Lawsuit: State allowance on oil and gas violates New Mexico Constitution

Case is modeled after landmark rulings in education and workers compensation

By: - May 10, 2023 11:04 am
Swifts fly to and from a bridge near the Sunland Park pools to roost for the night in nests they have built out of sediment from around the river.

Swifts fly to and from a bridge near the Sunland Park pools to roost for the night in nests they have built out of sediment from around the river. (Photo by Diana Cervantes for Source NM)

Plaintiffs in a civil lawsuit filed Wednesday are seeking a seismic shift for New Mexicans’ rights to a “healthful and beautiful environment.”

In a complaint spanning 100 pages, environmental groups, youth activists and individuals from the Pueblos, the Permian Basin and Navajo Nation sued the state of New Mexico, top officials and rulemaking bodies on oil and gas. 

Their argument is twofold. 

Plaintiffs allege the state’s permitting of oil and gas production and failing to enforce pollution laws violated its duty laid out in a 1971 amendment Article XX Section 21 of the state constitution. 

The second claim is that the state’s actions allowing more oil and gas production and failing to limit pollution discriminated against indigenous people, youth and frontline communities. 

New Mexico is the second largest producer of crude oil in the nation, and seventh-largest in gas extraction. High extractions pumped billions of dollars into state coffers this past year – but that production and use of oil and gas is driving the heating of the planet.

The state also feels the sharp edge of the climate crisis. Wildfires ripped across forests parched by drought, intensified by higher temperatures. Water shortages on the state’s rivers, depleted aquifers as a result of the drought lasting decades has cut into agriculture and Pueblo traditional ways of life. Those areas are dried out, then inundated with stronger rainstorms, causing flooding. The decimation of habitats and the changing climate is driving another mass extinction

Pollution Control

“The protection of the state’s beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare. The legislature shall provide for control of pollution and control of 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.”

– New Mexico constitutional amendment approved by voters November 1971

The lawsuit claims the state damaged the health of people living around oil and gas extraction and the environment “in a way that has caused and will continue to cause human deaths, shorten life spans, result in widespread damage to property, threaten food sources and dramatically alter ecosystems.” 

Mario Atencio, one of the plaintiffs, said he’s looking for justice after he said the state failed to protect water and resources from an oil and gas disaster near Counselor, New Mexico. 

In 2019, Atencio described how a spill of 42,000 gallons of toxic liquid waste and 12,500 gallons crude oil contaminated water near property owned by his father’s family. The lawsuit alleges the state failed to warn the family about the spill or any problems with groundwater.

Fracking Brings Pollution, Not Wealth to Navajo Land

“We can’t recork the toxic soup that seeps into our lands, but this demands action, it was a failure of the process, the legal process that needed to have happened,” Atencio said.

Atencio (Diné) said he’s committed to fighting for land, for water, but also for “a deeper, sacred duty to think of the kids.”

“That’s the commitment, my family and I already talked about, we don’t want money, we want justice,” he said.

The suit is modeled after recent landmark judgments that required a review of the state constitution and found New Mexico violated its duties to New Mexicans.

In the 2018 Martinez/Yazzie v. The State of New Mexico decision, a judge found the state failed to provide adequate education for Native and Hispanic students. 

In 2016 a majority of the Supreme Court ruled in Rodriguez v. Brand West Dairy, found New Mexico unconstitutionally discriminated against farm workers and ranch laborers in exclusions from worker’s compensation.  

Gail Evans, the lead counsel for the Center for Biological Diversity, was also an attorney in both Yazzie and Rodriguez.

The lawsuit is expected to stretch out for years, as plaintiffs seek a declaration from the court that the state has a constitutional duty to prevent pollution, Evans said in a phone call with Source NM.

“The court isn’t an expert on what exactly needs to be done, that is the job of the other branches of government,” Evans said. “But the court is an expert on the constitution.”

Evans said unlike federal proceedings, there isn’t a requirement to prove the state’s intent with discrimination, just that a disparate treatment is not “rationally related” to a legitimate governmental purpose.

“The state’s authorization of oil and gas production and allowing all that pollution is having a discriminatory effect on frontline communities, Indigenous people and youth,” Evans said.

The money from oil and gas fuels the economy, but Evans said the harm of higher emissions globally and the impacts locally, aren’t worth it.

“We pay a very high price for that money,” Evans said. “We pay with our health and our children’s health, we pay with our air quality, we pay with contaminated water.” 

