Suit challenges state's authority to regulate greenhouse gas emissions

Three Republican lawmakers have joined a group of businesses and industry associations who are challenging the New Mexico Environmental Improvement Board's (EIB) authority to regulate greenhouse gas emissions.

The group seeks a judgement that could determine if the EIB has the authority, under New Mexico law, to impose a cap on greenhouse gases. The plaintiffs have also requested that the court order the EIB not to conduct further administrative proceedings on a proposal supported by New Energy Economy, Inc. (NEE)

In late 2008, NEE filed a rulemaking petition with the EIB seeking to have the state board adopt a statewide cap on greenhouse gas emissions that is, according to those suing, significantly more restrictive than proposals being considered by the U.S. Congress.

The suit was filed in the Fifth Judicial District of the State of New Mexico in Lea County by state Senators Carroll Leavell and Gay Kernan, state Rep Donald Bratton, the New Mexico Oil and Gas Association, Dairy Producers of New Mexico, El Paso Electric Company, New Mexico Rural Electric Cooperative Association, PNM, Tri-State Generation and Transmission Association, Inc., New Mexico Farm & Livestock Bureau and New Mexico Petroleum Marketers Association.

The group insists greenhouse gas emissions are a national and global issue, which Congress is already considering legislation that would include "a single set of regulations for all states."

The U.S. Environmental Protection Agency also is addressing greenhouse gas emissions. NEE’s effort, which would only apply in New Mexico, would damage the state’s already beleaguered economy, place the state at a competitive disadvantage and significantly increase costs for New Mexico residents and employers, including manufacturers, the agriculture industry, universities, military bases, mineral processing operations, small oil and gas producers, and utilities.

Under the state’s Environmental Improvement Act and Air Quality Control Act, the New Mexico legislature delegates authority to the EIB to adopt regulations and standards in a number of environmental management programs.

The lawmakers who joined the challenge claim:

The legislature has not granted the EIB the authority to consider rules or regulations to regulate greenhouse gas emissions as proposed in the NEE petition. The EIB lacks authority under state law to adopt air quality regulations without first establishing the applicable air quality standards.

They contend:

Neither the U.S. Environmental Protection Agency nor the state have adopted an air quality standard for greenhouse gases. With no national or state air quality standard, the EIB cannot impose a unilateral cap on greenhouse emission in New Mexico.