Saturday, September 27, 2025

A Major Environmental Scew-Up

I’m writing this Thursday. You’re reading it Sunday.

Friday the Dona Ana County Commission, five basically good people, will have screwed up.

We're in trouble. Scientists agree that we’ve passed the point when we could have spared our grandchildren catastrophic consequences from climate craziness. We are already seeing some consequences.

Forests and even cities are burning. Rising seas endanger Miami’s drinking water supply and priciest properties. Rivers are flooding. People are being killed. It’s the start of bigger fires and floods, more powerful and frequent storms, and other disasters. (The politicians who denied the problem’s significance are cutting our ability to help people suffering victimized by the emergencies these forces create.)

We’re all too selfish. Our immediate goal – bigger profits, research, driving faster, writing a better column, winning at cards – justifies contributing a little to the continued emission of greenhouse gases. Having known the danger for decades, the world last year burned more coal and more wood than ever before.

The folks with big money (and expensive mouthpieces and politicians) said, “Don’t worry, let’s drill and sell more oil,” and either hid evidence, denied facts, or promised we could figure it out later. We couldn’t.

The big-money folks offered some to the County, in the form of a few more jobs and significant help in cleaning up the drinking water and infrastructure situation in the south county.

However, those folks’ data center would have water needs. Their planned gas-fired electricity plant would not only use water but need as much electricity as the entire El Paso Electric system does. Double this area’s energy use and emissions. That’s so extreme I can’t write it without doubting it. But it’s apparently true.

That’s huge. (One specious argument defending it is, “We’ll comply with the Energy Transition Act” by phasing our non-renewable energy by 2045. That is, we’re doubling an important negative impact on the environment, but it’s okay because we’ll stop. No. Tapering off in 20 years doesn’t justify starting now. Two commissioners laughed when I used an extreme analogy: “If we were trying to phase out a legal activity that helped the county, but caused ten percent of newborn infants to die until we stopped, you wouldn’t say, ‘Okay, double what we’re doing, ‘cause we’ll stop in 20 years.’” Poisoning our atmosphere harms us. The ETA illustrates our state’s determination to cease doing that. Adding this new project’s extremely high energy use sure contradicts the ETA’s purpose. And damages us all.

Our commissioners could have said, “No, thank you!” They could have said, “This looks great for our county economically, but such energy usage is disastrous. If you commit to using 60% renewable energy from the start, I’ll consider voting for it. Otherwise, try for 3 of the other 4 of us.” Our commissioners could have had experts study some of this, and not take the big money folks’ words for everything. They could have hired topnotch, experienced lawyers to help cut the best deal for us and our environment.

Our commissioners said, “Where do we sign?” Staff favored it, and gave commissioners little time – and citizens less.

We may need these AI campuses to keep up with China; but let’s compromise with the climate realities! If you had to see your doctor, you wouldn’t rush into a burning building to do so.

Our county government should have done better on this one.

                                          – 30 --

 

[The above column appeared Sunday, 21 September, 2025, in the Las Cruces Sun-News, and on the newspaper's website and the KRWG website (under Local Viewpoints). Sorry I was too lazy to post it until now; but the meeting on Friday the 19th did go as expected, after hours and hours of public comment (a majority, but not an extreme majority, against the action the county commissioners were about to take.]

 

Sunday, September 14, 2025

County's Handling of Jupiter Project Tests State Transparency Laws

Government secrecy is unethical and sometimes illegal.

New Mexico’s Open Meetings Act and Inspection of Public Records Act are strong transparency laws. They require governments to disclose material information to the public. That facilitates informed public comment and scrutiny.

The City cut OMA corners in appointing City Manager Ikani Taumoepeau. The Attorney-General investigated, nullified their action, and they had to redo.

The OMA forbids “rolling quorums.” A majority of commissioners, who couldn’t legally discuss county business privately, can’t do so sequentially: A with B and then B with C, or each of them privately with D, who wants them to take a certain action.

