AGO 08-03.

• Case Date: March 12, 2008
• Court: New Mexico

New Mexico Attorney Gen eral Opinions 2008. AGO 08-03. OPINION OF GARY K. KING Attorney General March 12, 2008Opinion No. 08-03BY: Zachary Shandler Assistant Attorney General TO: The Honorable Teresa Zanetti New Mexico State Representative 1611 Francisca Rd. NW Albuquerque, NM 87107 QUESTIONS:

1. May the Albuquerque-Bernalillo County Air Quality Control Board ("Board") promulgate regulations that incorporate environmental justice principles?

2. May the Board adopt directives requiring staff to incorporate environmental justice principles into their work?

CONCLUSIONS:

1. Yes. The Board has authority to promulgate regulations that incorporate environmental justice principles.

2. Yes. The Board has authority to adopt directives requiring that environmental justice principles be incorporated into staff work, but those directives do not have a binding effect on the parties in the permitting process.

ANALYSIS: Environmental justice principles center on the concept that a government agency should notify the public, and factor in public testimony regarding a company's environmental impact on the community, particularly in a minority or impoverished community, prior to issuing a permit to that company.(fn1) The Board defines environmental justice principles to mean: "the fair treatment of all residents (in the City of Albuquerque - Bernalillo County), including communities of color and low income communities, and their meaningful involvement in the development, implementation and enforcement of environmental laws, regulations and policies regardless of race, color, ethnicity, religion, income or education level." Albuquerque- Bernalillo County Air Quality Control Board, Environmental Justice Objectives of the Environmental Justice Task Force (July 11, 2007). The New Mexico Supreme Court has provided a roadmap on how, and when, a government agency may incorporate environmental justice principles into its regulations. See Colonias Dev. Council v. Rhino Environmental Services Inc., 138 N.M. 133, 117 P.3d 939 (2005) ("Rhino"). The promulgation of regulations, and not directives or instructions, is central because "[o]nce lawfully adopted, the regulations . . . [have] the force of law and . . . [are] binding upon the parties to the hearing." Brininstool v. New Mexico State Bd. of Ed., 81 N.M. 319, 322, 466 P.2d 885 (Ct. App. 1970). The Court's roadmap(fn2) has three steps:

1. Is there a statute that provides for a public hearing?

2. Is there a statute that provides for authority to enact a rule regarding the protection of public health and welfare?

3. Has a rule been promulgated?

In approximately 2001, Rhino Environmental Services applied for a permit to operate a...