572 P.3d 268
N.M. Ct. App.2025Background
- Roper Construction, Inc. (“Roper”) applied for an air quality construction permit (Permit 9295) for a concrete batch plant in New Mexico.
- The Air Quality Bureau (AQB) found the application administratively and technically complete, recommending that a permit be issued based on Roper’s emissions calculations using AP-42 emissions factors.
- Substantial public opposition led to a public hearing, after which the hearing officer recommended denial of the permit; the New Mexico Environment Department (NMED) Deputy Secretary denied the permit.
- Roper appealed to the Environmental Improvement Board (EIB), which reversed the NMED’s denial and determined it lacked jurisdiction over the specific choice of AP-42 emissions factors.
- Alto Coalition for Environmental Preservation (“Alto”) appealed, arguing EIB acted arbitrarily, misapplied legal standards, and violated procedural rights.
Issues
| Issue | Plaintiff's Argument (Alto) | Defendant's Argument (Roper/NMED/EIB) | Held |
|---|---|---|---|
| EIB’s jurisdiction to review choice of AP-42 emissions factor | EIB could, and must, review the specific AP-42 factor used to ensure compliance with standards. | EIB’s review authority limited; choice of AP-42 factor is internal NMED policy. | EIB has jurisdiction to review whether the permit’s emissions factor is accurate. |
| Whether the EIB order was arbitrary/capricious or based on substantial evidence | Order was arbitrary and capricious due to improper refusal to consider Alto’s technical evidence. | Order was proper; EIB followed appropriate procedures and considered necessary evidence. | EIB order arbitrary/capricious—decision not in accordance with law; reversed/remanded. |
| Application of evidentiary burdens before the EIB | Alto only needed to raise doubt about the permit; EIB misunderstood shifted burden of production. | Alto had to provide evidence showing the permit should be denied, not just doubt. | Alto must produce adverse evidence after Roper’s prima facie case; burden clarified. |
| Sufficiency of EIB’s findings in final order | EIB’s findings were inadequate for appellate review. | EIB’s findings were sufficient. | EIB must give explicit factual/legal findings and basis for decision on remand. |
Key Cases Cited
- N.M. Mining Ass’n v. N.M. Water Quality Control Comm’n, 141 N.M. 41 (N.M. Ct. App. 2007) (explains standards for reviewing whether agency decisions are arbitrary, capricious, or not in accordance with law)
- Pub. Serv. Co. of N.M. v. N.M. Env’t Improvement Bd., 89 N.M. 223 (N.M. Ct. App. 1976) (administrative agencies are limited to statutory authority)
- Duke City Lumber Co. v. N.M. Env’t Improvement Bd., 95 N.M. 401 (N.M. Ct. App. 1980) (clarifies that burden of persuasion never shifts in administrative proceedings)
- Gila Res. Info. Project v. N.M. Water Quality Control Comm’n, 138 N.M. 625 (N.M. Ct. App. 2005) (requires agencies to explain factual and legal bases for decisions for meaningful appellate review)