June 3, 2025- Mario Atencio v. State of New Mexico, No. A-1-CA-42006

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: June 3, 2025	3
No. A-1-CA-42006	4
MARIO ATENCIO; PAUL AND MARY ANN	5
ATENCIO; DANIEL TSO; SAMUEL SAGE;	6
CHEYENNE ANTONIO; KENDRA PINTO;	7
JULIA BERNAL; JONATHAN ALONZO;	8
PASTOR DAVID ROGERS; YOUTH UNITED	9
FOR CLIMATE CRISIS ACTION (YUCCA);	10
PUEBLO ACTION ALLIANCE; INDIGENOUS	11
LIFEWAYS; CENTER FOR BIOLOGICAL	12
DIVERSITY; and WILDEARTH GUARDIANS,	13
Plaintiffs-Appellees,	14
v.	15
STATE OF NEW MEXICO; NEW MEXICO	16
LEGISLATURE; GOVERNOR MICHELLE	17
LUJAN GRISHAM; NEW MEXICO ENVIRONMENT	18
DEPARTMENT; SECRETARY JAMES KENNEY,	19
in his official capacity; ENERGY, MINERALS &	20
NATURAL RESOURCES DEPARTMENT;	21
SECRETARY DESIGNATE MELANIE A.	22
KENDERDINE, in her official capacity;	23
ENVIRONMENTAL IMPROVEMENT BOARD; and	24
the OIL CONSERVATION COMMISSION,	25
Defendants-Appellants,	26
and	27
Court of Appeals of New Mexico
Filed 6/3/2025 2:14 PM

INDEPENDENT PETROLEUM ASSOCIATION	1
OF NEW MEXICO,	2
Intervenor/Defendant,	3
and	4
NEW MEXICO CHAMBER OF COMMERCE,	5
Intervenor/Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY	7
Matthew Wilson, District Court Judge	8
Gail Evans	9
Colin Cox	10
Albuquerque, NM	11
for Appellee Center for Biological Diversity	12
Tim Davis	13
Samantha Ruscavage-Barz	14
Santa Fe, NM	15
for Appellee WildEarth Guardians	16
Daniel Yohalem	17
Santa Fe, NM	18
for Appellees	19
Raúl Torrez, Attorney General	20
Mark W. Allen, Assistant Attorney General	21
Seth C. McMillan, Deputy Solicitor General	22
Ellen Venegas, Assistant Solicitor General	23
Santa Fe, NM	24
for Appellants State of New Mexico, Environmental Improvement Board and Oil	25
Conservation Commission	26

Hinkle Shanor LLP	1
Thomas M. Hnasko	2
Lisa G. Zammiello	3
David A. Lynn	4
Santa Fe, NM	5
for Appellant The New Mexico Legislature	6
Peifer, Hanson, Mullins & Baker, P.A.	7
Elizabeth K. Radosevich	8
Matthew E. Jackson	9
Albuquerque, NM	10
for Appellants Governor Michelle Lujan Grisham, New Mexico Environment	11
Department, Secretary James Kenney, Energy, Minerals & Natural Resources	12
Department, and Secretary Designate Melanie A. Kenderdine	13
Baker & Hostetler LLP	14
Mark S. Barron	15
Denver, CO	16
for Appellant New Mexico Chamber of Commerce	17
Vernon Law and Graduate School	18
Mia Montoya Hammersley, Assistant Professor of Law & Director	19
Christophe Courchesne, Associate Professor of Law & Director	20
Charlotte Bieri, Student Clinician	21
Savannah Collins, Student Clinician	22
Hannah Ziomek, Student Clinician	23
Lauren Carita, Student Clinician	24
Royalton, VT	25
Washburn University School of Law	26
James R. May, Richard S. Righter Distinguished Professor of Law	27
Topeka, KS	28

Northeastern University School of Law	1
Martha F. Davis	2
Boston, MA	3
for Amici Curiae Law Professors in Support of Plaintiffs-Appellees	4
Fine Law Firm	5
Mark Fine	6
Albuquerque, NM	7
University of Wisconsin Law School	8
Steph Tai, Associate Dean	9
Madison, WI	10
for Amici Curiae Public Health Professionals in Support of Plaintiffs-Appellees	11

OPINION	1
HANISEE, Judge.	2
{1} This case presents novel questions of state law regarding the justiciability of	3
claims alleging failures of the State, its legislative and executive branches of	4
government, and several of its administrative entities and officers to adequately	5
control pollution caused during the extraction and production of oil and natural gas.	6
Plaintiffs, who are various advocacy organizations and individual New Mexicans,	7
including several Indigenous people, filed suit against various executive agencies	8
and officials, including Governor Michelle Lujan Grisham, the State of New Mexico	9
itself, and the Legislature (all Defendants collectively referred to hereinafter as	10
Defendants).1 Plaintiffs seek various forms of declaratory and injunctive relief that,	11
in general terms, call for the judiciary to declare that the current statutory and	12
regulatory scheme controlling pollution from oil and natural gas fails to protect the	13
environment under Article XX, Section 21 of the New Mexico Constitution (the	14
1For clarity and ease of reference, we collectively refer to the Governor, the
New Mexico Environment Department (NMED), Secretary Kenney, the Energy,
Minerals and Natural Resources Department (EMNRD), Secretary Designate
Kenderdine, the Environmental Improvement Board (EIB), and the Oil Conservation
Commission (OCC) as “Executive Defendants.” When referring to all the
Defendants together, we use the term “Defendants.”
After initial pleadings in the case, Defendants New Mexico Chamber of
Commerce (the Chamber) and Independent Petroleum Association of New Mexico
(IPANM) intervened on behalf of Defendants. The Chamber and IPANM are
included in our use of “Defendants” in this opinion.

2
Pollution Control Clause or PCC) and enjoin Defendants from permitting further oil	1
and gas extraction until sufficient environmental protections are established.	2
Plaintiffs further claim, via the New Mexico Civil Rights Act (NMCRA), NMSA	3
1978, §§ 41-4A-1 to -13 (2021), and the Declaratory Judgment Act (DJA), NMSA	4
1978, §§ 44-6-1 to -15 (1975), that the inadequacy of the current system regulating	5
oil and gas pollution violates their constitutional rights to due process and equal	6
protection of law under New Mexico’s Bill of Rights. See N.M. Const. art. II, § 18.	7
Defendants variously moved for dismissal of Plaintiffs’ complaint or judgment on	8
the pleadings in their favor. The district court substantially denied Defendants’	9
motions, concluding that Plaintiffs set forth claims upon which relief can be granted.	10
Defendants sought interlocutory appeal, which we granted. We conclude Plaintiffs	11
have presented no claim upon which relief can be granted and reverse.	12
BACKGROUND	13
{2} This case arises over pollution caused by oil and gas extraction primarily in	14
the northwest and southeast regions of New Mexico, known respectively as the San	15
Juan and Permian Basins. The individual Plaintiffs live or work in close proximity	16
to these regions or have significant cultural, ancestral, and religious ties to them. The	17
organizational Plaintiffs are various advocacy groups representing populations	18
particularly affected by climate change such as youths, Indigenous communities, and	19
other grouped individuals living and working in the San Juan and Permian Basins.	20

3
Plaintiffs assert concrete, particularized, actual or imminent harm from Defendants’	1
alleged collective failure to enact and enforce sufficient laws and regulations to	2
protect the environment from oil- and gas-derived pollution.	3
{3} Plaintiffs’ complaint first points to our state constitution’s PCC, which	4
provides the following:	5
The protection of the state’s beautiful and healthful environment is	6
hereby declared to be of fundamental importance to the public interest,	7
health, safety and the general welfare. The [L]egislature shall provide	8
for control of pollution and control of despoilment of the air, water and	9
other natural resources of this state, consistent with the use and	10
development of these resources for the maximum benefit of the people.	11
N.M. Const. art. XX, § 21. Plaintiffs assert that this provision creates a “positive,	12
mandatory, and judicially enforceable duty on the Legislature” to control pollution	13
and to protect New Mexico’s natural resources from despoilment. The complaint	14
alleges that the Legislature, in violation of the PCC, has not passed sufficient laws	15
to protect the state’s natural resources. For instance, the complaint asserts that	16
Defendant NMED, whose purpose is, in part, to protect New Mexicans “from health	17
threats posed by the environment,” NMSA 1978, § 74-1-2 (1997), is—despite the	18
agency’s name and other duties related to New Mexico’s environment—statutorily	19
prohibited from regulating the oil and gas industry except to address air quality.	20
{4} Plaintiffs’ complaint further states that each of the following legislative	21
enactments, which the NMED is tasked with enforcing, see NMSA 1978, § 74-1-7	22

4
(2000, amended 2024),2 expressly exempts the oil and gas industry from its purview:	1
the Hazardous Waste Act, NMSA 1978, §§ 74-4-1 to -14 (1977, as amended through	2
2021); the Radioactive and Hazardous Materials Act, NMSA 1978, §§ 74-4A-1	3
to -14 (1979, as amended through 2023); the Solid Waste Act, NMSA 1978, §§ 74-	4
9-1 to -43 (1990, as amended through 2011); the Groundwater Protection Act,	5
NMSA 1978, §§ 74-6B-1 to -14 (1990, as amended through 2018); and the Water	6
Quality Act (WQA), NMSA 1978, §§ 74-6-1 to -17 (1967, as amended through	7
2019).3
8
2This section of the Hazardous Waste Act was amended after Plaintiffs filed
their complaint in this case. See 2024 N.M. Laws, ch. 54, § 2 (adding Section 74-1-
7(A)(15) and amending other subsections to permit the NMED’s regulation of
transportation fuels). Because this amendment was enacted after this case began, and
because Plaintiffs make no argument to the contrary, we do not consider its effect in
this opinion. See GEA Integrated Cooling Tech. v. N.M. Tax’n & Revenue Dep’t,
2012-NMCA-010, ¶ 17, 268 P.3d 48 (“Our courts follow the general rule that a
statutory amendment applies prospectively unless the Legislature clearly intends to
give the amendment retroactive effect.”).
3 The individual provisions to which Plaintiffs point within each act are:
Section 74-4-3(K)(2)(a)-(g) (“‘Hazardous waste’ does not include . . . drilling fluids,
produced waters and other wastes associated with the exploration, development or
production of crude oil or natural gas” as well as various forms of ash, slag, and gas
emission waste caused by oil and natural gas production); Section 74-4A-4(d)
(excluding the same from the definition of “hazardous waste” in the Radioactive and
Hazardous Materials Act); Section 74-9-3(N)(1)-(2) (excluding the same from the
definition of “solid waste” under the Solid Waste Act); Section 74-6B-3(A)(3)
(excluding from the Groundwater Protection Act fluid storage tanks common in the
oil and gas industry such as any “surface impoundment, pit, pond or lagoon”);
Section 74-6-12(G) (“The [WQA] does not apply to any activity or condition subject
to the authority of the oil conservation commission pursuant to provisions of the Oil
and Gas Act.”).

