Don’t Fear the Federal Shake-Up, States Can Still Enforce Regulations
Curtis Segarra
As new federal administrators take the reins over the Environmental Protection Agency (EPA), switching up leadership over top oil-producing states like Texas and New Mexico, it’s not clear how federal policing over emissions may change in the near future.[1] For example, Scott Mason IV – a man with apparent ties to Project 2025 [2] – was appointed to administer EPA Region 6, the region producing 50% of the United States’ oil. [3] Given that Project 2025 recommends significant changes to federal oil and gas-related regulations, the federal government’s willingness to crack down on polluters and pursue environmental justice is an open question.[4] But there’s a solution. State regulators can take a page out of the federal playbook and pursue enforcement, even without the EPA.
Federal actions, such as EPA-initiated lawsuits play a huge role in policing air and water quality in western states. Put yourself in the shoes of someone working to enforce regulations in New Mexico, for example. You come into the office, and you’re handed a report that there were over 300,000 gallons of oil spilled in the state in 2023 and more than four million gallons of produced water spilled that same year.[5] There are also numerous facilities likely exceeding methane emission limits, including 28 “super-emitters” in 2023.[6] Oh, and don’t forget that there are countless underground gas tanks which have not been inspected in recent years scattered throughout the state.[7] That’s more or less the situation New Mexico is facing. It’s one of the nation’s top oil-producing states (second only after Texas), but New Mexico has limited staff and resources to monitor the extraction industry.[8]
Given the challenges, it makes perfect sense to accept help from federal regulators. To combat the problem, the New Mexico Environment Department announced plans to partner with the EPA.[9] In recent years, the EPA has been a great partner for New Mexico, helping bring enforcement.[10]
A pillar of the federal support has been the use of civil lawsuits and settlement decrees. Consent decrees offer violators a way to settle a matter with minimal evidence or admission of guilt.[11] Courts need not determine liability before approving a consent decree.[12] Further, courts are occasionally granted the implicit power to approve remedial action that they may not have been able to enforce had the case been resolved through trial.[13]
The process goes like this: The EPA sniffs out polluters–using tools like arial emissions detection[14] – then brings a federal civil lawsuit against the polluters, alleging they broke various federal and state laws, and asks a federal judge to order the polluter to comply with the rules and pay a hefty fine.[15] The alleged polluter can try to fight the lawsuit in court, which takes lots of time and money, or settle under a consent decree.[16] That’s what happened with Hilcorp Energy Company in New Mexico in 2024. Facing a lawsuit where the EPA was asking a judge to order Hilcorp to pay “up to $121,275 per day for each violation” of the federal Clean Air Act, along with $15,000 per day for violations of state rules, Hilcorp settled.[17] Under the settlement, Hilcorp agreed to address the release of over 113,000 tons’ worth of carbon dioxide pollution.[18]
The good news is that even without the federal government joining in suit, the process still works. In the Hilcorp case, the company was facing allegations of violating both federal and state law, including the New Mexico Air Quality Control Act.[19] Standing alone, that Act allows state officials to issue a compliance order or bring civil action in U.S. district court, including requesting a temporary or permanent injunction.[20] The Act also allows a penalty of up to $15,000 per day.[21] Those payment and coercion powers taken together can be used to leverage polluters into a settlement agreement.
The New Mexico Environment Department does initiate these types of legal actions already, even without the EPA,[22] and the state says that most enforcement actions are already happening without federal involvement.[23] This means that even if the federal administration of enforcement actions in New Mexico declines or loses steam, New Mexico can keep using this known playbook of civil suits and settlements to protect its own interests, even without the EPA.
The settlements are a powerful tool, and have been criticized as such.[24] Consent decrees face a relaxed standard of legal review, meaning courts may not always assess the legal merits of a consent decree before approving one.[25] In New Mexico, courts generally will not reform, change, or construe judgments and decrees agreed to by parties.[26] “[W]here the language of a judgment or decree is clear and unambiguous, . . . [i]t must stand and be enforced as it speaks.”[27] But this deferential review and power can be wielded for environmental good, as consent decrees can offer a “test bed for new environmental practices and expectations that later mature into full-fledged regulatory standards.”[28]
[1] Martha Pskowski, Project 2025 Advisor Takes the Reins at EPA Region 6, Inside Climate News (Feb. 7, 2025), https://insideclimatenews.org/news/07022025/project-2025-advisor-new-administrator-for-epa-region-6/.
[2] Project 2025 is a “presidential transition project” designed and supported by over 100 Conservative organizations under the guidance of The Heritage Foundation as a way to “reform the failings of big government.” See The Heritage Foundation, Mandate for Leadership: The Conservative Promise, (Paul Dans and Steven Groves eds., 2022), https://www.project2025.org/playbook/.
[3] U.S. Energy Information Administration, Oil and petroleum products explained, eia.gov (August 2023), https://www.eia.gov/energyexplained/oil-and-petroleum-products/where-our-oil-comes-from.php.
[4] Mandy M. Gunasekara, Mandate for Leadership, 417-48, (Paul Dans and Steven Groves eds., 2022), https://static.project2025.org/2025_MandateForLeadership_CHAPTER-13.pdf; Pskowski, supra note 1
[5] Produced water is a byproduct of oil and gas extraction that can contain a range of dissolved minerals, organic compounds, or other impurities. Center for Western Priorities, 2023 Spills Tracker, WesternPriorities.org (May 8, 2024), https://westernpriorities.org/resource/2023-spills-tracker/?utm_source=Master+Press+List+2.0&utm_campaign=67fde9ee49-EMAIL_CAMPAIGN_2024_05_08_09_46&utm_medium=email&utm_term=0_-67fde9ee49-%5BLIST_EMAIL_ID%5D.
