SIERRA CLUB News:

• Court allows hearing to remain in Roswell in split decision

The Supreme Court on Monday unanimously struck down the Water Quality Control Commission’s unprecedented decision to block the Attorney General’s Office from upcoming hearings on the rule that protects New Mexico water from industrial dairy waste.  

On another issue, a writ filed by New Mexico Environmental Law Center representing Sierra Club Rio Grande Chapter, the court, in a split decision, allowed the commission to hold its only hearing on the dairy rule in Roswell.

“The Sierra Club wants a hearing in Roswell, too — as well as one near Dairy Row, which is several hours from Roswell but won’t get a WQCC hearing,” said Dan Lorimier, Sierra Club Rio Grande Chapter conservation coordinator. “In the past, the commission has held public-comment hearings in the areas most affected by a rulemaking, but its technical hearing has always been in Santa Fe, as is required by law.”

The commission refused to do that for the dairy rule, insisting on holding hearings in only one location — Roswell. The Sierra Club and Environmental Law Center had protested because the law says the technical hearing must be in Santa Fe (NMSA 74-6-6). 

“Why waste the public’s time and money on hearings the commission knows are illegal?” Lorimier said.

While a district-court judge and a split Supreme Court allowed the hearing to go forward, justices suggested that an appeal might be successful after the commission makes its decision and would result in a do-over.

The chapter’s attorney, Jon Block, said he thought the court made a serious error in failing to order the commission to comply with the law now. 

“They basically told us to go through an unlawful hearing in Roswell, spend a lot of time and money, then appeal at the end to have the entire hearing voided for being held in the wrong place,” Block said. “This will likely help the dairy industry to continue polluting New Mexico’s precious groundwater for years to come.”

On a bigger issue, the court struck down the Water Quality Control Commission hearing officer’s approval of an Environment Department motion to block the Attorney General from participating in the dairy hearings.   

“The attorney general brings technical expertise and, more importantly, represents all New Mexicans. It’s important to have the AG there to protect our families’ health and safety, because the WQCC and the Environment Department now seem to only represent the industries they are supposed to be regulating,” Lorimier said.

Background:

The average New Mexico dairy, or confined animal feeding operation, includes more than 2,000 cows and produces more waste every day than a small town. But unlike municipalities, dairies don’t treat their waste – they dump it into lagoons to evaporate or be spread over fields.

In 2009, the New Mexico Legislature passed a law requiring a groundwater rule specifically for the dairy industry. 90 percent of New Mexicans depend on groundwater for their drinking water.

In 2010, after months of stakeholder input and hearings, the Water Quality Control Commission passed a strong set of water protections that had been agreed upon by the industry, citizens and clean-water advocates.

As her first act in office in January 2011, Gov. Martinez issued an executive order attempting to block the dairy rule from being published. It was later revealed in an email from dairy-industry lobbyist Walter Bradley that dairy lobbyists had written the executive order.

The state Supreme Court reversed this illegal action. But soon after, the dairy industry said it wanted to rewrite the rule. So after many concessions by the citizens group that includes residents living near dairies, clean-water advocates and community groups, all parties agreed to a less-protective rule that was passed by the commission in 2011.

But the dairy industry has come back once again and, in closed-door meetings with the Environment Department, initiated yet another rulemaking. Flynn has told his Environment Department not to enforce the current rule in anticipation of its dismantling. The public has been barred from discussions of the proposed rule changes between the dairy industry and the Environment Department, and the Water Quality Control Commission is scheduled to hear the dairy industry’s petition in December.