5
{5} Plaintiffs’ complaint goes on to contend that only one act, the New Mexico	1
Air Quality Control Act (NMAQCA), NMSA 1978, §§ 74-2-1 to -17 (1967, as	2
amended through 2021), “actually mandates the prevention or control of” oil and gas	3
pollution, and that it is limited to regulating air quality. The complaint asserts that,	4
despite the NMAQCA’s existence, Defendants have failed to comply with the Act	5
or adequately enforce its requirements, alleging that pollution levels in and around	6
the San Juan and Permian Basins have consistently exceeded those permitted by the	7
NMAQCA. Plaintiffs’ complaint continues by asserting that other legislative	8
enactments, such as the Oil and Gas Act, NMSA 1978, §§ 70-2-1 to -39 (1935, as	9
amended through 2019), do not control pollution.	10
{6} In addition to attacking the adequacy of existing laws, Plaintiffs’ complaint	11
alleges that the Legislature has failed to provide regulatory agencies with sufficient	12
resources, primarily money, to “regulate, monitor and control” oil and gas pollution.	13
The complaint points to insufficient staffing levels within the NMED and Defendant	14
EMNRD, stagnant department budgets, and insufficient oversight and financial	15
assurance requirements regarding cleanup and closure of abandoned oil and gas	16
wells.	17
{7} As to the Executive Defendants, Plaintiffs assert that they have failed to	18
enforce statutes and regulations already in existence and have not promulgated	19
constitutionally adequate regulations to control pollution. Plaintiffs’ complaint	20

6
alleges that Executive Defendants are all varyingly responsible for overseeing,	1
maintaining, developing, or enforcing laws and regulations that protect the	2
environment; yet, each has failed their constitutional and statutory duties to do so.	3
For instance, Plaintiffs’ complaint points out that Defendant EIB exempts the oil and	4
gas industry from its regulations limiting toxic air pollutants, see 20.2.72.402(C)(5)	5
NMAC, and asserts that the Governor is “ultimately responsible for all [s]tate agency	6
actions, including the authorization of oil and gas production with inadequate	7
pollution controls.”	8
{8} Based on the above allegations, Plaintiffs advance five causes of action	9
against Defendants. First, by use of the DJA, Plaintiffs assert that Defendants	10
collectively violate their constitutional duties under the PCC by failing to enact	11
sufficient pollution-limiting legislation, continuing to permit oil and gas production	12
despite such legislative inadequacy, and failing to enforce existing state and federal	13
pollution limitations. Second, Plaintiffs pursue four causes of action variously	14
asserting that Defendants’ alleged failures violate Plaintiffs’ rights under the	15
Inherent Rights, Due Process, and Equal Protection Clauses of the state constitution.	16
See N.M. Const. art. II, § 4 (“All persons are born equally free, and have certain	17
natural, inherent and inalienable rights, among which are the rights of enjoying and	18
defending life and liberty, of acquiring, possessing and protecting property, and of	19
seeking and obtaining safety and happiness.”); N.M. Const. art. II, § 18 (“No person	20

7
shall be deprived of life, liberty or property without due process of law; nor shall	1
any person be denied equal protection of the laws.”). Plaintiffs advance their	2
substantive due process and equal protection claims under the DJA and the NMCRA,	3
which provide a private right of action for alleged violations of New Mexico’s Bill	4
of Rights. See § 41-4A-3(B); see also N.M. Const. art. II, §§ 1-24 (containing the	5
Bill of Rights, which includes the Inherent Rights Clause, N.M. Const. art. II, § 4,	6
and the Due Process and Equal Protection Clauses, N.M. Const. art. II, § 18).	7
{9} In terms of relief, Plaintiffs request an order consistent with the above claims	8
that amounts to various declarations that Defendants are out of compliance with their	9
constitutional duties under the PCC and the New Mexico Bill of Rights. Regarding	10
injunctive relief, Plaintiffs ask, among other things, that the judiciary enjoin	11
Defendants to suspend additional permitting of oil and gas wells until Defendants	12
have come into compliance with their constitutional duties by “enact[ing], fund[ing]	13
and implement[ing] a statutory, regulatory and enforcement structure and plan” that	14
complies with the PCC. Plaintiffs further seek an order requiring Defendants to “put	15
in place a mandatory process whereby [Defendants] formally and publicly consider	16
their constitutional obligations . . . when considering any policies or laws that impact	17
New Mexico’s natural resources.” Finally, Plaintiffs ask that the judiciary retain	18
ongoing jurisdiction over the case to ensure that Defendants comply with such	19
directives.	20

8
{10} Defendants moved separately either for dismissal of Plaintiffs’ claims or for	1
judgment on the pleadings in Defendants’ favor. In their various motions,	2
Defendants all advance generally the same arguments: neither the PCC nor any other	3
constitutional provision supplies or enables a cause of action such as this, Plaintiffs’	4
claims and the relief they seek violate separation of powers principles, the complaint	5
presents nonjusticiable political questions, a judicial determination in Plaintiffs’	6
favor will not redress their alleged harms, and Defendants have already established	7
a constitutionally adequate statutory and regulatory scheme controlling pollution	8
caused by oil and natural gas production.	9
{11} The district court substantially denied Defendants’ motions, granting	10
dismissal only of the claims against the Legislature and individual government	11
officers alleging violations of the NMCRA. See § 41-4A-10 (preserving legislative	12
immunity under the NMCRA); § 41-4A-3(C) (“Claims brought pursuant to the	13
[NMCRA] shall be brought exclusively against a public body.”). In denying the	14
remainder of Defendants’ motions, the district court stated simply that Plaintiffs	15
alleged sufficient facts to support a claim for declaratory relief and that it was	16
premature to determine whether “the New Mexico Constitution guarantees . . . a	17
fundamental right to pollution control.” Defendants sought interlocutory appeal in	18
this Court, which we granted.	19

9
DISCUSSION	1
{12} All of the issues presented in this case, concerning both the denial of	2
Defendants’ motions and the associated statutory and constitutional arguments, are	3
reviewed de novo. See Valdez v. State, 2002-NMSC-028, ¶ 4, 132 N.M. 667, 54 P.3d	4
71 (reviewing de novo dismissal of a case for failure to state a claim under Rule 1-	5
012(B)(6) NMRA); N.M. Pub. Regul. Comm’n v. New Mexican, Inc., 2024-NMSC-	6
025, ¶ 17, 562 P.3d 548 (treating a motion for judgment on the pleadings the same	7
as a motion to dismiss for failure to state a claim); Am. Fed’n of State, Cnty. & Mun.	8
Emps. Council 18 v. State, 2013-NMCA-106, ¶ 6, 314 P.3d 674 (applying de novo	9
review to matters of statutory and constitutional interpretation). In reviewing a	10
motion to dismiss, we accept all well-pleaded factual allegations as true, but do not	11
credit legal conclusions. See Quarrie v. N.M. Inst. of Mining & Tech., 2021-NMCA-	12
044, ¶ 5, 495 P.3d 645 (“A motion to dismiss for failure to state a claim tests the	13
legal sufficiency of the complaint, not the facts that support it.” (internal quotation	14
marks and citation omitted)). Thus, the principal question here is whether Plaintiffs,	15
through any version of the facts alleged, have stated a claim legally sufficient to	16
maintain the causes of action brought against Defendants. Defendants maintain they	17
have not.	18
{13} We first identify a common thread pertinent, albeit in differing ways, to each	19
component of our analysis today: embedded in the fabric of our government lies the	20

10
foundational principle that each branch of government is coequal and that each,	1
being entirely created by the Constitution of the State of New Mexico and deriving	2
its sole authority therefrom, shall not exercise the powers of any other branch. See	3
N.M. Const. art. III, § 1 (“The powers of the government of this state are divided	4
into three distinct departments, the legislative, executive and judicial, and no person	5
or collection of persons charged with the exercise of powers properly belonging to	6
one of these departments, shall exercise any powers properly belonging to either of	7
the others.”). Nonetheless, “absolute separation of powers is neither desirable nor	8
realistic,” and the practical realities of our government require “some overlap of	9
governmental functions.” State ex rel. Taylor v. Johnson, 1998-NMSC-015, ¶ 23,	10
125 N.M. 343, 961 P.2d 768 (internal quotation marks and citation omitted).	11
{14} Within this constitutional framework, the Legislature is invested with the	12
power to enact law and “possesses the police power, the broadest power possessed	13
by governments, to protect public health and welfare.” Lujan Grisham v. Reeb, 2021-	14
NMSC-006, ¶ 14, 480 P.3d 852 (internal quotation marks and citation omitted); see	15
N.M. Const. art. IV, § 1 (vesting the legislative power in a senate and house of	16
representatives and reserving to the people the right to annul any law enacted thereby	17
excepting, in relevant part, “laws providing for the preservation of the public peace,	18
health or safety”). As the primary voice of the people, the Legislature is entitled to	19
broad latitude in exercising its inherent police powers and is the body particularly	20

