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New Mexico can be a leader in the clean energy transition. We believe in responsible, clean energy development for the state. Right now, there is an effort to pass what is called a “green amendment” to the New Mexico State Bill of Rights, which ironically could halt clean energy development in the state.

On its face, the proposal seems straightforward and appealing. Who could be against clean air and water? But this amendment wouldn’t solve our toughest environmental challenges. Despite its good intentions, the amendment could make it harder for us to meet our clean energy and climate goals, giving anti-renewable interests power to halt renewable energy development.

And with New Mexico on the path of incredible renewable energy development, we are primed to be a national leader on fighting climate change – but this could all come to a halt.

Instead, this amendment would jeopardize important climate solutions, notably renewable energy projects, because of vague or broad language, unclear or unenforceable mandates for state and local governments, and the likely proliferation of lawsuits over perceived environmental wrongs.

We can all agree on the basic goals, but this amendment will unquestionably jeopardize New Mexico’s leadership on clean energy development.

FAQ

Why is a green amendment “bad” for renewable energy development?

Currently, any energy development project in New Mexico is subject to up to thirty-eight (38!) different statutes and regulations in order to actually be built.

Each of these decisions would fall under the Green Amendment, giving anti-renewable interests the ability to claim that a clean energy project violates their rights.

By placing the responsibility on our Courts to decipher environmental policy under the “green amendment,” instead of legislators, we would be asking judges to make patchwork, unpredictable policies that increase uncertainty and ambiguity for all involved.

Why does the “green amendment” open the door for increased costly litigation?

The Green Amendment will encourage litigation because its numerous ambiguous standards provide easy legal hooks. If nobody knows what “self-sustaining ecosystem” means, anybody can argue the standard is not met. Much-needed renewable energy and transmission projects are vulnerable to lawsuits by NIMBY and other anti-renewable interests, and the Green Amendment will increase this vulnerability. Green amendments in other states have been used to hold up renewable energy and transmission projects.[1][2]

How will state and local governments be impacted?

State regulators and local governments will likely incur substantial costs to determine the additional layers of environmental review required by the Green Amendment and to apply those layers of review, and to defend decisions against challenges brought in court based on the mandates in the Green Amendment. Local governments across New Mexico join us in opposing this amendment.

[1] Plaxton v. Lycoming Cty. Zoning Hearing Bd., 986 A.2d 199, 213 (Pa. Commw. Ct. 2009), appeal denied 8 A.3d 900 (Pa. 2010).

[2] Proponents of the proposed Green Amendment have asserted that no lawsuits have been filed under New York’s newly enacted environmental rights amendment. Proposed Green Amendment: Fourth Meeting of the Radioactive & Hazardous Materials Comm.: Proposed Green Amendment, at 9:39 (Nov. 14, 2022) (statement of Rep. Joanne J. Ferrary). This statement is wrong. New York’s environmental rights amendment, adopted in 2021, has already been invoked to challenge the operation of a landfill. See Fresh Air for the Eastside, Inc. v. State of New York, Index No. E2022000699 (N.Y. Sup. Ct. Monroe Co.), available at http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2022/20220128_docket-E2022000699-_complaint.pdf. It was also recently invoked to challenge a development project that, prior to adoption of New York’s environmental rights amendment, had already been tied up in court for six years. See Verified Complaint for Declaratory and Injunctive Relief, Councilmember Christopher Marte v. City of New York (N.Y. Sup. Ct.), available at https://www.aaldef.org/uploads/221021_verified_complaint_against_two_bridges_final.pdf.

29 House Joint Resolution 2: Hearing before the House Judiciary Comm., 2022 Leg., 55th Sess., at