For the second time in less than two weeks, a hearing officer for Project Jupiter’s application for an air quality permit has changed course.
Max Shepherd, the New Mexico Environment Department air quality permit hearing officer overseeing the case, reversed his own order Sunday, saying the issue of whether the massive data center’s air quality permit application should be tossed should be decided at the public hearing in September, rather than by briefs originally due Tuesday. Shepherd earlier shifted positions on the timeline of the hearing, which was recently moved up to Sept. 14.
New Energy Economy immediately filed a motion for reconsideration Monday, asking the hearing officer to restore the Aug. 5 order and require applicants to answer fueling-related questions.
New Energy Economy originally asked for the project’s air quality permit application to be thrown out last Tuesday, because the natural gas pipeline that would fuel the massive Southern New Mexico data center has yet to be legally authorized.
In response, Shepherd ordered parties on Aug. 5 to submit responses supporting or opposing New Energy Economy’s motion by Tuesday. He also ordered Yucca Growth Infrastructure — the developers behind Project Jupiter — and the state’s energy department to answer questions on whether the gas supply has any legal alternative source and whether the source can still be “completed in a reasonable time.”
“If Project Jupiter has no lawful way to obtain the natural gas pipeline its own application says is indispensable, the law requires that question be answered now — not after the public has spent months and millions preparing for an unnecessary hearing,” Mariel Nanasi, executive director and president of New Energy Economy, said in a statement.
Colin Cox, senior attorney at the Center for Biological Diversity’s Climate Law Institute, said in an interview Tuesday that he worked over the weekend to prepare a brief in support of New Energy Economy’s motion to dismiss the application. He found out Monday that the deadline was defunct.
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“We have this absurd schedule. It’s just manifestly unfair, and then we’re given these additional briefing deadlines and then reversing it,” Cox said. “I’ve done a lot of air permit hearings, and a lot of other administrative hearings. … I’ve never seen what’s happening here.”
In a similar about-face, at a July 27 scheduling conference, Shepherd said he would rule in favor of the opponents to the application and keep the Oct. 19 hearing date. Oracle met with Gov. Michelle Lujan Grisham that same day. Two days later, the hearing was moved up to Sept. 14.
The timing led some to speculate that “this proceeding is becoming more focused on reaching a result favorable to the governor’s economic development agenda than ensuring a fair process and protecting the due process rights of the parties and the public,” Nanasi said.
“To watch the Environment Department continue to make a sham of this process is, at this point, unsurprising. Rather than do what is required and consider important facts relevant to this process, the department’s hearing officer has again appeared to cave to the pressure of Oracle and the governor to rush this permit through, at the expense of the health of the public and, specifically, community members the state continues to sacrifice for the false promise of economic growth,” wrote Maslyn Locke, senior staff attorney at the New Mexico Environmental Law Center.
Neither Oracle spokespeople nor the Governor’s Office immediately responded to a request for comment.
On the other hand, counsel for the developers of Project Jupiter “think the hearing officer got New Mexico law right. Late last week, a pro se party in the case made a filing pointing to several potential errors in the hearing officer’s August 5 order. The sua sponte order responded to those points,” Jennifer Bradfute, counsel for Yucca Growth Infrastructure, wrote in an email. “We have prepared our arguments in response to New Energy Economy’s motion to dismiss, and we will be ready to present those points and supporting evidence at the September 14 hearing.”
The New Mexico Environment Department also “will address the motion and the questions it raises through testimony at the Sept. 14 public hearing,” spokesperson Drew Goretzka wrote in an email.