11
responsible for making public policy. See Ferguson v. N.M. Highway Comm’n,	1
1982-NMCA-180, ¶ 12, 99 N.M. 194, 656 P.2d 244 (“Determination of what is	2
reasonably necessary for the preservation of the health, safety, and welfare of the	3
general public is a legislative function and should not be interfered with absent clear	4
abuse.”); Hartford Ins. Co. v. Cline, 2006-NMSC-033, ¶ 8, 140 N.M. 16, 139 P.3d	5
176 (“It is the particular domain of the [L]egislature, as the voice of the people, to	6
make public policy.” (alteration, internal quotation marks, and citation omitted)).	7
Particularly relevant to Plaintiffs’ claims regarding inadequate funding of some of	8
the Executive Defendants in this case, the Legislature has “exclusive power of	9
deciding how, when, and for what purpose the public funds shall be applied in	10
carrying on the government.” State ex rel. Schwartz v. Johnson, 1995-NMSC-080,	11
¶ 14, 120 N.M. 820, 907 P.2d 1001 (internal quotation marks and citation omitted).	12
{15} The power of the executive, on the other hand, at least in the context of law-	13
making, is generally limited to vetoing or signing and enforcing the laws passed by	14
the Legislature. See N.M. Const. art. IV, § 22 (providing the Governor’s veto	15
power); N.M. Const. art. V, § 4 (“[T]he [G]overnor . . . shall take care that the laws	16
be faithfully executed.”). The Legislature may delegate its rule-making authority to	17
the executive agencies, in order to enforce the enacted laws. See City of Albuquerque	18
v. N.M. Pub. Reg. Comm’n, 2003-NMSC-028, ¶ 16, 134 N.M. 472, 79 P.3d 297. But	19
otherwise, “[a]ny legislative power that the Governor possesses must be expressly	20

12
granted to [them] by the constitution.” State ex rel. Clark v. Johnson, 1995-NMSC-	1
048, ¶ 40, 120 N.M. 562, 904 P.2d 11 (internal quotation marks and citation	2
omitted). If the “state constitution is silent on a particular issue,” or if any residual	3
government authority is to be found, such authority rests with the Legislature and	4
not the executive branch. Id.	5
{16} The judiciary’s role “is to construe laws and render judgments in the cases	6
that come before it.” State ex rel. Jud. Standards Comm’n v. Espinosa, 2003-NMSC-	7
017, ¶ 13, 134 N.M. 59, 73 P.3d 197. When concerns regarding legislative acts are	8
raised, courts may “conduct[] judicial review of legislation alleged to commit	9
constitutional harm.” Lujan Grisham v. Van Soelen, 2023-NMSC-027, ¶ 36, 539	10
P.3d 272. Indeed, it is axiomatic that the judiciary’s “proper function and duty is to	11
say what the law is and what the Constitution means.” Id. (text only) (citation	12
omitted); see Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the	13
province and duty of the judicial department to say what the law is.”). Essential to	14
this purpose, and to maintaining the balance of powers in our government, it “is the	15
constitutional responsibility of the courts” to consider the legality of government	16
conduct and “safeguard[] constitutional rights.” Van Soelen, 2023-NMSC-027, ¶ 38	17
(internal quotation marks and citation omitted). Nonetheless, this constitutional duty	18
is not a license to review every governmental act and supplant the decisions made	19
by coordinate branches with our own. See id. ¶ 37 (“[W]e will not question the	20

13
wisdom, policy, or justness of a statute, and the burden of establishing that the statute	1
is invalid rests on the party challenging the constitutionality of the statute. . . . It is	2
only when a legislative body adopts internal procedures that ignore constitutional	3
restraints or violate fundamental rights[] that a court can and must become	4
involved.” Id. (alterations, internal quotation marks, and citation omitted)). In order	5
to ensure that the judiciary remains in this well-defined lane, we use justiciability as	6
a self-imposed guidepost, which includes as prudential components the doctrines of	7
ripeness, mootness, and standing. See New Energy Econ., Inc. v. Shoobridge, 2010-	8
NMSC-049, ¶ 16, 149 N.M. 42, 243 P.3d 746.	9
{17} With these principles in mind, we examine Plaintiffs’ complaint and	10
Defendants’ ensuing arguments supporting its dismissal. On appeal, Defendants	11
broadly present two categories of argument: (1) those challenging the judiciary’s	12
threshold ability to review Plaintiffs’ claims, such as separation of powers principles	13
and redressability; and (2) those asserting that even if the judiciary could review	14
such claims, Defendants have satisfied their constitutional duties to control	15
pollution. We agree with Defendants’ threshold arguments and hold that Plaintiffs’	16
claims premised upon the PCC are nonjusticiable. That is to say, the relief Plaintiffs	17
seek—as presented by their complaint—exceeds the boundary of that which the	18
judiciary is authorized to grant. Regarding Plaintiffs’ due process and equal	19
protection claims, we conclude they have not stated a claim upon which relief can	20

14
be granted. Given these determinations, we decline to address Defendants’	1
substantive arguments regarding the adequacy of the existing laws and regulations	2
currently applicable to the oil and gas industry.	3
{18} Our opinion proceeds in three parts. We begin by discussing Plaintiffs’ claim	4
under the PCC. Then, we address Plaintiffs’ due process claim, and, finally, their	5
equal protection challenges.4
6
I. The Pollution Control Clause	7
{19} A central premise of Plaintiffs’ case, embedded within their due process and	8
equal protection claims, but particularly pertinent to their claim under the PCC, is	9
that the Legislature has a constitutional duty to adequately control pollution to	10
prevent despoilment of the state’s natural resources. See N.M. Const. art. XX, § 21.	11
In response, Defendants advance several arguments urging a conclusion that	12
Plaintiffs have failed to state a justiciable claim arising under the PCC. First, they	13
argue that the provision does not create an individual right, but instead confirms the	14
4 We note that Defendants’ arguments regarding the nonjusticiability of
Plaintiffs’ claims can be read to assert that the complaint presents nonredressable
harms, a component of standing. Am. Civ. Liberties Union of N.M. v. City of
Albuquerque, 2008-NMSC-045, ¶ 10, 144 N.M. 471, 188 P.3d 1222 (stating that
“injury in fact, causation, and redressability” are requirements to obtain standing).
We nonetheless elect to confer standing in this case because it involves systemic
challenges to pollution control policies and separation of powers concerns, both of
which are matters of great public importance. See State ex rel. Coll v. Johnson, 1999-
NMSC-036, ¶ 21, 128 N.M. 154, 990 P.2d 1277 (conferring standing under the
doctrine of great public importance and citing cases when the doctrine has been
invoked to address separation of powers concerns).

15
Legislature’s duty to balance competing policy interests: pollution limitation and	1
natural resource development for the maximum benefit of all New Mexicans. See id.	2
If the PCC does create or recognize an individual right to adequate pollution control,	3
Plaintiffs could, at a minimum, use the DJA to compel the judiciary to recognize and	4
enforce it. See § 44-6-2 (“In cases of actual controversy, district courts within their	5
respective jurisdictions shall have power to declare rights . . . whether or not further	6
relief is or could be claimed.”).5 Thus, whether the PCC creates an individual right	7
to an adequate, or even a certain, judicially determined amount of pollution control	8
is central to whether Plaintiffs have presented a viable cause of action.	9
{20} Second, Defendants assert that, partly because there is no individual right to	10
adequate pollution-limiting legislation, the judiciary cannot resolve Plaintiffs’ claim	11
without exercising authority expressly reserved to the Legislature by the PCC. See	12
N.M. Const. art. XX, § 21 (stating that the “the [L]egislature shall” control	13
pollution). On this point, Defendants rely on separation of powers principles to posit	14
that addressing Plaintiffs’ claims “would usurp the Legislature’s policy-making and	15
financial powers [and] nullify administrative procedures and agency expertise.”	16
5Defendants also argue, for various reasons, that Plaintiffs’ complaint does
not present an actual controversy sufficient to maintain an action under the DJA.
Because we resolve this appeal on separate grounds, we do not address this
argument.

16
Lastly, Defendants assert that all of Plaintiffs’ claims present political questions the	1
judiciary cannot answer.6 We address each of these three arguments in turn.	2
A. The PCC Does Not Create a Judicially Enforceable Individual Right to	3
Any Measure of Pollution Control	4
{21} Much of Plaintiffs’ complaint—and, in turn, their arguments on appeal—rests	5
on the premise that the PCC recognizes a judicially enforceable right to adequate	6
pollution control legislation or, at least, supports an inferred “fundamental right to a	7
beautiful and healthful environment.” In their complaint, Plaintiffs analogize the	8
education clause of the state constitution, N.M. Const. art. XII, § 1, to the PCC and	9
assert the following: “[p]ursuant to the positive right created by the [PCC], the	10
Legislature must establish a sufficient statutory framework . . . to control pollution.”	11
On appeal, however, Plaintiffs rephrase this argument slightly, asserting that the	12
PCC, viewed in isolation, creates a binding duty on the Legislature and the other	13
Defendants to enact and enforce an adequate statutory scheme to limit pollution.	14
Plaintiffs now ask that we acknowledge this duty and permit Plaintiffs to hold	15
Defendants accountable to it. See State ex rel. Taylor, 1998-NMSC-015, ¶ 1 (stating	16
that it is “the function of the judiciary to measure the acts of the executive and the	17
6Defendants’ arguments regarding separation of powers principles and the
political question doctrine generally apply to all of Plaintiffs’ claims, including those
advanced under the Due Process and Equal Protection Clauses of the New Mexico
Constitution. See N.M. Const. art. II, § 18. We address these doctrines in this section
of our opinion due to their acute applicability to Plaintiffs’ claims under the PCC but
reference our analysis as necessary in our discussion of Plaintiffs’ other claims.

17
legislative branch solely by the yardstick of the constitution” (text only) (citation	1
omitted)).	2
{22} On appeal, Defendants challenge this premise. For instance, Executive	3
Defendants broadly state, “Because [the PCC] does not create an independently	4
enforceable right to pollution control,” Plaintiffs’ claim based upon the clause should	5
be dismissed. To reiterate, the PCC states:	6
The protection of the state’s beautiful and healthful environment is	7
hereby declared to be of fundamental importance to the public interest,	8
health, safety and the general welfare. The [L]egislature shall provide	9
for control of pollution and control of despoilment of the air, water and	10
other natural resources of this state, consistent with the use and	11
development of these resources for the maximum benefit of the people.	12
N.M. Const. art XX, § 21. Whether this provision supplies an individual right to	13
adequate pollution control legislation, or may serve as the basis for a “fundamental	14
right to a beautiful and healthful environment” as Plaintiffs suggest, is determined,	15
if possible, by the plain meaning of the PCC’s language. See Hem v. Toyota Motor	16
Corp., 2015-NMSC-024, ¶ 10, 353 P.3d 1219 (“Just as if we were interpreting a	17
statute, to determine the meaning of a constitutional provision, we begin with the	18
language used in the provision and the plain meaning of that language.” (internal	19
quotation marks and citation omitted)).	20
{23} By its plain text, the PCC contains no enforceable right, guaranteed to any	21
individual or group, to be free from a given amount of pollution. Nor can it be	22
inferred to create an enforceable right to a beautiful and healthful environment. In	23

18
contrast to other constitutional provisions that have been deemed to create	1
enforceable rights, the first sentence of the PCC contains a broad statement	2
acknowledging the importance of a healthy environment to the general public: a	3
“beautiful and healthful environment is hereby declared to be of fundamental	4
importance to the public interest, health, safety and the general welfare.” Compare	5
N.M. Const. art. XX, § 21 (emphasis added), with Van Soelen, 2023-NMSC-027,	6
¶ 24 (concluding that the freedom of elections clause of the constitution, N.M. Const.	7
art. II, § 8, “[b]y its plain language . . . implicitly asserts the importance of the free	8
exercise of the right of suffrage” (internal quotation marks and citation omitted)).	9
The language in the first sentence of the PCC parallels that used to set out the	10
constitutional powers of the Legislature. See N.M. Const. art. IV, § 1 (vesting	11
legislative power and exempting laws designed for the “preservation of the public	12
peace, health or safety” from public annulment by petition). Thus, the first sentence	13
on its own is more aptly viewed as a declaration that a beautiful and healthful	14
environment is in the public interest and, therefore, that pollution is within the power	15
of the Legislature to regulate.	16
{24} Plaintiffs contend that the PCC stands for more than a mere declaration of	17
legislative power to pass environmental laws because the Legislature already had	18
such authority under its inherent police powers before the clause was added to the	19
constitution. Cf. §§ 74-2-1 to -17 (comprising the NMAQCA, which was enacted in	20

19
1967, before the PCC was enacted in 1971). Plaintiffs assert that the language of the	1
PCC makes clear that “it is more than a grant of authority—it is a mandate to act to	2
. . . control pollution.” We agree. See Sanders-Reed v. Martinez, 2015-NMCA-063,	3
¶ 16, 350 P.3d 1221 (“Article XX, Section 21 of [the New Mexico C]onstitution	4
recognizes the duty to protect the atmosphere and other natural resources, and it	5
delegates the implementation of that specific duty to the Legislature.”). However,	6
such alone does not resolve our inquiry because a legislative duty to control pollution	7
does not guarantee any specific amount of pollution control to any individual or	8
group. We, therefore, shift our analysis to the second sentence of the PCC.	9
{25} As Defendants point out, the Legislature’s duty to control pollution is neither	10
absolute nor does it exist in isolation. Rather, the Legislature is directed to both	11
“provide for” pollution control and do it in a manner “consistent with the use and	12
development of [natural] resources for the maximum benefit of the people.” N.M.	13
Const. art. XX, § 21. The operative term, “consistent,” is generally defined as	14
“marked by harmony” and “free from variation or contradiction.”7 Thus, the plain	15
meaning of the provision requires that legislation designed to limit pollution only do	16
so to the extent that it does not contradict the development and use of natural	17
resources for the stated maximum benefit of all New Mexicans. Id. Said differently,	18
7 See Consistent, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/consistent?src=search-dict-hed (last visited Mar. 8, 2025).

20
the Legislature’s duty is one of balancing competing interests, neither of which will	1
attain all that its advocates wish.	2
{26} As to the manner the Legislature must undertake to fulfill its duties required	3
by the PCC, we cannot ignore that the term “maximum benefit” is in the portion of	4
the clause regarding “the use and development” of natural resources, and not the	5
phrase regarding pollution control. The provision does not read, as it easily could,	6
“The [L]egislature shall provide for control of pollution and control of despoilment	7
of the air, water and other natural resources of this state for the maximum benefit of	8
the people, consistent with the use and development of these resources.” Such	9
phrasing would indicate, if nothing else, a stronger emphasis on the pollution control	10
portion of the provision than the resource development portion. However, such is	11
not the wording of the constitutional provision before us. Despite Plaintiffs’	12
suggestions to the contrary, the PCC also lacks any language that we may infer to	13
create a standard against which the maximum amount of allowable pollution could	14
be measured. Contra N.M. Const. art. XII, § 1 (stating that the state’s public schools’	15
system must be “sufficient” for education).	16
{27} Throughout this case, Plaintiffs heavily rely on two cases to impliedly assert	17
that they have an individual enforceable right to a certain amount of pollution	18
control. First, they point to a district court case in which the district court determined	19
that the “education system in New Mexico violates the New Mexico Constitution,	20

21
art. XII, § 1.” See Decision & Order at 59, Yazzie v. New Mexico, No. D-101-CV-	1
2014-02224 (1st Jud. Dist. Ct. July 20, 2018). However, Yazzie was not appealed	2
and is not binding precedent. Moreover, assuming the district court’s conclusion in	3
that case to have been correct, the constitutional provision then at issue tasked the	4
Legislature with no balancing of interests, but rather commanded that the public	5
education system be “sufficient” to serve identified purposes. See N.M. Const. art.	6
XII, § 1 (“A uniform system of free public schools sufficient for the education of,	7
and open to, all the children of school age in the state shall be established and	8
maintained.”). As we stated above, the PCC contains no “sufficiency” language	9
regarding pollution control and requires legislative balancing of competing interests.	10
See N.M. Const. art. XX, § 21.	11
{28} Plaintiffs similarly direct us to Van Soelen, in which our Supreme Court	12
concluded that a partisan gerrymander would violate New Mexicans’ constitutional	13
rights. See 2023-NMSC-027, ¶¶ 22-23, 26, 34, 67. As in Yazzie, the constitutional	14
right at issue in Van Soelen, the right to vote in free and fair elections, is categorically	15
different than the duty imposed on the Legislature by the PCC. See 2023-NMSC-	16
027, ¶ 22 (“The right to vote is the essence of our country’s democracy, and therefore	17
the dilution of that right strikes at the heart of representative government.”	18
(alteration, internal quotation marks, and citation omitted)); see also N.M. Const.	19
art. II, § 8 (“All elections shall be free and open, and no power, civil or military,	20

22
shall at any time interfere to prevent the free exercise of the right of suffrage.”).	1
Thus, the reasoning in both Yazzie and Van Soelen in regard to the existence of an	2
individual constitutional right is not applicable.	3
{29} Because the PCC imposes only a duty on the Legislature to “provide for”	4
pollution control “consistent with” resource use and development, and does not	5
contain rights-creating language nor a standard by which we may measure pollution	6
limitation, we conclude that it does not create an individual right the judiciary may	7
enforce or protect. Having so concluded, and before we consider Plaintiffs’ due	8
process, inherent rights, and equal protection claims, we turn to whether the	9
judiciary—despite the absence of an individual constitutional right to a “beautiful	10
and healthful” environment or a specific amount of pollution-limiting legislation—	11
otherwise has the power to consider Plaintiffs’ allegations that Defendants have not	12
fulfilled their constitutional duty to adequately control pollution.	13
B. Judicial Resolution of Plaintiffs’ Claim Under the PCC Violates	14
Separation of Powers	15
{30} Defendants’ principal argument in this case is that judicial review of	16
Plaintiffs’ claims, even those advanced under our state’s Bill of Rights, violates	17
constitutional separation of powers. In general terms, Defendants assert that	18
pollution regulation and control requires policy considerations that “balance	19
competing social, political and economic interests” existing at the core of legislative	20
power. Defendants extend this argument to Plaintiffs’ due process and equal	21

