The New Mexico Environmental Law Center is honored once again to be invited by Green Fire Times to share our list of what we consider to be the Top 10 Environmental Justice Issues for the coming year. This annual issue is again guest-edited by Earth Care/Youth United for Climate Crisis Action (YUCCA), and we feel the theme they chose—Defending the Sacred— appropriately centers the mindset and framework this pivotal turning point requires. Our planet is facing environmental threats on a massive scale that calls for a radical shift from extractive, profit-driven and resource-intensive policies toward true sustainability with proper respect for Mother Earth. That is our greatest hope for current and future generations. We have much responsibility at this moment—the stakes could not be higher. Here are our Top 10 issues for your consideration.

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1. The Clock is Ticking on the Climate Crisis

Climate scientists have repeatedly warned that time is running out to avoid exceeding 1.5 degrees C of warming above pre-industrial times, perhaps in as soon as six years. We are already seeing impacts of climate change sooner than predicted, with higher temperatures, rising sea levels, melting glaciers and the loss of sea ice. August 2023 was the hottest on record, 2.59 degrees F above average.

 

In New Mexico, we are getting hotter and drier, with less precipitation, more rain than snow and more severe and frequent wildfires. We are in a mega-drought, with low reservoirs and a Río Grande that for months was anything but grande.

 

At the latest UN Global Climate Conference, COP28 (the 28th Conference of the Parties to the UN Framework Convention on Climate Change), held in Dubai, United Arab Emirates, from Nov. 30 to Dec. 13, 2023, delegations from 199 countries finally agreed to “transition away from” (rather than phase out) burning fossil fuels like oil and coal that are driving climate change. But Indigenous organizations like Indigenous Environmental Network (IEN) criticized COP28 as a huge missed opportunity for real solutions, instead seeing more than 2,400 fossil fuel lobbyists pushing false solutions. Tom BK Goldtooth (Diné/Dakota), IEN executive director, said, “More false solutions will accelerate climate change and deforestation with a push for carbon capture and storage, hydrogen and nuclear power in the Global Stocktake and carbon markets, offsets and private sector finance.”

 

We must heed the calls of Indigenous, People of Color, frontline and youth-led leadership and knowledge holders who are demanding a rapid transition to phase out fossil fuels and curb global warming.

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2. Threats Old and New from the Nuclear Industry

The nuclear industry, including uranium mining and milling and nuclear weapons manufacturing and testing, has left a trail of environmental, health and cultural impacts across New Mexico, especially in Indigenous communities. On the Pueblo of Laguna, for example, the Jackpile Mine, which operated from 1952 to 1982, was at one time the largest open-pit uranium mine in the world. In 2013 the U.S. EPA designated the Jackpile Mine a Superfund site, and restoration efforts continue today. Churchrock, on Navajo Nation, is the site of the 1979 United Nuclear Corporation uranium tailings dam break that resulted in the largest release of radioactive material in U.S. history. Recent Geiger counter readings taken by local Indigenous community members continue to be substantially above background. Downwinders from the 1945 Trinity Test, the world’s first atomic bomb detonation near Alamogordo, continue to seek recognition and financial compensation for the cancers and other diseases generations have experienced.

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In spite of this deadly legacy, there is a major threat of new uranium mining in Indian Country. Laramide Resources, a Canadian company, conducted “confirmatory” drilling near Churchrock last year, likely incentivized by the Biden administration’s increased subsidies for domestic supplies of uranium since Russia invaded Ukraine. Laramide also received a $1.7 million grant to work with Los Alamos National Lab to demonstrate that it will be able to restore groundwater it will contaminate if it is allowed to begin operations in Churchrock and Crownpoint. No in situ leach (ISL) mine has ever restored an aquifer to a state that is usable for domestic or agricultural purposes.

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Downwinders came close in 2023 to extending and expanding who is covered by the Radioactive Exposure Compensation Act (RECA), getting it passed by the Senate, but the latest version of the NDAA no longer contains the RECA amendment. Organizers will try again to get RECA added to another bill before it sunsets in 2024.

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Eastern Navajo Diné Against Uranium Mining (ENDAUM) invited the Inter-American Commission on Human Rights (IACHR) to visit Churchrock and Crownpoint to see firsthand the impacts from uranium mining on their communities, and two commissioners and two staff members conducted a promotional visit in July 2023. ENDAUM’s case against the United States for licensing uranium mining in violation of their human rights as Indigenous people is still pending with the Inter-American Commission on Human Rights (IACHR). Red Water Pond Road Community, along with members of the Ute Mountain Ute and Oglala Sioux tribes, have again requested a thematic hearing in front of the IACHR regarding human rights violations from uranium mining on Indigenous communities.

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3. Cumulative Impacts Regulations

Cumulative Impacts regulations are considered to be the holy grail of environmental justice. Many states have introduced bills that would require regulatory agencies to take cumulative impacts into account when making permitting decisions. We saw the Mountain View Coalition (MVC), represented by NMELC, file a historic, precedent-setting cumulative impacts regulation called the Health, Environment & Equity Impacts (HEEI) regulation to the Joint Albuquerque-Bernalillo County Air Quality Control Board. Their petition was filed in November 2022, and a six-day public hearing was held in Albuquerque in December 2023. The Air Board did not pass the rule filed by the MVC; however, the board did vote to pass its own version and issued its new rule on Dec. 20. NMELC and MVC are still evaluating how protective the new rule will be. The chair of the Air Board referred to it as “limited” during her presentation to the Bernalillo County Commission.

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Meanwhile, the Albuquerque City Council passed an ordinance and a resolution purging city-appointed members of the Air Board and pausing the board’s ability to take action on quality-of-life issues through February. The mayor’s vetoes of both bills were subsequently overridden, and the Air Board and the MVC filed requests for temporary restraining orders and permanent injunctions against the bills, which are still pending.

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As the dust settles on both the litigation and the impact of the new rule, and while we remain in legal limbo, one thing from the HEEI hearing is very clear: There is broad consensus from all stakeholders, including industry, that there are overburdened communities in Bernalillo County. The need to address decades of concentrating toxic and polluting industries in low-income communities of color and the health and environmental impacts from those racist policies were recognized. This is no small feat. Frontline and fenceline community members were also energized and grateful for the outpouring of support in the form of over 100 public comments at the Albuquerque Convention Center and over Zoom, as well as countless emails and letters sent to the Air Board.

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Cumulative impacts legislation is also needed at the state level, not just regarding air quality but also permitting decisions connected to water and land protection. We support passing a strong cumulative impacts bill at the New Mexico Legislature.

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4. Water Scarcity

New Mexico has less water due to a warming climate, drying rivers and dwindling aquifers. Persistent drought from rising average temperatures has devastated watersheds, leading to catastrophic wildfires. As more intense monsoons occur, the need for stronger stormwater control increases.

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Despite the dire state of water quantity, policymakers far too often continue to make land-use development decisions severed from water availability reality. We saw that when the Bernalillo County Commission approved the Santolina Development Master Plan, even though developers have no agreement with the AlbuquerqueBernalillo County Water Utility Authority demonstrating water availability. Niagara Bottling also keeps trying to increase its water grab from 93 million gallons per year to 254 million gallons per year from the aquifer underneath Los Lunas, which stretches from Socorro to Santa Fe. Corporations and water speculators continue to try to grab water rights for mining at the Copper Flat Mine near Hillsboro and for water speculation by Augustin Plains Ranch in central New Mexico.

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The need for comprehensive water planning is paramount. Progress has been made slowly at the New Mexico Legislature, and the 2024 legislative session will see more requests for funding for water programs and governance. Bernalillo County approved $200,000 to initiate regional water resilience planning, and last year the Legislature passed the landmark regional Water Security Planning Act, but it didn’t approve enough money or staff to promptly implement the law.

