The fast and furious pace of regulation hearings, combined with a slew of legislative bills and amendments, appears to have blindsided New Mexico Oil and Gas Association (NMOGA) members and left them trying to figure out a way forward. NMOGA stated in an email, “The legislature has been fast-tracking bills that put oil and gas jobs and billions of dollars in state revenues in jeopardy, severely limiting funding for our schools, roads, first responders and healthcare.” With leases stockpiled, pre-Biden administration NMOGA members won’t run out of land to drill or frack for many years—even with the federal leasing moratorium. However, they are running out of water for fracking and are facing massive regulations on the toxic produced water that their industry creates.
The State Land Office halted commercial sale of fresh water for oil and gas in December 2020. Commissioner of Public Lands Stephanie Garcia Richard stated the policy change was needed “to help protect and preserve New Mexico’s scarce and sacred freshwater resources. Water is life, and wider intervention is needed from the State Legislature to address New Mexico’s water issues in critical areas. There is simply no reason for fresh water to be used for fracking.”
Fresh water use by oil and gas has impacted New Mexico’s small communities, particularly those in proximity to the Permian Basin and the San Juan Basin who are fighting the industry for access to fresh water. “After the wells run dry, which is an increasing threat as we battle climate change, there is no economical process in which we can manufacture fresh water or water that is safe to drink or use to grow our food,” Garcia Richard said.
In this legislative session, the Senate Conservation Committee passed (5-4) SB 86—Protect Our Water, a fracking waste bill sponsored by Senator Antoinette Sedillo Lopez (D-Bernalillo). The bill was in line with the State Land Office order and offered reforms to 2019’s HB 546—Produced Water Act to manage produced water in a manner that truly protected public health, the environment and freshwater resources. The bill then moved to the Senate Judiciary Committee, which voted unanimously to table the bill. Advocates criticized the ruling, saying Chairman Joseph Cervantes (D-Doña Ana) unprecedentedly silenced proponents of the bill from giving public comment in committee. Cervantes allowed 10 minutes for oil and gas industry lobbyists to present an “expert witness” panel while failing to provide proponents of the bill the same courtesy. The Paper. received the following comments on the Judiciary vote via email:
“It was unfortunate to see both the Democrats and Republicans on the Senate Judiciary vote to table SB 86. What needs to be emphasized and understood is that we don’t have a law on the books regulating oil and gas industry waste in N.M. Our priority should be communities who are most impacted by this waste and not industry. Such a travesty.”—Gail Evans, attorney N.M. Environmental Law Center.
“The tabling of this bill is a serious injustice to all who value clean water to live in our state. It was offensive to observe the blatant prejudice of not allowing for proponents of the bill to be allowed to give testimony alongside those who were against it. It is hard enough for community voices to be heard due to the privilege and access required to participate, but to have to also endure further inequity when granted access is very disheartening. Our voices will not be silenced by oil and gas. Our inherent and intergenerational love and care for our living waters will endure and will prevail.”—Beata Tsosie, Tewa Women United program coordinator
In other water legislation, there will be an OCC public hearing in April to consider proposed amendments to prohibit unauthorized spills or releases of oil, gas, produced water, and other oil and gas waste. These amendments also seek to provide the OCD with the authority to enforce these prohibitions. The public hearing will be held online and by telephone on April 1, 8 and 9, 2021. The full text of the proposed rule amendments and where to submit written comments is available on the OCD’s website.
The rulemaking applicant, Wild Earth Guardians, argued that spills and releases of waste from the oilfield—such as natural gas, crude, produced water and other contaminants—were not expressly outlawed by New Mexico state law. This includes no requirement that contaminated soil be tested for radioactive contamination before the OCD approves closure of a cleanup site, despite the well-established radioactivity of oil and gas waste.
HB 95, a bill that would require the New Mexico Office of the State Engineer to consider climate change implications when making water rights decisions, narrowly passed the House Energy, Environment and Natural Resources Committee. Sponsored by Representative Andrea Romero (D-Santa Fe), the bill was reported by committee with Do Not Pass, but with a Do Pass recommendation on committee substitution. Adoption of these actions will be considered by the House at a later date.
NMOGA is encouraging New Mexicans to “join a new coalition of organizations urging the Legislature to focus on the issues that matter most this session: keeping jobs New Mexicans depend upon and preserving funding for public education, healthcare and other critical needs.”
The alternative to the NMOGA is that there could be another bottom line in the Land of Enchantment that drives its leaders’ hard decisions: the health of its people, the poisoning of its land, water and air and the ever-present looming drought.