23
protection claims and point to the PCC as evidence that the authority to regulate	1
pollution is constitutionally assigned to the exclusive authority of the Legislature.	2
See N.M. Const. art. XX, § 21. Defendants argue that even a declaration that	3
Defendants have violated due process, inherent, or equal protection rights is afield	4
of the judiciary’s authority and would not redress Plaintiffs’ harms because any such	5
declaration would merely amount to “a reaffirmation of the Legislature’s	6
constitutional role to balance pollution controls consistent with the use and	7
development of natural resources for all New Mexicans.” See id.	8
{31} While Defendants’ separation of powers arguments span the gamut of	9
Plaintiffs’ claims, we address them here as a component of Plaintiffs’ PCC claim	10
because, in our view, it is the PCC that places Plaintiffs’ claims beyond the reach of	11
the judiciary. The PCC reserves to the Legislature policy decisions regarding	12
pollution control, including balancing pollution-limiting legislation with the	13
economic benefits obtained from oil and gas development, determining the	14
maximum allowable amounts of pollution in the environment, and creating and	15
funding enforcement agencies. In turn, the Legislature has delegated to Executive	16
Defendants the regulatory and enforcement aspects of pollution control. To afford	17
the relief sought by Plaintiffs in this case would both unconstitutionally infringe	18
upon past legislative action and impermissibly encroach on future legislative power,	19
as well as nullify Executive Defendants’ ability to act under their statutory authority.	20

24
1. Pollution Control Policymaking Is Within the Exclusive Power of the	1
Legislature	2
{32} The test for infringement on our constitutional separation of powers is whether	3
the actions of one governmental branch “disrupts the proper balance” between the	4
branches. See State ex rel. Taylor, 1998-NMSC-015, ¶ 24 (internal quotation marks	5
and citation omitted). Here, Plaintiffs do not challenge the constitutionality of a	6
single statute or specific government conduct. Rather, they assert that numerous	7
legislative enactments and executive actions and inactions, operating collectively,	8
are constitutionally inadequate.	9
{33} Plaintiffs’ complaint states, “Defendants are violating the [PCC] by	10
permitting oil and gas production . . . without adequately controlling pollution.”	11
However, as we explained above, the word “adequate,” or any word like it, is not in	12
the PCC. See N.M. Const. art. XX, § 21. If it were, judicial review could perhaps	13
find some foothold by which we could measure the sufficiency of the Legislature’s	14
pollution control policies. Even if the provision contained a standard, however, the	15
PCC imposes not just a duty to “provide for” pollution control, but requires that “the	16
[L]egislature . . . shall” balance that duty against other competing interests. See id.	17
At its core, Plaintiffs’ complaint asks that we reweigh these interests and, separate	18
and apart from the Legislature, determine that it has failed to balance these interests	19
in accordance with a judicially created standard. See id. Such is beyond the	20
judiciary’s authority to do. See Cline, 2006-NMSC-033, ¶ 8 (“It is the particular	21

25
domain of the [L]egislature, as the voice of the people, to make public policy.”	1
(alteration, internal quotation marks, and citation omitted)).	2
{34} Importantly, Plaintiffs do not allege that Defendants have done nothing to	3
control pollution caused by oil and natural gas production. Indeed, Defendants have	4
so acted. See § 70-2-12(B)(15) (empowering the oil conservation division (OCD) of	5
EMNRD to “regulate the disposition, handling, transport, storage, recycling,	6
treatment and disposal of produced water during, or for reuse in, the exploration,	7
drilling, production, treatment or refinement of oil or gas . . . in a manner that	8
protects public health, the environment and fresh water resources”); § 70-2-	9
12(B)(18) (empowering the OCD to “spend the oil and gas reclamation fund and do	10
all acts necessary and proper to plug dry and abandoned oil and gas wells”); § 70-2-	11
12(B)(21), (22) (enabling the OCD to “regulate the disposition of nondomestic	12
wastes resulting from the exploration, development, production or storage of crude	13
oil or natural gas” or “resulting from the oil field service industry”).	14
{35} Although the OCD’s power under these statutes is discretionary, see § 70-2-	15
12(B) (stating the OCD “may” make such rules), it has exercised its authority to	16
create rules controlling pollution. See 19.15.2.8(B) NMAC (requiring that virtually	17
all operations “related to the drilling, equipping, operating, producing, plugging and	18
abandonment of oil, gas, injection, disposal and storage wells or other facilities” be	19
conducted “in a manner that prevents . . . the contamination of fresh waters”);	20

26
19.15.27.6 NMAC (expressing, in part, that the objective in regulating “the venting	1
and flaring of natural gas from wells and production equipment and facilities” is to	2
“protect correlative rights, public health, and the environment”); 19.15.27.8 NMAC	3
(prohibiting or otherwise controlling venting or flaring of natural gas and requiring	4
that such practices conform to state and federal law); 19.15.27.9 NMAC (requiring,	5
in part, certifying compliance with gas capture requirements).	6
{36} The Legislature has also required the Water Quality Control Commission	7
(WQCC) to adopt regulations “to prevent or abate water pollution in the state or in	8
any specific geographic area, aquifer or watershed of the state or in any part thereof,	9
or for any class of waters.” Section 74-6-4(E). We note that Plaintiffs have	10
specifically alleged in their complaint that the enactment that created the WQCC,	11
the WQA, Section 74-6-1, expressly exempts activities “subject to the authority of	12
the [OCC].” See § 74-6-12(G). This exemption, though, is another concrete example	13
of the balance the Legislature has performed—providing for control of water	14
pollution consistent with the development and use of oil and gas resources. Absent	15
a specific controversy regarding application of some rule of law or an allegation that	16
an individual right has been violated, the judiciary cannot reweigh the Legislature’s	17
decisions balancing competing public policy decisions.	18
{37} The above statutes and regulations are not an exhaustive list of all the policies	19
Defendants have created aimed at curbing pollution. As stated, we make no comment	20

27
on their adequacy or efficacy. Rather, such provisions indicate that the Legislature	1
has complied with its constitutional duty to balance pollution control policies with	2
resource development that maximally benefits the people of New Mexico. As	3
evidence of this balancing, the Legislature points to the numerous ways revenue	4
obtained from oil and gas production provides “crucial support” for “fundamental	5
operations of [the] state.” The Land Grant Permanent Fund, for example, uses	6
proceeds from oil and gas leases to fund public education around the state. See	7
Ferguson Act of 1898, ch. 489, § 1, 30 Stat. 484; Enabling Act for New Mexico, ch.	8
310, §§ 1, 6-9, 36 Stat. 557 (1910); N.M. Const. art. XXIV, § 1; N.M. Const. art.	9
XII, § 12. The Legislature further points to the Severance Tax Permanent Fund and	10
numerous tax laws that obtain funds critical to the various operations of the state.	11
See N.M. Const. art. VIII, § 10; NMSA 1978, § 7-26-3 (1977) (imposing an excise	12
tax for severance of the state’s natural resources); see also, e.g., NMSA 1978, § 7-	13
25-2 (1966) (“The purpose of the Resources Excise Tax Act is to provide revenue	14
for public purposes by levying a tax on the privilege of severing and processing	15
natural resources within New Mexico.”).	16
{38} In our review of whether Plaintiffs have stated legally sufficient claims, our	17
inquiry is limited by separation of powers and asks only whether the Legislature has	18
complied with its constitutional duty to balance pollution control with resource	19
development. As we have said, reweighing these interests and supplanting the	20

28
Legislature’s policy choices with judicial determinations exceeds the judiciary’s	1
constitutional authority.	2
2. Granting Plaintiffs Relief Would Preempt and Nullify Existing Statutory	3
and Regulatory Remedies Afforded by the Executive Branch	4
{39} Plaintiffs’ claims are also nonjusticiable as to the Executive Defendants,	5
because the redress Plaintiffs seek would obviate existing statutory and regulatory	6
processes and require technical expertise that is found in Executive Defendants and	7
that is beyond the practical capabilities of the judiciary. Our Supreme Court has	8
cautioned	9
against using a declaratory judgment action to challenge or review	10
administrative actions if such an approach would foreclose any	11
necessary fact-finding by the administrative entity, discourage reliance	12
on any special expertise that may exist at the administrative level,	13
disregard an exclusive statutory scheme for the review of	14
administrative decisions, or circumvent procedural or substantive	15
limitations that would otherwise limit review through means other than	16
a declaratory judgment action.	17
Shoobridge, 2010-NMSC-049, ¶ 10 (internal quotation marks and citation omitted).	18
Generally, courts can properly consider a declaratory judgment action before	19
exhaustion of established administrative remedies if the “matter at issue (1) is purely	20
legal, (2) requires no specialized agency fact-finding, and (3) there is no exclusive	21
statutory remedy.” Id. ¶ 12. These limitations on the use of declaratory judgment	22
actions “respect the role of each branch of government in the constitutional scheme	23
and the administrative processes put in place by the Legislature.” Id. ¶ 14.	24

29
{40} Here, Plaintiffs chose not to challenge any executive administrative action	1
related to the claims they now advance and, thus, are not attempting to circumvent	2
an ongoing proceeding. Instead, they opted to proceed straight to the judiciary,	3
rendering particularly relevant the principles discussed in Shoobridge that caution	4
against judicial review of highly technical matters for which administrative agencies,	5
such as some of the Executive Defendants in this case, have been statutorily created	6
to address. See id. ¶ 10 (discussing our Supreme Court’s admonition “against using	7
judicial action to circumvent the requirements of administrative proceedings	8
authorized by the Legislature” out of deference “to the legislative process that	9
creates an agency and empowers it to adopt rules or regulations to carry out its	10
powers”). Judicial intervention of the type Plaintiffs seek—a declaration that the	11
laws and regulations at issue are all collectively inadequate along with a command	12
for something different and ongoing judicial review of what that is—before	13
Plaintiffs avail themselves of existing administrative remedies, would nullify such	14
remedies before they are used. Cf. id. ¶ 14 (“Courts should not intervene to halt	15
administrative hearings before rules or regulations are adopted.”).	16
{41} Moreover, Plaintiffs’ complaint fails to satisfy each of the three prongs	17
mentioned in Shoobridge justifying declaratory relief. See id. ¶ 12. First, Plaintiffs’	18
claims are not purely legal. For Plaintiffs to ultimately succeed in their case, the	19
judiciary must engage in a sweeping factual inquiry involving the levels of pollutants	20

