Showdown in Court Over Oil & Gas Waste As Legislators Wage Stealth Attacks on Pit Rule

Arguments Wednesday to Uphold Protections; Rollback Bills Advance

SANTA FE, Feb. 22 — The battle over New Mexico's landmark Pit Rule — the nation's most protective measure to safeguard citizens, water and land from hazardous oil and gas drilling wastes — is building to a showdown in the courthouse and the Roundhouse.

District Judge Barbara Vigil will hear arguments Wednesday in a lawsuit to stop the rollback of the Pit Rule, even as anti-environmental lawmakers in the Legislature mount a backdoor assault on it and other important conservation rules.

The case before Vigil challenges former Gov. Bil Richardson's repeal of a section of the 2009 Pit Rule, which requires oil and gas producers to manage oilfield wastes to protect public health, groundwater and soil from toxic contamination.

In December Vigil heard arguments from the New Mexico Oil and Gas Association, which is seeking to overturn the Pit Rule in its entirety. She is now ready to hear arguments from EARTHWORKS' Oil and Gas Accountability Project (OGAP) in a related case challenging Richardson's repeal of the safety standard for disposal of chloride waste.

Vigil is expected to rule on the industry's challenge of the entire rule this month. But whatever the outcome, the fight will not be over.

In the Legislature, no less than four bills or joint resolutions have been introduced that attack the power of state agencies to enact or enforce environmental rules. Although none of the bills would directly repeal the Pit Rule, each of them would have serious consequences for agencies' ability to protect the environment, and could lead to repeal of the Rule.

“We see all of these bills as a backdoor attempt at getting at the Pit Rule eventually,” OGAP Director Gwen Lachelt told the Albuquerque Journal last week. They include:

  • Legislative Review Act (HB 69) by Rep. Jimmie C. Hall, R-Albuquerque. This bill would prohibit state agencies from adopting rules without legislative approval.
  • Legislative Nullification of Bills (HJR3) by Rep. Andy Nunez, DTS-Hatch. This joint resolution proposes an amendment to the state Constitution that would allow the Legislature to nullify an agency rule by a simple majority vote of each house.
  • Legislative Overturn of Agency Rules (SJR3) by Sen. Stephen P. Neville, R-Aztec. Similar to HJR3, this bill would also place before the voters a constitutional amendment to allow the Legislature to overturn any agency rule, but by a two-thirds vote.
  • Suspend Effectiveness of Some Rules (SB91) by Sen. Clinton D. Harden, R-Clovis. This emergency bill is a direct assault, wiping out the state's actions to reduce greenhouse gas emissions from oil and gas facilities. Although it does not specifically target the Pit Rule, it would set a bad precedent for all environmental regulations.

“Any one of these measures would be a serious blow to environmental protection in New Mexico”, said Lachelt. “Just the fact that they're under serious consideration shows how hard the oil and gas industry is lobbying to do away with the common-sense rules that are keeping our water clean and protecting public health. Legislators should look out for the people, not polluters.”

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