[6] Press Release, Office of the Governor Michelle Lujan Grisham, Independent study shows New Mexico’s emissions from oil and gas are HALF those of Texas’ industry (Nov. 14, 2023), https://www.governor.state.nm.us/2023/11/14/independent-study-shows-new-mexicos-emissions-from-oil-and-gas-are-half-those-of-texas-industry/.
[7] Curtis Segarra, Leaking Gas Tanks: NM ranks last in inspection rates, KRQE News 13 (Jun. 8, 2021), https://www.krqe.com/news/new-mexico/leaking-gas-tanks-nm-ranks-last-in-inspection-rates/.
[8] U.S. Energy Information Administration, https://www.eia.gov/state/print.php?sid=NM (last visited Mar. 25, 2025); New Mexico has recently seen increases in state revenue, partly thanks to oil and gas severance taxes, but that funding does not directly correlate to increased resources for environmental enforcement. In addition to some statutory limits on how the money can be spent, following the COVID-19 pandemic, there has also been practical staffing limitations. See Curtis Segarra, New Mexico Environment Department asking for millions to pay employees, KRQE News 13 (Dec. 12, 2023), https://www.krqe.com/news/politics-government/new-mexico-environment-department-asking-for-millions-to-pay-employees/); As of the first quarter of fiscal year 2025, New Mexico’s Environment Department has an overall vacancy rate of 21.5 percent. New Mexico Legislative Finance Committee, Performance Report Card: Environment Department, First Quarter, Fiscal Year 2025 (2005), https://www.nmlegis.gov/Entity/LFC/Documents/Agency_Report_Cards/667%20NMED%20FY25%20Q1.pdf.
[9] Curtis Segarra, After low compliance by oil and gas companies, New Mexico plans to crack down on industry polluters, KRQE News 13 (Oct. 5, 2023), https://www.krqe.com/news/environment/after-low-compliance-by-oil-and-gas-companies-new-mexico-plans-to-crack-down-on-industry-polluters/.
[10] See Press Release, New Mexico Environment Department, EPA and the NMED find potential air quality violations at 60% of Permian Basin oil and gas facilities inspected (July 3, 2024), https://www.env.nm.gov/wp-content/uploads/2024/07/2024-07-03-COMMS-EPA-and-the-NMED-find-potential-air-quality-violations-at-60-of-Permian-Basin-oil-and-gas-facilities-inspect.pdf.
[11] Tracy Hester, Consent Decrees as Emergent Environmental Law, 85 Mo. L. Rev. 687, 692 (2020), https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?params=/context/mlr/article/4480/&path_info=6._20Hester.pdf.
[12] Id. at 696 (citing Lawyer v. U.S. Dep’t of Justice, 521 U.S. 576, 578-79 (1997).
[13] Id. (citing Pack. R.R. v. Ketchum, 101 U.S. 289, 297 (1879)).
[14] See, e.g., New Mexico Environment Department, Matador General Kehoe 02 24S 28E RB 217H 09 30 19, YouTube (Mar. 27, 2023), https://www.youtube.com/watch?v=iUKZH25hWP8&list=PLLfCTo6X01rxANJWKrvjKSQ5NahtlkyBM&index=2.
[15] See U.S. Environmental Protection Agency, Fact Sheet: The EPA’s Civil Enforcement Program, epa.gov (Oct. 23, 2024), https://www.epa.gov/enforcement/fact-sheet-epas-civil-enforcement-program.
[16] See U.S. Environmental Protection Agency, Basic Information on Enforcement, epa.gov (Feb. 26, 2025), https://www.epa.gov/enforcement/fact-sheet-epas-civil-enforcement-program.
[17] U.S. Environmental Protection Agency, Hilcorp Energy Company Complaint, epa.gov (Oct. 2024), https://www.epa.gov/system/files/documents/2024-10/hilcorpenergycompany-cp.pdf; U.S. Environmental Protection Agency, Hilcorp Energy Company Consent Decree, epa.gov (Oct. 2024), https://www.epa.gov/system/files/documents/2024-10/hilcorpenergycompany-cd.pdf.
[18] U.S. Department of Justice Office of Public Affairs, Natural Gas Producer Agrees to Settlement to Reduce Emissions in New Mexico, Justice.gov (Oct. 17, 2024), https://www.justice.gov/archives/opa/pr/natural-gas-producer-agrees-settlement-reduce-emissions-new-mexico.
[19] U.S. Environmental Protection Agency, Hilcorp Energy Company Complaint, epa.gov (Oct. 2024), https://www.epa.gov/system/files/documents/2024-10/hilcorpenergycompany-cp.pdf; N.M. Stat. Ann. §§ 74-2-1 to -17, (LexisNexis, Lexis Advance through all 2024 Legislations affecting the New Mexico statutes).
[20] N.M. Stat. Ann. § 74-2-12A (LexisNexis, Lexis Advance through all 2024 Legislations affecting the New Mexico statutes.).
[21] Id. § 74-2-12B.
[22] Email from the New Mexico Environment Department (Feb. 20, 2025) (on file with author).
[23] Id.
[24] Michael Buschbacher, The EPA Sues When It Can’t Regulate, Wall St. J. (Sept. 26, 2024), https://www.wsj.com/opinion/the-epa-sues-when-it-cant-regulate-4e85b09d.
[25] Tracy Hester, Consent Decrees as Emergent Environmental Law, 85 Mo. L. Rev. 687, 694 (2020).
[26] Owen v. Burn Constr. Co., 563 P.2d 91, 93 (N.M. 1977) (citing Chavez v. Chavez, 485 P.2d 735, 737 (N.M. 1971)).
[27] Hollingsworth v. Hicks, 258 P.2d 724, 731 (N.M. 1953).
[28] Hester, supra note 25 at 688.