30
in the environment, their sources, and most importantly to our separation of powers	1
concerns today, comparison of such pollution levels to any benefit they provide,	2
however quantified.	3
{42} Second, Plaintiffs’ claims also require technical expertise in order to	4
determine how Defendants might more effectively protect the environment, whether	5
such is economically and practically feasible, and if related costs benefit all New	6
Mexicans, as required by the PCC. See N.M. Const. art. XX, § 21. Judicial inquiry	7
into Plaintiffs’ allegations requires precisely the expertise the Legislature has created	8
in Executive Defendants and employed in their respective internal proceedings. See	9
Shoobridge, 2010-NMSC-049, ¶ 10 (stating that courts should “defer[] to the	10
legislative process that creates an agency and empowers it to adopt rules or	11
regulations to carry out its powers”). The factual inquiry we discussed above reveals	12
the necessity of specialized agency fact-finding the judiciary does not possess.	13
{43} Third, Defendants have created exclusive statutory and regulatory remedies	14
to improve pollution control. The statutes and regulations we discussed above are	15
concrete examples of this. See, e.g., § 70-2-12(B)(15, 21, 22); 19.15.4.11(C) NMAC	16
(allowing intervention in cases before the OCC if such participation “will contribute	17
substantially to the prevention of waste, protection of correlative rights or protection	18
of public health or the environment”). Judicial intervention before the established	19
process is used would prematurely obviate and nullify established statutory and	20

31
regulatory remedies. See Shoobridge, 2010-NMSC-049, ¶ 14 (“Because of the	1
necessity to respect the separate branches of government, courts should not intervene	2
to halt administrative hearings before rules or regulations are adopted. To do so	3
could deprive the public of the opportunity to propose rules or regulations and	4
otherwise participate in the rule-making process.”). At the very least, “the	5
administrative agency should be given the opportunity to correct any errors that have	6
been brought to its attention during the course of such proceedings.” Id.	7
{44} For the above reasons, we conclude that Plaintiffs’ claims related to the breach	8
of constitutional duty arising under the PCC and the relief they seek are beyond the	9
lawful scope of the judiciary’s authority. See id. ¶ 9 (“The New Mexico Constitution	10
establishes the legislative branch as the entity to represent the collective will of the	11
populace for purposes of creating laws to effectuate the public policy of the [s]tate.”	12
(internal quotation marks and citation omitted)). Plaintiffs challenge a vast	13
interwoven network of statutes and regulations rather than advancing a claim that a	14
particular statute or rule is unlawful or constitutes a dereliction of some specific duty	15
that is required to be performed to a particular standard. To resolve these abstract	16
claims would require the judiciary to conduct anew the deliberative legislative	17
process that resulted in the laws and regulations currently in place and find that they	18
fall below a standard we alone would create. This we cannot do. See Van Soelen,	19
2023-NMSC-027, ¶ 37 (“It is only when a legislative body adopts internal	20

32
procedures that ignore constitutional restraints or violate fundamental rights that a	1
court can and must become involved.” (text only) (citation omitted)).	2
C. The Political Question Doctrine Cautions Against Judicial Review	3
{45} In concert with the above, we briefly address the political question doctrine,	4
recognizing it is merely persuasive under New Mexico law, but which, as	5
Defendants point out, urges dismissal of Plaintiffs’ complaint. See generally Baker	6
v. Carr, 369 U.S. 186, 208-37 (1962) (explaining the political question doctrine).	7
{46} The political question doctrine initially arose in federal courts as a component	8
of their jurisdictional limits under Article III, Section 2 of the United States	9
Constitution. See Baker, 369 U.S. at 198-99. New Mexico courts, being courts of	10
general jurisdiction and not subject to such federal limitations, are not strictly bound	11
by the jurisdictional limits imposed by the political question doctrine. See Van	12
Soelen, 2023-NMSC-027, ¶ 48 (stating that the political question doctrine, and its	13
limits in federal court, are “nonbinding” on state courts). Nonetheless, the doctrine	14
is relevant, if only persuasively, to prudential concerns “about the proper—and	15
properly limited—role of courts in a democratic society.” Id. (internal quotation	16
marks and citation omitted); see Baker, 369 U.S. at 210 (“The nonjusticiability of a	17
political question is primarily a function of the separation of powers.”).	18
{47} The political question doctrine represents inherent limits on the judiciary’s	19
authority—or practical capability—to decide certain types of controversies for	20

33
which judicial resolution is inappropriate under a tripartite system of government	1
based on principles of representative democracy. Baker, 369 U.S. at 210-11. The	2
United States Supreme Court has identified six such circumstances, any one of	3
which presents a nonjusticiable political question:	4
[(1)] a textually demonstrable constitutional commitment of the issue	5
to a coordinate political department; [(2)] a lack of judicially	6
discoverable and manageable standards for resolving it; [(3)] the	7
impossibility of deciding without an initial policy determination of a	8
kind clearly for nonjudicial discretion; [(4)] the impossibility of a	9
court’s undertaking independent resolution without expressing lack of	10
the respect due coordinate branches of government; [(5)] an unusual	11
need for unquestioning adherence to a political decision already made;	12
[(6)] or the potentiality of embarrassment from multifarious	13
pronouncements by various departments on one question.	14
Id. at 217; see also id. (stating if “one of these formulations is inextricable from the	15
case” the matter becomes nonjusticiable).	16
{48} Here, all six circumstances are presented by Plaintiffs’ complaint. First, as we	17
discussed above, the PCC expressly commits pollution control and resource	18
development to the Legislature. N.M. Const. art. XX, § 21. Second, the PCC	19
contains no standard by which we may measure Defendants’ environmental	20
protection policies. See id. Any resolution of Plaintiffs’ claims necessarily requires	21
judicial invention of some standard of maximum allowable pollutants in the	22
environment. Plaintiffs offer this Court no meaningful explanation of how this could	23
be accomplished. Plaintiffs base their allegations that Defendants have failed to	24
adequately protect the environment, in large part, on their own individualized harms.	25

34
However, Plaintiffs do not explain how the judiciary could create a standard for	1
adequate pollution control laws that protects every individual in every circumstance	2
and geographic location in the state. See Morris v. Brandenburg, 2016-NMSC-027,	3
¶ 34, 376 P.3d 836 (“[I]f it is a right, it must be made available to everyone.”).	4
{49} Third, as indicated by the previous two circumstances, as well as our	5
preceding discussion, the judiciary cannot resolve Plaintiffs’ claims without making	6
a policy determination that Defendants have failed to properly balance pollution	7
controls with resource development. Without cognizable standards the judiciary may	8
use to make such a determination, any conclusion we could offer would simply	9
amount to a judicial declaration that our weighing of competing interests is superior	10
to that of the Legislature’s.	11
{50} Finally, the fourth, fifth, and sixth circumstances presenting a political	12
question are presented by Plaintiffs’ complaint. Each of these relates to the need for	13
the judiciary to respect policy decisions made by “coordinate branches of	14
government,” adhere to political decisions “already made,” and avoid	15
“embarrassment” by making numerous, and possibly conflicting, pronouncements	16
on the same questions presented to other branches. Baker, 369 U.S. at 217. Plaintiffs’	17
complaint asks not only that we reconsider the policy decisions already made by	18
Defendants, but that, in so doing, we undermine the expertise of established	19
administrative bodies and supplant decisions they are statutorily created to make.	20

35
Indeed, absent specific controversies regarding particular agency decisions or	1
regulations, and developed argument by litigants, the judiciary risks running afoul	2
of previous, unappealed administrative rulings relating to the balance of interests	3
articulated in the PCC.	4
{51} Therefore, the political question doctrine persuasively supports judicial	5
restraint in this instance. As indicated by both our analysis of separation of powers	6
and the political question doctrine, Plaintiffs’ PCC-based claim cannot be resolved	7
by the courts without unconstitutionally intruding upon the powers of Defendants.	8
See Shoobridge, 2010-NMSC-049, ¶ 9 (“The New Mexico Constitution establishes	9
the legislative branch as the entity to represent the collective will of the populace for	10
purposes of creating laws to effectuate the public policy of the [s]tate.” (internal	11
quotation marks and citation omitted)). Having so concluded, we turn now to	12
Plaintiffs’ due process and equal protection claims.	13
II. Due Process	14
{52} While we conclude that the PCC neither creates nor recognizes an enforceable	15
right to a certain amount of pollution control, such does not resolve Plaintiffs’ due	16
process claim, which rests on the assertion that the New Mexico Constitution,	17
through its PCC and Inherent Rights and Due Process Clauses, implies a	18
“fundamental right to a beautiful and healthful environment.” See N.M. Const. art.	19
XX, § 21; see also N.M. Const. art. II, § 4 (“All persons are born equally free, and	20

36
have certain natural, inherent and inalienable rights, among which are the rights of	1
enjoying and defending life and liberty, of acquiring, possessing and protecting	2
property, and of seeking and obtaining safety and happiness.”); N.M. Const. art. II,	3
§ 18 (“No person shall be deprived of life, liberty or property without due process	4
of law.”). Plaintiffs allege that Defendants’ authorization and management of oil and	5
gas extraction and the resulting pollution violate this fundamental right as well as	6
Plaintiffs’ rights to life, liberty, property, safety, and happiness as recognized in the	7
Due Process and Inherent Rights Clauses. Plaintiffs extend this argument to	8
reincorporate their assertion that Defendants are obligated to enact a “sufficient	9
statutory, regulatory and enforcement scheme that controls pollution.” Thus, despite	10
our conclusion regarding the PCC and the lack of an associated individual right, we	11
must determine if the Due Process Clause may serve as a separate vehicle for	12
Plaintiffs’ allegations.8 We conclude that it cannot.	13
{53} The due process protections under Article II, Section 18 of the New Mexico	14
Constitution include substantive components, which protect against “a statute or	15
government action [that] shocks the conscience or interferes with rights implicit in	16
8We note that our above-stated concerns regarding separation of powers also
shape the confines of our analysis of Plaintiffs’ due process claim. Nonetheless, the
DJA specifically grants courts the “power to declare rights . . . whether or not further
relief is or could be claimed.” Section 44-6-2. Thus, while separation of powers
continues to limit our review of Plaintiffs’ claims, we must determine whether
Plaintiffs have sufficiently pleaded a violation of their due process rights such that
declaratory relief to that effect could be granted.

