The Rhino in the Colonia: how Colonias Development Council v. Rhino Environmental Services, Inc. set a substantive state standard for environmental justice.

 
  I. INTRODUCTION 
 II. BACKGROUND 
     A. Waste Siting and the Origins of the Environmental Justice 
        Movement 
     B. Chaparral, New Mexico 
     C. The Rhino Landfill Proposal 
     D. The Hearing 
III. RHINO IN THE COURTS 
     A. The Initial Appeal 
     B. The Supreme Court's Decision 
 IV. THE SIGNIFICANCE OF THE RHINO DECISION 
     A. New Mexico Sets a High Bar for Other States 
     B. Applicability to Other New Mexico Environmental Laws 
     C. Impact on New Mexico's Solid Waste Act Regulations 
     D. Evaluation of the Revised Regulations 
     E. From a Procedural to a Substantive Environmental Justice 
        Requirement 
  V. AFTERMATH 

I. INTRODUCTION

On July 18, 2005, the New Mexico Supreme Court handed down a groundbreaking decision in Colonias Development Council v. Rhino Environmental Services, Inc. (Rhino), (1) requiring the New Mexico Environment Department (NMED) to consider environmental justice criteria during solid waste facility permitting decisions.

The decision was a dramatic' climax to a case already fraught with drama. It began when Rhino Environmental Services proposed to site a fourth landfill in Chaparral, New Mexico--the state's largest colonia. (2) The public hearing on the permit application took place amidst the national chaos and disruption of the terrorist attacks of September 11, 2001. (3) During this hearing, the NMED Hearing Officer bluntly informed the community members in attendance that their concerns about the disproportionate concentration of industrial and waste sites in the predominantly minority and low-income community of Chaparral were quite simply irrelevant to the permitting decision. (4)

When the New Mexico Supreme Court overruled the agency and required it to consider environmental justice factors--including the socioeconomic status of the population, the cumulative environmental impacts of existing sites, and the social impact of living in a community surrounded by waste sites--in its Solid Waste Act (5) permitting decisions, it signaled a profound shift in the interpretation of New Mexico environmental law. Prior to the Rhino decision, NMED had assumed that it lacked the authority to consider such "non-technical" factors in its permitting decisions under the Solid Waste Act. (6) However, in the aftermath of Rhino, the agency revised its Solid Waste Act regulations to require additional public notice and the completion of a Community Impact Analysis for waste sites proposed within a four-mile radius of a vulnerable community. (7) Under the court's reasoning, similar reforms could be required for permitting processes under other state environmental laws, including New Mexico's Air Quality Control Act, Hazardous Waste Act, and Water Quality Act. (8)

Even more importantly, the court's holding went beyond requiring additional procedural safeguards during the permitting process, and, for the first time, found that the Solid Waste Act and its regulations actually set a substantive limit prohibiting the siting of new or expanded landfills in communities that are disproportionately burdened by industrial sites if the cumulative harmful effects will constitute a public nuisance or a hazard to public health, welfare, or the environment. (9)

Rhino not only affects environmental law in New Mexico. It also serves as a model for other state courts in the interpretation of their own environmental laws. Prior to the decision, no state court had held that environmental justice must be considered in the application of media-specific environmental laws like the Solid Waste Act (and only two had found such requirements in their broad state "Environmental Policy Acts" (10)). Not long after Rhino, however, the Pennsylvania Supreme Court came to a similar conclusion as the New Mexico Supreme Court and upheld the Pennsylvania Department of Environmental Protection's decision to include environmental justice criteria in its waste site permitting analysis despite the lack of any specific statutory mandate to do so. (11)