Atencio v. State

 The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Clerk of the Court for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: __________ 3 Filing Date: June 3, 2025 4 No. A-1-CA-42006 5 MARIO ATENCIO; PAUL AND MARY ANN 6 ATENCIO; DANIEL TSO; SAMUEL SAGE; 7 CHEYENNE ANTONIO; KENDRA PINTO; 8 JULIA BERNAL; JONATHAN ALONZO; 9 PASTOR DAVID ROGERS; YOUTH UNITED 10 FOR CLIMATE CRISIS ACTION (YUCCA); 11 PUEBLO ACTION ALLIANCE; INDIGENOUS 12 LIFEWAYS; CENTER FOR BIOLOGICAL 13 DIVERSITY; and WILDEARTH GUARDIANS, 14 Plaintiffs-Appellees, 15 v. 16 STATE OF NEW MEXICO; NEW MEXICO 17 LEGISLATURE; GOVERNOR MICHELLE 18 LUJAN GRISHAM; NEW MEXICO ENVIRONMENT 19 DEPARTMENT; SECRETARY JAMES KENNEY, 20 in his official capacity; ENERGY, MINERALS & 21 NATURAL RESOURCES DEPARTMENT; 22 SECRETARY DESIGNATE MELANIE A. 23 KENDERDINE, in her official capacity; 24 ENVIRONMENTAL IMPROVEMENT BOARD; and 25 the OIL CONSERVATION COMMISSION, 26 Defendants-Appellants, 27 and 1 INDEPENDENT PETROLEUM ASSOCIATION 2 OF NEW MEXICO, 3 Intervenor/Defendant, 4 and 5 NEW MEXICO CHAMBER OF COMMERCE, 6 Intervenor/Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Matthew Wilson, District Court Judge 9 Gail Evans 10 Colin Cox 11 Albuquerque, NM 12 for Appellee Center for Biological Diversity 13 Tim Davis 14 Samantha Ruscavage-Barz 15 Santa Fe, NM 16 for Appellee WildEarth Guardians 17 Daniel Yohalem 18 Santa Fe, NM 19 for Appellees 20 Raúl Torrez, Attorney General 21 Mark W. Allen, Assistant Attorney General 22 Seth C. McMillan, Deputy Solicitor General 23 Ellen Venegas, Assistant Solicitor General 24 Santa Fe, NM 25 for Appellants State of New Mexico, Environmental Improvement Board and Oil 26 Conservation Commission 1 Hinkle Shanor LLP 2 Thomas M. Hnasko 3 Lisa G. Zammiello 4 David A. Lynn 5 Santa Fe, NM 6 for Appellant The New Mexico Legislature 7 Peifer, Hanson, Mullins & Baker, P.A. 8 Elizabeth K. Radosevich 9 Matthew E. Jackson 10 Albuquerque, NM 11 for Appellants Governor Michelle Lujan Grisham, New Mexico Environment 12 Department, Secretary James Kenney, Energy, Minerals & Natural Resources 13 Department, and Secretary Designate Melanie A. Kenderdine 14 Baker & Hostetler LLP 15 Mark S. Barron 16 Denver, CO 17 for Appellant New Mexico Chamber of Commerce 18 Vernon Law and Graduate School 19 Mia Montoya Hammersley, Assistant Professor of Law & Director 20 Christophe Courchesne, Associate Professor of Law & Director 21 Charlotte Bieri, Student Clinician 22 Savannah Collins, Student Clinician 23 Hannah Ziomek, Student Clinician 24 Lauren Carita, Student Clinician 25 Royalton, VT 26 Washburn University School of Law 27 James R. May, Richard S. Righter Distinguished Professor of Law 28 Topeka, KS 1 Northeastern University School of Law 2 Martha F. Davis 3 Boston, MA 4 for Amici Curiae Law Professors in Support of Plaintiffs-Appellees 5 Fine Law Firm 6 Mark Fine 7 Albuquerque, NM 8 University of Wisconsin Law School 9 Steph Tai, Associate Dean 10 Madison, WI 11 for Amici Curiae Public Health Professionals in Support of Plaintiffs-Appellees 1 OPINION 2 HANISEE, Judge. 3 {1} This case presents novel questions of state law regarding the justiciability of 4 claims alleging failures of the State, its legislative and executive branches of 5 government, and several of its administrative entities and officers to adequately 6 control pollution caused during the extraction and production of oil and natural gas. 7 Plaintiffs, who are various advocacy organizations and individual New Mexicans, 8 including several Indigenous people, filed suit against various executive agencies 9 and officials, including Governor Michelle Lujan Grisham, the State of New Mexico 10 itself, and the Legislature (all Defendants collectively referred to hereinafter as 11 Defendants). 1 Plaintiffs seek various forms of declaratory and injunctive relief that, 12 in general terms, call for the judiciary to declare that the current statutory and 13 regulatory scheme controlling pollution from oil and natural gas fails to protect the 14 environment under Article XX, Section 21 of the New Mexico Constitution (the 1 For clarity and ease of reference, we collectively refer to the Governor, the New Mexico Environment Department (NMED), Secretary Kenney, the Energy, Minerals and Natural Resources Department (EMNRD), Secretary Designate Kenderdine, the Environmental Improvement Board (EIB), and the Oil Conservation Commission (OCC) as “Executive Defendants.” When referring to all the Defendants together, we use the term “Defendants.” After initial pleadings in the case, Defendants New Mexico Chamber of Commerce (the Chamber) and Independent Petroleum Association of New Mexico (IPANM) intervened on behalf of Defendants. The Chamber and IPANM are included in our use of “Defendants” in this opinion. 1 Pollution Control Clause or PCC) and enjoin Defendants from permitting further oil 2 and gas extraction until sufficient environmental protections are established. 3 Plaintiffs further claim, via the New Mexico Civil Rights Act (NMCRA), NMSA 4 1978, §§ 41-4A-1 to -13 (2021), and the Declaratory Judgment Act (DJA), NMSA 5 1978, §§ 44-6-1 to -15 (1975), that the inadequacy of the current system regulating 6 oil and gas pollution violates their constitutional rights to due process and equal 7 protection of law under New Mexico’s Bill of Rights. See N.M. Const. art. II, § 18. 8 Defendants variously moved for dismissal of Plaintiffs’ complaint or judgment on 9 the pleadings in their favor. The district court substantially denied Defendants’ 10 motions, concluding that Plaintiffs set forth claims upon which relief can be granted. 11 Defendants sought interlocutory appeal, which we granted. We conclude Plaintiffs 12 have presented no claim upon which relief can be granted and reverse. 13 BACKGROUND 14 {2} This case arises over pollution caused by oil and gas extraction primarily in 15 the northwest and southeast regions of New Mexico, known respectively as the San 16 Juan and Permian Basins. The individual Plaintiffs live or work in close proximity 17 to these regions or have significant cultural, ancestral, and religious ties to them. The 18 organizational Plaintiffs are various advocacy groups representing populations 19 particularly affected by climate change such as youths, Indigenous communities, and 20 other grouped individuals living and working in the San Juan and Permian Basins. 2 1 Plaintiffs assert concrete, particularized, actual or imminent harm from Defendants’ 2 alleged collective failure to enact and enforce sufficient laws and regulations to 3 protect the environment from oil- and gas-derived pollution. 4 {3} Plaintiffs’ complaint first points to our state constitution’s PCC, which 5 provides the following: 6 The protection of the state’s beautiful and healthful environment is 7 hereby declared to be of fundamental importance to the public interest, 8 health, safety and the general welfare. The [L]egislature shall provide 9 for control of pollution and control of despoilment of the air, water and 10 other natural resources of this state, consistent with the use and 11 development of these resources for the maximum benefit of the people. 12 N.M. Const. art. XX, § 21. Plaintiffs assert that this provision creates a “positive, 13 mandatory, and judicially enforceable duty on the Legislature” to control pollution 14 and to protect New Mexico’s natural resources from despoilment. The complaint 15 alleges that the Legislature, in violation of the PCC, has not passed sufficient laws 16 to protect the state’s natural resources. For instance, the complaint asserts that 17 Defendant NMED, whose purpose is, in part, to protect New Mexicans “from health 18 threats posed by the environment,” NMSA 1978, § 74-1-2 (1997), is—despite the 19 agency’s name and other duties related to New Mexico’s environment—statutorily 20 prohibited from regulating the oil and gas industry except to address air quality. 21 {4} Plaintiffs’ complaint further states that each of the following legislative 22 enactments, which the NMED is tasked with enforcing, see NMSA 1978, § 74-1-7 3 1 (2000, amended 2024),2 expressly exempts the oil and gas industry from its purview: 2 the Hazardous Waste Act, NMSA 1978, §§ 74-4-1 to -14 (1977, as amended through 3 2021); the Radioactive and Hazardous Materials Act, NMSA 1978, §§ 74-4A-1 4 to -14 (1979, as amended through 2023); the Solid Waste Act, NMSA 1978, §§ 74- 5 9-1 to -43 (1990, as amended through 2011); the Groundwater Protection Act, 6 NMSA 1978, §§ 74-6B-1 to -14 (1990, as amended through 2018); and the Water 7 Quality Act (WQA), NMSA 1978, §§ 74-6-1 to -17 (1967, as amended through 8 2019). 3 2 This section of the Hazardous Waste Act was amended after Plaintiffs filed their complaint in this case. See 2024 N.M. Laws, ch. 54, § 2 (adding Section 74-1- 7(A)(15) and amending other subsections to permit the NMED’s regulation of transportation fuels). Because this amendment was enacted after this case began, and because Plaintiffs make no argument to the contrary, we do not consider its effect in this opinion. See GEA Integrated Cooling Tech. v. N.M. Tax’n & Revenue Dep’t, 2012-NMCA-010, ¶ 17, 268 P.3d 48 (“Our courts follow the general rule that a statutory amendment applies prospectively unless the Legislature clearly intends to give the amendment retroactive effect.”). 3 The individual provisions to which Plaintiffs point within each act are: Section 74-4-3(K)(2)(a)-(g) (“‘Hazardous waste’ does not include . . . drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil or natural gas” as well as various forms of ash, slag, and gas emission waste caused by oil and natural gas production); Section 74-4A-4(d) (excluding the same from the definition of “hazardous waste” in the Radioactive and Hazardous Materials Act); Section 74-9-3(N)(1)-(2) (excluding the same from the definition of “solid waste” under the Solid Waste Act); Section 74-6B-3(A)(3) (excluding from the Groundwater Protection Act fluid storage tanks common in the oil and gas industry such as any “surface impoundment, pit, pond or lagoon”); Section 74-6-12(G) (“The [WQA] does not apply to any activity or condition subject to the authority of the oil conservation commission pursuant to provisions of the Oil and Gas Act.”). 