On Sunday, Aug. 23, the New Mexico Supreme Court paused two key elements of Project Jupiter — the hyperscale AI datacenter being constructed in Doña Ana County — after non-profit New Energy Economy and the Center for Biological Diversity filed emergency petitions, challenging the constitutionality of the project’s air permit hearing and the approval of well drilling, respectively.
The court decided to stay emergency drilling of a well intended to supply the data center, as well as the air quality permit proceedings that have evoked public discontent for allegedly being unfairly expedited. The court has set a response date of Sept. 2 for the agencies involved to present evidence and legal arguments.
Colin Cox, lead attorney for the Center for Biological Diversity’s case against Project Jupiter, claims that due process protections were “cast aside” for the project when State Engineer Elizabeth Anderson permitted developers to drill a new well for the data center without a public hearing.
“It’s a pretty simple lawsuit: if you want to drill a new well for a new use, you have to have a hearing first, and they didn’t. The State Engineer broke the law to facilitate a new well for the data center,” Cox told the Daily Lobo. “The laws that are being broken are the laws designed to protect our environment, protect our health, protect our water.”
Cox said there is a “really narrow exception” that allows a new well to be drilled before a public hearing in an emergency, such as if someone is “about to suffer crop loss.”
“You have to have a hearing eventually, but you can drill it right away and save your crops first. That’s the exception the state engineer granted to Project Jupiter,” Cox said.
When asked about the environmental impact of the project, Cox said water experts tell him that especially in the Lower Rio Grande basin, the state doesn't have water to spare.
“We have a terrible debt, in fact. If we keep making this worse, we risk rendering this part of the country ecologically dead,” Cox said.
In a separate writ of mandamus filed by New Energy Economy, senior attorney Mariel Nanasi asked the Supreme Court to halt Project Jupiter’s air quality permit hearing on the grounds that the hearing officer, Max Shephard — who has since recused himself — was scheduling the hearing in a way that did not give agencies and the public enough time to gather the research and testimony needed to effectively participate in the hearing. The petition claimed Shepard’s actions “denied fundamental procedural fairness and (threatened) irreparable harm.”
On the day before the Supreme Court decisions, Shephard stepped down from his role as hearing officer after groups including the New Mexico Environmental Law Center pushed for his disqualification.
In the Motion for Disqualification, NMELC and the Center for Biological Diversity claim that Shepard failed to “conduct a fair and impartial proceeding,” and described the hearing rescheduling as an obstruction of their due process and including “nonsensical deadlines.”
Shephard had originally scheduled the hearing to be in October, but days after confirming the October date, he rescheduled it for Sept. 14, according to Source NM.
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Nanasi told the Daily Lobo that there were several reasons for why she claimed the hearing officer was creating a “trial by ambush” and “denying due process rights.”
She said she believes the pre-trial discovery process was “unfair” for multiple reasons, including limited time or information available to hold a “fair hearing,” the “expedited timeline” and “flip-flopping of decisions” that the hearing officer was responsible for and NMED withholding their administrative record with the official collection of documents pertaining to Project Jupiter’s air quality permit.
“‘Are you trying to seek the truth or are you rushing to judgement?’ If you wanted to say, in one phrase, why we applied to the Supreme Court for intervention, it was that,” Nanasi said.
Nanasi said it was unusual for the Supreme Court to intervene in a situation like this because high court involvement doesn’t typically occur until administrative decisions are formalized.
“We know this is extraordinary but we asked [the Supreme Court] to look at this and they did, and they did it on time,” Nanasi said.
Maslyn Locke, a senior staff attorney with NMELC and one of the leads on the organization’s challenge against Project Jupiter, told the Daily Lobo that, “there are due process rules so everyone that is engaging in a permit hearing has a right to be a fair decision maker and have a meaningful opportunity to be heard.”
“What we’re seeing with this air permitting process is pressure from both Yucca Growth Infrastructure — one of Project Jupiter’s developers — and also the environment department itself to move this thing along as quickly as possible,” Locke said. “That’s why we’re also seeing YGI hiring organizers to go door-to-door, send out mailers and buy ad campaigns.”
Attempts to reach Oracle, a major partner on the project, and YGI were not answered in time for publication. A call made to NMED outside of normal operating hours was also not answered in time for publication.
When asked about the hearing officer, Locke said she thinks Shephard would sometimes make “what seemed to be reasoned decisions,” before changing his mind with little explanation, which she said led to one of the challenges in the Supreme Court.
“I think developers were really hoping, and to some extent the governor was too, that this could just get pushed through under the guise of some incredible economic opportunity,” Locke said. “I have a lot of thoughts about the fact that these facilities are almost exclusively cited in low-income communities and communities of color. I believe that that is an intentional systemic decision because these communities do not have the political capital to push back, by design, and all those things that are encompassed in environmental racism.”
Locke called the entire process a “public transparency nightmare.”
“The AI rendering of Project Jupiter itself makes it look like it’s out in the middle of nowhere when really it’s across the street from a proposed housing development and their high school,” Locke said. “The feedback we get from our clients continues to be that they don’t want this because to watch the state invest so many resources in something that’s going to pollute their air and water while they have continuously failed to provide the community with safe and clean drinking water is insulting.”
Nanasi told the Daily Lobo that lawyers from a firm representing Project Jupiter sent a Motion to Vacate the Stay to the Supreme Court on Aug. 24, a day after the the stay was issued, claiming that unless it is lifted, prehearing filings will not be made in time, making their statutory deadline of Nov. 23 to issue the permit “impossible to meet.”
The motion cites New Mexico statute § 74-2-7(B)(2)(a), which sets a strict 90-day deadline for a final decision to be made on a construction permit, to argue that if the Sept. 14 hearing is missed, the project would miss said deadline and make an approval of the permit impossible. However, Nanasi said that one of the following statutes, § 74-2-7(B)(3), ultimately grants an exception to the prior statute by allowing the deadline to be missed if written justification for more time is submitted.
The firm representing Project Jupiter told the Daily Lobo they could not comment on the matter at this time.
Nanasi said she thinks Project Jupiter’s motion is unjustified and “lacking in integrity.”
“When you tell a judge to look at some section of the law and you know that the very next section gives you an out, you have to cite both sections,” Nanasi said.
Penelope Loyd Sment is a freelance reporter for the Daily Lobo. She can be reached at news@dailylobo.com or on X @DailyLobo
