Environmental group asks NM Supreme Court to pause Project Jupiter’s air quality permit hearing

The New Mexico Environment Department hearing officer overseeing the air quality permit application process for the Oracle and OpenAI data center planned for Doña Ana County initially scheduled a public hearing for October, even though attorneys for Project Jupiter developer Yucca Growth Infrastructure requested an earlier date.

Representatives for Oracle and Yucca Growth Infrastructure at a July scheduling meeting subsequently argued that an October hearing would leave NMED officials too little time to make their final decision by their Nov. 23 deadline.

At that same meeting, Shepherd said he would keep the October hearing date and examine options for extending NMED’s Nov. 23 decision deadline. However, days later, his written scheduling order showed he had rescheduled the hearing to begin Sept. 14, which opponents say leaves inadequate time to prepare expert testimony and meaningfully participate in the hearing.

In a Wednesday filing with the New Mexico Supreme Court, the Santa Fe-based clean energy organization New Energy Economy wrote that Shepherd’s reversals deprive groups that plan to participate in the hearing their constitutional due process.

“This process has been turned upside down,” Mariel Nanasi, the group’s executive director and attorney, wrote in a statement. “Our experts are being told to testify first and learn the facts later. We are denied discovery. We do not get NMED’s thousands-of-pages administrative record until the very day our expert testimony is due. And if Project Jupiter suddenly unveils a new gas-supply plan, new engineering assumptions or new technical evidence, we are apparently expected to discover it at the hearing and cross-examine on the fly. That is not due process. It is trial by ambush.”

The New Mexico Environment Department did not immediately respond to a request for comment.

The planned air quality permit hearing will focus on whether to give Project Jupiter’s developer a permit to operate its“microgrid” — a private power grid built to serve a specific development. A Source NM analysis of its proposal shows that it could emit as many greenhouse gases as New Mexico’s largest cities combined.

While developers had previously proposed building two natural gas plants to power the data center campus, they revised their plans earlier this year to rely on a different form of power known as fuel cells.

However, plans show the fuel cell microgrid would still rely on a natural gas pipeline. New Mexico Commissioner of Public Lands Stephanie Garcia Richard has twice shot down the pipeline company’s plan to build a portion of it on state lands, and recent federal regulatory filings show that its progress has been slowed to at least early next year.

In the Wednesday state Supreme Court filing, Nanasi questioned whether it’s premature to hold an air quality permit hearing before the microgrid’s source of gas has cleared the necessary hurdles to be built.

In a statement announcing the filing, two Democratic state lawmakers from southern New Mexico supported New Energy Economy’s legal challenge.

Rep. Micaela Lara Cadena (D-Mesilla), who has long been an outspoken critic of Project Jupiter, said that families in the area — “in Santa Teresa, Sunland Park, and our fronteriza communities” — already face significant environmental threats. The American Lung Association gives Doña Ana County a failing grade for ozone, in particular, which can cause a variety of health risks.

State Sen. Carrie Hamblen (D-Las Cruces) in a statement said she supports economic development that “creates lasting prosperity for New Mexico,” but does not believe it should come at the “expense of transparency, sound science, our natural resources or the communities expected to live with the harm.”

Hamblen went on to say “there are serious reasons for concern,” citing what she described as “the secrecy surrounding Project Jupiter to the highly unusual expedited air-permit process and a technical hearing without the right to discovery.”