County's Rush to Jupiter Sparks Legal Complaints and Transparency Concerns

Our County Commission cares more for Project Jupiter than for following state transparency laws or protecting our environment.

I have my doubts about the project. It’ll have a huge negative impact on our environment, and make a pathetic joke out of the state’s ambitions to cut our greenhouse gas production and help combat climate craziness. Too few of the proponents’ many promises appeared in the actual contract; and that contract is enforceable solely against the specific entity that signed it. If that goes belly-up, the real owners just laugh at those promises.

The process, though, was embarrassing and likely unlawful.

Commissioner Susana Chaparro objected to approving a contract marked “draft,” containing blank pages and material she hadn’t seen. State Senator Jeff Steinborn was appalled that the Commission approved material with missing pages. A lawsuit alleges that the County approved industrial development bonds that didn’t meet certain requirements, including environmental impact.

There were open-meetings concerns, which have now been exacerbated by an obvious violation: in approving the deal, the Commission authorized Commission Chair Christopher Schaljo-Hernandez to tinker with it. After local journalist Heath Haussamen criticized the deal, he received a “final” version of the contract that seemed to make some of the vague promises enforceable. Days later, there was a new version, apparently still not final.

The Open Meetings Act requires such decisions to be made in front of us. Sure, the Commission can delegate purely ministerial tasks such at signing it and filling in the effective date, and that sort of non-substantive change; but where changes actually alter the parties’ obligations to each other, in substantive ways, large or small, that’s not allowed.

For example, such AI data center campuses normally use huge amounts of water for cooling. In a desert suffering from serious drought, that matters. Responding to critics, proponents promised that this was not really a problem because they’d use a closed-loop cooling system that minimizes water usage. Otherwise, this thing could wipe out water supplies of poor citizens in the south county. Altering such a material provision, after the vote, can’t be consistent with the open meetings law. All commissioners must be heard, either representing their constituents or honestly own a failure to do so. We should have some theoretical chance to talk a little sense into them, unlikely as that now seems.

Huge power requirements and degradation are issues. This will be a data center campus. It will definitely use vast amounts of energy – and could possibly keep using gas-fired electricity plants for more than the next twenty years. Elsewhere, the plants have significantly increased people’s electricity costs.

Chaparro said, “There is no permanent document yet, even though we’ve already voted on it, and that is just wrong.” The plain language of the Open Meetings Act seems quite clear. The county ordinance is not to the contrary. Further, NMAG Opinion 98-01, as do guidance letters, confirms that ministerial acts (signing, executing, transmitting) are not “meetings” under the Act. The New Mexico Foundation for Open Government sees this as a clear OMA violation, and likely will tell the county so.

We’ll eventually see what a judge or the present state attorney-general thinks. Meanwhile I’d hate to be the bond attorney who has to give an unqualified opinion that the bonds were properly approved. Or a worker with a family in Santa Teresa worrying about water availability and electricity rates.

Or someone who likes to breathe.

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[The above column in the Las Cruces Sun-News will presently be on KRWG’s 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.]

[I remind everyone that we’re in the midst of a local election. Please vote.]

[Courts and maybe the New Mexico Attorney-General will sort all this stuff out. Writing the above column was no fun. The county commissioners are mostly people I like and respect, and often agree with. I wish they’d taken more time with this one, despite the proponents’ pressure. Ironically, when I went on line intending to post this, I saw another article about a big data center and alleged lack of transparency about water . Yeah, that was Amazon. I have no opinion on the allegations. But the proliferation of such stories about data centers just emphasizes the basic point, that the proponents here, nice as they may be, are not necessarily our friends. Their legal and ethical obligation is to maximize shareholder profit. That might [Gee, whiz!] not always align with commissioners’ obligation, to make the best deal for the county and its residents. Transparency is not always convenient for the proponents, and thus we do need to get it all down in a writing we can actually enforce. I hope we’ve done that here – or would it be more accurate to say that I hope they somehow do that if and when the contractual documents are complete and final?]

[I hope all that comes out right. I hope the data center’s closed-loop cooling process actually minimizes water use, and never breaks down and requires suddenly greater water, where there ain’t much. I hope the data center doesn’t do a whole lot of harm to the air here, and that the proponents, as one of them assured me they will, maximize their use of renewable energy, because there’s no question their energy needs will be huge and constant. I hope they never need so much electricity that it ups folks’ rates, as has happened elsewhere, but which commissioners and proponents seem sure won’t happen here; and I hope that if anything goes wrong, the county has insisted on all the right contractual provisions to ensure that citizens don’t suffer, and the company makes everything right, and there’s a company that’s both solvent and contractually obligated to make things right. I do hope all that. But if you had charge of a betting site, what would you make the odds?]

[Also, thanks again to Heath Haussamen for all the reporting he’s done on this, including persistence in getting documents. Heath and I don’t work together, we don’t always agree on things, and all that, but check out his website – https://haussamen.com/ – read his reporting, and, if you’re solvent, consider donating to help him continue the good work. ]