4 1 {5} Plaintiffs’ complaint goes on to contend that only one act, the New Mexico 2 Air Quality Control Act (NMAQCA), NMSA 1978, §§ 74-2-1 to -17 (1967, as 3 amended through 2021), “actually mandates the prevention or control of” oil and gas 4 pollution, and that it is limited to regulating air quality. The complaint asserts that, 5 despite the NMAQCA’s existence, Defendants have failed to comply with the Act 6 or adequately enforce its requirements, alleging that pollution levels in and around 7 the San Juan and Permian Basins have consistently exceeded those permitted by the 8 NMAQCA. Plaintiffs’ complaint continues by asserting that other legislative 9 enactments, such as the Oil and Gas Act, NMSA 1978, §§ 70-2-1 to -39 (1935, as 10 amended through 2019), do not control pollution. 11 {6} In addition to attacking the adequacy of existing laws, Plaintiffs’ complaint 12 alleges that the Legislature has failed to provide regulatory agencies with sufficient 13 resources, primarily money, to “regulate, monitor and control” oil and gas pollution. 14 The complaint points to insufficient staffing levels within the NMED and Defendant 15 EMNRD, stagnant department budgets, and insufficient oversight and financial 16 assurance requirements regarding cleanup and closure of abandoned oil and gas 17 wells. 18 {7} As to the Executive Defendants, Plaintiffs assert that they have failed to 19 enforce statutes and regulations already in existence and have not promulgated 20 constitutionally adequate regulations to control pollution. Plaintiffs’ complaint 5 1 alleges that Executive Defendants are all varyingly responsible for overseeing, 2 maintaining, developing, or enforcing laws and regulations that protect the 3 environment; yet, each has failed their constitutional and statutory duties to do so. 4 For instance, Plaintiffs’ complaint points out that Defendant EIB exempts the oil and 5 gas industry from its regulations limiting toxic air pollutants, see 20.2.72.402(C)(5) 6 NMAC, and asserts that the Governor is “ultimately responsible for all [s]tate agency 7 actions, including the authorization of oil and gas production with inadequate 8 pollution controls.” 9 {8} Based on the above allegations, Plaintiffs advance five causes of action 10 against Defendants. First, by use of the DJA, Plaintiffs assert that Defendants 11 collectively violate their constitutional duties under the PCC by failing to enact 12 sufficient pollution-limiting legislation, continuing to permit oil and gas production 13 despite such legislative inadequacy, and failing to enforce existing state and federal 14 pollution limitations. Second, Plaintiffs pursue four causes of action variously 15 asserting that Defendants’ alleged failures violate Plaintiffs’ rights under the 16 Inherent Rights, Due Process, and Equal Protection Clauses of the state constitution. 17 See N.M. Const. art. II, § 4 (“All persons are born equally free, and have certain 18 natural, inherent and inalienable rights, among which are the rights of enjoying and 19 defending life and liberty, of acquiring, possessing and protecting property, and of 20 seeking and obtaining safety and happiness.”); N.M. Const. art. II, § 18 (“No person 6 1 shall be deprived of life, liberty or property without due process of law; nor shall 2 any person be denied equal protection of the laws.”). Plaintiffs advance their 3 substantive due process and equal protection claims under the DJA and the NMCRA, 4 which provide a private right of action for alleged violations of New Mexico’s Bill 5 of Rights. See § 41-4A-3(B); see also N.M. Const. art. II, §§ 1-24 (containing the 6 Bill of Rights, which includes the Inherent Rights Clause, N.M. Const. art. II, § 4, 7 and the Due Process and Equal Protection Clauses, N.M. Const. art. II, § 18). 8 {9} In terms of relief, Plaintiffs request an order consistent with the above claims 9 that amounts to various declarations that Defendants are out of compliance with their 10 constitutional duties under the PCC and the New Mexico Bill of Rights. Regarding 11 injunctive relief, Plaintiffs ask, among other things, that the judiciary enjoin 12 Defendants to suspend additional permitting of oil and gas wells until Defendants 13 have come into compliance with their constitutional duties by “enact[ing], fund[ing] 14 and implement[ing] a statutory, regulatory and enforcement structure and plan” that 15 complies with the PCC. Plaintiffs further seek an order requiring Defendants to “put 16 in place a mandatory process whereby [Defendants] formally and publicly consider 17 their constitutional obligations . . . when considering any policies or laws that impact 18 New Mexico’s natural resources.” Finally, Plaintiffs ask that the judiciary retain 19 ongoing jurisdiction over the case to ensure that Defendants comply with such 20 directives. 7 1 {10} Defendants moved separately either for dismissal of Plaintiffs’ claims or for 2 judgment on the pleadings in Defendants’ favor. In their various motions, 3 Defendants all advance generally the same arguments: neither the PCC nor any other 4 constitutional provision supplies or enables a cause of action such as this, Plaintiffs’ 5 claims and the relief they seek violate separation of powers principles, the complaint 6 presents nonjusticiable political questions, a judicial determination in Plaintiffs’ 7 favor will not redress their alleged harms, and Defendants have already established 8 a constitutionally adequate statutory and regulatory scheme controlling pollution 9 caused by oil and natural gas production. 10 {11} The district court substantially denied Defendants’ motions, granting 11 dismissal only of the claims against the Legislature and individual government 12 officers alleging violations of the NMCRA. See § 41-4A-10 (preserving legislative 13 immunity under the NMCRA); § 41-4A-3(C) (“Claims brought pursuant to the 14 [NMCRA] shall be brought exclusively against a public body.”). In denying the 15 remainder of Defendants’ motions, the district court stated simply that Plaintiffs 16 alleged sufficient facts to support a claim for declaratory relief and that it was 17 premature to determine whether “the New Mexico Constitution guarantees . . . a 18 fundamental right to pollution control.” Defendants sought interlocutory appeal in 19 this Court, which we granted. 8 1 DISCUSSION 2 {12} All of the issues presented in this case, concerning both the denial of 3 Defendants’ motions and the associated statutory and constitutional arguments, are 4 reviewed de novo. See Valdez v. State, 2002-NMSC-028, ¶ 4, 132 N.M. 667, 54 P.3d 5 71 (reviewing de novo dismissal of a case for failure to state a claim under Rule 1- 6 012(B)(6) NMRA); N.M. Pub. Regul. Comm’n v. New Mexican, Inc., 2024-NMSC- 7 025, ¶ 17, 562 P.3d 548 (treating a motion for judgment on the pleadings the same 8 as a motion to dismiss for failure to state a claim); Am. Fed’n of State, Cnty. & Mun. 9 Emps. Council 18 v. State, 2013-NMCA-106, ¶ 6, 314 P.3d 674 (applying de novo 10 review to matters of statutory and constitutional interpretation). In reviewing a 11 motion to dismiss, we accept all well-pleaded factual allegations as true, but do not 12 credit legal conclusions. See Quarrie v. N.M. Inst. of Mining & Tech., 2021-NMCA- 13 044, ¶ 5, 495 P.3d 645 (“A motion to dismiss for failure to state a claim tests the 14 legal sufficiency of the complaint, not the facts that support it.” (internal quotation 15 marks and citation omitted)). Thus, the principal question here is whether Plaintiffs, 16 through any version of the facts alleged, have stated a claim legally sufficient to 17 maintain the causes of action brought against Defendants. Defendants maintain they 18 have not. 19 {13} We first identify a common thread pertinent, albeit in differing ways, to each 20 component of our analysis today: embedded in the fabric of our government lies the 9 1 foundational principle that each branch of government is coequal and that each, 2 being entirely created by the Constitution of the State of New Mexico and deriving 3 its sole authority therefrom, shall not exercise the powers of any other branch. See 4 N.M. Const. art. III, § 1 (“The powers of the government of this state are divided 5 into three distinct departments, the legislative, executive and judicial, and no person 6 or collection of persons charged with the exercise of powers properly belonging to 7 one of these departments, shall exercise any powers properly belonging to either of 8 the others.”). Nonetheless, “absolute separation of powers is neither desirable nor 9 realistic,” and the practical realities of our government require “some overlap of 10 governmental functions.” State ex rel. Taylor v. Johnson, 1998-NMSC-015, ¶ 23, 11 125 N.M. 343, 961 P.2d 768 (internal quotation marks and citation omitted). 12 {14} Within this constitutional framework, the Legislature is invested with the 13 power to enact law and “possesses the police power, the broadest power possessed 14 by governments, to protect public health and welfare.” Lujan Grisham v. Reeb, 2021- 15 NMSC-006, ¶ 14, 480 P.3d 852 (internal quotation marks and citation omitted); see 16 N.M. Const. art. IV, § 1 (vesting the legislative power in a senate and house of 17 representatives and reserving to the people the right to annul any law enacted thereby 18 excepting, in relevant part, “laws providing for the preservation of the public peace, 19 health or safety”). As the primary voice of the people, the Legislature is entitled to 20 broad latitude in exercising its inherent police powers and is the body particularly 10 1 responsible for making public policy. See Ferguson v. N.M. Highway Comm’n, 2 1982-NMCA-180, ¶ 12, 99 N.M. 194, 656 P.2d 244 (“Determination of what is 3 reasonably necessary for the preservation of the health, safety, and welfare of the 4 general public is a legislative function and should not be interfered with absent clear 5 abuse.”); Hartford Ins. Co. v. Cline, 2006-NMSC-033, ¶ 8, 140 N.M. 16, 139 P.3d 6 176 (“It is the particular domain of the [L]egislature, as the voice of the people, to 7 make public policy.” (alteration, internal quotation marks, and citation omitted)). 8 Particularly relevant to Plaintiffs’ claims regarding inadequate funding of some of 9 the Executive Defendants in this case, the Legislature has “exclusive power of 10 deciding how, when, and for what purpose the public funds shall be applied in 11 carrying on the government.” State ex rel. Schwartz v. Johnson, 1995-NMSC-080, 12 ¶ 14, 120 N.M. 820, 907 P.2d 1001 (internal quotation marks and citation omitted). 