Representing New Mexico Communities: The Struggle for Economic Justice

Vol. 30 No. 4

By

Douglas Meiklejohn is the founder and executive director of the New Mexico Environmental Law Center, located in Santa Fe, New Mexico. The Law Center is a nonprofit, tax-exempt office that provides free and low-cost legal services in New Mexico to protect communities and the environment. For more information about the Law Center, visit www.nmenvirolaw.org or call 505/989-9022.

"And also, I want to tell you that I don't think it's right for people from outside to come in to turn our city into Texas's toilet."

Representing communities in environmental justice cases frequently involves several problems not found with other types of clients. Victims of environmental injustices often lack financial or political resources; are unfamiliar with the process-or even with the language in which it is conducted; receive little support from elected officials; and are approached with bias by the regulatory agencies involved. Despite these obstacles, representing a community group gives the group and its members a voice they otherwise would not have and empowers both the group and the larger community. This voice helps community members achieve concrete protection for their families and neighborhoods.

In New Mexico, two of the most common types of facilities adversely affecting minority and low-income communities are solid waste disposal facilities and mining operations. Two cases highlight the struggles involving such facilities.

Waste Disposal Facilities in Sunland Park

Sunland Park is located between the southern edge of New Mexico and the western edge of El Paso, Texas. During the 1980s, two related waste disposal companies began operating a municipal waste landfill and a medical waste incinerator in Sunland Park, which at the time was a predominantly Mexican American community of about 6,000 people. El Paso then had a population of more than half a million people, approximately 60 percent of whom had Spanish surnames. Many Sunland Park residents objected to the landfill because of the truck traffic and littering-and because the vast majority of the trash buried in the landfill came from El Paso.

But community opposition to the landfill paled in comparison to feelings about the medical waste incinerator. The incinerator was uphill and upwind of the community and a neighborhood elementary school, and the prevailing winds carried the incinerator smoke directly to the community and the school. Residents complained that the smoke was acrid and smelled like burning meat (two of the principal ingredients of medical waste are plastic and human flesh); made the schoolchildren sick to their stomachs; caused rashes and allergies among community residents; and made laundry hung out to dry when the incinerator was operating smell so bad that it had to be rewashed.

Pursuant to the New Mexico Solid Waste Act (Act) and Solid Waste Management Regulations (Regulations), which were both enacted after the facilities began operating, the New Mexico Environment Department (NMED) conducted an administrative proceeding to determine whether to grant permits for the incinerator and the landfill. Community residents received notice of the proceeding because the Act requires that applicants for solid waste facility permits provide actual notice of their applications by certified mail to the owners of adjacent properties. (This provision is unusual; many environmental statutes and regulations provide only for notice by publication, which essentially gives communities no notice.)

Community members of Concerned Citizens of Sunland Park (Concerned Citizens) objected to issuance of the requested permits. The residents faced several obstacles frequently encountered by community groups in government proceedings.

First, the NMED proceeding was an unfamiliar forum. It was conducted in English, a language not used by many Concerned Citizens members, and it included a public hearing in which parties were represented by counsel and individuals who were sworn and testified and spoke before a microphone. Very few Concerned Citizens members ever had used an attorney, spoken in public, or provided sworn testimony.

Second, the community's elected officials opposed Concerned Citizens' position. The state representative who represented Sunland Park was a lobbyist for the companies in the legislature, and the state senator whose district included Sunland Park was the attorney for the companies in the NMED proceeding.

Concerned Citizens also lacked resources. Legal resources, provided pro bono by the New Mexico Environmental Law Center (Law Center), were essential because the issues were whether the landfill and the incinerator would comply with the Act and Regulations. Technical experts also were needed to address issues such as whether incinerator emissions were reaching the community and whether leachate from the landfill would contaminate the groundwater. The group's ability to obtain this expertise was limited by the low-income realities of the community; Concerned Citizens raised funds primarily by making and selling tamales for one dollar each; most were bought by Concerned Citizens members and other community residents.

Nevertheless, the group was able to present persuasive evidence showing that the landfill, which was proposed to be expanded without a liner, would contaminate groundwater; and the landfill company agreed to install a liner. A permit was issued for the landfill, and that permit was renewed in 1996. Concerned Citizens' evidence also included chemical analysis of substances emitted by the incinerator and testimony by a dispersion-modeling expert about the concentrations of those chemicals that reached the community. The group's case was bolstered by a medical doctor testifying for the companies who, on cross-examination, was shown a photograph of thick black smoke emitting from the incinerator and asked whether people should breathe it. He said no. The NMED concluded that the incinerator constituted an imminent health hazard and declined to issue a permit.

