On Tuesday night at 7, Tim Davis, a staff attorney with the non-profit environmental organization WildEarth Guardians, will lead a panel discussion about oil and gas pollution in New Mexico at the Rio Grande theatre in Las Cruces. He spoke with KRWG’s Scott Brocato about the discussion and its issues.
SCOTT BROCATO:
Tell us about WildEarth Guardians and what you focus on as a staff attorney there.
TIM DAVIS:
WildEarth Guardians is a non-profit environmental organization that works across the American West to protect wild lands, wildlife, wild rivers and the climate; and my role there is mainly focused on climate and energy work
SCOTT BROCATO:
Tuesday evening at 7, you'll be leading a panel discussion titled The Pollution Control Clause of the New Mexico Constitution: State Accountability for Oil and Gas Pollution Crisis in New Mexico. It'll be at the Rio Grande Theater here in Las Cruces. First of all, who else will be on the panel?
TIM DAVIS:
I'll be joined by Jonathan Juarez. Jonathan is a plaintiff in the case and also an organizer with Youth United for Climate Crisis Action, also known as YUCCA, and also an organizer with No False Solutions. And YUCCA is also a plaintiff for the case. And then I'll also be joined by Jozee Zuniga, who is a fellow YUCCA organizer.
SCOTT BROCATO:
Part of the panel discussion will be about the lawsuit filed in 2023 against New Mexico, alleging violations of the state constitution failing to curb oil and gas pollution. Let's talk about the lawsuit and what is allegedly being violated in the New Mexico Constitution.
TIM DAVIS:
This case is about holding the state of New Mexico accountable for skyrocketing oil and gas pollution in the state. You know, a lot of people are familiar with the fact that we've had a huge increase in oil and gas production in New Mexico. And along with that increase in production comes a really big increase in pollution. The lawsuit is led by youth, frontline, and indigenous plaintiffs, and it seeks compliance with the pollution control clause of the state Constitution, which mandates that the state of New Mexico protect our beautiful and healthful environment. And it also seeks to enforce the constitutional rights that the plaintiffs have to life, liberty, property, safety, happiness, and equal protection under the law. And the case is challenging the state’s continued permitting of oil and gas extraction without putting in place a constitutionally mandated system of laws to protect the environment and public health.
And just to give you an idea of what that looks like, just one example is there are environmental laws in New Mexico, and the majority of those environmental laws exempt oil and gas. And I'll tell you how that happens is, each law has a definition section. And in that definition section, the law defines pollution. But in the majority of our environmental laws in New Mexico, those pollution definitions say if it comes from oil and gas extraction, it doesn't count as pollution.
SCOTT BROCATO:
And why is that, according to their definition?
TIM DAVIS:
You know, I don't know exactly why that is. But I can tell you that if you just look at each of these laws, you'll see that oil and gas pollution doesn't count as pollution. And then the main law that actually regulates the industry is called the Oil and Gas Act. And the Oil and Gas Act is not an environmental law. It's really about a contract between the state and companies who extract oil and gas. And it's really to limit or prevent waste, and that's waste of the resource. And so the law tries to make sure that if you're going to pull oil and gas out of the ground, that it's not being wasted in that process. And so what you have is in New Mexico, a system of laws that just has a huge hole around the oil and gas extraction.
As another example, if the state is going to permit a well, it actually can't consider the environmental and public health impacts of permitting that well. That's just not one of the factors that goes into whether that well can be permitted or not.
SCOTT BROCATO:
Oil and gas extraction is a main contributor to New Mexico's economy. According to a 2021 Source New Mexico article, the state's oil and gas industry averaged 1.16 barrels of crude oil and 6.19 cubic feet of natural gas per day in March of 2021. And in April of 2021, New Mexico netted $109 million from oil and gas production. So with those numbers, how can New Mexico protect both the environment and revenues from oil and gas extraction?
TIM DAVIS:
Yeah, about 40% of our state budget comes from oil and gas. And, you know, we talked a little bit about the booming production and the booming pollution, and of course, that also leads to a big increase in the state budget. And I just want to be clear that this case is not really about the industry. It's about the state and the state’s obligation to protect the environment and public health, and the choices that the state has made in doing that. And not regulating on behalf of the environment and public health is a choice that the state has made. And, you know, there's a lot of things that the state could do to protect public health and the environment. And they're common-sense measures. There are no setbacks in New Mexico between oil and gas development and homes or schools. So there could be a minimum distance between extraction sites and places where people work, where they go to school, healthcare facilities. And we just haven't done that.
And I will say that the New Mexico State Lands Office, which is not a party to this lawsuit, has done that, has implemented a minimum distance between schools and extraction sites. Other states have also done that. The state could have meaningful bonding requirements. Right now there's a $250,000 cap for bonding, for blanket bonding statewide. That means no matter how many wells you have, it could be thousands, the most the state can charge you to bond those for cleanup and plugging is $250,000. It costs well over $70,000 on average to plug a single well, so that's not an inadequate bonding scheme.
You know, the state could require chemical disclosure of what's being put under the ground at tracking sites. It doesn't do that. We don't actually know what's being put underground. Colorado recently did implement chemical disclosure laws.
And just one other final note is that we could prohibit the use of fresh water for fracking. We have limited fresh water in New Mexico; about 80% of our residents get their drinking water from groundwater. And we can't afford to take fresh water that we need and use it for fracking. Because once you've done that, you've kind of taken it out of use permanently.
And then lastly, if there is a spill in your community, there's no notification requirement. So we could require community notification of spills. These are commonsense policies the state could enact. Other states have done that. The State Land Office has been leading on this. But the state has chosen not to do that.
SCOTT BROCATO:
Tim Davis, staff attorney with Wild Earth Guardians, thank you for joining us today on KRWG Public Media.
TIM DAVIS:
Thanks so much, Scott.