Are some County Commissioners violating the law?

The County is violating the IPRA. [Fair Disclosure: as a lawyer I won IPRA cases against both City and County.] Heath Haussamen (and probably others) has requested documents. I asked for just one, but was told more time was needed. IPRA requires the County to give me the document as soon as reasonably possible. The 15-day extension the County asserted is not automatic. I questioned that. No one even deigned to respond. Reminds me of Hays v City of Las Cruces: the then city attorney told us to go pound sand, when we sought to talk with her and sent her a copy of the statute under which the City ended up paying out $94,000. That’s bad lawyering. (I haven’t met the new County Attorney, but doubt that she has extensively advised public bodies on their OMA and IPRA responsibilities – or negotiated many NDAs – or other contracts -- with huge companies and their teams of high-priced lawyers.)

Heath reports that the County signed a non-disclosure agreement. So far, he can’t get a copy. (Trust me: there’s no legal justification for withholding the entire NDA.) At the meeting where the County voted to go forward with this, Commissioner Susana Chaparro hadn’t seen it and alleged that she hadn’t received full information given to other commissioners. She hadn’t known the County had signed the NDA, so who decided that how? It appeared likely that three or four commissioners – most of whom I know, like, and respect – may have violated OMA, probably unintentionally. Certainly we aren’t seeing the kind of transparency that OMA and IPRA mean to guarantee. The Foundation for Open Government has expressed concern.

I get the need to protect trade secrets. I litigated that professionally for decades. Companies routinely define trade secrets way more broadly than the courts do. Sometimes there’s confusion when private need for secrecy meets government’s legal obligation to act transparently. State law defines trade secrets, so Heath reasonably asks why an NDA was needed. Certainly, under New Mexico cases, we’re entitled to see it.

Numerous citizens and the nonpartisan League of Women Voters have urged the County Commission to delay a vote on this controversial proposal. That might be good advice. Delay might even benefit the developer.

The AG may be investigating this. A requirement for selling bonds is a bond attorney’s unqualified opinion that the bonds were properly issued. Were they? A lawsuit or AG investigation on just that point would be problematic.

If I were an active lawyer, just reading Heath’s article would motivate me to take a long, hard look at the commissioners’ and developer’s conduct here, before I considered okaying the bonds. And if I okayed them, I’d notify my malpractice insurance carrier. But I’m no bond lawyer.

                                              – 30 --

 

[The above column appeared Sunday, 14 September, 2025, and will presently be on the Sun-News website and on the KRWG website (under Local Viewpoints). A shortened and sharpened radio commentary version of this Sunday column will air during the week on KRWG (90.1 FM) and on KTAL-LP (101.5 FM / http://www.lccommunityradio.org/). That website also contains station show archives.]

[Unless the County heeds suggestions by the League of Women Voters and other organizations and individuals, Friday, September 19, will be a significant day. A special meeting is scheduled to consider issuance of industrial development bonds to help the proponents push toward actualizing their proposed Jupiter Project. Wednesday, during th 8:30 – 9:30 portion of the weekly “Speak Up, Las Cruces!” radio show, we will discuss the project with county commissioners, representatives from the proponents, and a variety of folks who oppose the proposal or have significant questions about it – on 101.5 FM or the Las Cruces Community Radio website listed above.]

                                 




Sunday, September 7, 2025

Open Letter to Lanham Napier

[Lanham Napier chairs Borderplex Digital Assets, which proposes to build a huge data

 center campus in Santa Teresa.]

Dear Lanham:

I am glad you favor “putting communities first,” that the Jupiter Project is “deeply personal to me. … I’ve dreamed of improving lives,” and that you say you aspire to doing this “the right way.”

But you are an intelligent, thoughtful fellow. You know that climate craziness threatens a draconian future for our children and is already wreaking havoc. You know that our county is within one of the four areas on Earth now suffering from a “Mega-drought.” You know that such a data center not only can threaten water supplies, but demands huge amounts of power comparable to a modest city.