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Water is life; we need our policymakers to make decisions that reflect that fundamental reality rather than placing profits over protecting this finite resource.

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5. The Importance of Local Elections

During the recent Health, Environment & Equity Impacts (HEEI) hearing in Albuquerque, we saw a dramatic display of how important local elections can be. On the evening of the second day of the weeklong hearing, a city councilor interrupted the hearing, walked up to the podium where public comments were being made and claimed that the hearing was prohibited by law and should be suspended. The Albuquerque City Council had recently passed two bills purging the current Joint Albuquerque-Bernalillo County Air Quality Control Board of its city-appointed members and putting a moratorium on the board’s actions for several months in a blatant attempt to prevent the HEEI Cumulative Impacts Rule from becoming law. The council’s bills are in legal limbo at the moment, as two requests for temporary restraining orders and permanent injunctions against both bills are pending a judicial decision. The Bernalillo County Commission has indicated it is willing to pursue litigation to protect its interests on the joint board in the protection of air quality as well. But the incident and the legislation clearly demonstrated inappropriate and unilateral interference by a local government to a state-mandated joint city-county board of volunteers whose job it is to prevent or abate air pollution in Bernalillo County. City council elections are often won or lost by only a few ballots. In November 2023, we saw an Albuquerque city councilor retain a seat by a mere 158 votes. Important legislation is in the balance, including key environmental justice issues. Bottom line—voting matters.

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6. Political, Environmental & Health Impacts from Oil & Gas Production

It’s well-known that New Mexico is highly dependent on oil and gas revenue. It’s less well known that the state is the second-largest producer of oil and gas in the United States. Revenue to New Mexico in 2024 is projected to be $13 billion, about half of which is estimated to come from taxes and royalties from the oil and gas sector. Such dependence on fossil fuels produces two major problems: environmental and health impacts from drilling, fracking, spills and flaring; plus corruption of the political process, when fossil fuel lobbyists influence and weaken legislation. It is extremely disappointing when legislators pay more heed to their oil-funded campaign contributors than to their working-class constituents who are the ones impacted by decisions made on their behalf.

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It will be critical that local groups continue to introduce and demand legislation that does not fall short of what this critical moment in the climate crisis requires. We must ensure that environmental regulations and protections are strengthened, not weakened, and that loopholes are omitted, not allowed. We support YUCCA’s call for three ways to provide stronger protection to freshwater resources at the 2024 legislative session: adding a definition of freshwater to the Oil and Gas Act; prohibiting the use of freshwater in oil and gas operations when recycled and using treated produced water instead; and requiring operators to report their liquid use and for the Oil Conservation Division (OCD) to review the reports.

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7. Hydrogen As a False Solution to the Climate Crisis

Julia Bernal, executive director of Pueblo Action Alliance, explained the dangers of New Mexico investing in hydrogen hubs at the COP28 in Dubai. She was part of the 28-person delegation led by Indigenous Environmental Network (IEN). She said, “Hydrogen is incredibly dangerous. It is the smallest molecule in the world, has a high risk of leakage, and is prone to react to metals that cause failures to hydrogen pipelines and steel storage vessels. The combustion of hydrogen produces more harmful nitrogen oxide than burning methane alone, exacerbating health risks to frontline communities. And with such easy leakage comes a wide flammable range in the air, wide explosion range and embrittlement effects that could be disastrous. If hydrogen were to leak, it would eventually combust and cause explosion reactions that can pose danger to workers and those that live near hydrogen hubs.”

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Despite state legislators voting against hydrogen-hub funding legislation in previous sessions, the governor applied for federal funding for New Mexico to be part of a regional hydrogen hub but this did not make the cut. Claims continue to be made that a hydrogen economy is key to shifting New Mexico from fossil fuels. 350NM, however, shared a study that blue hydrogen, made from natural gas, has a 20 percent greater carbon footprint than burning natural gas or coal for heat. New Mexico should invest in renewable technologies and phase out fossil fuels—and not continue to promote false solutions like blue hydrogen.

