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Sabotaging Clean Air in New Mexico

Public Service Company of New Mexico, or PNM, and now the State of New Mexico are lashing out against an EPA plan to clean up the coal burning San Juan Generating Station.

It’s a shame, because as we’ve pointed out, not only will the EPA’s plan save lives, it will drastically reduce haze and smog forming pollution from the four smokestacks of the San Juan Generating Station.  Consider that under the EPA’s plan, air pollution will be cut by more than 80%, while under a PNM-sponsored plan, pollution would be cut by only 20%.

For the 600 people that every year suffer asthma attacks triggered by the San Juan Generating Station, the difference between a 20% and 80% cut in pollution could literally be a life and death situation.

Veiled as an effort to “preserve low cost electricity,” PNM and New Mexico’s opposition really comes down to politics.  Remember, New Mexico’s new Governor, Susana Martinez, has vowed to “undo” former Governor Bill Richardson’s efforts to safeguard the environment.  And as far as PNM is concerned, this is the same company that paid millions over clean air violations at the San Juan Generating Station, then turned around and violated clean air laws yet again.

And really, the politics are incredibly obvious.  Both PNM and New Mexico filed petitions with the EPA requesting the agency “reconsider” its clean air plan.  The basis for the requests?  That EPA was wrong to adopt its own clean up plan in light of the fact that the State of New Mexico had “submitted” its own plan.

Well, guess what?  That’s not how the Clean Air Act works.

Under the law, states are, in fact, charged with adopting clean air rules that are consistent with the Clean Air Act.  And they have to submit these rules for EPA approval.

But when states adopt clean air rules that are inconsistent with the Clean Air Act, the EPA is legally mandated to adopt its own clean air rules, called a Federal Implementation Plan.  Simply because a state, like New Mexico “submits” a clean air rule doesn’t let the EPA off the hook, particularly where the clean air is completely inadequate.

Judge Arguello with the U.S. District Court for the District of Colorado recently rejected the same argument, which was put forward by the State of North Dakota.  In a ruling adopting a WildEarth Guardians settlement agreement with the EPA, Judge Arguello stated:

North Dakota’s construction of the [Clean Air] Act would seemingly allow a state to indefinitely postpone the promulgation of a FIP [Federal Implementation Plan] by filing inadequate SIP [State Implementation Plan] after inadequate SIP, and demanding that the EPA approve or disapprove of them before promulgating a FIP.

In other words, a state can’t derail EPA’s effort to adopt a Federal Implementation Plan simply because it submits its own clean air plan, especially where the state clean air plan is inadequate.  Yet that’s exactly what PNM and New Mexico are demanding.

It’s bizarre, because what it really means is that PNM and New Mexico are demanding that the EPA reject the inadequate state clean air plan before it adopts a federal plan.  The result would be that no clean air plan would ever be adopted.

Of course, maybe that’s really what PNM and New Mexico are after.  Perhaps the 20% reduction plan is simply a tactic to avoid doing anything at all to cut smog and haze forming pollution at the San Juan Generating Station.

It’s not a stretch, especially given the rhetoric from PNM and New Mexico so far.  Perhaps all they’re really after is a free pass to pollute.

It’s disturbing, but ultimately will prove to be wishful thinking.  The Clean Air Act is on our side on this one.  Sooner or later, PNM and New Mexico are just going to have to suck it up and start to protect clean air in New Mexico.

The San Juan Generating Station in northwestern New Mexico.

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