scrutiny.

Lawyers for the plaintiffs celebrated the judge’s decision, saying it will allow New Mexico residents 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 move forward based on indisputable facts about the extent of the pollution and the extent of the state’s failure to control that pollution,” said Gail Evans, an attorney at the Center for Biological Diversity.

She said the plaintiffs overcame a critical hurdle in the judicial process to present evidence of constitutional violations.

“I am confident that the court will definitively enforce constitutional protections of our state’s beautiful and healthy environment on behalf of the plaintiffs and all New Mexico residents,” Evans said.

Lawyers for Democratic Gov. Michelle Lujan Grisham and the Democratic-controlled Legislature did not immediately respond to requests for comment on the judge’s ruling. The state can appeal the judge’s order.

Lujan Grisham’s administration has in recent years rule changes adopted aimed at limiting emissions from the oil and gas industry. However, environmental groups have raised concerns that enforcement is not keeping pace, despite fines levied against out-of-state energy companies and large settlements getting tattooed to deal with air pollution.

The administration and lawmakers also face backlash due to their push to develop rules regulating the treatment and reuse of fracking water from the oil industry.

According to the lawsuit, oil production in New Mexico’s portion of the Permian Basin — one of the world’s largest oil fields — has increased nearly tenfold since 2010, leading to an increase in pollution. In northwestern New Mexico, lead plaintiff Mario Atencio, who is Navajo, said his family’s land is at risk from leaking wells and processing sites in the San Juan Basin.