EARTHWORKS: Support the private right to enforce environmental statutes

EARTHWORKS: Support the private right to enforce environmental statutes

Call New Mexico state legislators now
(see legislator list at bottom of alert)

WHAT:

• House Bill 259
• Sponsored by: Representative Ben Lujan, Speaker of the House
• Is scheduled to be heard in House Consumer and Public Affairs Committee tomorrow

WHEN:

• Tuesday, February 9, 2010
• 1:30 pm
• Room 315
• State Capitol Building - Santa Fe, New Mexico

SUGGESTED TALKING POINTS:

• Urge legislators to vote YES on House Bill 259 (the Private Right Action Act)
• HB 259 amends the Environmental Improvement Act, the Water Quality Act and the Oil and Gas Act to allow private citizens to enforce the pollution provisions of those statutes
• At a time when our state budgets are tight and state agencies have limited resources to enforce existing environmental laws, regulations and permits, this bill will provide citizens with an important tool to clean up their own backyards and communities.
• HB 259 will supplement the environmental enforcement ability of state agencies at a time of limited budgets
• HB 259 will enable local citizens to sue a company that is polluting and get a court order to make the company stop polluting
• HB 259 will make it possible for local groups that might not have the resources to get reimbursed for litigation costs, including legal fees and expert fees, should the local group prevail
• HB 259 will require that the state receive any civil penalties ordered by the court
• HB 259 will not add to the state deficit

Conservation Voters New Mexico has this to say about the Private Right of Action bill:

The bill would be a crucial tool giving residents the power to demand compliance with, and enforcement of, these three crucial environmental laws.

Essentially, an agency that is either willfully derelict or simply incompetent in carrying out its statutory duties could be ordered by the court to perform its mandate. Or, in the same vein, if a violation is ongoing and the agency fails to act, for the first time a citizen will have the power to stop it via injunction.

A novel component to the bill is the $25,000 (or less) beneficial mitigation clause. Essentially, if an individual sues another individual for damages under any of the acts, any penalty will go to the same fund in which it would be deposited if the action had been brought by the agency itself, and up to $25,000 of that penalty may be directly used to mitigate the specific damages caused by the violation. This clause helps to guard against a situation where an agency not only initially fails to enforce an act, but also fails later to rectify the damages of its non-enforcement.

If this bill passes, willful or unwillful enforcement failure will never be a complete barrier to ensuring that the laws protecting New Mexico's environment may nonetheless still be fully enforced.

BACKGROUND:
The Fiscal Impact Report for HB 254 states:

The intent of citizen suit legislation, such as HB 259, is to allow private rights of action to enforce environmental laws, or to spur government action, when the government fails to take action against a violation of the law. Federal environmental laws generally contain citizen suits provisions and New Mexico's two major mine regulatory laws include citizen suit provisions.NMSA 1978, Section 69-25A-24 (Surface Mining Act) and Section 69-36-14 (Mining Act). Both laws allow for EMNRD to be sued. These provisions, which have been in place since 1979 and 1993 respectively, have rarely been used. There are no records of any citizen suits under the Surface Mining Act and only two under the Mining Act. Neither suit resulted in any judgments against the State.

FOR MORE INFORMATION:

• House Bill 259 - bill language: http://legis.state.nm.us/Sessions/10%20Regular/bills/house/HB0259.pdf
• HB 259 - Fiscal Impact Report:
  http://legis.state.nm.us/Sessions/10%20Regular/firs/HB0259.pdf

LEGISLATORS TO CALL

Committee Members:
Please contact these legislators today! For a full list of committee members:
http://legis.state.nm.us/lcs/committeedisplay.aspx?CommitteeCode=HCPAC

IF YOU ONLY HAVE TIME TO MAKE A FEW CALLS:

• House Consumer and Public Affairs:
  Please contact these Committee Members today!
• Representative Gail Chasey - (D) - Committee Chair
  Capitol Phone: (505) 986-4844
  Email: gailchasey@msn.com
• Representative Antonio "Moe" Maestas - (D) - Committee Vice-Chair
  Capitol Phone: (505) 986-4464
  Email: rep16@moejustice.com
• Representative Karen Giannini
  Capitol Phone: (505) 986-4234
  Email: nmhousedistrict30@live.com
• Representative Bill O'Neill
  Capitol Phone: (505) 986-4254
  Email: oneillhd15@fastmail.us
• Representative Al Park
  Capitol Phone: (505) 986-4411
  Email: alpark.nm@gmail.com