Proposed Uranium Mining in Crownpoint and Church Rock

The resources needed by the members of Concerned Citizens of Sunland Park were minimal compared to those needed by the Eastern Navajo Diné Against Uranium Mining and the Southwest Research and Information Center (SRIC) (collectively, ENDAUM) in their fight to prevent in situ leach uranium mining in the communities of Crownpoint and Church Rock.

The mining proposed by Hydro Resources, Inc. (HRI), would involve injecting a chemical solution into the groundwater aquifer beneath Crownpoint and Church Rock. The chemical would mobilize uranium in the rock, groundwater containing the uranium would be pumped out of the ground, and the uranium would be extracted. Although the process theoretically can work without polluting the aquifer, after thirty years of in situ leach mining, not one company has restored an aquifer to its pre-mining state.

The mining plan caused concern among residents of Crownpoint, Church Rock, and surrounding communities because the targeted aquifer is the sole source of drinking water for the communities' approximately 15,000 residents, almost all Navajo. Contaminating the aquifer with uranium would have serious consequences in addition to its radioactive properties. Uranium is a heavy metal that, when ingested, collects in the kidneys and severely interferes with their normal functioning. Ingestion of even small amounts of uranium over time can lead to kidney disease and kidney failure.

The proposed mining also would adversely impact Navajo traditional religious practices. Several proposed mining sites contain significant numbers of sites sacred to Navajos; mining would destroy these and make religious practices impossible.

ENDAUM is involved in an administrative proceeding conducted by the U.S. Nuclear Regulatory Commission (NRC), which must license the mining of radioactive source materials. The NRC administrative process is similar to the Sunland Park proceeding in several respects. First, it is conducted in English, a language in which many of the residents of Crownpoint, Church Rock, and surrounding communities are not fluent. Second, because the matter is conducted pursuant to the U.S. Atomic Energy Act, it is both technical and resource-intensive, and a community group without counsel and experts would be unable to participate effectively.

ENDAUM is represented without charge by the Law Center and the Natural Resources Defense Council and at a reduced rate by Diane Curran of Harmon, Curran, Spielberg & Eisenberg of Washington, D.C.; but substantial funds still are needed to pay analysts and experts. Third, ENDAUM has had to deal with unfavorable positions taken by one of its elected representatives. U.S. Senator Pete Domenici (R-NM) twice introduced legislation to provide subsidies of up to $30 million for companies performing in situ leach mining, including HRI's parent corporation.

The case also has presented difficulties not present in the Sunland Park matter. First, NRC staff issued a license to HRI before ENDAUM was granted a hearing. ENDAUM therefore must persuade the NRC to revoke the license. Second, most NRC employees, based in the Washington, D.C., area, have little familiarity with or understanding of Navajo culture or of the demographics of western New Mexico. NRC staff characterized the area as having only a "few scattered residences located within 3 km (2 miles) of the site." Final Environmental Impact Statement for the Crownpoint Uranium Project (Feb. 1997), at 3-55. Later testimony, however, calculated that some eighty-seven residences housed between 350 and 450 people within two and one-half miles of one of the Church Rock sites alone. Robert D. Bullard, Testimony Regarding Environmental Justice at the Crownpoint Uranium Project (Feb. 1999), at 25.

Finally, ENDAUM has encountered a problem that is disturbingly prevalent in communities' struggles against environmental degradation: regulatory agency bias in favor of the industrial interest and against the community group's position. Throughout the NRC proceeding, its staff has advocated for the proposed mining.

Conclusion

The Sunland Park and Crownpoint and Church Rock situations demonstrate several points that arise repeatedly in the Law Center's work for New Mexico communities on environmental issues. First, most environmental battles are fought by local people because they are concerned about the impacts of environmental degradation on their families and their communities. Second, communities working to protect their environments frequently must combat the government agencies charged with protecting these environments.

Finally, in New Mexico minority and low-income communities are most likely to suffer from environmental degradation. They are seen as places where a clean environment easily can be traded for economic benefits such as jobs at a landfill or rent for land to be used for in situ leach uranium mining. The communities also lack political power and often are opposed by their own elected representatives. In New Mexico, working to protect communities from environmental degradation usually means working for environmental justice.

As published in Human Rights, Fall 2003, Vol. 30, No. 4, p.23-25.

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