13 {15} The power of the executive, on the other hand, at least in the context of law- 14 making, is generally limited to vetoing or signing and enforcing the laws passed by 15 the Legislature. See N.M. Const. art. IV, § 22 (providing the Governor’s veto 16 power); N.M. Const. art. V, § 4 (“[T]he [G]overnor . . . shall take care that the laws 17 be faithfully executed.”). The Legislature may delegate its rule-making authority to 18 the executive agencies, in order to enforce the enacted laws. See City of Albuquerque 19 v. N.M. Pub. Reg. Comm’n, 2003-NMSC-028, ¶ 16, 134 N.M. 472, 79 P.3d 297. But 20 otherwise, “[a]ny legislative power that the Governor possesses must be expressly 11 1 granted to [them] by the constitution.” State ex rel. Clark v. Johnson, 1995-NMSC- 2 048, ¶ 40, 120 N.M. 562, 904 P.2d 11 (internal quotation marks and citation 3 omitted). If the “state constitution is silent on a particular issue,” or if any residual 4 government authority is to be found, such authority rests with the Legislature and 5 not the executive branch. Id. 6 {16} The judiciary’s role “is to construe laws and render judgments in the cases 7 that come before it.” State ex rel. Jud. Standards Comm’n v. Espinosa, 2003-NMSC- 8 017, ¶ 13, 134 N.M. 59, 73 P.3d 197. When concerns regarding legislative acts are 9 raised, courts may “conduct[] judicial review of legislation alleged to commit 10 constitutional harm.” Lujan Grisham v. Van Soelen, 2023-NMSC-027, ¶ 36, 539 11 P.3d 272. Indeed, it is axiomatic that the judiciary’s “proper function and duty is to 12 say what the law is and what the Constitution means.” Id. (text only) (citation 13 omitted); see Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the 14 province and duty of the judicial department to say what the law is.”). Essential to 15 this purpose, and to maintaining the balance of powers in our government, it “is the 16 constitutional responsibility of the courts” to consider the legality of government 17 conduct and “safeguard[] constitutional rights.” Van Soelen, 2023-NMSC-027, ¶ 38 18 (internal quotation marks and citation omitted). Nonetheless, this constitutional duty 19 is not a license to review every governmental act and supplant the decisions made 20 by coordinate branches with our own. See id. ¶ 37 (“[W]e will not question the 12 1 wisdom, policy, or justness of a statute, and the burden of establishing that the statute 2 is invalid rests on the party challenging the constitutionality of the statute. . . . It is 3 only when a legislative body adopts internal procedures that ignore constitutional 4 restraints or violate fundamental rights[] that a court can and must become 5 involved.” Id. (alterations, internal quotation marks, and citation omitted)). In order 6 to ensure that the judiciary remains in this well-defined lane, we use justiciability as 7 a self-imposed guidepost, which includes as prudential components the doctrines of 8 ripeness, mootness, and standing. See New Energy Econ., Inc. v. Shoobridge, 2010- 9 NMSC-049, ¶ 16, 149 N.M. 42, 243 P.3d 746. 10 {17} With these principles in mind, we examine Plaintiffs’ complaint and 11 Defendants’ ensuing arguments supporting its dismissal. On appeal, Defendants 12 broadly present two categories of argument: (1) those challenging the judiciary’s 13 threshold ability to review Plaintiffs’ claims, such as separation of powers principles 14 and redressability; and (2) those asserting that even if the judiciary could review 15 such claims, Defendants have satisfied their constitutional duties to control 16 pollution. We agree with Defendants’ threshold arguments and hold that Plaintiffs’ 17 claims premised upon the PCC are nonjusticiable. That is to say, the relief Plaintiffs 18 seek—as presented by their complaint—exceeds the boundary of that which the 19 judiciary is authorized to grant. Regarding Plaintiffs’ due process and equal 20 protection claims, we conclude they have not stated a claim upon which relief can 13 1 be granted. Given these determinations, we decline to address Defendants’ 2 substantive arguments regarding the adequacy of the existing laws and regulations 3 currently applicable to the oil and gas industry. 4 {18} Our opinion proceeds in three parts. We begin by discussing Plaintiffs’ claim 5 under the PCC. Then, we address Plaintiffs’ due process claim, and, finally, their 6 equal protection challenges.4 7 I. The Pollution Control Clause 8 {19} A central premise of Plaintiffs’ case, embedded within their due process and 9 equal protection claims, but particularly pertinent to their claim under the PCC, is 10 that the Legislature has a constitutional duty to adequately control pollution to 11 prevent despoilment of the state’s natural resources. See N.M. Const. art. XX, § 21. 12 In response, Defendants advance several arguments urging a conclusion that 13 Plaintiffs have failed to state a justiciable claim arising under the PCC. First, they 14 argue that the provision does not create an individual right, but instead confirms the 4 We note that Defendants’ arguments regarding the nonjusticiability of Plaintiffs’ claims can be read to assert that the complaint presents nonredressable harms, a component of standing. Am. Civ. Liberties Union of N.M. v. City of Albuquerque, 2008-NMSC-045, ¶ 10, 144 N.M. 471, 188 P.3d 1222 (stating that “injury in fact, causation, and redressability” are requirements to obtain standing). We nonetheless elect to confer standing in this case because it involves systemic challenges to pollution control policies and separation of powers concerns, both of which are matters of great public importance. See State ex rel. Coll v. Johnson, 1999- NMSC-036, ¶ 21, 128 N.M. 154, 990 P.2d 1277 (conferring standing under the doctrine of great public importance and citing cases when the doctrine has been invoked to address separation of powers concerns). 14 1 Legislature’s duty to balance competing policy interests: pollution limitation and 2 natural resource development for the maximum benefit of all New Mexicans. See id. 3 If the PCC does create or recognize an individual right to adequate pollution control, 4 Plaintiffs could, at a minimum, use the DJA to compel the judiciary to recognize and 5 enforce it. See § 44-6-2 (“In cases of actual controversy, district courts within their 6 respective jurisdictions shall have power to declare rights . . . whether or not further 7 relief is or could be claimed.”). 5 Thus, whether the PCC creates an individual right 8 to an adequate, or even a certain, judicially determined amount of pollution control 9 is central to whether Plaintiffs have presented a viable cause of action. 10 {20} Second, Defendants assert that, partly because there is no individual right to 11 adequate pollution-limiting legislation, the judiciary cannot resolve Plaintiffs’ claim 12 without exercising authority expressly reserved to the Legislature by the PCC. See 13 N.M. Const. art. XX, § 21 (stating that the “the [L]egislature shall” control 14 pollution). On this point, Defendants rely on separation of powers principles to posit 15 that addressing Plaintiffs’ claims “would usurp the Legislature’s policy-making and 16 financial powers [and] nullify administrative procedures and agency expertise.” Defendants also argue, for various reasons, that Plaintiffs’ complaint does 5 not present an actual controversy sufficient to maintain an action under the DJA. Because we resolve this appeal on separate grounds, we do not address this argument. 15 1 Lastly, Defendants assert that all of Plaintiffs’ claims present political questions the 2 judiciary cannot answer.6 We address each of these three arguments in turn. 3 A. The PCC Does Not Create a Judicially Enforceable Individual Right to 4 Any Measure of Pollution Control 5 {21} Much of Plaintiffs’ complaint—and, in turn, their arguments on appeal—rests 6 on the premise that the PCC recognizes a judicially enforceable right to adequate 7 pollution control legislation or, at least, supports an inferred “fundamental right to a 8 beautiful and healthful environment.” In their complaint, Plaintiffs analogize the 9 education clause of the state constitution, N.M. Const. art. XII, § 1, to the PCC and 10 assert the following: “[p]ursuant to the positive right created by the [PCC], the 11 Legislature must establish a sufficient statutory framework . . . to control pollution.” 12 On appeal, however, Plaintiffs rephrase this argument slightly, asserting that the 13 PCC, viewed in isolation, creates a binding duty on the Legislature and the other 14 Defendants to enact and enforce an adequate statutory scheme to limit pollution. 15 Plaintiffs now ask that we acknowledge this duty and permit Plaintiffs to hold 16 Defendants accountable to it. See State ex rel. Taylor, 1998-NMSC-015, ¶ 1 (stating 17 that it is “the function of the judiciary to measure the acts of the executive and the 6 Defendants’ arguments regarding separation of powers principles and the political question doctrine generally apply to all of Plaintiffs’ claims, including those advanced under the Due Process and Equal Protection Clauses of the New Mexico Constitution. See N.M. Const. art. II, § 18. We address these doctrines in this section of our opinion due to their acute applicability to Plaintiffs’ claims under the PCC but reference our analysis as necessary in our discussion of Plaintiffs’ other claims. 16 1 legislative branch solely by the yardstick of the constitution” (text only) (citation 2 omitted)). 3 {22} On appeal, Defendants challenge this premise. For instance, Executive 4 Defendants broadly state, “Because [the PCC] does not create an independently 5 enforceable right to pollution control,” Plaintiffs’ claim based upon the clause should 6 be dismissed. To reiterate, the PCC states: 7 The protection of the state’s beautiful and healthful environment is 8 hereby declared to be of fundamental importance to the public interest, 9 health, safety and the general welfare. The [L]egislature shall provide 10 for control of pollution and control of despoilment of the air, water and 11 other natural resources of this state, consistent with the use and 12 development of these resources for the maximum benefit of the people. 