37
the concept of ordered liberty.” Bounds v. State ex rel. D’Antonio, 2013-NMSC-037,	1
¶ 50, 306 P.3d 457 (internal quotation marks and citation omitted). The rights	2
“implicit in the concept of ordered liberty” are those deemed to be “fundamental	3
rights.” Am. Civ. Liberties Union of N.M. v. City of Albuquerque, 2006-NMCA-078,	4
¶ 16, 139 N.M. 761, 137 P.3d 1215 (internal quotation marks and citation omitted).	5
“The threshold question in evaluating a due process challenge is whether there is a	6
deprivation of liberty or property.” Bounds, 2013-NMSC-037, ¶ 51 (alteration,	7
internal quotation marks, and citation omitted). Generally, to determine whether	8
Plaintiffs were deprived of an individual right, fundamental or otherwise, or other	9
liberty or property interest, we first look to federal precedent construing an	10
analogous provision in the United States Constitution. See Morris, 2016-NMSC-	11
027, ¶¶ 18-19 (applying the “interstitial approach”).	12
{54} Here, “[o]ur state constitution’s due process guarantees are analogous to the	13
due process guarantees provided under the United States Constitution.” Id. ¶ 18.	14
However, Plaintiffs do not point us to, nor has our research revealed, federal	15
precedent recognizing a due process right to adequate pollution control policies or a	16
beautiful and healthful environment. Indeed, Plaintiffs’ due process claims are	17
largely based on the presence of the PCC and the Inherent Rights Clause of the New	18
Mexico Constitution, which have no federal analog. See N.M. Const. art. XX, § 21;	19
N.M. Const. art. II, § 4. Thus, federal case law construing the United States	20

38
Constitution’s Due Process Clause is not applicable, and we must consider whether	1
New Mexico’s distinctive characteristics—either in law or through its history and	2
tradition—imply or recognize an individual right to adequate environmental	3
protection or a beautiful and healthful environment, as Plaintiffs suggest.	4
{55} Beginning with the PCC, we reiterate that it does not recognize any	5
enforceable rights, but instead requires the Legislature to balance competing policy	6
interests. See N.M. Const. art. XX, § 21. Indeed, one of those interests, the use and	7
development of the state’s natural resources, impliedly permits pollution. See id.	8
Thus, the PCC cannot be interpreted on its own to support an inferred due process	9
right to a “beautiful and healthful environment.” See id. Plaintiffs next point to the	10
Inherent Rights Clause, N.M. Const. art. II, § 4, arguing that it is a distinctive	11
characteristic of the New Mexico Constitution that supports a fundamental right to	12
a “beautiful and healthful environment” that can be enforced through the Due	13
Process Clause. Plaintiffs acknowledge, however, that the Inherent Rights Clause	14
has not been interpreted “to be a fountain for as-yet-undiscovered rights.” Morris v.	15
Brandenburg, 2015-NMCA-100, ¶ 59, 356 P.3d 564 (Hanisee, J., concurring in	16
part), aff’d, 2016-NMSC-027; see also Morris, 2016-NMSC-027, ¶ 51 (“[T]he	17
Inherent Rights Clause has never been interpreted to be the exclusive source for a	18
fundamental or important constitutional right, and on its own has always been	19
subject to reasonable regulation.”). Thus, Plaintiffs provide us with no legal	20

39
authority supporting their claim that the New Mexico Constitution provides or	1
recognizes a right supporting their claims, fundamental or otherwise.	2
{56} Plaintiffs assert that, aside from unique constitutional provisions, “the right to	3
a beautiful and healthful environment is grounded in the law, history and tradition	4
of our state.” However, by Plaintiffs’ own allegations, New Mexico has a long	5
history of balancing natural resource development with environmental protection.	6
The PCC and the Land Grant Permanent Fund are textual evidence of this history.	7
See N.M. Const. art. XX, § 21; N.M. Const. art. XII, §§ 2, 7 (investing revenue from	8
lease of public lands into the state’s public schools). While Plaintiffs correctly	9
observe that, as the “Land of Enchantment,” the state’s beauty is central to our	10
identity, we cannot ignore the long history of permitting oil and gas extraction within	11
our borders. If anything, the law, history, and tradition of our state demonstrates that	12
resource extraction must be considered alongside, and must coexist with, pollution	13
control legislation.	14
{57} As such, the New Mexico Constitution does not recognize, through either the	15
Due Process or Inherent Rights Clauses or the PCC, an individual right that supports	16
Plaintiffs’ complaint.9 Absent such a right or liberty or property interest, Plaintiffs’	17
9We note that Plaintiffs also allege a due process violation on the basis that
Defendants’ actions constitute “deliberate indifference to [Plaintiffs’] li[ves],
liberty, property, safety or happiness.” On appeal, Plaintiffs draw the “deliberate
indifference” standard from a case considering inadequate medical treatment of
incarcerated inmates, see Lessen v. City of Albuquerque, 2008-NMCA-085, ¶ 30,

40
due process claim must necessarily fail and we need not subject the laws and	1
regulations they challenge to any level of scrutiny. See Bounds, 2013-NMSC-037,	2
¶¶ 50-54 (stating, “In order to prevail on a substantive due process claim, the plaintiff	3
must establish that its property interests were injured by governmental action that	4
shocks the conscience,” and concluding that since the petitioners had “not been	5
deprived of anything,” their “due process challenge must fail” (internal quotation	6
marks and citation omitted)); see also Nash v. Bd. of Cnty. Comm’rs of Catron Cnty.,	7
2021-NMSC-005, ¶ 36, 480 P.3d 842 (“Substantive due process cases inquire	8
whether a statute or government action shocks the conscience or interferes with	9
rights implicit in the concept of ordered liberty.” (internal quotation marks and	10
citation omitted)).	11
144 N.M. 314, 187 P.3d 179, and further argue that Defendants’ conduct “shocks
the conscience.” Plaintiffs have not shown the deliberate indifference standard is
applicable outside of the above context, which includes a showing that prison
officials acted with a “sufficiently culpable state of mind.” See Cordova v. LeMaster,
2004-NMSC-026, ¶ 30, 136 N.M. 217, 96 P.3d 778 (internal quotation marks and
citation omitted). We conclude that Plaintiffs have not established that the
“deliberate indifference” standard has any place in this context, and they have not
alleged sufficient facts to support it. Regarding Plaintiffs’ argument that Defendants’
actions shock the conscience, this allegation is not present in Plaintiffs’ complaint.
Moreover, “shocking the conscience” requires facts that demonstrate “truly
horrendous situations of governmental abuses.” Starko, Inc. v. Gallegos, 2006-
NMCA-085, ¶ 25, 140 N.M. 136, 140 P.3d 1085 (internal quotation marks and
citation omitted). Plaintiffs do not allege facts supporting this claim, and we
conclude this allegation to be unsupported by Plaintiffs’ complaint.

41
III. Equal Protection	1
{58} The final claims in Plaintiffs’ complaint allege that Defendants have violated	2
their state constitutional right to equal protection under law. See N.M. Const. art. II,	3
§ 18 (stating no person shall “be denied equal protection of the laws”). Plaintiffs	4
claim that Defendants’ failure to “adequately regulate oil and gas production and	5
pollution” has resulted in unconstitutionally disparate treatment of frontline	6
community members (people who live near oil and gas production cites), Indigenous	7
people, and New Mexico’s youth. On appeal, the Legislature and Executive	8
Defendants argue, in pertinent part, that Plaintiffs’ allegations fail to establish a valid	9
equal protection claim because they have not identified government-created classes	10
of persons subject to discriminatory treatment. In their answer brief, Plaintiffs	11
concede that they are not alleging Defendants have created or enforced any facially	12
discriminatory statute. Rather, Plaintiffs argue that Defendants’ failure to control	13
pollution has disproportionally affected them in comparison with other similarly	14
situated New Mexicans. We conclude Plaintiffs have not established a viable equal	15
protection claim.	16
{59} “Equal protection guarantees prohibit the government from creating statutory	17
classifications that are unreasonable, unrelated to a legitimate statutory purpose, or	18
are not based on real differences.” Breen v. Carlsbad Mun. Schs., 2005-NMSC-028,	19
¶ 7, 138 N.M. 331, 120 P.3d 413. “The threshold question in analyzing all equal	20

