Court orders New Mexico regulators to stop ignoring ozone pollution

New Mexico can no longer turn a blind eye to the impact of the oil and gas industry in driving the ozone pollution crisis in the Permian Basin

Organization Press Release – From WildEarth Guardians

SANTA FE, N.M. — On Monday, the New Mexico Court of Appeals admonished state agencies for failing to consider ozone impacts before rubber-stamping the issuance of air pollution permits, including permits for new oil and gas facilities in New Mexico’s Permian Basin. By law, the New Mexico Environment Department is prohibited from issuing air pollution permits that cause or contribute to violations of air quality standards.

Yet even as ozone levels remain above public health standards in southeast New Mexico, the Environment Department and Environmental Improvement Board have continued to approve permits based on a presumption that so-called “minor sources” can never contribute to the regional pollution problem.

After the Court’s ruling, the state will no longer be permitted to simply assume that smaller polluters do not contribute to the ozone pollution problem, but will need to assess potential ozone impacts from smaller sources and “show their work” as part of the permitting process. 

“It is no coincidence that New Mexico’s two major oil and gas-producing regions – the Permian Basin and the Greater Chaco region – both have serious ozone pollution problems,” said WildEarth Guardians’ legal director Samantha Ruscavage-Barz.

“It hasn’t helped that state regulators have kept issuing permits for many more new oil and gas facilities in recent years without considering the ozone impacts from expanding development. Although this decision doesn’t undo that legacy of harm, it provides the state with an opportunity to use its existing permitting process to begin to reign in this out-of-control public health threat.” 

While the Court upheld the specific permits challenged in the appeal, the court also rejected two key general presumptions that, if left in place, would have prevented state agencies from considering ozone impacts before issuing air pollution permits.

First, the Court rejected the state’s reliance on an “apparent irrebuttable presumption that no minor source of ozone precursor emissions can cause or contribute to a violation” of federal ozone standards.

Second, the Court found it “even more problematic” that the Board had concluded, as a matter of law, that the Environment Department lacked the “authority or discretion” to deny minor source permits based on ozone impacts.

Left unchallenged, this determination would have effectively tied the Environment Department’s hands and prevented the state from using the air pollution permit process to help address the serious ozone pollution problem in the Permian Basin.

As the Court noted, if the Board’s decision were “taken at face value,” it would “act as an exemption from regulation and would allow the Department and permit applicants to stop considering ozone minor source issues entirely.” 

Going forward, the Environment Department can no longer assume that a minor source won’t contribute to an ozone violation, but “will be required to perform at least pro forma or hypothetical calculations” using available tools to estimate future emissions and ozone impacts.”  

“With this ruling, the State of New Mexico can no longer turn a blind eye to the impact of the oil and gas industry in driving the ozone pollution crisis in the Permian Basin,” said Melissa Troutman, climate and energy advocate for WildEarth Guardians. “We hope that the Environment Department will finally start taking steps to address the collective impact of smaller oil and gas sources in driving rampant ozone pollution.” 

Background

The Court of Appeals’ decision arose out of multiple air pollution permit challenges WildEarth Guardians brought in 2020. The Environmental Improvement Board upheld the issuance of the challenged permits in December 2020, and WildEarth Guardians appealed. The Court held oral argument in August 2023, and issued its opinion on December 4, 2023. The case is WildEarth Guardians v. NM Environmental Improvement Board, No. A-1-CA-39522. 

Attorneys Samantha Ruscavage-Barz, Tim Davis, and Daniel Timmons represented WildEarth Guardians in the case. 

Read New Mexico Court of Appeals Opinion Below: