'Environmental rights' proposal to fight New Mexico pollution raises developer fears

A controversial proposal in the New Mexico Legislature this year would amend the State’s Constitution via its Civil Rights Act to include purported “environmental rights,” and empower people to file litigation if those rights are allegedly violated.

It’s known as the “green amendment” and took the form of Senate Joint Resolution 6 and in the House as House Resolution 4, both Democrat-sponsored.

If passed, a ballot question would go before voters in New Mexico’s next general election in 2024, asking them to decide if the language should be added to the Constitution.

More:New Mexico Senate passes bill to block nuclear waste project near Carlsbad and Hobbs

As the legislation moved through the Round House this year and in previous sessions, it won support from environmental activist groups, but garnered concerns from developers worried the law could impede projects through lengthy legal challenges.

Those criticisms even extended to the renewable sector, an industry believed by many a cornerstone in New Mexico’s efforts to reduce pollution and meet its climate change goals.

Legislation a ‘roadblock’ to climate change goals?

The Energy Transition Act, which became law in 2019, set a target of 100 percent carbon-free energy by 2045.

More:Electric police cars? Bill would require 75% of state-owned vehicles be battery powered

That’s a benchmark Rikki Seguin of the Interwest Energy Alliance, a renewable energy trade group, cautioned could be at risk should the green amendment pass as it could prove a “roadblock” to projects in that sector.

“Renewables are eager to be part of the clean energy climate solution this bill is trying to promote,” she said in an interview with the Carlsbad Current-Argus. “The concern is the actual language of the bill will make it more difficult for us to build clean energy projects in the state.”

An analysis from the Legislative Finance Committee (LFC) showed no fiscal implications of the resolution, as it does not allow for monetary damages, but expressed concerns it could result in the court system, not lawmakers, deciding environmental policy.

More:Bill passes to spend $13M, create new division to shift New Mexico away from oil and gas

“The extent the constitutional amendment results in the courts becoming the primary forum for issues of environmental protection, the bar on monetary damages could leave plaintiffs without a remedy that is currently available,” read the analysis, citing a report from the New Mexico Attorney General’s Office.

The LFC also reported a clause in the resolution reading “The state shall protect these rights equitably for all people,” could expose New Mexico to legal challenges.

“Specifically, the legal uncertainty that could be created by the amendment, as written, might result in costly litigation that could impact the financial feasibility of certain energy projects,” read the report.

More:Bill that could block nuclear waste storage in southeast New Mexico headed to Senate Floor

‘Green amendment’ could impact renewable energy in New Mexico

While supporters of the resolution argued it could be used to defend New Mexicans from the harmful effects of industries like oil and gas extraction, Seguin worried the same could be said for wind and solar or even transmission projects needed to send renewable energy to market.

She said the amendment as written was broad enough that it could be used to bring lawsuits during the permitting process for renewable – or any – developments and could reduce regulatory certainty for companies looking to bring projects to New Mexico.

That could drive them away from the state and into neighbors like Colorado or Texas, Seguin contended.

More:Democrats block GOP-backed crime bills targeting fentanyl, trafficking in New Mexico

“Industry needs certainty to do business. We need to know the rules of the road for building a project,” she said. “Certainty is needed for businesses to spend money and come to New Mexico.”

When a renewable energy project is being developed, Seguin explained a project is typically required to have a “guaranteed” in-service date when winning a bid from a utility company that issues as request for proposal (RFP).

That date could be pushed back if lawsuits arise in response to the green amendment, leaving developers “on the hook” for energy they’ve agreed to supply to a utility’s customers in an agreed-up time.

More:Lawmakers push bill to require solar panels at New Mexico schools receiving state grants

“If you can’t start the project because you’re sitting in a clogged court system, you’re in danger of not making that deadline,” she said. “There’s also costs associated (with litigation).”

Maya K. van Rossum, an environmental activist from Pennsylvania wrote two books on green amendments and was a leader in the “movement” she said of getting such laws on the books in states around the country.

She said the legislation, which is law in Pennsylvania, New York and Montana could instead be used as a tool to defend renewable energy projects from other legal challenges as they are developed.

More:New Mexico lawmakers support spending $75 million on state's conservation efforts via bill

It could also ensure projects are good for the environment “on the front-end” van Rossum argued, making sure companies don’t infringe on the environment at the beginning of a project’s the regulatory process.

“It will be a powerful support for clean energy in New Mexico,” van Rossum said. “When you have good projects going forward, the green amendment can be used to support those projects. If you have good government action, the green amendment should be used in defense of those projects, not a hinderance.”

Seguin argued stronger overall environmental policy should eliminate the need for the amendment and could be fairer method of strengthening New Mexico’s regulations without legal battles.

More:New Mexico legislator proposes banning single-use plastic bags at retailers statewide

“If we want to change how we build projects in the state, we can do that through stricter regulations and laws we can comply with,” she said. “In this case, we can comply and then still after it’s been approved, someone can claim that permit issued violates this right we have. “If we want to change the rules, let’s do that through legislation.”

Fears of uncertainty and legal vulnerabilities were echoed by New Mexico Counties Executive Director Joy Esparsen.

“The lack of clarity in definitions, unknown costs of implementation, lack of technical expertise at the local level, increased potential for litigation, duplication of existing regulatory structures, and multijurisdictional implications does not encourage the objectives in a thoughtful and sustainable manner,” Esparsen said in an emailed statement.

But van Rossum said any developer like a renewable energy company looking to improve New Mexico’s environment, reduce pollution and aid in its climate change goals should embrace the green amendment as a means to “cleaner” development.

“We are talking about the human right of all people to a clean environment,” she said. “If they (developers) are good corporate citizens of the community, they should want this, not be afraid of it.”

Adrian Hedden can be reached at 575-628-5516, achedden@currentargus.com or @AdrianHedden on Twitter.

This article originally appeared on Carlsbad Current-Argus: 'Green amendment' raises renewable energy fears in New Mexico