More of the Same with Glimmers of Hope
Last year at this time, our Top 10 list was pointing toward the likely Cabinet secretaries in the new Trump administration and the possible actions they would take. The Top 10 list this year reflects last year’s concerns, as the expected nominees took the expected actions and we are already seeing the impacts. On the other hand, the realization of how destructive four years of the Trump administration could be has spurred organizing from the neighborhood level up to the national level around social, economic and environmental issues.
Snowpack is projected to decline sharply by mid-century.
1 Climate Change
The Trump administration started the process of removing the United States from the Paris Climate Agreement even as the Defense Department continues to list climate change as a major “threat multiplier” in its projections of national security threats. Toward the end of 2017, new analyses of improved climate models indicated that the most likely impacts will come sooner and more strongly than previously predicted, absent effective action. In the vacuum of federal leadership, states and cities have increased their commitment. California’s governor and delegation essentially replaced the Trump administration at the last Paris meeting in speaking for future U.S. commitments to addressing climate change.
Here in New Mexico, we are already experiencing what “the new normal” in climate will mean, and 2018 will likely provide even more evidence. 2017 was by far the warmest year on record in the state. Rain and snow are clearly becoming more erratic and unpredictable. We still often get “normal” annual amounts of rain or snow, but the rain more frequently comes in intense storms, and the snow more often melts or sublimates before the traditional spring runoff. The result is water flow that comes at the wrong time for both natural and human communities.
Ten years ago, the Office of the State Engineer produced a report on projected impacts. It concluded that low-income and minority communities, primarily native peoples and other rural land-based communities, would suffer the most. Unfortunately, we have lost ground in the decade since that report because the Martínez administration systematically undercut efforts to address climate change.
The fox is guarding the henhouse now.
The Trump administration has had a year of aggressively rolling back climate-related regulations, pressing for rapidly expanded oil and gas drilling and defunding agencies that oversee protection of public lands, air, water and public health. In October, U.S. Environmental Protection Agency (EPA) Secretary Pruitt announced the repeal of the Obama Clean Power Plan, and in December, Ryan Zinke, secretary of the Interior, announced that the Bureau of Land Management (BLM) would delay implementation of the Methane Rule—requiring oil and gas companies to limit methane escape from drilling operations—for one year; it is also seeking complete repeal of the Rule through Congress. The administration tried to delay some provisions for two years through an EPA Clean Air Act procedure that the courts ruled against. Both California and New Mexico, along with several environmental organizations, have fought together to maintain the Methane Rule. The state is under a huge methane cloud in the Four Corners region, and the loss of revenue from leaking and flared methane is substantial.
The EPA also announced in December that it would not require financial assurance (FA) for hardrock mining under provisions of the federal law known as CERCLA (Superfund). FA helps ensure that potentially responsible parties bear the financial burden of completing Superfund cleanups, not the public. EPA has three additional industry sectors for which it needs to decide on financial assurance—chemical, petroleum and coal products—and electric power generation, transmission and distribution. The mining decision makes it likely that EPA will not require FA from these industries either, opening up the likelihood of huge future financial burdens on taxpayers and long delays in cleanup, placing the environment and public health at substantial risk.
Navajos protest lack of cleanup at Church Rock Superfund site.
3 EPA Budget
The EPA—like several other Cabinet departments—is headed by someone who is on record as wanting to significantly reduce the size and scope of the agency he leads. The Trump administration’s budget for EPA would do that. Even though the possible cuts to funding in the new EPA budget appear to be around 2 percent, funding for specific programs are likely to be cut by 20 percent, 30 percent, or more. This means that Superfund cleanup at the Chevron molybdenum mine in Questa, abandoned uranium mills and mines in McKinley and Cíbola counties, and nitrate and chemical plumes in Albuquerque’s North and South valleys will receive fewer resources and delayed cleanup. Critical air- and water-quality monitoring grants from EPA to New Mexico will be severely impacted, meaning less data to support community efforts to fight new and ongoing toxic pollution in neighborhoods.
Bears Ears in Utah, the Grand Canyon in Arizona and monuments in New Mexico could see uranium mining.
4 National Monuments
In December, President Trump and Interior Secretary Zinke announced drastic reductions to Bears Ears and Grand Staircase-Escalante national monuments by a total of almost 2 million acres. This would be the largest rollback of public lands protections ever. In addition to providing extensive protection of critical wildlife corridors, protection of water basin catchment areas, and unique outdoor recreation opportunities, these two monuments protect sacred, traditional lands for many native peoples. As a result, the Native American Rights Fund filed a lawsuit on behalf of the Navajo Nation, Pueblo of Zuni, the Hopi, Ute Indian and Ute Mountain Ute, arguing that the president has no authority under the Antiquities Act to make such large reductions.