Particularly here, it should be a rebuttable presumption that any big new installation be as largely renewable-powered as feasible. You likely also know that this community has stood for sustainability and that we have abundant sunlight here.

Therefore I urge you to improve your plan by using primarily renewable energy and by agreeing to very strong requirements on water use.

The Board of County Commissioners should require such a commitment from you. As a decent human being, aware of our plight, you should not require a requirement.

The Commission should have county residents’ welfare as their top priority. While the niceties of cooling technologies and corporate maneuvering can be complicated, this part is not: we are threatened by a climate catastrophe largely fueled by our own greed; mitigating damages and minimizing our carbon footprint is as clear a duty for each of us as honoring our parents, treating the downtrodden as we might treat our savior, or not raping our neighbor’s wife (or anyone else). Unnecessarily adding to the problem, in 2025, is just plain wrong.

You know this as well as I. Can you summon the self-discipline to let that knowledge influence your business conduct a bit? Can you modify your plan, even if that’s inconvenient or might cut into the huge profits you say this campus will produce?

As a practical matter, building a renewable power source might be cheaper than building a gas plant, and would avoid exposure to high and volatile fuel costs; extra cost for firming might change that initial cost equation, but renewables would still save you from exposure to fuel-cost volatility and from the eventual cost of adjusting, as the world moves more definitively toward renewables. Thus it is hard to see how at least a hybrid, involving large investment in renewables and battery storage, but with some firming, would not be a very reasonable solution, minimizing emissions and remaining cost-competitive.

County Commissioners: Please keep in mind the difference between your mission and Mr. Napier’s. His is to make profits, hopefully within the law. Yours is to balance what’s best for us, including our health and well-being as well as the relative affluence of our communities. If you see some benefit to the county in this proposal, your job is to negotiate, at arm’s length, to gain the safest and best possible agreement for us – not to roll over like five obedient dogs.

Urging or demanding that these business entities compromise their profits to improve our environment, isn’t some impermissible discourtesy. It’s your duty.

Most similar projects have provided fewer jobs and used more water than promised, and fought transparency like the plague. Why not turn some promises into contractual requirements?

                                              – 30 –

  

[The above column appeared Sunday, 7 September, 2025, in the Las Cruces Sun-News, and on the newspaper's website (sub nom "Mr. Napier, Let's Talk about your Project") and will presently be on the KRWG website (under Local Viewpoints). A shortened and sharpened radio commentary version of this Sunday column will air during the week on KRWG (90.1 FM) and on KTAL-LP (101.5 FM / http://www.lccommunityradio.org/). That website also contains station show archives.]

[If you’re interestested, there are several sources of information, including the county leaders’ comments on the county website, a series of community meetings, and Heath Haussamen's piece on the project. Rep. Angelica Rubio and the Albuquerque Journal havev also written on it, as have both the Sun-News and the Bulletin.]


Upcoming Community Meeting Schedule:

  • District 1: 5:30 p.m., Friday, Sept. 5, at the La Mesa Community Center, 744 San Jose Road in La Mesa

  • District 2: 5:30 p.m., Tuesday, Sept. 9, in the auditorium at DACC’s Sunland Park Campus, 3365 McNutt Road in Sunland Park

  • District 3: 5 p.m., Wednesday, Sept. 10, at the New Mexico Farm and Ranch Heritage Museum, 4100 Dripping Springs Road in Las Cruces

  • District 4: 5:30 p.m., Monday, Sept. 8, in the auditorium at DACC's East Mesa Campus, 2800 Sonoma Ranch Blvd. in Las Cruces

  • District 5: 5:30 p.m., Thursday, Sept. 11, at Placitas Community Center, 241 Monticello Drive in the Village of Hatch

Full details are also available on the County website at www.donaana.gov.