13 N.M. Const. art XX, § 21. Whether this provision supplies an individual right to 14 adequate pollution control legislation, or may serve as the basis for a “fundamental 15 right to a beautiful and healthful environment” as Plaintiffs suggest, is determined, 16 if possible, by the plain meaning of the PCC’s language. See Hem v. Toyota Motor 17 Corp., 2015-NMSC-024, ¶ 10, 353 P.3d 1219 (“Just as if we were interpreting a 18 statute, to determine the meaning of a constitutional provision, we begin with the 19 language used in the provision and the plain meaning of that language.” (internal 20 quotation marks and citation omitted)). 21 {23} By its plain text, the PCC contains no enforceable right, guaranteed to any 22 individual or group, to be free from a given amount of pollution. Nor can it be 23 inferred to create an enforceable right to a beautiful and healthful environment. In 17 1 contrast to other constitutional provisions that have been deemed to create 2 enforceable rights, the first sentence of the PCC contains a broad statement 3 acknowledging the importance of a healthy environment to the general public: a 4 “beautiful and healthful environment is hereby declared to be of fundamental 5 importance to the public interest, health, safety and the general welfare.” Compare 6 N.M. Const. art. XX, § 21 (emphasis added), with Van Soelen, 2023-NMSC-027, 7 ¶ 24 (concluding that the freedom of elections clause of the constitution, N.M. Const. 8 art. II, § 8, “[b]y its plain language . . . implicitly asserts the importance of the free 9 exercise of the right of suffrage” (internal quotation marks and citation omitted)). 10 The language in the first sentence of the PCC parallels that used to set out the 11 constitutional powers of the Legislature. See N.M. Const. art. IV, § 1 (vesting 12 legislative power and exempting laws designed for the “preservation of the public 13 peace, health or safety” from public annulment by petition). Thus, the first sentence 14 on its own is more aptly viewed as a declaration that a beautiful and healthful 15 environment is in the public interest and, therefore, that pollution is within the power 16 of the Legislature to regulate. 17 {24} Plaintiffs contend that the PCC stands for more than a mere declaration of 18 legislative power to pass environmental laws because the Legislature already had 19 such authority under its inherent police powers before the clause was added to the 20 constitution. Cf. §§ 74-2-1 to -17 (comprising the NMAQCA, which was enacted in 18 1 1967, before the PCC was enacted in 1971). Plaintiffs assert that the language of the 2 PCC makes clear that “it is more than a grant of authority—it is a mandate to act to 3 . . . control pollution.” We agree. See Sanders-Reed v. Martinez, 2015-NMCA-063, 4 ¶ 16, 350 P.3d 1221 (“Article XX, Section 21 of [the New Mexico C]onstitution 5 recognizes the duty to protect the atmosphere and other natural resources, and it 6 delegates the implementation of that specific duty to the Legislature.”). However, 7 such alone does not resolve our inquiry because a legislative duty to control pollution 8 does not guarantee any specific amount of pollution control to any individual or 9 group. We, therefore, shift our analysis to the second sentence of the PCC. 10 {25} As Defendants point out, the Legislature’s duty to control pollution is neither 11 absolute nor does it exist in isolation. Rather, the Legislature is directed to both 12 “provide for” pollution control and do it in a manner “consistent with the use and 13 development of [natural] resources for the maximum benefit of the people.” N.M. 14 Const. art. XX, § 21. The operative term, “consistent,” is generally defined as 15 “marked by harmony” and “free from variation or contradiction.” 7 Thus, the plain 16 meaning of the provision requires that legislation designed to limit pollution only do 17 so to the extent that it does not contradict the development and use of natural 18 resources for the stated maximum benefit of all New Mexicans. Id. Said differently, 7 See Consistent, Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/consistent?src=search-dict-hed (last visited Mar. 8, 2025). 19 1 the Legislature’s duty is one of balancing competing interests, neither of which will 2 attain all that its advocates wish. 3 {26} As to the manner the Legislature must undertake to fulfill its duties required 4 by the PCC, we cannot ignore that the term “maximum benefit” is in the portion of 5 the clause regarding “the use and development” of natural resources, and not the 6 phrase regarding pollution control. The provision does not read, as it easily could, 7 “The [L]egislature shall provide for control of pollution and control of despoilment 8 of the air, water and other natural resources of this state for the maximum benefit of 9 the people, consistent with the use and development of these resources.” Such 10 phrasing would indicate, if nothing else, a stronger emphasis on the pollution control 11 portion of the provision than the resource development portion. However, such is 12 not the wording of the constitutional provision before us. Despite Plaintiffs’ 13 suggestions to the contrary, the PCC also lacks any language that we may infer to 14 create a standard against which the maximum amount of allowable pollution could 15 be measured. Contra N.M. Const. art. XII, § 1 (stating that the state’s public schools’ 16 system must be “sufficient” for education). 17 {27} Throughout this case, Plaintiffs heavily rely on two cases to impliedly assert 18 that they have an individual enforceable right to a certain amount of pollution 19 control. First, they point to a district court case in which the district court determined 20 that the “education system in New Mexico violates the New Mexico Constitution, 20 1 art. XII, § 1.” See Decision & Order at 59, Yazzie v. New Mexico, No. D-101-CV- 2 2014-02224 (1st Jud. Dist. Ct. July 20, 2018). However, Yazzie was not appealed 3 and is not binding precedent. Moreover, assuming the district court’s conclusion in 4 that case to have been correct, the constitutional provision then at issue tasked the 5 Legislature with no balancing of interests, but rather commanded that the public 6 education system be “sufficient” to serve identified purposes. See N.M. Const. art. 7 XII, § 1 (“A uniform system of free public schools sufficient for the education of, 8 and open to, all the children of school age in the state shall be established and 9 maintained.”). As we stated above, the PCC contains no “sufficiency” language 10 regarding pollution control and requires legislative balancing of competing interests. 11 See N.M. Const. art. XX, § 21. 12 {28} Plaintiffs similarly direct us to Van Soelen, in which our Supreme Court 13 concluded that a partisan gerrymander would violate New Mexicans’ constitutional 14 rights. See 2023-NMSC-027, ¶¶ 22-23, 26, 34, 67. As in Yazzie, the constitutional 15 right at issue in Van Soelen, the right to vote in free and fair elections, is categorically 16 different than the duty imposed on the Legislature by the PCC. See 2023-NMSC- 17 027, ¶ 22 (“The right to vote is the essence of our country’s democracy, and therefore 18 the dilution of that right strikes at the heart of representative government.” 19 (alteration, internal quotation marks, and citation omitted)); see also N.M. Const. 20 art. II, § 8 (“All elections shall be free and open, and no power, civil or military, 21 1 shall at any time interfere to prevent the free exercise of the right of suffrage.”). 2 Thus, the reasoning in both Yazzie and Van Soelen in regard to the existence of an 3 individual constitutional right is not applicable. 4 {29} Because the PCC imposes only a duty on the Legislature to “provide for” 5 pollution control “consistent with” resource use and development, and does not 6 contain rights-creating language nor a standard by which we may measure pollution 7 limitation, we conclude that it does not create an individual right the judiciary may 8 enforce or protect. Having so concluded, and before we consider Plaintiffs’ due 9 process, inherent rights, and equal protection claims, we turn to whether the 10 judiciary—despite the absence of an individual constitutional right to a “beautiful 11 and healthful” environment or a specific amount of pollution-limiting legislation— 12 otherwise has the power to consider Plaintiffs’ allegations that Defendants have not 13 fulfilled their constitutional duty to adequately control pollution. 14 B. Judicial Resolution of Plaintiffs’ Claim Under the PCC Violates 15 Separation of Powers 16 {30} Defendants’ principal argument in this case is that judicial review of 17 Plaintiffs’ claims, even those advanced under our state’s Bill of Rights, violates 18 constitutional separation of powers. In general terms, Defendants assert that 19 pollution regulation and control requires policy considerations that “balance 20 competing social, political and economic interests” existing at the core of legislative 21 power. Defendants extend this argument to Plaintiffs’ due process and equal 22 1 protection claims and point to the PCC as evidence that the authority to regulate 2 pollution is constitutionally assigned to the exclusive authority of the Legislature. 3 See N.M. Const. art. XX, § 21. Defendants argue that even a declaration that 4 Defendants have violated due process, inherent, or equal protection rights is afield 5 of the judiciary’s authority and would not redress Plaintiffs’ harms because any such 6 declaration would merely amount to “a reaffirmation of the Legislature’s 7 constitutional role to balance pollution controls consistent with the use and 8 development of natural resources for all New Mexicans.” See id. 9 {31} While Defendants’ separation of powers arguments span the gamut of 10 Plaintiffs’ claims, we address them here as a component of Plaintiffs’ PCC claim 11 because, in our view, it is the PCC that places Plaintiffs’ claims beyond the reach of 12 the judiciary. The PCC reserves to the Legislature policy decisions regarding 13 pollution control, including balancing pollution-limiting legislation with the 14 economic benefits obtained from oil and gas development, determining the 15 maximum allowable amounts of pollution in the environment, and creating and 16 funding enforcement agencies. In turn, the Legislature has delegated to Executive 17 Defendants the regulatory and enforcement aspects of pollution control. To afford 18 the relief sought by Plaintiffs in this case would both unconstitutionally infringe 19 upon past legislative action and impermissibly encroach on future legislative power, 20 as well as nullify Executive Defendants’ ability to act under their statutory authority. 23 1 1. Pollution Control Policymaking Is Within the Exclusive Power of the 2 Legislature 3 {32} The test for infringement on our constitutional separation of powers is whether 4 the actions of one governmental branch “disrupts the proper balance” between the 5 branches. See State ex rel. Taylor, 1998-NMSC-015, ¶ 24 (internal quotation marks 6 and citation omitted). Here, Plaintiffs do not challenge the constitutionality of a 7 single statute or specific government conduct. Rather, they assert that numerous 8 legislative enactments and executive actions and inactions, operating collectively, 9 are constitutionally inadequate. 10 {33} Plaintiffs’ complaint states, “Defendants are violating the [PCC] by 11 permitting oil and gas production . . . without adequately controlling pollution.” 12 However, as we explained above, the word “adequate,” or any word like it, is not in 13 the PCC. See N.M. Const. art. XX, § 21. If it were, judicial review could perhaps 14 find some foothold by which we could measure the sufficiency of the Legislature’s 15 pollution control policies. Even if the provision contained a standard, however, the 16 PCC imposes not just a duty to “provide for” pollution control, but requires that “the 17 [L]egislature . . . shall” balance that duty against other competing interests. See id. 18 At its core, Plaintiffs’ complaint asks that we reweigh these interests and, separate 19 and apart from the Legislature, determine that it has failed to balance these interests 20 in accordance with a judicially created standard. See id. Such is beyond the 21 judiciary’s authority to do. See Cline, 2006-NMSC-033, ¶ 8 (“It is the particular 24 1 domain of the [L]egislature, as the voice of the people, to make public policy.” 2 (alteration, internal quotation marks, and citation omitted)). 3 {34} Importantly, Plaintiffs do not allege that Defendants have done nothing to 4 control pollution caused by oil and natural gas production. Indeed, Defendants have 5 so acted. See § 70-2-12(B)(15) (empowering the oil conservation division (OCD) of 6 EMNRD to “regulate the disposition, handling, transport, storage, recycling, 7 treatment and disposal of produced water during, or for reuse in, the exploration, 8 drilling, production, treatment or refinement of oil or gas . . . in a manner that 9 protects public health, the environment and fresh water resources”); § 70-2- 10 12(B)(18) (empowering the OCD to “spend the oil and gas reclamation fund and do 11 all acts necessary and proper to plug dry and abandoned oil and gas wells”); § 70-2- 12 12(B)(21), (22) (enabling the OCD to “regulate the disposition of nondomestic 13 wastes resulting from the exploration, development, production or storage of crude 14 oil or natural gas” or “resulting from the oil field service industry”). 15 {35} Although the OCD’s power under these statutes is discretionary, see § 70-2- 16 12(B) (stating the OCD “may” make such rules), it has exercised its authority to 17 create rules controlling pollution. See 19.15.2.8(B) NMAC (requiring that virtually 18 all operations “related to the drilling, equipping, operating, producing, plugging and 19 abandonment of oil, gas, injection, disposal and storage wells or other facilities” be 20 conducted “in a manner that prevents . . . the contamination of fresh waters”); 25 1 19.15.27.6 NMAC (expressing, in part, that the objective in regulating “the venting 2 and flaring of natural gas from wells and production equipment and facilities” is to 3 “protect correlative rights, public health, and the environment”); 19.15.27.8 NMAC 4 (prohibiting or otherwise controlling venting or flaring of natural gas and requiring 5 that such practices conform to state and federal law); 19.15.27.9 NMAC (requiring, 6 in part, certifying compliance with gas capture requirements). 7 {36} The Legislature has also required the Water Quality Control Commission 8 (WQCC) to adopt regulations “to prevent or abate water pollution in the state or in 9 any specific geographic area, aquifer or watershed of the state or in any part thereof, 10 or for any class of waters.” Section 74-6-4(E). We note that Plaintiffs have 11 specifically alleged in their complaint that the enactment that created the WQCC, 12 the WQA, Section 74-6-1, expressly exempts activities “subject to the authority of 13 the [OCC].” See § 74-6-12(G). This exemption, though, is another concrete example 14 of the balance the Legislature has performed—providing for control of water 15 pollution consistent with the development and use of oil and gas resources. Absent 16 a specific controversy regarding application of some rule of law or an allegation that 17 an individual right has been violated, the judiciary cannot reweigh the Legislature’s 18 decisions balancing competing public policy decisions. 19 {37} The above statutes and regulations are not an exhaustive list of all the policies 20 Defendants have created aimed at curbing pollution. As stated, we make no comment 26 1 on their adequacy or efficacy. Rather, such provisions indicate that the Legislature 2 has complied with its constitutional duty to balance pollution control policies with 3 resource development that maximally benefits the people of New Mexico. As 4 evidence of this balancing, the Legislature points to the numerous ways revenue 5 obtained from oil and gas production provides “crucial support” for “fundamental 6 operations of [the] state.” The Land Grant Permanent Fund, for example, uses 7 proceeds from oil and gas leases to fund public education around the state. See 8 Ferguson Act of 1898, ch. 489, § 1, 30 Stat. 484; Enabling Act for New Mexico, ch. 9 310, §§ 1, 6-9, 36 Stat. 557 (1910); N.M. Const. art. XXIV, § 1; N.M. Const. art. 10 XII, § 12. The Legislature further points to the Severance Tax Permanent Fund and 11 numerous tax laws that obtain funds critical to the various operations of the state. 12 See N.M. Const. art. VIII, § 10; NMSA 1978, § 7-26-3 (1977) (imposing an excise 13 tax for severance of the state’s natural resources); see also, e.g., NMSA 1978, § 7- 14 25-2 (1966) (“The purpose of the Resources Excise Tax Act is to provide revenue 15 for public purposes by levying a tax on the privilege of severing and processing 16 natural resources within New Mexico.”). 17 {38} In our review of whether Plaintiffs have stated legally sufficient claims, our 18 inquiry is limited by separation of powers and asks only whether the Legislature has 19 complied with its constitutional duty to balance pollution control with resource 20 development. As we have said, reweighing these interests and supplanting the 27 1 Legislature’s policy choices with judicial determinations exceeds the judiciary’s 2 constitutional authority. 3 2. Granting Plaintiffs Relief Would Preempt and Nullify Existing Statutory 4 and Regulatory Remedies Afforded by the Executive Branch 5 {39} Plaintiffs’ claims are also nonjusticiable as to the Executive Defendants, 6 because the redress Plaintiffs seek would obviate existing statutory and regulatory 7 processes and require technical expertise that is found in Executive Defendants and 8 that is beyond the practical capabilities of the judiciary. Our Supreme Court has 9 cautioned 10 against using a declaratory judgment action to challenge or review 11 administrative actions if such an approach would foreclose any 12 necessary fact-finding by the administrative entity, discourage reliance 13 on any special expertise that may exist at the administrative level, 14 disregard an exclusive statutory scheme for the review of 15 administrative decisions, or circumvent procedural or substantive 16 limitations that would otherwise limit review through means other than 17 a declaratory judgment action. 18 Shoobridge, 2010-NMSC-049, ¶ 10 (internal quotation marks and citation omitted). 19 Generally, courts can properly consider a declaratory judgment action before 20 exhaustion of established administrative remedies if the “matter at issue (1) is purely 21 legal, (2) requires no specialized agency fact-finding, and (3) there is no exclusive 22 statutory remedy.” Id. ¶ 12. These limitations on the use of declaratory judgment 23 actions “respect the role of each branch of government in the constitutional scheme 24 and the administrative processes put in place by the Legislature.” Id. ¶ 14. 28 1 {40} Here, Plaintiffs chose not to challenge any executive administrative action 2 related to the claims they now advance and, thus, are not attempting to circumvent 3 an ongoing proceeding. Instead, they opted to proceed straight to the judiciary, 4 rendering particularly relevant the principles discussed in Shoobridge that caution 5 against judicial review of highly technical matters for which administrative agencies, 6 such as some of the Executive Defendants in this case, have been statutorily created 7 to address. See id. ¶ 10 (discussing our Supreme Court’s admonition “against using 8 judicial action to circumvent the requirements of administrative proceedings 9 authorized by the Legislature” out of deference “to the legislative process that 10 creates an agency and empowers it to adopt rules or regulations to carry out its 11 powers”). Judicial intervention of the type Plaintiffs seek—a declaration that the 12 laws and regulations at issue are all collectively inadequate along with a command 13 for something different and ongoing judicial review of what that is—before 14 Plaintiffs avail themselves of existing administrative remedies, would nullify such 15 remedies before they are used. Cf. id. ¶ 14 (“Courts should not intervene to halt 16 administrative hearings before rules or regulations are adopted.”). 17 {41} Moreover, Plaintiffs’ complaint fails to satisfy each of the three prongs 18 mentioned in Shoobridge justifying declaratory relief. See id. ¶ 12. First, Plaintiffs’ 19 claims are not purely legal. For Plaintiffs to ultimately succeed in their case, the 20 judiciary must engage in a sweeping factual inquiry involving the levels of pollutants 29 1 in the environment, their sources, and most importantly to our separation of powers 2 concerns today, comparison of such pollution levels to any benefit they provide, 3 however quantified. 