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8. Racial Discrimination in Public Permitting Process

The ability to meaningfully access and participate in the public-permitting process of facilities, projects and other activities that will impact communities’ health, wellbeing and their environments ensures that impacted communities, typically already overburdened by polluting industries, have the opportunity to gain and share knowledge and concerns with the respective permitting agency and thereby influence permitting decisions. However, the State of New Mexico and its agencies have a long history of engaging in practices that limit communities of color, especially those with limited English proficiency, from accessing and meaningfully engaging in the public permitting and decisionmaking process.

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These discriminatory practices often take the shape of providing public notices and important documents pertaining to a permit application solely in English, with limited or no translation in languages spoken by those most impacted. Translation and interpretation services are often not provided at public permitting hearings. Polluting-facility permits are approved in low-income communities of color, while permits are denied in predominantly white, affluent neighborhoods.

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By engaging in these activities, agencies continue to restrict access and discourage participation by non-English speaking members of the public (not just Spanish speakers) in the public permitting process—raising federal civil rights concerns under Title VI of the Civil Rights Act of 1964

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9. Accountability to Polluters Through Private Right of Action Litigation

There have been multiple attempts to get a Private Right of Action bill through the New Mexico Legislature. A private right of action would allow an affected individual or organization—in addition to the state, local or tribal government —to sue companies that have broken environmental laws. In 2021, HB 50 sought to amend five environmental protection laws—the Air Quality Control Act, Water Quality Act, Hazardous Waste Act, Solid Waste Act and Oil and Gas Act—to allow a private individual who had been harmed by a company’s violation of one of these laws to bring a lawsuit in state court to enforce the requirements of these existing environmental laws, regulations or permits. The court could order the polluter to stop polluting and impose civil penalties, but the court could not order monetary damages for the person bringing the suit. A private right of action bill is needed so that New Mexicans have another tool in the regulatory toolbox to better enforce environmental protections in our state.

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10. Inequitable Distribution of Harm from Climate Change & Environmental Injustices

The impacts from climate change and environmental harm are not evenly distributed across the globe or in our society. The climate and environmental burden is not shared equitably. Numerous studies have clearly demonstrated that air pollution, hotter temperatures and the siting of toxic and polluting industries affects low-income communities of color more than white, affluent communities.

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The American Lung Association State of the Air Report for 2023 gave Bernalillo County a grade of F for ozone and a D for fine particle pollution. Albuquerque was named one of the top 25 worst cities in the nation for unhealthy levels of ozone pollution. Their report shared sobering national statistics that, “out of the nearly 120 million people who live in areas with unhealthy air quality, a disproportionate number—more than 64 million (54 percent)—are people of color. In fact, people of color were 64 percent more likely than white people to live in a county with a failing grade for at least one measure, and 3.7 times as likely to live in a county with a failing grade for all three measures.” The MVC’s HEEI regulation was intended to address the disproportionate siting of industrial facilities in overburdened communities in Albuquerque and Bernalillo County.

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Black, Indigenous and People of Color (BIPOC) communities are disproportionately exposed to climate risks, often living and working in areas at higher risk of flooding, sea-level rise, fires, heat stressors, and poor air quality, stemming from a history of racial redlining. BIPOC and frontline communities are also disproportionately vulnerable to climate risks due to other societal issues including food insecurity, less access to quality healthcare and barriers to employment.

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We know that unjust social, political and economic structures have created these inequities. The inequity of who bears the burden from climate change must be addressed and disrupted at the structural level globally, nationally and locally. The harsh injustice of who suffers the harms and feels the impacts of environmental degradation and global warming is a social and environmental justice issue that deserves greater attention and action.