SOUTHERN NEW MEXICO
Project Jupiter hearing examiner bows out
Hearing officer withdraws from air permit case
Published
Modified
The hearing examiner overseeing an air quality permit application for the data center known as Project Jupiter recused himself and withdrew from the case over the weekend .
Max Shepherd, responding to an emergency motion filed by the Center for Biological Diversity and the New Mexico Environmental Law Center that sought his disqualification, denied a hearing on the matter and concluded, 鈥淚 hereby disqualify and recuse myself from acting as the Hearing Officer in this case effective immediately.鈥�
The New Mexico Environment Department named Shepherd to preside over permits sought by Yucca Growth Infrastructure for emissions from planned microgrid power generating facilities at the Santa Teresa data center under construction for tenants Oracle Corp. and OpenAI.
The controversial application seeks approval for a methane-fueled fuel cell system to supply power to the data center, with greenhouse gas emissions estimated between 8.8 million and over 10 million tons per year.
The state Supreme Court granted a temporary stay on the proceeding Sunday night after clean energy advocate New Energy Economy filed an emergency writ seeking to dismiss the permit application, arguing that the State Land Office鈥檚 refusal to approve a proposed natural gas pipeline route through state trust land meant the project did not have an established fuel source.
The air permit hearing would have opened on Sept. 14 in Santa Teresa, with a deadline for the Environment Department to make its decision on the permit by Nov. 23, but the temporary stay has paused the process while the state鈥檚 high court reviews it. It will not decide the question of the air permit itself.
Last week, Yucca Growth Infrastructure called New Energy Economy鈥檚 petition 鈥渁n attempt to circumvent the procedural deadlines of NMED鈥檚 air permit process.鈥�
Shepherd ruled in July that the hearing would begin Oct. 19 only to move it up to Sept. 14. Challengers to the permit have connected that reversal to a meeting that week among Gov. Michelle Lujan Grisham and representatives of Oracle. Shepherd鈥檚 decision cut time for opponents to review technical records and for expert witnesses to prepare testimony by an Aug. 24 deadline, NEE said.
As the dispute unfolded earlier this month, Lujan Grisham and her office maintained that the hearing process was proceeding independently.
The petition further complained that Shepherd allowed the NMED to produce the full administrative record on the same day as the deadline for challengers鈥� technical testimony, which would have fallen on Monday.
Initially, Shepherd ordered Yucca Growth to file a response to the petition, only to reverse himself days later and say the question should be argued at the hearing.
New Energy Economy鈥檚 executive director, Mariel Nanasi, complained that the inconsistent orders turned the process 鈥渦pside down,鈥� barred meaningful public participation and prevented technical experts from preparing for the hearing.
On Monday, