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Top 10-Environmental Justice Issues for 2023

For several years, the staff at the New Mexico Environmental Law Center (NMELC) has weighed in on what we see as the most pressing environmental justice issues for the coming year. This year we reflect on how now, more than ever, we must stop doing business as usual and address profound environmental justice challenges in a way that centers community health and wellbeing rather than financial profits. Because of the profound responsibility we have to our current and future generations, we must do everything in our power to make the right decisions that will safeguard Mother Earth, uphold environmental justice, and ensure our children and their grandchildren have a liveable future.

1. The Climate Crisis Remains Our Number One Priority

We are at a tipping point when it comes to averting the most catastrophic climate change impacts, which are already evident in drought, wildfires, famine, flooding from sea-level rise and extreme weather events. We hear a lot of lip service around the need to prioritize reducing greenhouse gas emissions but do not see enough tangible action taken by decision makers. As a state, we bear a sobering responsibility for emissions due to the massive extraction of oil and gas in the Permian Basin.

As we face the daunting challenge to drastically reduce greenhouse gas emissions, we must take our lead from and organizers of color in New Mexico who have been demanding concrete action at the frontlines for years. The days of marginalizing or tokenizing their voices must end now. We urge legislators to heed their demands during the 2023 session, especially given the billions of dollars of surplus money in state coffers and a once-in-a-generation opportunity to be bold. For example, Youth United for Climate Crisis Action (YUCCA), Pueblo Action Alliance and other frontline youth organizations are pushing for critically important amendments to the timeline and net zero language in the proposed Climate Bill that would mandate emissions reductions throughout the state [1] [2], are calling for a just transition fund; a San Juan Generating Station clean-up bill that would require a comprehensive independent study of coal ash contamination and other toxins at the site; Local Choice Energy, which would enable local communities to buy or generate more renewable energy and speed up the transition to renewable energy sources; and mandatory setbacks to the Oil and Gas Act.

We must reject false solutions to the climate crisis (like fossil fuel-produced hydrogen, carbon sequestration and carbon offsets) and create policy that is fundamentally based on a just transition from reliance on fossil fuels. ([3] )

2. Wildfires

The year 2022 was a devastating year for New Mexicans when it comes to wildfires. A prescribed burn conducted by the U.S. Forest Service resulted in the Calf Canyon/Hermit's Peak Fire: the largest and most destructive fire in the history of the state. It burned over 340,000 acres and destroyed more than 900 buildings, devastating rural communities and traditional water users across the northeast part of the state, threatening the domestic water supply of residents in and near Las Vegas, N.M. The fires raged for five months, and after they were extinguished, impacts continued to pile on as monsoon rains fell onto the burn scar, with the resulting flooding moving toxic ash into rivers and streams.

Federal aid has been allocated for people impacted by these mammoth fires, but bureaucratic processes have delayed communities’ ability to access much of this funding. Importantly, community concerns were ignored before the burn was conducted. This disaster could have been avoided if federal agencies had listened to local voices. At the recent Congreso de las Acequias, mayordomos (acequia stewards) reported that 48 acequias were damaged by the Calf Canyon-Hermit’s Peak fire. The Black Fire, the state’s second largest, located in the Gila National Forest, damaged more than 20 acequias, and the Cerro Pelado Fire near Cochiti Pueblo burned 50,000 acres. Because of the impacts of these massive fires, they are asking for twice as much federal funding as has been allocated.

Moving forward, the process of designing and approving prescribed burns must be fully overhauled to prevent such a devastating disaster from ever happening again. The Congreso issued a declaration that includes: “The trees’[4] , plants, roots, soils and cloud patterns that were our source of water and our source of life will never be the same again. …Acequias, once flowing with clean, crystalline snowmelt from our beloved mountains, are clogged with ash and soils that eroded from burned hillslopes.” As Source NM reported, “The declaration spells out steps the acequia leaders say are required to ensure centuries-old waterways recover, including mobilizing communities, investing in thinning and erosion control to protect unharmed watersheds, establishing emergency seed banks and dedicating more resources toward developing drought-resistant crops and livestock.” Governments at every level must heed the recommendations by these water stewards and place the highest priority on traditional knowledge[5] .

