SB0677

SENATE BILL 677

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Cisco McSorley

AN ACT

RELATING TO THE ENVIRONMENT; PROVIDING FOR A PRIVATE RIGHT OF ACTION TO ENFORCE THE PROVISIONS OF CERTAIN ACTS; PROVIDING FOR PROCEDURES; ENACTING NEW SECTIONS OF THE ENVIRONMENTAL IMPROVEMENT ACT AND THE WATER QUALITY ACT; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 70-2-29 NMSA 1978 (being Laws 1935, Chapter 72, Section 20, as amended) is amended to read:

"70-2-29. ACTIONS FOR DAMAGES--INSTITUTION OF ACTIONS FOR INJUNCTIONS BY PRIVATE PARTIES.--

A. Nothing [in this act] contained or authorized in the Oil and Gas Act and no suit by or against the commission or the oil conservation division of the energy, minerals and natural resources department and no penalties imposed or claimed against any person for violating any statute of this state with respect to conservation of oil and gas, or any provision of [this] the Oil and Gas Act or any rule, regulation or order issued [thereunder] pursuant to that act, shall impair or abridge or delay any cause of action for damages [which] that any person may have or assert against any person violating any statute of this state with respect to conservation of oil and gas or any provision of [this] the Oil and Gas Act or any rule, regulation or order issued [thereunder] pursuant to that act. Any person so damaged by the violation may sue for and recover such damages as [he] the person may be entitled to receive. [In the event the division should fail to bring suit to enjoin any actual or threatened violation of any statute of this state with respect to the conservation of oil and gas, or of any provisions of this act, or of any rule, regulation or order made thereunder, then any person or party in interest adversely affected by such violation, and who has notified the division in writing of such violation or threat thereof and has requested the division to sue, may, to prevent any or further violation, bring suit for that purpose in the district court of any county in which the division could have brought suit. If, in such suit, the court holds that injunctive relief should be granted, then the division shall be made a party and shall be substituted for the person who brought the suit, and the injunction shall be issued as if the division had at all times been the complaining party.]

B. Except as provided in Subsection C of this section, a person who is injured in fact, economically or otherwise, or who is imminently threatened with injury, economically or otherwise, may commence a civil action on the person's own behalf against:

(1) any other person, including the state of New Mexico, or any officer or agency of the state, but not including a political subdivision of the state, charging a violation of the Oil and Gas Act or a rule, permit or order issued pursuant to that act; or

(2) the commission or the oil conservation division of the energy, minerals and natural resources department alleging a failure to perform any substantive and nondiscretionary act or duty required by a provision of the Oil and Gas Act or a rule promulgated pursuant to that act.

C. No action may be commenced under Subsection B of this section:

(1) unless the alleged violation or alleged failure to perform a substantive and nondiscretionary act or duty relates to a statute, rule, permit or order primarily concerned with environmental protection, including statutes, rules, permits or orders concerned with:

(a) pits, closed-loop systems, below-grade tanks and sumps;

(b) plugging and abandonment of wells;

(d) produced water;

(e) waste disposal; or

(f) surface waste management facilities;

(2) unless the plaintiff has given sixty days' written notice of the violation to the commission, the oil conservation division of the energy, minerals and natural resources department, the attorney general and any alleged violator of the Oil and Gas Act or a rule, permit or order. However, where the violation of the statute, rule, permit or order complained of constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff, an action under this section may be brought immediately after notification of the proper parties; or

(3) if the commission or division has commenced and is diligently prosecuting a civil action in a court of this state or an administrative enforcement proceeding to require compliance with the Oil and Gas Act or a rule, permit or order. In an administrative or court action commenced by the commission or division, a person who has standing pursuant to Subsection B of this section and who has provided notice pursuant to Paragraph (2) of this subsection prior to the initiation of the action may intervene as a matter of right.

D. Whenever any action is brought under this section, the plaintiff shall serve a copy of the complaint on the commission and the oil conservation division of the energy, minerals and natural resources department. No stipulated judgment shall be entered in an action brought under this section if the commission or division is not a party, unless the judgment is entered at least forty-five days after the receipt of a copy of the proposed stipulated judgment by the commission or division, during which time the commission or division may submit comments on the proposed stipulated judgment to the court or may intervene as a matter of right. The plaintiff in the action shall be responsible for providing the proposed stipulated judgment to the commission and the division.

E. In any action brought pursuant to this section, the court may award the prevailing party reasonable costs of litigation, including expert costs and attorney fees, except that, in an action against the state, the commission or the oil conservation division of the energy, minerals and natural resources department, no costs of litigation, expert costs or attorney fees shall be awarded against the state, commission or division.

F. Except as otherwise provided in Subsection G of this section, any civil penalties assessed shall be deposited in the same fund in which they would have been deposited if the action had been brought by the commission or the oil conservation division of the energy, minerals and natural resources department.

G. Notwithstanding the provisions of Subsection E of this section, the court shall have discretion to order that any civil penalties assessed, not to exceed twenty-five thousand dollars ($25,000), be used in beneficial mitigation projects that are consistent with the Oil and Gas Act or the rule, permit or order alleged to have been violated and that enhance the public health or the environment. Before exercising this discretion, the court shall obtain written comments on beneficial mitigation projects from the commission or the oil conservation division of the energy, minerals and natural resources department."

