Atencio v. State

On May 10, 2023, plaintiffs filed a lawsuit in New Mexico District Court alleging that the State of New Mexico and other State defendants were violating the New Mexico Constitution by failing to meet their constitutional obligations to protect the environment from the impacts of oil and gas pollution. The plaintiffs were “‘frontline’ community members (i.e., people living near oil and gas production sites), Indigenous peoples, youth, and environmental organizations.” The complaint alleged that “[d]espite its constitutional duty to protect New Mexico’s air, water, environment and other natural resources, the State continues to authorize and promote oil and gas production, without establishing and implementing a statutory, regulatory and enforcement scheme that ensures the protection of New Mexico’s beautiful and healthful environment.” The complaint asserted a violation of the Constitution’s “Pollution Control Clause” as well as substantive due process and equal protection violations under the New Mexico Constitution.

The New Mexico Court of Appeals ordered the dismissal of claims under the New Mexico Constitution that the State’s system for regulating pollution from oil and natural gas violated the plaintiffs’ rights. The plaintiffs were individuals who lived or worked in close proximity to the San Juan and Permian Basins in the northwest and southeast regions of the state where oil and gas extraction occurs or who had “significant cultural, ancestral, and religious ties” to those regions, as well as “various advocacy groups representing populations particularly affected by climate change such as youths, Indigenous communities, and other grouped individuals living and working in the San Juan and Permian Basins.” The defendants were the State of New Mexico, its legislature and governor, and various executive agencies and officials. The court held that the Constitution’s Pollution Control Clause did not contain an enforceable right to be free from a given amount of pollution or create an enforceable right “to a beautiful and healthful environment.” The court further concluded that judicial resolution of a claim under the Pollution Control Clause would violate separation of powers as well as the “merely persuasive” political question doctrine. In addition, the court found that the plaintiffs could not state a due process claim because neither the federal nor the New Mexico Constitution recognize an individual right to environmental protection that would support such a claim. The court also found the plaintiffs did not state a viable equal protection claim because they did not allege a classification that resulted in discriminatory treatment. The court said their allegations of discriminatory treatment amounted to “incidental harms based on the geographic location of individuals.” One judge concurred, writing that while she agreed that the Pollution Control Clause did not create an individual or enforceable right, she was hesitant “to foreclose the possibility that [it] creates any right at all.”

Plaintiffs filed a petition for writ of certiorari in the New Mexico Supreme Court seeking review of an intermediate appellate court’s June 2025 decision ordering dismissal of their claims under the New Mexico Constitution that the State’s system for regulating pollution from oil and natural gas violated the plaintiffs’ rights. The plaintiffs’ petition argued that the New Mexico Constitution’s Pollution Control Clause creates a “positive constitutional right” that must be enforced by the courts and that deeming claims under it nonjusticiable would make New Mexico an outlier. In addition, the plaintiffs argued that the intermediate appellate court erred by concluding at the motion to dismiss stage that the State defendants complied with the Constitution; misconstrued and limited the power of the Declaratory Judgment Act; erred in concluding that substantive due process was not applicable; and erred in concluding that the New Mexico Constitution’s equal protection clause “can never protect classes of people disproportionally harmed by state actions permitting oil and gas pollution.”