Zinke also recommended changes to the proclamations that created Organ Mountains-Desert Peaks and Río Grande del Norte national monuments. For Río Grande del Norte, the recommended changes included the same issues that were contained in the original proclamation. However, for Organ Peaks, Zinke claimed that there were border security issues and that information he received from the public indicated that “many” grazing permittees had lost access to portions of their lands and were abandoning their permits. However, investigations by New Mexico Wilderness Alliance and questioning by Sen. Martin Heinrich revealed that neither the BLM nor the New Mexico State Land Office had any information that any permittees had been impacted by the designation. We will have to see what intentions the administration has in reducing these monuments.
The Río Grande running out in Mesilla, NM
5 Río Grande Compact
The U.S. Supreme Court is hearing oral arguments this month in a 2013 suit filed by Texas against New Mexico for failure to deliver sufficient water under terms of the Río Grande Compact. The Compact, adopted by Congress and signed into law in 1939, apportions waters of the Río Grande in part by establishing annual water delivery obligations of Colorado to New Mexico and New Mexico to the area south of Elephant Butte Reservoir. The problem stems from the long-term decline in Río Grande flows and the extremely low reservoir level in Elephant Butte. New Mexico farmers below the reservoir have been pumping large amounts of groundwater to supplement low river irrigation supplies. As a result—according to Texas—the lowered aquifer has depleted water from the river that should have flowed to Texas irrigators along the river. If Texas prevails, New Mexico could face fines of as much as $1 billion and have to find a large groundwater source above Elephant Butte that could supply Texas with both current required deliveries and pay back past shortages. The potential impact of a loss at the Supreme Court on New Mexico’s finances and water supplies could be devastating; even a negotiated settlement could have long-term negative impacts.
E. coli bacteria from an irrigation ditch
6 Water Quality Regulations
In 2017, the New Mexico Environment Department (NMED) proposed several major changes to the state’s water quality rules. A highly contentious proposal was NMED’s request to add a new definition of “discharge permit amendment” to cover so-called “minor” changes to permit requirements that could be dealt with administratively and without public notification or participation. This would “codify” a process NMED admitted it has been using for 24 years. Represented by the New Mexico Environmental Law Center (the Law Center), Amigos Bravos and the Gila Resources Information Project (AB/GRIP) challenged both the proposal and the historical practice, and NMED suddenly withdrew this part of its petition just days before the hearing. However, NMED said it intends to continue using the practice, while AB/GRIP’s analysis of amended permits acquired through Inspection of Public Records Act requests shows that many of the amendments should have been handled as permit modifications with a full public process. Another contentious issue is NMED’s proposal to allow variances to a discharge permit “for the life of the facility,” allowing pollution of groundwater in perpetuity.
Removing the current 5-year time limit on water quality variances is illegal under the New Mexico Water Quality Act, removes critical public and regulatory oversight, and gives industry no incentive to improve its discharge practices. We will see what the Water Quality Control Commission decides, but we need to resist every effort to relax protections for New Mexico’s fragile surface and ground waters.
Students learning about pollution and water resources
7 Federal Facilities
The Law Center continues to represent clients who have spent years attempting to force cleanup at New Mexico’s federal facilities. A study released by an engineering firm hired by the Albuquerque Bernalillo County Water Utility Authority (ABCWUA) sharply criticized the Air Force’s progress report on containing and mitigating the jet fuel plume at Kirtland Air Force Base. At a meeting of the ABCWUA Board, NMED representatives said they agreed with the contractor’s analysis. If that analysis is correct, then the plume has still not been adequately characterized, it is still migrating, and additional monitoring and analysis are needed almost two decades after the Air Force acknowledged that it knew about the leak.
Los Alamos National Laboratory (LANL) continues to evade meaningful public participation and cleanup of its legacy Cold War waste. The deadline for its 2005 Consent Decree mandating complete analysis and remediation of all toxic-waste disposal sites came and went in 2015. These large dumps hold tons of toxic waste, which has been leaking into groundwater for decades. A plume of pollutants including hexavalent chromium, radioactive tritium, volatile organic compounds such as benzene, and trichloroethene (TCE) is moving toward the Río Grande, downstream communities, and the Buckman Direct Diversion, from which the City of Santa Fe obtains much of its water. Instead of the comprehensive reclamation strategy called for in the Consent Decree, NMED and the Department of Energy are allowing LANL to leave the radioactive, hazardous and toxic waste in the ground permanently. In December 2017, the State Auditor wrote a letter to the NMED asking why it failed to collect more than $40 million in fines at a time when the state was suffering a budget crisis.
Ray and Carol Pittman at an Augustín Plains Ranch hearing
8 Water Grabs
New Mexico is an arid state whose water supply is becoming increasingly uncertain and fragile under climate change. This has prompted several efforts to lock up water that is public under the state constitution for private development at the expense of New Mexico’s communities and absent a comprehensive understanding of New Mexico’s water sources and their limits. Augustín Plains Ranch, located in Catron County and owned by an Italian billionaire, wants a permit from the State Engineer to mine up to 54,000 acre-feet annually for sale to unknown municipal and commercial interests via a 140-plus-mile pipeline from Datil to Socorro and then north to Albuquerque. The Law Center represents more than 80 individuals, several homeowners’ associations, and the Gila Conservation Coalition in opposition. At a hearing on Dec. 13, the state’s Water Rights Division came out in opposition to the petition. However, the State Engineer has not yet made a final decision.
