AGUA ES VIDA: VICTORIES AND CHALLENGES FOR CLEAN WATER IN NEW MEXICO

In arid New Mexico, protecting clean water is essential to communities, agriculture, industry, and the wild. We were crushed when the U.S. Supreme Court gutted the Clean Water Act, removing protections for up to 95% of New Mexico’s waters with the stroke of a pen. But the power of the law—state law—is strong. 

We took action, and with a coalition of partners and legislative champions, we worked around the clock to pass a law that restored the Clean Water Act protections slashed in the misguided Supreme Court decision. New Mexico’s restored water protections will be immune from federal attacks, and we’re working with the state to create the strongest program possible. 

In the meantime, we participated in a state rulemaking to ban the discharge of treated fracking waste—greenwashed as “produced water”—to New Mexico’s rivers, streams, groundwater, and land. In 2021, Big Oil created 60 billion gallons of this toxic waste, containing radium, benzene, PFAS, mercury, and unknown toxic fracking chemicals. 

Over the 18-month rulemaking, we presented thousands of pages of scientific evidence and expert testimony proving that the technology to treat this fracking waste to safe levels and at scale does not exist. Even an industry witness agreed that the technology “isn’t there yet,” and the Water Quality Control Commission voted unanimously to ban the discharge of treated fracking waste in New Mexico. 

Before the ink was dry on the rule, Big Oil came back to the commission with an extremely permissive, industry-written proposal to reverse the discharge ban. Alarmingly, Gov. Michelle Lujan Grisham and Environment Department Sec. James Kenney pulled strings to rig the commission’s vote in favor of the industry’s proposal. 

In another unprecedented capitulation to Big Oil, Sec. Kenney forbade his Environment Department—which proposed and argued persuasively in favor of the discharge ban—from participating in Big Oil’s rulemaking. This has never occurred in the 58-year history of the commission for a rule the Environment Department would administer. 

We filed a motion to disqualify the commissioners the governor directed to vote yes on Big Oil’s treated fracking waste discharge proposal as well as their votes to advance this disastrous rule. The commission voted to nullify its vote to consider the industry-written oil and gas wastewater discharge rule. We do expect it to arise again, and we will fight this with everything we’ve got, because contaminating New Mexico’s water with fracking waste—even “treated”—is unthinkably reckless. 

Photo: Jim O’Donnell