4 {42} Second, Plaintiffs’ claims also require technical expertise in order to 5 determine how Defendants might more effectively protect the environment, whether 6 such is economically and practically feasible, and if related costs benefit all New 7 Mexicans, as required by the PCC. See N.M. Const. art. XX, § 21. Judicial inquiry 8 into Plaintiffs’ allegations requires precisely the expertise the Legislature has created 9 in Executive Defendants and employed in their respective internal proceedings. See 10 Shoobridge, 2010-NMSC-049, ¶ 10 (stating that courts should “defer[] to the 11 legislative process that creates an agency and empowers it to adopt rules or 12 regulations to carry out its powers”). The factual inquiry we discussed above reveals 13 the necessity of specialized agency fact-finding the judiciary does not possess. 14 {43} Third, Defendants have created exclusive statutory and regulatory remedies 15 to improve pollution control. The statutes and regulations we discussed above are 16 concrete examples of this. See, e.g., § 70-2-12(B)(15, 21, 22); 19.15.4.11(C) NMAC 17 (allowing intervention in cases before the OCC if such participation “will contribute 18 substantially to the prevention of waste, protection of correlative rights or protection 19 of public health or the environment”). Judicial intervention before the established 20 process is used would prematurely obviate and nullify established statutory and 30 1 regulatory remedies. See Shoobridge, 2010-NMSC-049, ¶ 14 (“Because of the 2 necessity to respect the separate branches of government, courts should not intervene 3 to halt administrative hearings before rules or regulations are adopted. To do so 4 could deprive the public of the opportunity to propose rules or regulations and 5 otherwise participate in the rule-making process.”). At the very least, “the 6 administrative agency should be given the opportunity to correct any errors that have 7 been brought to its attention during the course of such proceedings.” Id. 8 {44} For the above reasons, we conclude that Plaintiffs’ claims related to the breach 9 of constitutional duty arising under the PCC and the relief they seek are beyond the 10 lawful scope of the judiciary’s authority. See id. ¶ 9 (“The New Mexico Constitution 11 establishes the legislative branch as the entity to represent the collective will of the 12 populace for purposes of creating laws to effectuate the public policy of the [s]tate.” 13 (internal quotation marks and citation omitted)). Plaintiffs challenge a vast 14 interwoven network of statutes and regulations rather than advancing a claim that a 15 particular statute or rule is unlawful or constitutes a dereliction of some specific duty 16 that is required to be performed to a particular standard. To resolve these abstract 17 claims would require the judiciary to conduct anew the deliberative legislative 18 process that resulted in the laws and regulations currently in place and find that they 19 fall below a standard we alone would create. This we cannot do. See Van Soelen, 20 2023-NMSC-027, ¶ 37 (“It is only when a legislative body adopts internal 31 1 procedures that ignore constitutional restraints or violate fundamental rights that a 2 court can and must become involved.” (text only) (citation omitted)). 3 C. The Political Question Doctrine Cautions Against Judicial Review 4 {45} In concert with the above, we briefly address the political question doctrine, 5 recognizing it is merely persuasive under New Mexico law, but which, as 6 Defendants point out, urges dismissal of Plaintiffs’ complaint. See generally Baker 7 v. Carr, 369 U.S. 186, 208-37 (1962) (explaining the political question doctrine). 8 {46} The political question doctrine initially arose in federal courts as a component 9 of their jurisdictional limits under Article III, Section 2 of the United States 10 Constitution. See Baker, 369 U.S. at 198-99. New Mexico courts, being courts of 11 general jurisdiction and not subject to such federal limitations, are not strictly bound 12 by the jurisdictional limits imposed by the political question doctrine. See Van 13 Soelen, 2023-NMSC-027, ¶ 48 (stating that the political question doctrine, and its 14 limits in federal court, are “nonbinding” on state courts). Nonetheless, the doctrine 15 is relevant, if only persuasively, to prudential concerns “about the proper—and 16 properly limited—role of courts in a democratic society.” Id. (internal quotation 17 marks and citation omitted); see Baker, 369 U.S. at 210 (“The nonjusticiability of a 18 political question is primarily a function of the separation of powers.”). 19 {47} The political question doctrine represents inherent limits on the judiciary’s 20 authority—or practical capability—to decide certain types of controversies for 32 1 which judicial resolution is inappropriate under a tripartite system of government 2 based on principles of representative democracy. Baker, 369 U.S. at 210-11. The 3 United States Supreme Court has identified six such circumstances, any one of 4 which presents a nonjusticiable political question: 5 [(1)] a textually demonstrable constitutional commitment of the issue 6 to a coordinate political department; [(2)] a lack of judicially 7 discoverable and manageable standards for resolving it; [(3)] the 8 impossibility of deciding without an initial policy determination of a 9 kind clearly for nonjudicial discretion; [(4)] the impossibility of a 10 court’s undertaking independent resolution without expressing lack of 11 the respect due coordinate branches of government; [(5)] an unusual 12 need for unquestioning adherence to a political decision already made; 13 [(6)] or the potentiality of embarrassment from multifarious 14 pronouncements by various departments on one question. 15 Id. at 217; see also id. (stating if “one of these formulations is inextricable from the 16 case” the matter becomes nonjusticiable). 17 {48} Here, all six circumstances are presented by Plaintiffs’ complaint. First, as we 18 discussed above, the PCC expressly commits pollution control and resource 19 development to the Legislature. N.M. Const. art. XX, § 21. Second, the PCC 20 contains no standard by which we may measure Defendants’ environmental 21 protection policies. See id. Any resolution of Plaintiffs’ claims necessarily requires 22 judicial invention of some standard of maximum allowable pollutants in the 23 environment. Plaintiffs offer this Court no meaningful explanation of how this could 24 be accomplished. Plaintiffs base their allegations that Defendants have failed to 25 adequately protect the environment, in large part, on their own individualized harms. 33 1 However, Plaintiffs do not explain how the judiciary could create a standard for 2 adequate pollution control laws that protects every individual in every circumstance 3 and geographic location in the state. See Morris v. Brandenburg, 2016-NMSC-027, 4 ¶ 34, 376 P.3d 836 (“[I]f it is a right, it must be made available to everyone.”). 5 {49} Third, as indicated by the previous two circumstances, as well as our 6 preceding discussion, the judiciary cannot resolve Plaintiffs’ claims without making 7 a policy determination that Defendants have failed to properly balance pollution 8 controls with resource development. Without cognizable standards the judiciary may 9 use to make such a determination, any conclusion we could offer would simply 10 amount to a judicial declaration that our weighing of competing interests is superior 11 to that of the Legislature’s. 12 {50} Finally, the fourth, fifth, and sixth circumstances presenting a political 13 question are presented by Plaintiffs’ complaint. Each of these relates to the need for 14 the judiciary to respect policy decisions made by “coordinate branches of 15 government,” adhere to political decisions “already made,” and avoid 16 “embarrassment” by making numerous, and possibly conflicting, pronouncements 17 on the same questions presented to other branches. Baker, 369 U.S. at 217. Plaintiffs’ 18 complaint asks not only that we reconsider the policy decisions already made by 19 Defendants, but that, in so doing, we undermine the expertise of established 20 administrative bodies and supplant decisions they are statutorily created to make. 34 1 Indeed, absent specific controversies regarding particular agency decisions or 2 regulations, and developed argument by litigants, the judiciary risks running afoul 3 of previous, unappealed administrative rulings relating to the balance of interests 4 articulated in the PCC. 5 {51} Therefore, the political question doctrine persuasively supports judicial 6 restraint in this instance. As indicated by both our analysis of separation of powers 7 and the political question doctrine, Plaintiffs’ PCC-based claim cannot be resolved 8 by the courts without unconstitutionally intruding upon the powers of Defendants. 9 See Shoobridge, 2010-NMSC-049, ¶ 9 (“The New Mexico Constitution establishes 10 the legislative branch as the entity to represent the collective will of the populace for 11 purposes of creating laws to effectuate the public policy of the [s]tate.” (internal 12 quotation marks and citation omitted)). Having so concluded, we turn now to 13 Plaintiffs’ due process and equal protection claims. 14 II. Due Process 15 {52} While we conclude that the PCC neither creates nor recognizes an enforceable 16 right to a certain amount of pollution control, such does not resolve Plaintiffs’ due 17 process claim, which rests on the assertion that the New Mexico Constitution, 18 through its PCC and Inherent Rights and Due Process Clauses, implies a 19 “fundamental right to a beautiful and healthful environment.” See N.M. Const. art. 20 XX, § 21; see also N.M. Const. art. II, § 4 (“All persons are born equally free, and 35 1 have certain natural, inherent and inalienable rights, among which are the rights of 2 enjoying and defending life and liberty, of acquiring, possessing and protecting 3 property, and of seeking and obtaining safety and happiness.”); N.M. Const. art. II, 4 § 18 (“No person shall be deprived of life, liberty or property without due process 5 of law.”). Plaintiffs allege that Defendants’ authorization and management of oil and 6 gas extraction and the resulting pollution violate this fundamental right as well as 7 Plaintiffs’ rights to life, liberty, property, safety, and happiness as recognized in the 8 Due Process and Inherent Rights Clauses. Plaintiffs extend this argument to 9 reincorporate their assertion that Defendants are obligated to enact a “sufficient 10 statutory, regulatory and enforcement scheme that controls pollution.” Thus, despite 11 our conclusion regarding the PCC and the lack of an associated individual right, we 12 must determine if the Due Process Clause may serve as a separate vehicle for 13 Plaintiffs’ allegations. 