Protect New Mexico

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An Act Relating To The Environment; Providing For A Private Right Of Action To Enforce The Provisions Of Certain Acts; Providing For Procedures; Enacting New Sections Of The Environmental Improvement Act And The Water Quality Act; Amending And Enacting Sections Of The Nmsa 1978.

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Legislative URL:
HB 429 on
Emergency Clause:
[15] HENRC/HJC-HENRC [30] DP/a-HJC [36] DP/a [39] FAILED/H (30-36).

Related Legislators

Bill Sponsor:

Related Documents

HENRC Committee Report
HJC Committee Report
Final House Vote
Fiscal Impact Report

The bill provides for a private right of action to enforce the Oil and Gas Act, the Environmental Improvement Act and the Water Quality Act. It adds a new section to all three of those Acts. The civil action may be pursued against any other person or the state of NM for a violation of any of the Acts, or against the respective governing commissions/boards or agencies charged with carrying out provisions of any of the Acts.

The plaintiff must give 60 days notice of the violation to the appropriate commissions, and agencies, the Attorney General, and any alleged violator of the acts. In the case of an immediate threat to the public health or safety, the plaintiff must still give notice but may bring the suit without waiting 60 days. If the appropriate entity is already diligently prosecuting the case, the individual may not bring a separate action but may intervene in the ongoing case.

Under this legislation, the court may award the reasonable costs of litigation, including expert costs and attorney fees, but not against the agency/commission/board/constituent agency. The civil penalties will be deposited in whatever fund they would have been deposited had the agency/commission/board/constituent agency brought the suit. However, the court will have the discretion to order that up to $25,000 of the civil penalty will be used in mitigation projects.

The bill contains a couple of provisions unique to the specific Acts involved. With respect to suits under the Oil and Gas Act, the alleged violation or failure to act must relate to a statute, rule, permit or order “primarily concerned with environmental protection,” such as pits, closed-loop systems, below-grade tanks and sumps; plugging and abandonment of wells; remediation; produced water; waste disposal; or surface waste management facilities. The legislation authorizes a lawsuit for violations of the Air Quality Control Act (and its rules, or orders or permits relating to that act) to be filed against a local authority if the local authority assumed jurisdiction to enforce the Air Quality Act.

A potential benefit of this bill might be that it will give citizens the ability to demand compliance with, and enforcement of, these laws.

Update: HENRC amended the bill on February 20, 2013 to make two changes throughout the bill. It removes political subdivisions of the State as potential defendants and makes the award of attorney fees mandatory rather than optional.

The change regarding attorney fees might be considered beneficial for the public or other parties who may potentially be plaintiffs in these cases.

Update: HJC stripped the HENRC amendments regarding mandatory attorney fees on March 4, 2013.

Outcome: HB 429 died on the House floor (30-36).

Date of Summary:  2/6/13; Updated 2/22/13; Updated 3/6/13; Updated 5/21/13