The Parties

Filed in the First Judicial District Court, the civil lawsuit has fifteen plaintiffs, a mix of groups and individuals. 

The five organizations suing the state are: Youth United for Climate Crisis Action (YUCCA), Pueblo Action Alliance, Indigenous Lifeways, the Center for Biological Diversity and WildEarth Guardians.

Defendants in the lawsuit include the State of New Mexico, the legislature, Gov. Michelle Lujan Grisham, the New Mexico Environment Department, including Secretary James Kenney, the state Energy, Minerals Natural Resource Department, and its Secretary Sarah Cottrell Propst and two rulemaking bodies: the Environment Improvement Board and the Oil Conservation Commission.

Individuals are broken up into three groups, Diné family, Pueblo family and Permian Basin family plaintiffs.  

The lawsuit describes seven people as Diné family plaintiffs who live, work, subsist and practice traditional ceremonies in the Eastern Navajo Nation which has been “directly harmed by oil and gas leasing and development.”

The lawsuit said oil and gas activities are disrupting wildlife, displacing plant species for sacred ceremonial herbs, causes earthquakes, water pollution and health issues from polluted air.

 Diné Family Plaintiffs

  • Mario Atencio, Paul Atencio and Mary Ann Atencio. Live in Torreon, 25 miles southeast of Cuba, NM. They live along an 18-inch high-pressure pipeline. In 2019, Paul Atencio’s family land in Counselor, New Mexico was contaminated by a spill of 42,000 gallons of toxic liquid waste and 12,500 gallon crude oil spill. The lawsuit alleges the state did not tell the Atencio’s about the spill or warn them about impacts to groundwater. “The Atencios have not been made whole after their land, water and livestock were poisoned by the spill,” the lawsuit said.
  • Daniel Tso, a former Navajo Nation Council Delegate, who repeatedly asked the legislature to address safety and spiritual concerns. Tso failed all challenges to protest or appeal oil and gas development around his home, the lawsuit said, because the state does not have “requirements or legal provisions” to challenge oil and gas extraction. Tso also reported having to send relatives to schools further from their home to escape “the air pollution and other dangers,” created by oil and gas development.
  • Samuel Sage lives in Farmington. The whole Four Corners region has huge deposits of natural gas in the shale under New Mexico, Colorado and Utah. Sage reported upper respiratory problems and poorer air quality.
  • Cheyenne Antonio’s family home is in Pueblo Pintado, New Mexico, in the Greater Chaco Landscape. “Oil and gas development has degraded and continues to degrade (Antonio’s) ancestral lands and increasingly encroaches on her home.” The lawsuit also claims that Antonio’s safety has been threatened by “increased violence in her community” from oil and gas industry workers. 
  • Kendra Pinto lives in Twin Pines near Lynbrook, New Mexico, and has filed more than 40 complaints with the state’s environment agency for air pollution around her home, the lawsuit said. Pinto has been harmed by “damage to the landscape, ancestral lands, traditional resources and the environment around Lybrook and in the Counselor Chapter,” caused by New Mexico’s permitting of oil and gas production without adequate regulation, according to the lawsuit. 

 Pueblo Family Plaintiffs

  • Julia Bernal, is from Sandia Pueblo, but also has roots in Picuris, Isleta and Taos Pueblos. Bernal is the director of the Pueblo Action Alliance. Bernal has worked to limit oil and gas in the Greater Chaco landscape and Sandoval county. 
  • Jonathan Alonzo from Laguna Pueblo, and also a community defense organizer with YUCCA. Alonzo visits the Greater Chaco Landscape for ceremonial reasons and to visit family. Oil and gas development “is degrading the Greater Chaco Landscape and has impeded Mr. Alonzo’s ability to participate in ceremonies and enjoy his ancestral lands,” the lawsuit said. 

Permian Family Plaintiffs

  • Pastor David Rogers, a preacher at First Christian Church in Carlsbad, New Mexico. Rogers and family are exposed to high air pollution from extraction but also the truck traffic in Eddy County. The American Lung Association rated the rural county as 19th of the 25 most polluted counties in the U.S.


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Danielle Prokop
Danielle Prokop

Danielle Prokop covers the environment and local government in Southern New Mexico for Source NM. Her coverage has delved into climate crisis on the Rio Grande, water litigation and health impacts from pollution. She is based in Las Cruces, New Mexico.