3. A Clean & Healthy Environment is a Fundamental Right

When we think about our fundamental civil rights, we often think of the right to freedom of speech, freedom of assembly, freedom of religion and freedom from undue search and seizure, to name a few. Considering the state of our planet, shrinking habitats, damaged ecosystems and the threat of another mass extinction of species from climate change, we must think of a clean and healthy environment as a fundamental civil and human right as well. Our survival depends on it.

One way to elevate a healthy environment to the same importance as other rights in the courts is for New Mexico to adopt a Green Amendment. The New Mexico Green Amendment would amend Article 2 of the state Constitution by adding a new section to read that “The people[6] of the state shall be entitled to clean and healthy air, water, soil and environments; a stable climate; and self-sustaining ecosystems, for the benefit of public health, safety and general welfare. The state shall protect these rights equitably for all people regardless of race, ethnicity, tribal membership status, gender, socioeconomics, or geography.” The state would be required to “conserve, protect and maintain these resources for the benefit of all the people, including present and future generations.”

If the NM Green Amendment passes in the upcoming legislative session, the measure would then be put to the voters of the state, as it would amend the state Constitution. Elevating a clean and healthy environment to be a fundamental right would strengthen the ability of residents to obtain adequate cleanup of contamination and pollution as well as prevent it in the first place[7] .

4. Cumulative Impacts

Regulators have long looked at air pollution permits as if they exist in a silo. They evaluate predicted emissions without considering other pre-existing sources of pollution and social determinants of health in the neighborhood where the polluting industry wants to set up shop and make a profit while harming the health of nearby residents. Cumulative Impacts regulations and laws around the country have long been considered the holy grail of environmental justice[8] . These regulations require agencies to take into consideration the disproportionate impacts that low-income communities of color have to bear from toxic and polluting industries.

The Mountain View Coalition and NMELC recently submitted a historic draft Health, Environment and Equity Impacts Regulation to the Albuquerque-Bernalillo County Air Quality Control Board. The regulation would enable the Albuquerque Environmental Health Department to deny an air pollution permit if it will be located in an overburdened community and negatively impact the health of residents in that community. If the facility is proposed to be located in an overburdened community, the applicant must perform a Disparate Impact Screening and evaluate nine identified Health Indicators. The permit application will be denied if any one of nine health indicators in the area already exceeds the county average for those indicators.

We expect the Air Quality Control Board to schedule a public hearing on the proposed impacts regulation in the next several months. We will be pressing upon community members and ally organizations to support the Mountain View Coalition’s regulation by writing letters of support and speaking up at the hearing. We also urge legislators to adopt a similar cumulative impacts regulation at the state[9] level[10].

5. Uranium Impacts and International Human Rights

Uranium mining and milling activities have left a legacy of disease, mortality and contaminated lands, water and air, especially in tribal communities across the state. The EPA has counted 523 abandoned uranium mines [see map] and allotted funds to assess and clean up 230 of the mines, fewer than half. In spite of that legacy of harm, the Nuclear Regulatory Commission (NRC) licensed additional uranium mining and milling activities in Church Rock and Crownpoint in 1998; the company has changed hands in the decades that have followed, from HRI to Laramide, but the license remains viable. Grassroots community members united to fight back and formed Eastern Navajo Diné Against Uranium Mining (ENDAUM), and filed a petition with the Inter-American Commission on Human Rights in 2011. In 2021 the IACHR ruled ENDAUM’s petition, filed by the NMELC, as admissible, only the second time for an environmental justice case against the United States. As we wait for a decision on the merits, ENDAUM and NMELC have requested that the decision be expedited, and that a thematic hearing on uranium impacts to tribal communities be held at the next IACHR session, which will be held in early March in Los Angeles.

