New Mexico 'Green Amendment' proposal seeks to ensure clean air, water, land

LAS CRUCES — All New Mexicans, both those now residing here and those who are yet to come, would have a constitutional right to clean air, water and land under legislation being co-sponsored by Sen. Bill Soules and Rep. Joanne Ferrary, both D-Las Cruces, and Sen. Antoinette Sedillo Lopez, D-Albuquerque.

Or, to be precise, they would have a more well-defined constitutional right to those things. The New Mexico Constitution was previously amended in 1972 in an attempt to ensure the right to clean water, air, soils and environments. Sponsors of this year’s proposed “Green Amendment” say that effort failed because it left compliance in the hands of the Legislature.

“The bill back in the ‘70s had the intent of protecting land, air and water as a fundamental right. What it said was it is incumbent on the Legislature to pay attention to those things. But it didn’t have any teeth,” Soules said. “I’m not sure this is going to change much for us (legislators). The Constitution now requires us to pay attention to those things. But, if we pass legislation that does not protect the land, air and water, anyone could take us to court and say that’s unconstitutional.”

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The proposed joint resolution has been prefiled ahead of the 60-day session scheduled to start on Jan. 19 in Santa Fe. It would replace existing language on environmental protection with the following three paragraphs:

A. The people of the state, including future generations, have the right to a clean and

healthy environment, including pure water, clean air, healthy ecosystems, and a

stable climate, and to the preservation of the natural, cultural, scenic and healthful

qualities of the environment.

B. The state, including each branch, agency, and political subdivision, shall serve as

trustee of the natural resources of the state, among them its waters, air, flora, fauna,

climate and public lands. The state shall conserve, protect, and maintain these

resources for the benefit of all the people, including generations yet to come.

C. The rights stated in this section are inherent, inalienable, and indefeasible and are

among those rights reserved to all the people and are on par with other protected

inalienable rights. The provisions of this section are self-executing.

Soules said the practical effect of making environmental protection a fundamental constitutional right is to flip the legal burden in favor of protection.

“Now, you can do almost anything unless there is something specific that says it’s against the law,” he said. “Making this a fundamental right flips it over, so the default is protection of the land, air and water.”

Rob Black, president and CEO of the New Mexico Chamber of Commerce, said the legislation would be “a gift to trial lawyers.”

“Because it’s very vague, it’s unclear what it will accomplish,” Black said. “But it could create litigation after litigation after litigation. And that would make any sort of investment and any sort of economic development very difficult.”

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The amendment would only impact future construction and development. Those who live nearby existing polluters would not be able to have them shut down, Ferrary said.

Gas and oil production

Soules said the amendment would not prohibit oil and gas production, but it would likely lead to a closer review of things like flaring and venting of natural gas and the disposal of produced water in fracking operations.

“They can’t just spread it out on the ground. They can’t just put it in containers,” he said. “We’re not going to stop all internal combustion, but the default would change. You can’t just put things into the atmosphere. There has to be a compelling reason, and not just that it’s more expensive.”

Black said New Mexico already has the cleanest oil and gas production practices in the world. Making rules too restrictive will simply move production to Texas, or other nations, where the regulations aren’t as protective, leading to both more pollution and less revenue for the state, he said.

“We have some of the most aggressive, and likely will have the most aggressive oil and gas regulations in the country, if not the world,” he said. “I’m concerned about the folks who think we need to get rid of all oil and gas production in New Mexico with no plan to back fill that revenue. And, if you think Saudi Arabia or the Soviets are going to produce oil cleaner than New Mexico, that’s crazy.”

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Ferrary said she didn’t know what impact the amendment would have on oil and gas production in the state, but said it could open new opportunities.

“Just as we’ve seen increases in small businesses that have developed technology to detect leaks on oil and gas lines, there will be opportunities for companies that can capture gas from flaring and venting,” she said. “There will be new opportunities to protect our environment.”

She said a similar constitutional amendment has been approved in both Pennsylvania and Montana, and that the environment can be protected without harming the economy.

“I think it puts more of a responsibility on the state at every level to make sure it’s right,” Ferrary said. And, she said it was critical that future generations always be considered in our decision making.

Wildlife management

Kevin Bixby, executive director of the Southwest Environmental Center in Las Cruces, said paragraph B of the proposed legislation, requiring state agencies to conserve and protect resources for future generations, would completely change wildlife management in New Mexico, which he said is now primarily focused on maintaining hunting and fishing revenue.

“This idea that all wildlife is part of the public trust, not just game species, and that government has an obligation to protect that trust for the benefit of all New Mexicans, not just those who buy hunting and fishing licenses, that’s game changing,” Bixby said.

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The New Mexico Department of Game and Fish would have to shift its focus from hunting licenses and bag limits to a broader view of wildlife management. They would have to balance competing interests, including those of hunters and fishermen, but treating all equally, he said.

“We would still have hunting and fishing, but it wouldn’t just be shooters and anglers who have the most say on the wildlife commission,” he said.

This will be the first time that this proposal will come before the Legislature. If approved by both the Senate and the House of Representatives, it would then go before the voters for final approval in the 2022 election.

Walter Rubel can be reached at waltrubel@gmail.com.