NEE Says Fight for Fair Hearing and Clean Air to Continue, Despite Supreme Court’s Denial of Extraordinary Writ in Project Jupiter Case

Organization Press Release – From New Energy Economy

New Energy Economy (NEE) expressed disappointment today after the New Mexico Supreme Court denied NEE’s request for a writ of mandamus challenging procedures in the Project Jupiter air-permit proceeding and lifted the stay it had previously entered on August 23.

The Court’s September 17 order states that it considered NEE’s emergency request, the responses and the briefs of amici curiae; the five justices concurred in denying the writ and lifting the stay. The brief order does not state reasons for the denial.  

“We are terribly disappointed, but we also understand that we asked the New Mexico Supreme Court for extraordinary relief,” said Mariel Nanasi, Executive Director and Senior Attorney of New Energy Economy. “We went to the Supreme Court because we believed the rules of this proceeding were stacked against meaningful public participation. We sought a fair opportunity for the public to obtain the evidence, test the claims being made by the applicant, and present its case before New Mexico decides whether to authorize an enormous new source of pollution.” 

The permit proceeding concerns Yucca Growth Infrastructure’s proposed approximately 2.46-gigawatt methane-fueled microgrid for Project Jupiter in Doña Ana County, using Bloom Energy solid oxide fuel cells. Publicly available materials confirm that the current proposal uses Bloom fuel-cell technology and relies on natural gas.  

According to NEE’s technical analysis of the permit application, the proposed facility would emit approximately 8.8 million tons of greenhouse-gas pollution each year, in addition to nitrogen oxides and volatile organic compounds—pollutants that contribute to the formation of ground-level ozone.

EPA explains that ozone is created when nitrogen oxides and volatile organic compounds react, and associates ozone exposure with aggravated asthma and lung disease, increased hospital and emergency-room visits, and premature mortality.  

“This is precisely why the public needs a meaningful opportunity to test the applicant’s evidence,” Nanasi said. “You do not approve a project of this unprecedented size first and ask the hard scientific questions later. The people who will breathe this air are entitled to a proceeding capable of finding the truth.” 

The Case Now Returns to the Air-Permit Proceeding 

The Supreme Court’s order does not grant the air permit. It denies NEE’s extraordinary writ and lifts the Court’s stay, allowing the administrative proceeding to resume.  

NEE said it will return to that proceeding prepared to present its scientific and technical evidence and will seek a meaningful opportunity to develop the record and test YGI’s claims. 

“We hope that what happens next is simple: a fair hearing,” Nanasi said. “The prior Hearing Officer recused himself. We hope the new Hearing Officer will approach this matter with an open mind, permit meaningful participation, listen carefully to the scientific and technical evidence, and fairly decide whether New Mexico should issue an air permit for a facility that would massively increase pollution.” 

Nanasi added, “The Supreme Court did not decide whether Project Jupiter’s emissions calculations are reliable. It did not decide whether Bloom Energy’s solid oxide fuel cells can perform at this unprecedented scale. And it did not decide whether this air permit should be granted. Those questions remain to be answered. We intend to keep asking them—and to keep fighting for the public’s right to be heard before the pollution is permitted, not after the damage is done.”