The threat of renewed uranium mining has not been higher in decades; Russia’s war on Ukraine has indirectly led to subsidies by the Biden administration for domestic uranium mining exploration. Right now, activity at the proposed mine near Church Rock has the local community alarmed, asking questions and mobilizing to assess their options. The Red Water Pond Road Community Association was recently pleased to see the NRC put a halt to their plan to move mine waste only half a mile down the road, after three NRC commissioners came to Church Rock in April 2022. But we have now learned that the NRC has lifted the pause and intends to move forward with the flawed plan that doesn’t adequately protect the Diné community whose land and health the mine waste threatens[11] .

6. Free, Prior and Informed Consent (FPIC)

In 2007, the United Nations General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). At first, the United States voted against the declaration, but then reversed its position. UNDRIP specifies that free, prior and informed consent be a prerequisite for any activity that affects ancestral lands, territories and natural resources of Indigenous peoples. In the New Mexico context, FPIC must apply to the extraction and cleanup of lands impacted by uranium mining and milling and storage of radioactive waste. Federal and state government agencies need to do more than just send letters to tribal governments and check off the consultation box, something we see the NRC, for example, do when an Environmental Impact Statement (EIS) is prepared.

We are seeing Environmental Justice principles being prioritized in the Biden administration across many departments and agencies, but those discussions, Powerpoint presentations and memos are not filtering down to concrete policy changes enough. The military industrial and nuclear complex has left a legacy of contamination and disease on traditional Indigenous territories and communities, and government agencies must do a better job incorporating FPIC into their decision-making processes, whether that is concerning clean up or when considering new extraction projects[12] .

7. Water Availability, Drought & Equity

Water is life. Without water, we cannot survive. We seem to recognize these truths, yet this knowledge and wisdom is not reflected in our policies. In Bernalillo County, for example, land-use decisions and water availability are no longer tied together. Development projects are approved by planners and the Bernalillo County Commission with little regard to whether there is actual “wet” water available to meet the needs of a new project. Land use must be tied to sustainable water availability. If there is no water available, the proposed development project must be denied. Period.

The western region of the United States is experiencing a historic megadrought, the worst in 1,200 years, according to researchers. The years 2000-2021 were the driest 22 years since the year 800 CE. According to evidence shared by the New Mexico Water and Natural Resources Committee, this ongoing drought is characterized and exacerbated by less snowpack, diminished stream flow and increased variability of precipitation. The Middle Río Grande Water Advocates are attempting to wake up water policy decision-makers to the hydrologic reality we are currently in. Twentieth-century water management rules won’t work in the 21st century as the Southwest becomes more arid.

New Mexico has unmet obligations under the Río Grande Compact; the accrued debt to Texas was more than 127,000 acre feet of water as of calendar year 2022. Our reservoir levels are at historic lows. Water use must decrease, water infrastructure must be upgraded, and resources must be allocated to bolster convenings to discuss the hard but necessary decisions that must be made. The current system to allocate water is inequitable. One of the key commitments made by the Middle Río Grande Water Advocates is to be in compliance with the State-Tribal Collaboration Act so that “state cabinet agencies diligently seek collaboration with tribal governments and give full consideration to their water management strategies, policies, and concerns.” As tough decisions about water allocation are contemplated in the years ahead, the water rights of traditional communities, irrigators and acequia users who have sustainably managed water in this arid region for centuries must be protected[13] .

8. Air Quality

New Mexico’s clear blue skies can be very deceiving. Air quality issues in our state are often invisible to the naked eye. Significant health impacts are experienced by residents, especially in low-income communities of color where the most toxic and hazardous polluting industries are located. Two such communities are Santa Fe’s Southside and Albuquerque’s Mountain View neighborhoods. Asphalt plants emit tons of dangerous chemicals and fine particulate matter. Both the New Mexico Environment Department (NMED) and the City of Albuquerque’s Environmental Health Department (EHD) have a long history of rubber-stamping air pollution permits for facilities located in vulnerable, already overburdened communities.

