Vox Populi

Public prosecution “a great model” for future suits against polluters

Arecent agreement between an environmental group and an oil and gas company that dramatically cuts excess oilfield pollution at a Southern New Mexico facility could be a model for quicker resolutions to pollution violations and a legal roadmap for private groups looking to hold fossil fuel companies accountable under the Clean Air Act.

In late September, WildEarth Guardians entered into a consent decree with a branch of the multinational Oxy USA for regularly exceeding permitted emission limits of lung-damaging air pollutants at an oil and gas pumping and compressor station northeast of Carlsbad. In its lawsuit, the group claimed that the releases were so frequent they couldn’t possibly be accidents or malfunctions but were a part of the company’s normal operating procedure and a violation of its state-issued air pollution permit.

The parties agreed to settle the case before trial to avoid costly, long-term and public prosecution—without an admission of guilt or liability. A judge is reviewing the settlement, with a final decision likely before the end of the year. Of note: WildEarth Guardians sued the company under a section of the federal Clean Air Act called the “citizen suit” provision, leapfrogging the usual prosecution by state or federal agencies and setting a playbook for similar cases in the future.

State permits set both hourly and yearly limits on how much of certain air pollutants a facility can release. According to online public records from the Air Quality Bureau of the New Mexico Environment Department, over the past three years Oxy’s Turkey Track gas compressor station, which opened in October 2018, racked up nearly 280 releases exceeding the facility permit, both before and after the company twice asked for and received pollution limit increases from NMED in 2019.

“There are a lot of companies and a lot of facilities that regularly report excess emissions,” says Jeremy Nichols, climate and energy program director at WildEarth Guardians. “But this one, this Oxy facility, really rose to the top and really seemed to be a poster child for how the industry chronically violates and [passes] it off as just the cost of doing business.”

Fossil fuel production companies across the state file monthly reports with NMED, tallying how much of four types of emissions—sulfur dioxide, nitrogen oxide, carbon monoxide and volatile organic compounds—were released in excess of their allowed, licensed amounts. Monthly reports dating back to October 2019 are posted online.

“Industry reports. They do. They’re diligent,” Nichols says. “Because if they don’t report and then if they get caught, the consequences are much more severe and you start to veer into the criminal realm.”

For Oxy, the lawsuit’s impact entails $500,000 in fines, another $500,000 for air quality and public health projects in the area, $5.5 million in upgrades to the Turkey Track compressor station and other facilities and multiple changes in how the company deals with the excess, unwanted, harmful gasses that are a normal part of the oil and gas production process.

“The Clean Air Act is one of the most complicated environmental statutes, and so it is challenging to bring these kinds of suits,” says Gabriel Pacyniak, an associate professor of law at the University of New Mexico and the school’s primary faculty supervisor of its natural resources and environmental law clinic.

Government’s “approach to enforcement is different than ours,” Nichols says. But this case was so obvious that “they could have easily launched their own enforcement case here, and they didn’t. You know, that’s on them.”

Matthew Maez, director of communications at the New Mexico Environment Department, says historic underfunding has limited the department’s “ability to conduct significant enforcement activities.” He pointed to NMED cases against three gas plants in recent years that led to millions in fines and two of them being shuttered entirely.

“Citizen suits that help curb air pollution are positive outcomes for public health and the environment,” Maez says. “Government agencies are not in competition with private groups when it comes to enforcement.”

Oxy began filing the reports soon after the Turkey Track plant opened in 2018, and all of these events led to toxic gasses being flared or vented, contributing to air pollution in the Permian Basin. Jennifer Brice, director of communications and public affairs at Oxy, says that since the case started, the company has made repairs and changes and, “in addition to the upgrades and operational changes at our New Mexico facilities, we will continue to focus on initiatives to reduce emissions in our Permian operations.”

Oxy promotes itself as a leader in responsible fossil fuel production and carbon reduction. “We also have a history of collaborating with environmental organizations that share a commitment to minimizing emissions,” Brice says, adding that Oxy has denied WildEarth Guardians’ allegations.

WildEarth Guardians’ main allegation is that the Turkey Track facility breached its emissions limits so often that it should have applied for more stringent licenses from the start. Nichols thinks industry’s first response to problems is to vent or flare the unwanted gasses. And in this case, Nichols says, Oxy came to the table and negotiated because of the seriousness of the allegations “and a recognition that we kind of had them dead to rights.”

In late 2021, excess emission reports dropped precipitously at the Turkey Track plant, highlighting Nichols’ point.

While this type of citizen-initiated case is uncommon in the region, the pollution isn’t.

From Oct. 1, 2019 to Oct. 31, 2022, oil and gas operators across New Mexico reported emitting nearly 10,400 tons of regulated air pollutants above and beyond their licensed limits to New Mexico skies, most of it in the Permian Basin. That averages out to 9.2 tons combined, every day.

In that period, 16 other companies released more air pollutants than Oxy USA WTP, the branch that runs the Turkey Track compressor station. In fact, that branch of Occidental Petroleum isn’t even the multinational company’s biggest polluter in New Mexico—Oxy USA had more incidents and released almost twice as much pollution over the same time period. Among all facilities noted, Turkey Track had the fourth largest number of emissions, though in total it released orders of magnitude less gas than the biggest polluters on the list.

Pacyniak at UNM calls the Oxy settlement “a great model of a successful suit” brought by a citizens’ group. The pro-bono environmental law clinic he leads represents Native, low income and other legally underserved communities facing environmental threats in New Mexico. He says the clinic could use the settlement as a template if the right case presents itself in the future.

This story was published by journalism nonprofit Capital & Main, which reports on economic, environmental and social issues in the West.

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