8 We conclude that it cannot. 14 {53} The due process protections under Article II, Section 18 of the New Mexico 15 Constitution include substantive components, which protect against “a statute or 16 government action [that] shocks the conscience or interferes with rights implicit in 8 We note that our above-stated concerns regarding separation of powers also shape the confines of our analysis of Plaintiffs’ due process claim. Nonetheless, the DJA specifically grants courts the “power to declare rights . . . whether or not further relief is or could be claimed.” Section 44-6-2. Thus, while separation of powers continues to limit our review of Plaintiffs’ claims, we must determine whether Plaintiffs have sufficiently pleaded a violation of their due process rights such that declaratory relief to that effect could be granted. 36 1 the concept of ordered liberty.” Bounds v. State ex rel. D’Antonio, 2013-NMSC-037, 2 ¶ 50, 306 P.3d 457 (internal quotation marks and citation omitted). The rights 3 “implicit in the concept of ordered liberty” are those deemed to be “fundamental 4 rights.” Am. Civ. Liberties Union of N.M. v. City of Albuquerque, 2006-NMCA-078, 5 ¶ 16, 139 N.M. 761, 137 P.3d 1215 (internal quotation marks and citation omitted). 6 “The threshold question in evaluating a due process challenge is whether there is a 7 deprivation of liberty or property.” Bounds, 2013-NMSC-037, ¶ 51 (alteration, 8 internal quotation marks, and citation omitted). Generally, to determine whether 9 Plaintiffs were deprived of an individual right, fundamental or otherwise, or other 10 liberty or property interest, we first look to federal precedent construing an 11 analogous provision in the United States Constitution. See Morris, 2016-NMSC- 12 027, ¶¶ 18-19 (applying the “interstitial approach”). 13 {54} Here, “[o]ur state constitution’s due process guarantees are analogous to the 14 due process guarantees provided under the United States Constitution.” Id. ¶ 18. 15 However, Plaintiffs do not point us to, nor has our research revealed, federal 16 precedent recognizing a due process right to adequate pollution control policies or a 17 beautiful and healthful environment. Indeed, Plaintiffs’ due process claims are 18 largely based on the presence of the PCC and the Inherent Rights Clause of the New 19 Mexico Constitution, which have no federal analog. See N.M. Const. art. XX, § 21; 20 N.M. Const. art. II, § 4. Thus, federal case law construing the United States 37 1 Constitution’s Due Process Clause is not applicable, and we must consider whether 2 New Mexico’s distinctive characteristics—either in law or through its history and 3 tradition—imply or recognize an individual right to adequate environmental 4 protection or a beautiful and healthful environment, as Plaintiffs suggest. 5 {55} Beginning with the PCC, we reiterate that it does not recognize any 6 enforceable rights, but instead requires the Legislature to balance competing policy 7 interests. See N.M. Const. art. XX, § 21. Indeed, one of those interests, the use and 8 development of the state’s natural resources, impliedly permits pollution. See id. 9 Thus, the PCC cannot be interpreted on its own to support an inferred due process 10 right to a “beautiful and healthful environment.” See id. Plaintiffs next point to the 11 Inherent Rights Clause, N.M. Const. art. II, § 4, arguing that it is a distinctive 12 characteristic of the New Mexico Constitution that supports a fundamental right to 13 a “beautiful and healthful environment” that can be enforced through the Due 14 Process Clause. Plaintiffs acknowledge, however, that the Inherent Rights Clause 15 has not been interpreted “to be a fountain for as-yet-undiscovered rights.” Morris v. 16 Brandenburg, 2015-NMCA-100, ¶ 59, 356 P.3d 564 (Hanisee, J., concurring in 17 part), aff’d, 2016-NMSC-027; see also Morris, 2016-NMSC-027, ¶ 51 (“[T]he 18 Inherent Rights Clause has never been interpreted to be the exclusive source for a 19 fundamental or important constitutional right, and on its own has always been 20 subject to reasonable regulation.”). Thus, Plaintiffs provide us with no legal 38 1 authority supporting their claim that the New Mexico Constitution provides or 2 recognizes a right supporting their claims, fundamental or otherwise. 3 {56} Plaintiffs assert that, aside from unique constitutional provisions, “the right to 4 a beautiful and healthful environment is grounded in the law, history and tradition 5 of our state.” However, by Plaintiffs’ own allegations, New Mexico has a long 6 history of balancing natural resource development with environmental protection. 7 The PCC and the Land Grant Permanent Fund are textual evidence of this history. 8 See N.M. Const. art. XX, § 21; N.M. Const. art. XII, §§ 2, 7 (investing revenue from 9 lease of public lands into the state’s public schools). While Plaintiffs correctly 10 observe that, as the “Land of Enchantment,” the state’s beauty is central to our 11 identity, we cannot ignore the long history of permitting oil and gas extraction within 12 our borders. If anything, the law, history, and tradition of our state demonstrates that 13 resource extraction must be considered alongside, and must coexist with, pollution 14 control legislation. 15 {57} As such, the New Mexico Constitution does not recognize, through either the 16 Due Process or Inherent Rights Clauses or the PCC, an individual right that supports 17 Plaintiffs’ complaint.9 Absent such a right or liberty or property interest, Plaintiffs’ 9 We note that Plaintiffs also allege a due process violation on the basis that Defendants’ actions constitute “deliberate indifference to [Plaintiffs’] li[ves], liberty, property, safety or happiness.” On appeal, Plaintiffs draw the “deliberate indifference” standard from a case considering inadequate medical treatment of incarcerated inmates, see Lessen v. City of Albuquerque, 2008-NMCA-085, ¶ 30, 39 1 due process claim must necessarily fail and we need not subject the laws and 2 regulations they challenge to any level of scrutiny. See Bounds, 2013-NMSC-037, 3 ¶¶ 50-54 (stating, “In order to prevail on a substantive due process claim, the plaintiff 4 must establish that its property interests were injured by governmental action that 5 shocks the conscience,” and concluding that since the petitioners had “not been 6 deprived of anything,” their “due process challenge must fail” (internal quotation 7 marks and citation omitted)); see also Nash v. Bd. of Cnty. Comm’rs of Catron Cnty., 8 2021-NMSC-005, ¶ 36, 480 P.3d 842 (“Substantive due process cases inquire 9 whether a statute or government action shocks the conscience or interferes with 10 rights implicit in the concept of ordered liberty.” (internal quotation marks and 11 citation omitted)). 144 N.M. 314, 187 P.3d 179, and further argue that Defendants’ conduct “shocks the conscience.” Plaintiffs have not shown the deliberate indifference standard is applicable outside of the above context, which includes a showing that prison officials acted with a “sufficiently culpable state of mind.” See Cordova v. LeMaster, 2004-NMSC-026, ¶ 30, 136 N.M. 217, 96 P.3d 778 (internal quotation marks and citation omitted). We conclude that Plaintiffs have not established that the “deliberate indifference” standard has any place in this context, and they have not alleged sufficient facts to support it. Regarding Plaintiffs’ argument that Defendants’ actions shock the conscience, this allegation is not present in Plaintiffs’ complaint. Moreover, “shocking the conscience” requires facts that demonstrate “truly horrendous situations of governmental abuses.” Starko, Inc. v. Gallegos, 2006- NMCA-085, ¶ 25, 140 N.M. 136, 140 P.3d 1085 (internal quotation marks and citation omitted). Plaintiffs do not allege facts supporting this claim, and we conclude this allegation to be unsupported by Plaintiffs’ complaint. 40 1 III. Equal Protection 2 {58} The final claims in Plaintiffs’ complaint allege that Defendants have violated 3 their state constitutional right to equal protection under law. See N.M. Const. art. II, 4 § 18 (stating no person shall “be denied equal protection of the laws”). Plaintiffs 5 claim that Defendants’ failure to “adequately regulate oil and gas production and 6 pollution” has resulted in unconstitutionally disparate treatment of frontline 7 community members (people who live near oil and gas production cites), Indigenous 8 people, and New Mexico’s youth. On appeal, the Legislature and Executive 9 Defendants argue, in pertinent part, that Plaintiffs’ allegations fail to establish a valid 10 equal protection claim because they have not identified government-created classes 11 of persons subject to discriminatory treatment. In their answer brief, Plaintiffs 12 concede that they are not alleging Defendants have created or enforced any facially 13 discriminatory statute. Rather, Plaintiffs argue that Defendants’ failure to control 14 pollution has disproportionally affected them in comparison with other similarly 15 situated New Mexicans. We conclude Plaintiffs have not established a viable equal 16 protection claim. 17 {59} “Equal protection guarantees prohibit the government from creating statutory 18 classifications that are unreasonable, unrelated to a legitimate statutory purpose, or 19 are not based on real differences.” Breen v. Carlsbad Mun. Schs., 2005-NMSC-028, 20 ¶ 7, 138 N.M. 331, 120 P.3d 413. “The threshold question in analyzing all equal 41 1 protection challenges is whether the legislation creates a class of similarly situated 2 individuals who are treated dissimilarly.” Id. ¶ 10. Only if a plaintiff is successful in 3 establishing unconstitutional governmental classification, either expressly or as 4 applied through conduct, do we then determine what level of scrutiny to apply to the 5 challenged government act and review the law thereunder. See id. ¶ 8 (“If [the 6 p]etitioners are successful in proving [dissimilar treatment due to legislative 7 classification], then a court must determine what level of scrutiny should be 8 applied.”); Wagner v. AGW Consultants, 2005-NMSC-016, ¶ 23, 137 N.M. 734, 114 9 P.3d 1050 (holding that because the statute challenged differentiated between two 10 classes of people as applied, the court had to then apply the appropriate level of 11 scrutiny). 