Santolina development site. The Sandia Mountains are in the far distance.
9 Sprawl Development
On the West Mesa of Bernalillo County, the Santolina master plan community could be an end user of Augustín Plains Ranch water, but the ABCWUA has repeatedly said that it is not interested. However, the ABCWUA and the developer, Western Albuquerque Land Holdings, which is largely owned by Barclay’s Bank, have failed repeatedly to produce a required Development Agreement detailing the provision of water and wastewater services to the projected 90,000 residents and associated businesses, schools and parks at Santolina. Despite that failure, the Bernalillo County Commission has approved both the Level A and Level B plans allowing the development to move forward.
Much more conservative judges could roll back environmental rules for years.
10 Packing the Courts
When corporations and agencies fail to follow laws and rules meant to protect the environment and the public’s health, impacted communities and individuals can protest, try to get agencies to do the right thing, try to get legislatures to approve better laws and rules, but in many cases they have to go to court. This, of course, is where the Law Center comes in. But success in the courts depends upon knowledgeable and fair-minded judges without an ideological axe to grind. Most cases in New Mexico are resolved within the state court system, but larger environmental law issues can impact how decisions are made in federal court. In 2017, President Trump and the Republican Congress established a blistering pace of appointments to all levels of the federal court system. The appointees appear to have been chosen largely for their ideological conservatism and their youth, guaranteeing that their lifetime appointments would keep them in the court system for many decades.
Residents discussing community-based stormwater management in the South Valley
The Bright Side
There really is a bright side to all this. Governor Martínez’s time in office ends this year, opening the possibility for a much more environmentally friendly governor who can appoint a secretary of the Environment Department who actually believes that the agency should protect the environment rather than help corporations avoid environmental responsibility. The new governor can also appoint secretaries to other agencies who might be more inclined to consider environmental and public health concerns in their agencies’ decision-making. And the new governor can appoint a more open-minded Water Quality Control Commission.
At the federal level, it takes a long time to repeal a federal rule. So far, the courts have denied efforts to delay the Methane Rule and might rule against executive action to diminish national monuments. And, there is an election in 2018 that could bring a more environmentally friendly Congress; budgets could change, legislation could override bad court decisions and executive actions, and more balanced judges could get appointed to the federal court system. Elections matter.
Across the country and here in New Mexico, the Trump administration’s environmentally destructive policies and actions have galvanized individuals, community groups and non-profits to organize, collaborate and resist. Keep informed, be present, be loud, and support your local environmental organizations.
Douglas Meiklejohn is founder and executive director of the New Mexico Environmental Law Center. He has spent more than 40 years as an attorney working for the public interest, with a focus on representing New Mexicans whose communities are impacted by environmental injustice.
The New Mexico Environmental Law Center
In 2017, the NMELC celebrated 30 years of fighting for the well-being of New Mexico communities and the state’s air, land and water. The Law Center is a non-profit law firm that provides free and low-cost legal representation throughout the state. Its clients advocate for environmental protection, public health and community quality-of-life. The Law Center does not accept government funding. It is supported through donations from individuals, local companies and foundations. Major cases on the Law Center’s docket include:
· Opposing significant changes to the state’s water quality regulations that would allow “lifetime” variances for pollution permits and permit “amendments” that would bypass public notice and hearing processes
· Working with Diné (Navajo), Pueblo and Anglo communities to prevent new uranium mining that would have adverse health and environmental impacts, and advocating for cleanup of Cold War-era mining contamination
· Meaningful cleanup of Los Alamos National Laboratory. The Law Center and its clients are advocating for the cleanup of Cold War-era contamination, including a plume of carcinogenic chromium that is moving toward the Río Grande and drinking water supplies (including Santa Fe’s).
· Advocating for cleanup of the Kirtland jet fuel spill. A recent analysis of the Air Force’s status assessment found significant problems, including data gaps that don’t support Air Force claims that the plume is shrinking and that contaminants are being removed in significant amounts. The plume is moving toward Albuquerque’s most productive drinking water wells.
· Polluting industries in the San Jose neighborhood (South Valley of Albuquerque). An oil company’s bulk fuel facility is located across the street from homes and children. The Law Center is helping the community address alleged cumulative health issues. The area has a cluster of cancer and asthma.
· Opposing efforts to approve the 90,000-reseident Santolina development near western Albuquerque
· Fighting the Augustín Plains Ranch water grab, which, if approved, could lead to wide-scale privatization of water in New Mexico. www.nmelc.org