“When Respondents demand that the Court pay deference to the Commission, they are actually demanding that the Court pay deference to Freeport McMoRan.”
With your support, we filed our Reply Brief in the Copper Rule challenge before the state Supreme Court on March 7th. It’s one of our last steps before the state’s high court hands down a ruling in a case that could decide how groundwater is protected – or sacrificed – at industrial sites in New Mexico for years to come.
The Law Center and its clients, Amigos Bravos, the Gila Resources Information Project and Turner Ranch Properties, continue to hammer away at the Copper Rule. The Rule allows – for the first in New Mexico’s regulatory history – the intentional contamination of groundwater by an entire industry.
The gist of the Reply (and our challenge to the Martinez Copper Rule):
- “The [Water Quality Control] Commission and NMED have an undisputed duty under the [Water Quality] Act to prevent water pollution and protect ground water that may be withdrawn for present or future use.”
- “The Copper Rule expressly allows the open pits, waste rock piles, leach piles, tailings and other mine units at copper mines to release hazardous contaminants directly in to the environment and to pollute ground water above [NM groundwater quality] Standards at every existing and future copper mine in New Mexico.” Without mitigation, mines can produce toxic “acid rock drainage” (like that released by the Gold King mine) for hundreds of years.
- The Reply Brief summarizes the Respondents’ main argument in defense of the Copper Rule: “In other words, the areas in which pollution is permitted under the Copper Rule are not Places of Withdrawal [where water cannot be polluted] because the Rule permits groundwater pollution in those areas. The circular reasoning underlying the Rule benefits Freeport McMoRan immeasurably.” (Respondents are the Copper Rule proponents: New Mexico Environment Dept. (NMED), Freeport McMoRan, and the Water Quality Control Commission)
- “[The Copper Rule] gives Freeport McMoRan a windfall, the right to pollute the public’s ground water wherever its mines happen to be located, but it clearly does not prevent water pollution or protect Places of Withdrawal.”
- “In contrast to the Mining Act, nothing in the Water Quality Act suggests that the special interests of the copper industry should be balanced against the Act’s fundamental purposes of pre venting and abating water pollution. Moreover, allowing such an interpretation is a slippery slope, one that inevitably leads to routine water pollution by rule, not just at copper mines, but at all facilities operated by industries having sufficient power and influence.”
- “When Respondents demand that the Court pay deference to the Commission, they are actually demanding that the Court pay deference to Freeport McMoRan. Freeport McMoRan is entitled to no deference….It is no coincidence that these provisions legitimize the extensive water pollution that now exists at Freeport’s mines and authorize more of the same in the future. The Statement of Reasons is a rationalization of this pollution from Freeport’s self-interested perspective.”
Our road to the state Supreme Court began in August 2015, when we asked the high court to review a decision by the state Court of Appeals that upholds the Copper Rule. You can read our Brief-in-Chief to the Supreme Court here. Our Reply (filed on March 7) responds to the Responses filed by NMED, the WQCC and Freeport McMoRan in December, 2015. Want to read the entire Reply? Find it here. The New Mexico Attorney General and former NMED Groundwater Bureau Chief William Olson also are challenging the Copper Rule in this case before the state Supreme Court.
We have asked the Supreme Court for oral arguments in this case. We will let you know if it is granted. In the meanwhile, thank you for taking a stand for New Mexico’s future, and for helping us to pursue this critical water case.
The case began in 2012, when New Mexico began legislature-mandated work to write groundwater regulations specific to copper mines. For months, NMELC and its clients participated in a stakeholder process led by respected retired NMED Groundwater Bureau Chief William Olson.
The process soon turned sour, however, when the compromise language landed on the desks of Martinez Administration appointees. NMED managers stripped out thirty years of policies protective of New Mexico’s water at industrial sites from the draft Rule, and gifted Freeport McMoRan– a mining company whose New Mexico mines have already contaminated 20,000 acres of ground water – with huge concessions. The new draft allowed every copper mine in New Mexico to contaminate water within property boundaries and to expand the boundaries within which contamination can occur without public review or appeal. In addition, the Rule is based on the premise that companies will treat mine-contaminated water in perpetuity.
When the Commission adopted the Copper Rule in 2013, it also adopted a 214-page “Statement of Reasons” purportedly written by NMED staff. Our members’ support made it possible for the Law Center to file Inspection of Public Records Act requests, however, where we discovered that the Statement of Reasons was actually written by lawyers for Freeport McMoRan.
In typical fashion, New Mexico Environment Secretary Ryan Flynn has repeatedly crowed that the Copper Rule is the strongest of its kind in the nation. It is no such thing. Rather, it reverses New Mexico’s thirty year history of protecting groundwater at industrial sites. You can read our op-ed to the Albuquerque Journal in April 2014 that rebuts Secretary Flynn’s statements.