42
protection challenges is whether the legislation creates a class of similarly situated	1
individuals who are treated dissimilarly.” Id. ¶ 10. Only if a plaintiff is successful in	2
establishing unconstitutional governmental classification, either expressly or as	3
applied through conduct, do we then determine what level of scrutiny to apply to the	4
challenged government act and review the law thereunder. See id. ¶ 8 (“If [the	5
p]etitioners are successful in proving [dissimilar treatment due to legislative	6
classification], then a court must determine what level of scrutiny should be	7
applied.”); Wagner v. AGW Consultants, 2005-NMSC-016, ¶ 23, 137 N.M. 734, 114	8
P.3d 1050 (holding that because the statute challenged differentiated between two	9
classes of people as applied, the court had to then apply the appropriate level of	10
scrutiny).	11
{60} Here, Plaintiffs do not allege that any statute or conduct creates any	12
classification at all. Instead, Plaintiffs’ equal protection claims rest squarely on their	13
assertion that Defendants’ failure to “adequately regulate oil and gas extraction”	14
causes Plaintiffs to “suffer harsher, disproportionate and discriminatory levels of	15
contamination, environmental degradation and health risks as compared with other	16
New Mexicans.” While Plaintiffs do point to specific statutes exempting oil and gas	17
pollution from certain legislative enactments, see, e.g., § 74-4-3(K)(2)(a), these	18
statutes create neither expressly identified classes nor “as-applied” discrimination of	19
the type the Equal Protection Clause protects against. See Marrujo v. N.M. State	20

43
Highway Transp. Dep’t, 1994-NMSC-116, ¶ 9, 118 N.M. 753, 887 P.2d 747 (“Equal	1
protection . . . focuses on the validity of legislation that permits some individuals to	2
exercise a specific right while denying it to others.”); State v. Gwynne, 2018-NMCA-	3
033, ¶ 42, 417 P.3d 1157 (“A statute that does not create two separate classifications	4
subject to different treatment cannot be said to violate equal protection.” (internal	5
quotation marks and citation omitted)).	6
{61} Plaintiffs’ claims seek to cast the effects of pollution as de facto classifications	7
that result in discriminatory treatment. Nowhere in our jurisprudence have New	8
Mexico courts held that generally applicable, facially neutral statutes that result in	9
incidental harms based on the geographic location of individuals violate the Equal	10
Protection Clause of the New Mexico Constitution. Moreover, the geographic	11
proximity of Plaintiffs to places with elevated instances of oil and gas	12
development—and the related pollution—leads more appropriately to the	13
conclusion that Plaintiffs are not similarly situated to other New Mexicans, rather	14
than a determination that a government classification exists. See Breen, 2005-	15
NMSC-028, ¶ 7 (“Equal protection, both federal and state, guarantees that the	16
government will treat individuals similarly situated in an equal manner.” (emphasis	17
added)). We, therefore, conclude Plaintiffs have alleged no classification that results	18
in discriminatory treatment and have not presented an equal protection claim upon	19

44
which relief can be granted. As such, we need not apply any level of scrutiny to the	1
laws they challenge.	2
CONCLUSION	3
{62} For the reasons explained above, we reverse the order of the district court	4
denying Defendants’ motions to dismiss. We remand with instructions that the	5
district court is to dismiss Plaintiffs’ complaint.	6
{63} IT IS SO ORDERED.	7
_____________________________	8
J. MILES HANISEE, Judge	9
WE CONCUR:	10
____________________________________	11
JACQUELINE R. MEDINA, Chief Judge	12
KATHERINE A. WRAY, Judge (specially concurring)	13

45
WRAY, Judge (specially concurring).	1
{64} The Court’s opinion rejects the position that the PCC establishes an individual	2
or enforceable right under the New Mexico Constitution to a beautiful and healthful	3
environment. To this extent, I join completely in the analysis of the PCC’s language	4
and of the justiciability doctrines. The Court’s opinion, however, takes a step further	5
and limits the PCC’s language to the creation of a Legislative duty to balance	6
interests. I hesitate to foreclose the possibility that the PCC creates any right at all,	7
especially when a constitutional duty could be read to acknowledge a corresponding	8
constitutional right. Cf. Van Soelen, 2023-NMSC-027, ¶ 26 (declining to decide	9
whether certain constitutional provisions are “merely meant to express basic political	10
principles or are meant as a textual enumeration of certain substantive rights”	11
(omission, alteration, internal quotation marks, and citation omitted)). Regardless of	12
whether any right exists, the nature of Plaintiffs’ claims and the relief requested	13
would require the judiciary to second-guess the policy choices the Legislature has	14
made pursuant to its constitutional duty under the PCC, and as the Court’s opinion	15
explains, judicial review of those choices would be without legal standards or	16
guideposts. Short of examining the policy reasons supporting the Legislature’s	17
decisions, no further judicial inquiry is constitutionally justified. See id. ¶ 37.	18
Because the existence of no right is not essential to the justiciability holding, I would	19

46
limit the holding to reject only the right that Plaintiffs posit—the right to a beautiful	1
and healthful environment.	2
{65} This is because absence of any right does impact the remaining constitutional	3
analysis, because constitutional rights have power even if a cause of action does not	4
directly lie. The contours of the right to be protected are a vital part of any claim	5
brought by a party who alleges that the enforcement or lack of enforcement of a	6
statute or regulation has violated due process or equal protection principles. See	7
Morris, 2016-NMSC-027, ¶¶ 18, 19 (considering first for the purposes of due	8
process analysis “whether an asserted right is protected” under the federal or state	9
constitutions); see also Marrujo, 1994-NMSC-116, ¶ 9 (“Equal protection, on the	10
other hand, focuses on the validity of legislation that permits some individuals to	11
exercise a specific right while denying it to others.”). The analysis of Plaintiffs’ due	12
process claims in the Court’s opinion depends heavily on the view that the PCC	13
affords no individual, enforceable constitutional right. I disagree, because regardless	14
of whether no individual, enforceable right exists in the PCC—a question I think we	15
need not answer broadly—it does not necessarily follow that no constitutionally	16
protected right or interest exists to support a due process claim.	17
{66} The constitutional challenge must instead be put in the relevant constitutional	18
context, even though the outcome may be the same. In the absence of a fundamental	19
right, due process review is limited to whether Defendants have asserted a rational	20

47
basis for the entire statutory and regulatory system for pollution control in New	1
Mexico. See Morris, 2016-NMSC-027, ¶ 52. I agree that the PCC creates no	2
fundamental right to a beautiful or healthful environment. As the Court’s opinion	3
explained, the Legislature struck a balance between pollution control and the use and	4
development of natural resources, and the Executive Defendants have implemented	5
regulations and administer that balance. See Op. ¶¶ 34-37. Applying rational basis	6
review, Plaintiff has not “demonstrate[d] that the legislation is not supported by a	7
firm legal rationale or evidence in the record.” Morris, 2016-NMSC-027, ¶ 57.	8
{67} Similarly, Plaintiffs’ equal protection claim is not dependent entirely on the	9
existence of a fundamental right. Whether a court applies strict or a lesser form of	10
scrutiny depends on whether the plaintiff can establish either that the “violated	11
interest is a fundamental personal right or civil liberty” or that the governmental	12
action “focuses upon inherently suspect classifications.” Marrujo, 1994-NMSC-	13
116, ¶ 10. If the claim implicates only an “important—rather than fundamental—	14
individual interest” or a “sensitive—rather than suspect—classification,”	15
intermediate scrutiny is warranted. Id. ¶ 11. To “all other interests,” rational basis	16
scrutiny again applies. Id. ¶ 12 (internal quotation marks and citation omitted). As	17
noted, Plaintiffs have established no fundamental right and have otherwise not	18
argued for intermediate scrutiny. The question of suspect classifications therefore	19
becomes the key.	20

48
{68} Plaintiffs allege that Defendants’ conduct has had a disparate impact on	1
people who live near oil and gas sites, Indigenous peoples, and youth who feel the	2
effects of pollution disproportionately to other New Mexicans. The Court’s opinion	3
focuses on the neutral nature of the statutory and regulatory scheme and disposes of	4
Plaintiffs’ equal protection claim based on the lack of explicit classifications of	5
people. See Op. ¶¶ 58-61. The statutory and regulatory scheme, however, on its face	6
does create two classes of people: those who live near permitted oil and gas sites and	7
those who do not. Within the category of those who live near oil and gas sites,	8
Plaintiffs’ arguments identify groups of people who are disproportionately affected	9
and suggest that these are improper classifications based on race and intrinsic	10
characteristics. See Marrujo, 1994-NMSC-116, ¶ 10 (identifying as “suspect	11
classifications . . . race, national origin, religion, or status as a resident alien”). But	12
the facially neutral statutory and regulatory scheme, absent something more, cannot	13
be said to be responsible for the disproportionate impact of pollution on these	14
subgroups, which themselves are not created by the statutory or regulatory scheme.	15
Plaintiffs do not allege facts to support a conclusion that Defendants’ actions or	16
inactions have caused oil and gas sites to be located disproportionately near a	17
particular racial, cultural, or generational group. As a result, with no suspect or quasi-	18
suspect class implicated, rational basis review is again appropriate and the statutory	19
and regulatory scheme easily passes muster under that standard. See id. ¶ 12 (“The	20

49
rational basis standard of review is triggered by all other interests: those that are not	1
fundamental rights, suspect classifications, important individual interests, and	2
sensitive classifications.” (internal quotation marks omitted)).	3
{69} I therefore write separately, to express a more narrow view of the necessary	4
holding regarding the rights inherent in the PCC and an alternate view of Plaintiffs’	5
due process and equal protection claims. Otherwise, I join the Court’s opinion.	6
_____________________________	7
KATHERINE A. WRAY, Judge	8