Western climate litigants keep fighting

Mario Atencio (Diné) always looked forward to visiting his grandmother in Counselor, New Mexico. She lived what he describes as a “simple Navajo lifestyle” in the small rural town, raising dozens of animals on her lush green property, which he remembers as a magical and peaceful place.

But that began to change in 2015, when oil and gas drillers started fracking operations in the state’s northwest corner, known as the Greater Chaco Landscape. Soon, Atencio’s grandmother’s land was surrounded by noise and air pollution. In 2019, both the land and the water beneath it were contaminated by massive spills that leaked thousands of gallons of oil. Once-abundant plants, including traditional medicinal herbs, no longer grew on the land, and rare birds and wildlife were disappearing, too.

Two years ago, Atencio became the lead plaintiff in what could soon become a landmark climate litigation case. The lawsuit accuses the New Mexico Legislature and state agencies of actively harming Indigenous communities and failing to uphold their constitutional duty to prevent harmful pollution. “The rights that we have as Indigenous people to free, informed, prior consent are being violated,” Atencio said. “We’ve never had people from the government come and say, ‘This is what’s going to happen to your land and water.’”

After winding its way through the legal system, the lawsuit will go before the New Mexico Supreme Court, which agreed this month to hear the case. If the court rules in Atencio’s favor, the case would join high-profile decisions like Held v. Montana, a suit brought by young people who accused Montana of violating their constitutional right to a healthy environment by not regulating greenhouse gas emissions. Last year, young, Indigenous climate advocates in Hawai’i won a case against the state’s Department of Transportation for its continued support of highway expansion projects — despite the state’s directive to decarbonize its transportation sector by 2045.

“The rights that we have as Indigenous people to free, informed, prior consent are being violated.”

Similar cases have been filed in every state, and there have been a handful of successes over the past decade, said Margaret Barry, who tracks climate litigation at Columbia University’s Sabin Center for Climate Change Law.

State constitutions often include a duty to proactively protect residents’ rights, Barry said. But the strength of these protections varies. In Alaska, for example, in Sagoonick v. State of Alaska,a group of young people tried to stop the development of a liquified natural gas project by arguing that the state Constitution protects natural resources for the general public, which in turn requires a livable climate. The Alaska Supreme Court disagreed with that theory in March.

In New Mexico, voters adopted a constitutional amendment in 1971 that explicitly directs the state government to “provide for control of pollution and control of despoilment of the air, water and other natural resources,” said Gail Evans, the Center for Biological Diversity attorney who is leading the case. Atencio’s case, which rests on that provision, argues that the state has failed to fulfill its responsibilities.

Evans likens the situation to New Mexico’s duty to adequately support public schools: The state has to provide funding to hire teachers and develop guidelines for schools to follow. But when it comes to controlling oil and gas pollution, she said, New Mexico has “just utterly failed” to provide the right tools and resources to protect public and environmental health. Lax enforcement and myriad loopholes allow the industry to pollute with little consequence, the lawsuit alleges.

According to data from the environmental watchdog group Earthworks, the New Mexico Environment Department employed just two full-time inspectors to investigate complaints at all 56,000 oil and gas facilities in the state in 2023. The industry is largely left to self-report its emissions of harmful air pollution and greenhouse gases. The lawsuit names another Diné plaintiff, Kendra Pinto, who documented a methane leak near her home even after the Environment Department assured her it hadn’t found any leaks.

“You can get a permit to frack simply for asking,” Evans said. “The state doesn’t do any type of environmental or public health overview or consideration before granting that permit.” In the Permian Basin, ambient air quality readings exceed federal standards, yet new wells are permitted in the region as pollution continues to increase.

Atencio v. State of New Mexico could end up forcing the country’s second-largest fossil fuel producer to clean up its act. But it’s been difficult to leverage similar legal wins at the federal level, Barry said, because the U.S. Constitution is primarily designed to limit the government’s ability to restrict civil rights, like free speech, rather than proactively grant rights like many state constitutions do.

Some of the Lighthiser v. Trump youth plaintiffs make their way to court this September in Missoula, Montana. Credit: Ben Allan Smith/The Missoulian via AP

In October, a federal judge in Montana dismissed Lighthiser v. Trump, a case that would have expanded protections won at the state level in Held v. Montana. Twenty-two plaintiffs, including several from the Held case, argued that the Trump administration’s executive orders rolling back climate protections and increasing fossil fuel production were unconstitutional and would destroy the plaintiffs’ right to a stable and healthy climate. While the judge agreed that the plaintiffs were being harmed by climate change, he ultimately ruled that federal courts could not force the government to change course.

If the New Mexico Supreme Court rules in his favor, Atencio said that he hopes the state will be forced to document the ill effects of oil and gas pollution on Indigenous communities’ health and their sacred lands — and then take action to protect them.

That could include measures such as pausing new oil and gas development until emissions are reduced, closing legal loopholes that allow operators to pollute, increasing funding for enforcement, and creating larger buffer zones between drilling sites and homes or schools.

“What’s so shocking to me is that the industry will come forward and say, ‘If you do what the plaintiffs are asking for, you’ll put us out of business,’” Evans said. “So you can’t operate in a way that doesn’t harm people’s health and environment? Because that’s what we’re asking for.” 

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