On Aug. 23, the New Mexico Supreme Court paused proceedings for Project Jupiter, the hyperscale data center under construction in Doña Ana County, temporarily halting their air quality permit hearing and ability to draw water from a well in Sunland Park, NM. The court lifted the stay on Sept. 17, seven days after denying the project developer’s motion to vacate the stay. All five justices in the court agreed to lift the stay and deny emergency petitions filed by New Energy Economy and the Center for Biological Diversity, allowing hearing proceedings for the air quality permit and water use from the well to continue. The court did not provide further explanation for their decision to deny the petitions.
Colin Cox, an attorney for the Center of Biological Diversity, called the emergency petitions “unusual” and said it was “very rare” for the Court to grant the stay.
“It’s exceedingly rare that we even got that,” Cox told the Daily Lobo. “It’s also typical for them to issue this sort of thumbs-up, thumbs-down decision without any explanation.”
In a press release, NEE wrote that they were “incredibly disappointed” that the court had rejected their petition.
NEE was one of the original environmental organizations who presented their emergency petition to the NM Supreme Court and catalyzed the stay. According to Mariel Nanasi, NEE’s lead attorney, NEE went to the NM Supreme Court because they believed the rules of the proceeding were unfair and lacked the due process necessary for the public and other environmental organizations to meaningfully take part in the hearing process.
Nanasi also wrote in a separate press release on Sept. 2 responding to a document of opposition filed by Yucca Growth Infrastructure, the company that manages the permitting and development of Project Jupiter, calling the project “unprecedented in scale.”
According to NEE’s technical analysis of the permit application, it is projected to emit 8.8 million metric tons of carbon dioxide, increasing New Mexico’s statewide greenhouse gas emissions by 30 percent, and use 100 million gallons of water each year. Nanasi wrote that YGI asked the court to “treat Project Jupiter like a routine permit for a neighborhood business … (while it) is nothing of the sort.”
“The Office of the State Engineer has been rubber-stamping the use of our precious fresh water by wildly unpopular data centers and this ruling will only make things worse,” Cox said. “We’ll continue to fight until our governor and regulators act in the interest of all New Mexicans rather than as shills for giant corporations.”
Prior to the court resuming project proceedings, New Mexico Attorney General Raúl Torrez announced on Sept. 3 that the Department of Justice supported the two petitions filed by NEE and Center for Biological Diversity and asked the Supreme Court to grant NEE’s petition, warning that the facility would be “unprecedented” and couldn’t be compared to another facility “anywhere in the world.”
The NMDOJ’s filing in support of the Center for Biological Diversity’s petition argued that the state engineer’s approval to drill a well only applies to “a genuine emergency threatening crop loss or serious economic loss to an existing use” and does not give the state engineer the right to approve the well for a new use without a proper hearing.
“Our office intervened in these Supreme Court cases because the Office of the State Engineer and New Mexico Environment Department accelerated approvals for Project Jupiter in ways that did not comply with the law,” NMDOJ Solicitor General Alethia Allen wrote in a statement to the Daily Lobo. “The Attorney General’s Office has a responsibility to ensure state agencies follow the law and their own regulations. Due process, transparency and public participation are essential to that process. We expect all state agencies to follow the law when processing applications for large economic projects — including data centers — that may have significant impacts on New Mexicans.”
Now that the stay has been lifted and a hearing will be scheduled, Nanasi hopes it will be a “more fair” proceeding and NMED and the project developers “give us the administrative record, allow us discovery, and give us time to review the administrative record and get discovery.”
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Director of Communications for the New Mexico Environment Department Drew Goretzka told the Daily Lobo that the the decision to move the hearing from October to September was made by the hearing officer presiding over the proceedings, not NMED, and that “no party was denied due process as part of the proceeding.”
Goretzka said that the NMED does not have the legal authority to “deny or delay an air quality permit, or impose permit conditions, solely for the purpose of regulating greenhouse gas emissions,” nor do they have the authority to administer the Energy Transition Act.
Daisy Maldonado, a candidate for Doña Ana County Commissioner in District 1 who has spoken out against Project Jupiter, told the Daily Lobo that she is “very appreciative” of the original Supreme Court decision to stay the hearing and the water pumping.
According to Maldonado, the air quality permit hearing process “is intended not to delay things, but to be methodical and to ensure that everyone is getting their fair time to present information and understand the project on all sides. It’s not to favor the industry and not to favor environmental groups.”
Penelope Loyd Sment is a freelance reporter for the Daily Lobo. She can be reached at news@dailylobo.com or on X @DailyLobo