SECTION 2. A new section of the Environmental Improvement Act is enacted to read:

"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--

A. Except as provided in Subsection B of this section, a person who is injured in fact, economically or otherwise, or who is imminently threatened with injury, economically or otherwise, may commence a civil action on the person's own behalf against:

(1) any other person, including the state of New Mexico, or any officer or agency of the state, but not including a political subdivision of the state other than an administrative agency established by local authority pursuant to Paragraph (2) of Subsection A of Section 74-2-4 NMSA 1978, charging a violation of any statute, rule or permit, the enforcement of which is delegated to the department or any order of the board or the secretary issued pursuant to a statute or rule; or

(2) the department or the board alleging a failure to perform any substantive and nondiscretionary act or duty required by an act or rule the enforcement of which is delegated to the department or board.

B. No action may be commenced under Subsection A of this section:

(1) unless the plaintiff has given sixty days' written notice of the violation to the secretary, the attorney general and any alleged violator of the statute, rule, permit or order. However, where the violation of the statute, rule, permit or order complained of constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff, an action under this section may be brought immediately after notification of the proper parties; or

(2) if the department has commenced and is diligently prosecuting a civil action in a court of this state or an administrative enforcement proceeding to require compliance with the Environmental Improvement Act or a rule, permit or order. In an administrative or court action commenced by the department, a person who has standing pursuant to Paragraph (1) of this subsection prior to the initiation of the action may intervene as a matter of right.

C. Whenever any action is brought under this section, the plaintiff shall serve a copy of the complaint on the secretary. No stipulated judgment shall be entered in an action brought under this section if the department is not a party, unless the judgment is entered at least forty-five days after the receipt of a copy of the proposed stipulated judgment by the secretary, during which time the department may submit comments on the proposed stipulated judgment to the court or may intervene in the action as a matter of right. The plaintiff in the action shall be responsible for providing the proposed stipulated judgment to the secretary.

D. In any action brought pursuant to this section, the court may award to the prevailing party reasonable costs of litigation, including expert costs and attorney fees, except that, in an action against the state, the department or the board, no costs of litigation, expert costs or attorney fees shall be awarded against the state, the department or the board.

E. Except as otherwise provided in Subsection F of this section, any civil penalties assessed shall be deposited in the same fund in which they would have been deposited if the action had been brought by the department or board.

F. Notwithstanding the provisions of Subsection E of this section, the court shall have discretion to order that any civil penalties assessed, not to exceed twenty-five thousand dollars ($25,000), be used in beneficial mitigation projects that are consistent with the act, rule, permit or order alleged to have been violated and that enhance the public health or the environment. Before exercising this discretion, the court shall obtain written comments on beneficial mitigation projects from the secretary.

G. In an action brought pursuant to this section to enforce a provision of the Air Quality Control Act or a rule, permit or order issued under that act, if jurisdiction to enforce the act has been assumed by a local authority and if the complaint arose within the jurisdiction of the local authority, then, notwithstanding the definitions in Section 74-1-3 NMSA 1978, as used in this section:

(1) "board" means the local board created by the local authority;

(2) "department" means the administrative agency established by the local authority pursuant to Paragraph (2) of Subsection A of Section 74-2-4 NMSA 1978; and

(3) "secretary" means the director or administrative head of the local agency."

SECTION 3. A new section of the Water Quality Act is enacted to read:

"[NEW MATERIAL] PRIVATE RIGHT OF ACTION.--

(1) any other person, including the state of New Mexico, or any officer or agency of the state, but not including a political subdivision of the state, charging a violation of the Water Quality Act or a rule, permit or order issued pursuant to that act; or

(2) the commission or a constituent agency alleging a failure to perform any substantive and nondiscretionary act or duty required by the Water Quality Act or a rule, permit or order promulgated pursuant to that act.

B. No action may be commenced under Subsection A of this section:

(1) unless the plaintiff has given sixty days' written notice of the violation to the commission, the appropriate constituent agency, the attorney general and any alleged violator of the statute, rule, permit or order. However, where the violation of the statute, rule, permit or order complained of constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff, an action under this section may be brought immediately after notification of the proper parties; or

(2) if a constituent agency has commenced and is diligently prosecuting a civil action in a court of this state or an administrative enforcement proceeding to require compliance with the act, rule, permit or order. In an administrative or court action commenced by a constituent agency, a person who has standing pursuant to Subsection A of this section and who has provided notice pursuant to Paragraph (1) of this subsection prior to the initiation of the action may intervene as a matter of right.

C. Whenever any action is brought under this section, the plaintiff shall serve a copy of the complaint on the commission and the appropriate constituent agency. No stipulated judgment shall be entered in an action brought under this section if the appropriate constituent agency is not a party, unless the judgment is entered at least forty-five days after the receipt of a copy of the proposed stipulated judgment by the agency, during which time the agency may submit comments on the proposed stipulated judgment to the court or may intervene in the action as a matter of right. The plaintiff in the action shall be responsible for providing the proposed stipulated judgment to the agency.

D. In any action brought pursuant to this section, the court may award to the prevailing party reasonable costs of litigation, including expert costs and attorney fees, except that, in an action against the state, the commission or a constituent agency, no costs of litigation, expert costs or attorney fees shall be awarded against the state, commission or constituent agency.

F. Notwithstanding the provisions of Subsection E of this section, the court shall have discretion to order that any civil penalties assessed, not to exceed twenty-five thousand dollars ($25,000), be used in beneficial mitigation projects that are consistent with the Water Quality Act or the rule, permit or order alleged to have been violated and that enhance the public health or the environment. Before exercising this discretion, the court shall obtain written comments on beneficial mitigation projects from the appropriate constituent agency."

SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.

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