New Mexico officials say PFAS court decision infringes on state’s rights
February 2, 2021
This week, the state of New Mexico is attempting a new legal tactic to force the military to clean up the PFAS, or per- and polyfluoroalkyl substances, that have polluted waters below two New Mexico communities.
In a writ of mandamus filed on Monday, New Mexico state officials attempt to bring the legal battle over PFAS home—and they’re challenging an earlier court decision that the state says took away its environmental policing powers.
After learning that activities at Cannon and Holloman Air Force bases had contaminated groundwater with high levels of the toxic chemicals – which have been linked to myriad health problems, including developmental and immune system problems, liver and kidney disease, and cancer – the state of New Mexico said the military violated its state hazardous waste permit.
But the military sued the state, challenging New Mexico’s regulatory authority. In turn, the state filed its own lawsuit, asking a federal judge to compel the U.S. Department of Defense (DOD) to act on, and fund, cleanup of the toxic plumes.
“There is nothing more frustrating than knowing that people in New Mexico communities are exposed to these chemicals and the entity that caused it is doing nothing to address it,” says New Mexico Environment Department Secretary James Kenney. “That frustration was compounded when our litigation – meant to compel the DOD to expeditiously address this public health threat – was lumped in with slow-moving multidistrict litigation across the country.”
In 2019, the state’s case against the military was moved to multidistrict litigation and a court in South Carolina. That one court is overseeing all cases regarding PFAS and the military’s use of the polluting firefighting foams—more than 750 separate actions.
New Mexico has already tried to extricate itself from the multidistrict litigation, hoping to pursue its case against the Air Force without being tied to those hundreds of other cases.
But last year, United States District Judge Mark Gergel denied New Mexico’s request, siding instead with the Air Force, the U.S. government, the Defense Coordination Committee, and the Plaintiffs’ Executive Committee. According to Gergel’s order, “resolution of the issues raised [by New Mexico] is premature and it could prejudice other cases involving the same issues.”
Now, New Mexico is asking the U.S. Court of Appeals for the Fourth District to overturn Gergel’s decision and remand the matter back to the District of New Mexico.
According to a press release from the state, Gergel’s action was an “unconstitutional violation of New Mexico’s sovereignty” that will delay the case and put public health and the environment at further risk.
In other words, by keeping the case tied up in South Carolina, the court is interfering with state sovereignty.
“Dislodging our suit from the multidistrict litigation will allow us to move swiftly in addressing these contaminants as the imminent and substantial public dangers they are,” Kenney says.
Military’s ‘shocking’ levels of PFAS
Currently, the U.S. Environmental Protection Agency’s lifetime health advisory for two of the types of PFAS found at the bases is 70 parts per trillion. In the waters below Cannon, PFAS levels were more than 370 times the EPA’s lifetime limit. And at Holloman, PFAS levels were more than 27,000 times the lifetime limit—or 1,294,000 parts per trillion.
The Pentagon is also supposed to be investigating whether PFAS have leaked from five other military installations in the state, including Fort Wingate, the Army National Guard armories in Rio Rancho and Roswell, the Army Aviation Support Facility in Santa Fe, and White Sands Missile Range. Last month, the U.S. Geological Survey and NMED also released a study showing PFAS levels in waters across New Mexico.
According to the writ of mandamus, the state brought its lawsuit against the military under the state’s Hazardous Waste Act and the federal Resource Conservation and Recovery Act, which delegates authority to states—and allows them to regulate hazardous waste. Under that federal law, “states issue permits to ensure compliance with EPA and state regulations.”
The state calls the levels of PFAS at Cannon and Holloman “dangerous” and “shocking.” The toxic chemicals have already migrated offsite to public and private wells that provide drinking water, irrigation water, and water for livestock, including at dairy farms. A delay in the lawsuit, according to the state, means that contamination won’t just remain—it will worsen.
Moreover, the state asserts that even though the military has acknowledged that the PFAS contamination is from its use of PFAS-containing firefighting foams, it has failed to act on cleanup, cooperate with the state, or comply with state and federal pollution laws. According to the state’s writ of mandamus, the military has also refused to share information “regarding the full nature and extent of this problem.”
“We are pursuing this petition because we strongly believe that coming from another sovereign government, the State's claims against the federal government are unique and should not be adjudicated as though they were simply another civil lawsuit,” according to an emailed comment from Matt Baca, chief counsel for the New Mexico Office of the Attorney General, which represents NMED in its case.
Kenney adds that the Biden administration has the chance to “change course” in how it treats communities suffering from PFAS contamination and says he’d welcome a phone call from Washington. But, he says, “Make no mistake: I will not back down, and I will not give up.”