State Supreme Court asked to table Project Jupiter air quality permit process
New Energy Economy has asked the New Mexico Supreme Court to halt Project Jupiter’s air quality permit proceedings, alleging discovery and due-process violations ahead of a Sept. 14 hearing.
New Energy Economy is asking justices to halt the permitting process before a Sept. 14 hearing, alleging due-process violations in the Environment Department proceeding
Julia Gentin, Searchlight New Mexico
This article was originally published by Searchlight New Mexico.
An advocacy group is asking the New Mexico Supreme Court to table Project Jupiter’s air quality permit proceedings as soon as possible, describing in an emergency writ filed Wednesday alleged violations of due process it says constitute a “trial by ambush.”
New Energy Economy notes it is not asking the Supreme Court to make a judgment on whether the air quality permit — which remains the largest legal roadblock for the massive data center — should be issued or not, but rather “to ensure that the proceeding complies with fundamental principles of due process before it continues,” the writ reads.
New Energy Economy’s filing references a string of reversals by Max Shepherd, New Mexico Environment Department hearing officer, who is overseeing the case.
Joshua Bowling
Most recently, Shepherd denied discovery — the process where opposing parties exchange evidence relevant to a case — on Aug. 12 after previously saying it would be allowed. Opponents of the data center filed earlier discoveries probing Project Jupiter developers on whether Bloom Energy, the company set to produce fuel cells for the data center, has the ability to manufacture its technology “at this unprecedented scale.” They also inquired about emissions, and whether the site has an alternative to its proposed gas pipeline that would provide 400 million cubic feet of gas per day. The pipeline has yet to be authorized, and twice has been rejected by State Land Commissioner Stephanie Garcia Richard.
Shepherd ordered Yucca Growth Infrastructure — developers behind Project Jupiter — and the state’s Energy Department to answer questions in a similar vein, with a set due date of Aug. 11. This came after New Energy Economy filed a different motion to toss the air quality permit application until developers established a valid alternative energy source.
However, those questions remain unanswered, as in another about-face Aug. 9, Shepherd reversed his own order, saying that responses from Project Jupiter developers should wait until the public hearing.
Technical testimony — written, direct record of the case’s witnesses — is due Monday, and the hearing, originally scheduled for October, now starts Sept. 14.
New Energy Economy wants to hear back from the Supreme Court before then: “Petitioner respectfully urges the court to take up this matter now, before all of the parties spend enormous time and incur enormous expenses to prepare for a hearing that the hearing examiner has made, in effect, a game of blind man’s bluff,” the writ states.
New Energy Economy notes Shepherd initially favored the October date to allow both sides to prepare for a “highly technical hearing,” even after being pushed by data center developers to accelerate the timeline at a July 27 scheduling conference.
Officials with Oracle, one of the main companies behind Project Jupiter, met with Gov. Michelle Lujan Grisham that same day. Two days later, the hearing was moved up to Sept. 14, leading some to speculate there was a through line: “This proceeding is becoming more focused on reaching a result favorable to the governor’s economic development agenda than ensuring a fair process and protecting the due process rights of the parties and the public,” said Mariel Nanasi, executive director and attorney for New Energy Economy, at the time.
Environmental advocates also decried the fact the administrative record — a document that is thousands of pages — will not be made available until Monday when direct testimony is due.
Nanasi described the process as being “turned upside down.”
“Our experts are being told to testify first and learn the facts later. We are denied discovery. We do not get NMED’s thousands-of-pages administrative record until the very day our expert testimony is due,” Nanasi said in a statement. “And if Project Jupiter suddenly unveils a new gas-supply plan, new engineering assumptions or new technical evidence, we are apparently expected to discover it at the hearing and cross-examine on the fly. That is not due process. It is trial by ambush.”
Between the accelerated hearing and other transparency issues surrounding the data center, legislators are apprehensive.
“From the secrecy surrounding Project Jupiter to the highly unusual expedited air-permit process and a technical hearing without the right to discovery, there are serious reasons for concern,” Sen. Carrie Hamblen, D-Las Cruces, said in a statement. “New Mexicans deserve transparency and a fair process before the Environment Department — one that follows constitutional due process, applicable law, and the Department’s own rules.”
Julia Gentin is an enterprise reporter for The Santa Fe New Mexican and Searchlight New Mexico through a partnership with Report for America, a national service program that places journalists into local newsrooms. She covers the Southern New Mexico region.
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