Lawsuit challenges group’s effort to get greenhouse gas emissions cap in New Mexico

Groups fight effort to regulate emissions in NM

ALBUQUERQUE, N.M. — New Mexico’s largest utility, three state lawmakers and other industry groups filed a lawsuit Wednesday to stop New Mexico regulators from adopting a cap on greenhouse gas emissions.

The lawsuit in state district court targets New Energy Economy, a group that has filed a petition with the state Environmental Improvement Board to adopt regulations that would reduce global warming pollution over the next decade.

The group maintains the board has the authority under existing law to implement statewide limits on greenhouse gas emissions.

Public Service Company of New Mexico, El Paso Electric Co., Tri-State Generation and Transmission Association, the lawmakers and other plaintiffs filed their lawsuit in Lea County.

The lawsuit challenges the board’s authority to regulate greenhouse gas emissions and asks the court to order the board not to conduct further administrative proceedings on New Energy Economy’s proposal.

“We feel very strongly that the issue of greenhouse gas emissions and climate change is a national and global issue and should be addressed at that level. We’re concerned about the potential of a patchwork of state requirements that may disadvantage some states over others,” said Don Brown, spokesman for Public Service Company of New Mexico, or PNM.

If the board established a cap on greenhouse gas emissions, Brown said PNM believes the cap “would increase the cost of living and doing business in New Mexico.”

New Energy Economy filed its petition with the Environmental Improvement Board at the end of 2008. Several motions have been filed since then, including one seeking to dismiss the petition. The board denied that motion and has scheduled a public comment session for March 1.

The U.S. Environmental Protection Agency declared in December that there was compelling scientific evidence that global warming from manmade greenhouse gases endangers Americans’ health. The agency also determined that the pollutants — mainly carbon dioxide from burning fossil fuels — should be regulated under the Clean Air Act.

Gov. Bill Richardson said Wednesday in a statement that he does not want to wait for Congress to pass comprehensive climate legislation that would limit the pollution.

“We have an obligation to reduce greenhouse gas emissions and protect the environment, and I am prepared to do that. New Mexico will take the lead on this issue,” the governor said.

John Fogarty, executive director of the New Energy Economy, said the group’s petition has gained the support of many in the medical and business communities.

“It is critical that we move forward to address what is quickly becoming the most important public health problem that society faces. If the federal government isn’t going to act, it’s going to be incumbent upon states and municipalities to act,” he said.

Fogarty, a Santa Fe physician, said the Legislature established the Environmental Improvement Board to ensure the safety of New Mexico’s water supply and air quality and to avoid public nuisances. He said greenhouse gas emissions have become a public nuisance.

Brown said even if New Mexico set a cap on the pollution, it would not impact global greenhouse gas concentrations.

“Without caps elsewhere, it does not benefit the environment in a way that is intended,” Brown said.

The lawsuit also argues that before the Environmental Improvement Board can regulate emissions of a particular contaminant, state law requires it must establish a standard for which the contaminant, in this case greenhouse gas emissions, is considered “air pollution.” The EIB has not done that.

Other plaintiffs include Sens. Carroll Leavell, R-Jal, and Gay Kernan, R-Hobbs; Rep. Donald Bratton, R-Hobbs; the New Mexico Oil and Gas Association; Dairy Producers of New Mexico; the New Mexico Rural Electric Cooperative Association; the New Mexico Farm & Livestock Bureau; and the New Mexico Petroleum Marketers Association.