12 {60} Here, Plaintiffs do not allege that any statute or conduct creates any 13 classification at all. Instead, Plaintiffs’ equal protection claims rest squarely on their 14 assertion that Defendants’ failure to “adequately regulate oil and gas extraction” 15 causes Plaintiffs to “suffer harsher, disproportionate and discriminatory levels of 16 contamination, environmental degradation and health risks as compared with other 17 New Mexicans.” While Plaintiffs do point to specific statutes exempting oil and gas 18 pollution from certain legislative enactments, see, e.g., § 74-4-3(K)(2)(a), these 19 statutes create neither expressly identified classes nor “as-applied” discrimination of 20 the type the Equal Protection Clause protects against. See Marrujo v. N.M. State 42 1 Highway Transp. Dep’t, 1994-NMSC-116, ¶ 9, 118 N.M. 753, 887 P.2d 747 (“Equal 2 protection . . . focuses on the validity of legislation that permits some individuals to 3 exercise a specific right while denying it to others.”); State v. Gwynne, 2018-NMCA- 4 033, ¶ 42, 417 P.3d 1157 (“A statute that does not create two separate classifications 5 subject to different treatment cannot be said to violate equal protection.” (internal 6 quotation marks and citation omitted)). 7 {61} Plaintiffs’ claims seek to cast the effects of pollution as de facto classifications 8 that result in discriminatory treatment. Nowhere in our jurisprudence have New 9 Mexico courts held that generally applicable, facially neutral statutes that result in 10 incidental harms based on the geographic location of individuals violate the Equal 11 Protection Clause of the New Mexico Constitution. Moreover, the geographic 12 proximity of Plaintiffs to places with elevated instances of oil and gas 13 development—and the related pollution—leads more appropriately to the 14 conclusion that Plaintiffs are not similarly situated to other New Mexicans, rather 15 than a determination that a government classification exists. See Breen, 2005- 16 NMSC-028, ¶ 7 (“Equal protection, both federal and state, guarantees that the 17 government will treat individuals similarly situated in an equal manner.” (emphasis 18 added)). We, therefore, conclude Plaintiffs have alleged no classification that results 19 in discriminatory treatment and have not presented an equal protection claim upon 43 1 which relief can be granted. As such, we need not apply any level of scrutiny to the 2 laws they challenge. 3 CONCLUSION 4 {62} For the reasons explained above, we reverse the order of the district court 5 denying Defendants’ motions to dismiss. We remand with instructions that the 6 district court is to dismiss Plaintiffs’ complaint. 7 {63} IT IS SO ORDERED. 8 _____________________________ 9 J. MILES HANISEE, Judge 10 WE CONCUR: 11 ____________________________________ 12 JACQUELINE R. MEDINA, Chief Judge 13 KATHERINE A. WRAY, Judge (specially concurring) 44 1 WRAY, Judge (specially concurring). 2 {64} The Court’s opinion rejects the position that the PCC establishes an individual 3 or enforceable right under the New Mexico Constitution to a beautiful and healthful 4 environment. To this extent, I join completely in the analysis of the PCC’s language 5 and of the justiciability doctrines. The Court’s opinion, however, takes a step further 6 and limits the PCC’s language to the creation of a Legislative duty to balance 7 interests. I hesitate to foreclose the possibility that the PCC creates any right at all, 8 especially when a constitutional duty could be read to acknowledge a corresponding 9 constitutional right. Cf. Van Soelen, 2023-NMSC-027, ¶ 26 (declining to decide 10 whether certain constitutional provisions are “merely meant to express basic political 11 principles or are meant as a textual enumeration of certain substantive rights” 12 (omission, alteration, internal quotation marks, and citation omitted)). Regardless of 13 whether any right exists, the nature of Plaintiffs’ claims and the relief requested 14 would require the judiciary to second-guess the policy choices the Legislature has 15 made pursuant to its constitutional duty under the PCC, and as the Court’s opinion 16 explains, judicial review of those choices would be without legal standards or 17 guideposts. Short of examining the policy reasons supporting the Legislature’s 18 decisions, no further judicial inquiry is constitutionally justified. See id. ¶ 37. 19 Because the existence of no right is not essential to the justiciability holding, I would 45 1 limit the holding to reject only the right that Plaintiffs posit—the right to a beautiful 2 and healthful environment. 3 {65} This is because absence of any right does impact the remaining constitutional 4 analysis, because constitutional rights have power even if a cause of action does not 5 directly lie. The contours of the right to be protected are a vital part of any claim 6 brought by a party who alleges that the enforcement or lack of enforcement of a 7 statute or regulation has violated due process or equal protection principles. See 8 Morris, 2016-NMSC-027, ¶¶ 18, 19 (considering first for the purposes of due 9 process analysis “whether an asserted right is protected” under the federal or state 10 constitutions); see also Marrujo, 1994-NMSC-116, ¶ 9 (“Equal protection, on the 11 other hand, focuses on the validity of legislation that permits some individuals to 12 exercise a specific right while denying it to others.”). The analysis of Plaintiffs’ due 13 process claims in the Court’s opinion depends heavily on the view that the PCC 14 affords no individual, enforceable constitutional right. I disagree, because regardless 15 of whether no individual, enforceable right exists in the PCC—a question I think we 16 need not answer broadly—it does not necessarily follow that no constitutionally 17 protected right or interest exists to support a due process claim. 18 {66} The constitutional challenge must instead be put in the relevant constitutional 19 context, even though the outcome may be the same. In the absence of a fundamental 20 right, due process review is limited to whether Defendants have asserted a rational 46 1 basis for the entire statutory and regulatory system for pollution control in New 2 Mexico. See Morris, 2016-NMSC-027, ¶ 52. I agree that the PCC creates no 3 fundamental right to a beautiful or healthful environment. As the Court’s opinion 4 explained, the Legislature struck a balance between pollution control and the use and 5 development of natural resources, and the Executive Defendants have implemented 6 regulations and administer that balance. See Op. ¶¶ 34-37. Applying rational basis 7 review, Plaintiff has not “demonstrate[d] that the legislation is not supported by a 8 firm legal rationale or evidence in the record.” Morris, 2016-NMSC-027, ¶ 57. 9 {67} Similarly, Plaintiffs’ equal protection claim is not dependent entirely on the 10 existence of a fundamental right. Whether a court applies strict or a lesser form of 11 scrutiny depends on whether the plaintiff can establish either that the “violated 12 interest is a fundamental personal right or civil liberty” or that the governmental 13 action “focuses upon inherently suspect classifications.” Marrujo, 1994-NMSC- 14 116, ¶ 10. If the claim implicates only an “important—rather than fundamental— 15 individual interest” or a “sensitive—rather than suspect—classification,” 16 intermediate scrutiny is warranted. Id. ¶ 11. To “all other interests,” rational basis 17 scrutiny again applies. Id. ¶ 12 (internal quotation marks and citation omitted). As 18 noted, Plaintiffs have established no fundamental right and have otherwise not 19 argued for intermediate scrutiny. The question of suspect classifications therefore 20 becomes the key. 47 1 {68} Plaintiffs allege that Defendants’ conduct has had a disparate impact on 2 people who live near oil and gas sites, Indigenous peoples, and youth who feel the 3 effects of pollution disproportionately to other New Mexicans. The Court’s opinion 4 focuses on the neutral nature of the statutory and regulatory scheme and disposes of 5 Plaintiffs’ equal protection claim based on the lack of explicit classifications of 6 people. See Op. ¶¶ 58-61. The statutory and regulatory scheme, however, on its face 7 does create two classes of people: those who live near permitted oil and gas sites and 8 those who do not. Within the category of those who live near oil and gas sites, 9 Plaintiffs’ arguments identify groups of people who are disproportionately affected 10 and suggest that these are improper classifications based on race and intrinsic 11 characteristics. See Marrujo, 1994-NMSC-116, ¶ 10 (identifying as “suspect 12 classifications . . . race, national origin, religion, or status as a resident alien”). But 13 the facially neutral statutory and regulatory scheme, absent something more, cannot 14 be said to be responsible for the disproportionate impact of pollution on these 15 subgroups, which themselves are not created by the statutory or regulatory scheme. 16 Plaintiffs do not allege facts to support a conclusion that Defendants’ actions or 17 inactions have caused oil and gas sites to be located disproportionately near a 18 particular racial, cultural, or generational group. As a result, with no suspect or quasi- 19 suspect class implicated, rational basis review is again appropriate and the statutory 20 and regulatory scheme easily passes muster under that standard. See id. ¶ 12 (“The 48 1 rational basis standard of review is triggered by all other interests: those that are not 2 fundamental rights, suspect classifications, important individual interests, and 3 sensitive classifications.” (internal quotation marks omitted)). 4 {69} I therefore write separately, to express a more narrow view of the necessary 5 holding regarding the rights inherent in the PCC and an alternate view of Plaintiffs’ 6 due process and equal protection claims. Otherwise, I join the Court’s opinion. 7 _____________________________ 8 KATHERINE A. WRAY, Judge 49