NMED approved Associated Asphalt & Materials’ (AAM) application to consolidate two plants in Santa Fe’s Southside despite the community’s opposition and that the plant will spew harmful emissions 24 hours a day, seven days a week during certain parts of the year. This neighborhood is primarily made up of lower-income, young, Spanish-speaking families. Earth Care NM has been organizing with these families to fight back against this egregious environmental injustice, with the assistance of NMELC’s attorneys. A Hearing Officer determined that the AAM facility would cause or contribute to violations of the National Ambient Air Quality Standards and negatively impact the health and quality of life of the surrounding community, but the Environmental Improvement Board subsequently voted to set the recommendation aside, ignoring significant health and environmental impacts.

In the Mountain View community, EHD similarly issued an air pollution permit for a company called New Mexico Terminal Services. Concerned residents formed the Mountain View Coalition, and utilizing legal services provided by NMELC, appealed the permit to the Air Quality Control Board. The permit was recently remanded to EHD by the Air Board because EHD failed to consider whether the NMTS facility could be built in a reasonable period of time, and two years have passed since the permit's issuance. Meanwhile, residents were pleased when another asphalt company, Star Paving, applied for a permit but was denied by EHD. The asphalt assault on overburdened communities must stop. We are hopeful that if cumulative impacts regulations are adopted across the state, the environmental injustice present in air quality decision-making will finally be addressed[14] and disrupted.

9. Urban Sprawl Development Projects

Urban sprawl is defined as uncontrolled expansion of urban areas. In the case of the greater Albuquerque area, the biggest threat lies on the West Side. Sandia and Isleta Pueblo as well as Kirtland Air Force Base prevent expansion to the north and south, and the Sandia Mountains to the east.

For nearly a decade a small but mighty group of dedicated community members and grassroots organizations—the Contra Santolina Working Group—has fought against a massive housing development project called Santolina. The developer, Western Albuquerque Land Holdings, acquired the former Atrisco Land Grant when London-based Barclays Bank bought it. WALH asked the Bernalillo County Commission to let it build 37,000 homes for 95,000 people, and the county approved the Level A Development Agreement in 2015 despite overwhelming public opposition. The developers have never secured water for that many residents.

While the agreement is still on the books, the Santolina housing development has never been built, thanks to steadfast organizing by the community in partnership with skilled and tenacious legal representation by NMELC attorneys. By the end of 2022, developers had obtained approval from the Bernalillo County Commission to build out industrial uses for a small part of the acreage that could possibly include solar, battery storage, a tire dump or a landfill. It remains unclear. Meanwhile, NMELC, on behalf of our clients, has filed a suit to challenge the BCC’s approval of this proposal in order to safeguard the due-process rights of the community. We have seen a long pattern of the county not following its own procedures. The big picture concerns corporate profits over community concerns, and the failure to connect land-use decisions to water availability. We also must recognize that projected population growth has failed to meet predictions. The urban sprawl exemplified by the failed Santolina development project is simply not needed and not sustainable. We need smart, community-driven planning, not piecemeal, developer-driven sprawl[15] .

10. Government Accountability

A common thread running across all of our environmental justice issues is government accountability. At NMELC, we, our clients and allies consistently find ourselves having to remind government agencies at the local, state and federal levels what their job is and why they were ostensibly created. So often these agencies act beholden to corporations and polluting industries instead of the people. We also too often see elected officials, who were elected to represent their constituents, supporting legislation that serves business interests and large campaign donors at the expense of community well being and environmental health. This dynamic is on display when appointments are made to fill legislative seats between elections.

The influence of big money from the oil and gas industry is evident across New Mexico politics. This pattern was recently covered in a report by New Mexico Ethics Watch. We must address this inequitable process by no longer considering campaign contributions as free speech or corporations as people. The voices of the people and especially those most harmed by environmental, climate, health and social injustices, must be at the forefront and prioritized in all legislation, policies and by governmental agencies.

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The New Mexico Environmental Law Center has been defending environmental justice since 1987. It is our mission to work with New Mexico’s communities to protect their air, land and water in the fight for environmental justice. For more information about the New Mexico Environmental Law Center, go to

www.nmelc.org.

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