The Newman 6 project will have its day in court.
An administrative law judge ruled Thursday that the Sierra Club and a citizen group from Chaparral, N.M., can move forward to challenge the state of Texas’ pending approval of a permit for El Paso Electric’s proposed gas plant.
The Chaparral Community Coalition For Helping the Environment includes people who live within two miles of the proposed plant in New Mexico and oppose the expansion of the power plant, citing health concerns for an area that’s already under scrutiny for air pollution.
The contested hearing has not been scheduled yet, but is required by state law to occur before a 180-day deadline on Nov. 30.
The hearing before the State Office of Administrative Hearings stems from the Texas Commision on Environmental Quality’s decision to approve the application by El Paso Electric to build the natural gas plant in Northeast El Paso.
On Thursday, Administrative Law Judge Rebecca Smith ruled that the Chaparral Community Coalition For Helping the Environment and the Sierra Club had standing to continue as parties, while local environmental nonprofit Eco El Paso did not. She allowed all the attorneys for all parties to work on negotiating a schedule for the upcoming hearings.
Colin Cox, an attorney with the nonprofit Environmental Integrity Project, who is part of the group of attorneys representing the groups opposing the plant’s expansion, called the judge’s ruling “a victory.”
“If these groups weren’t granted party status, if it was determined that they didn’t have standing to participate in this hearing, then the hearing wouldn’t happen,” Cox said.
Cox said since 2016, the burden of proof is on the people objecting to an application called protestants. The rules require protestants to show evidence that the application for the major modification to air quality fails to meet state and federal requirements.
The hearing’s outcome could be moot if federal entities change the county’s pollution grade. Last week, the Environmental Protection Agency announced its intent to “correct” a passing “attainment” air quality grade for El Paso County to a failing “nonattainment” grade.
In a report released last month, the EPA determined El Paso’s ozone pollution impacted neighboring Doña Ana County from 2014 to 2016.
If that designation changes before the air permit is given, the Newman 6 project would be back to square one, according to attorney David Baake, who sued the EPA over the designation in 2018.
Ozone, often called smog, is a health hazard when it’s near the ground, especially to people with asthma, children and the elderly. It occurs when emissions from cars, refineries, power plants and industrial boilers react with the sun’s heat.
Texas air monitor data that El Paso had seven ozone violations showing unhealthy levels above federal standards in 2019 and 2020.
In 2020, the American Lung Association ranked the El Paso-Las Cruces area as the 13th worst in the nation for ozone pollution.
U.S. Sen. Martin Heinrich, D-N.M., wrote a letter on June 3 to EPA Administrator Michael Regan asking the agency to intervene in the SOAH hearings, saying the plant jeopardizes New Mexico’s air quality and is out of step with President Joe Biden’s goals to reduce greenhouse gas emissions.
“Given the urgency of the climate crisis and the EPA’s recent nonattainment designation, I request you weigh in on this review of the permitting process as soon as possible with your evaluation of whether El Paso Electric’s air quality permit must take into account the EPA’s new ozone nonattainment destination for the region,” Heinrich wrote.
The EPA did not respond to requests for comment.
El Paso Electric spokesman Javier Camancho said the Newman 6 project would eliminate ozone precursors by 95% after the retirement of older generators.
“El Paso Electric is continuing through the air permit approval process for Newman Unit 6. We stand by the merits of the permit application and do recognize that the TCEQ made no changes to the draft permit based on the public comments they received,” Camancho said. “EPE will continue to meet all regulatory requirements and work with all parties to do so.”
Cover photo: El Paso Electric wants to add a new generator at its Newman power plant in Northeast El Paso. (Photo courtesy of El Paso Electric Co.)
Disclosure: El Paso Electric is a financial supporter of El Paso Matters. Javier Camacho, an El Paso Electric spokesperson, is a member of the El Paso Matters board. Donors and board members do not have input in El Paso Matters editorial decisions and policies.