SANTA FE, N.M. (Legal Newsline) – The Supreme Court of New Mexico has rejected a challenge to groundwater quality regulations adopted in 2013 known as the Copper Rule.
Chief Justice Judith Nakamura wrote the opinion, which was dated as filed March 8, that affirmed the New Mexico Water Quality Control Commission's decision to adopt the rule.
State Attorney General Hector Balderas and environmentalist groups argued that the rule violates the Water Quality Act.
"Petitioners argue that the Copper Rule violates the Water Quality Act (WQA), NMSA1978, §§ 74-6-1 to -17 (1967, as amended through 2013) because it is premised on an impermissible construction of the statutory phrase 'place of withdrawal of water for present or reasonably foreseeable future use.' ... Petitioners assert that, as a consequence of this impermissible construction of the statutory phrase, the Copper Rule permits rather than prevents groundwater contamination at open pit copper mining facilities," the opinion states.
The court rejected this argument.
The Copper Rule is comprised of 39 different sections and a host of subsections that directly address the manner of water discharge for the mining industry, the opinion states.
In the ruling, the court argued that its purpose was to determine whether the regulations violated the Water Quality Act, not to assess the most effective way to prevent groundwater contamination.
The Copper Rule would be set aside if it is found to be “arbitrary, capricious or an abuse of discretion; not supported by substantial evidence in the record; or otherwise not in accordance with law,” the ruling states.
Petitioners did not ask the court to "evaluate the lawfulness" of the rule under certain circumstances, instead choosing "to mount a facial challenge" to the Copper Rule, the ruling says. Therefore, the petitioners must establish that there is no set of circumstances where the Copper Rule can be valid, the opinion states.
By showing that both hydrologic surface and open pit drainage areas exist because of open pit mining practices, the Copper Rule thus has a valid purpose, the opinion states.
New Mexico's Water Quality Control Commission argued that the Cooper Rule's purpose is "to control and contain discharges of water contaminants specific to copper mine facilities and their operations to prevent water pollution," according to the ruling.
"All of these copper extraction processes, as well as waste rock stockpiles, can cause discharges that impact groundwater quality," the court argued.