New Mexico Appeals Court Dismisses Suit Seeking to Compel Greater Environmental Regulation under State Constitution

The appeals court concludes the lawsuit failed to present a claim upon which relief can be granted under state law.

As legislative efforts to limit fossil fuel consumption falter, environmental activists have turned to the courts with increasing frequency and ever-more-expansive legal theories.  Some of this litigation relies upon state tort law. Other suits rely upon more innovative arguments.

Several groups have pressed constitutional arguments that the failure to control various forms of pollution violate federal or state constitutional rights. Such arguments have gone nowhere in federal courts (and with good reason), but some have succeeded at the state level. Most notably, the Montana Supreme Court concluded that state citizens have a judicially enforceable right to environmental protection that constrains state-level environmental policies.

In 2023, a group of environmental activists represented by the Center for Biological Diversity filed suit in New Mexico arguing that the state constitution requires greater regulation of the oil and gas industry within the state and the suspension of new oil and gas well permits until the state complied with its constitutional obligations. The suit relied upon a state constitutional provision which provides:

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

Last year, in Atencio v. New Mexico, a trial court denied the state's motion to dismiss the suit, prompting an appeal.

Last week, a New Mexico appeals court granted the state's motion to dismiss on the grounds that the plaintiffs failed to state a claim upon which relief may be granted under state law.

The appeals court summarized its decision:

This case presents novel questions of state law regarding the justiciability of claims alleging failures of the State, its legislative and executive branches of government, and several of its administrative entities and officers to adequately control pollution caused during the extraction and production of oil and natural gas. Plaintiffs, who are various advocacy organizations and individual New Mexicans, including several Indigenous people, filed suit against various executive agencies and officials, including Governor Michelle Lujan Grisham, the State of New Mexico itself, and the Legislature (all Defendants collectively referred to hereinafter as Defendants).1 Plaintiffs seek various forms of declaratory and injunctive relief that, in general terms, call for the judiciary to declare that the current statutory and regulatory scheme controlling pollution from oil and natural gas fails to protect the environment under Article XX, Section 21 of the New Mexico Constitution (the Pollution Control Clause or PCC) and enjoin Defendants from permitting further oil and gas extraction until sufficient environmental protections are established. Plaintiffs further claim, via the New Mexico Civil Rights Act (NMCRA), NMSA 1978, §§ 41-4A-1 to -13 (2021), and the Declaratory Judgment Act (DJA), NMSA 1978, §§ 44-6-1 to -15 (1975), that the inadequacy of the current system regulating oil and gas pollution violates their constitutional rights to due process and equal protection of law under New Mexico's Bill of Rights. See N.M. Const. art. II, § 18. Defendants variously moved for dismissal of Plaintiffs' complaint or judgment on the pleadings in their favor. The district court substantially denied Defendants' motions, concluding that Plaintiffs set forth claims upon which relief can be granted. Defendants sought interlocutory appeal, which we granted. We conclude Plaintiffs have presented no claim upon which relief can be granted and reverse.

The plaintiffs have pledged to appeal this decision.