March 02, 2010

By Jennifer Cassel

In April 2010, Utah, Arizona and New Mexico each took actions to limit the states’ plans to regulate GHGs.  First, on April 13, 2010, a state judge in New Mexico issued a preliminary injunction preventing the New Mexico Environmental Improvement Board (“EIB”) from considering or adopting a rulemaking petition to cap GHG emissions until the court determines whether EIB is authorized, under New Mexico law, to regulate GHGs.  Leavell v. New Mexico Envtl. Improvement Bd., N.M. Dist. Ct., No. D-506-CV-201000050, preliminary injunction issued Apr. 13, 2010).  Plaintiffs, a group of state Congressmen, utility companies, and farming and petroleum-related associations, argued in their complaint that EIB may not regulate air contaminants, including GHGs, until EIB “determine[s] the quantity and duration at which that air contaminant becomes ‘air pollution,’” which determination, they argued, EIB makes by adopting an ambient air quality standard for the contaminant.  Because no ambient air quality standard for GHGs has been set, plaintiffs asserted that EIB may not entertain or adopt the rulemaking petition.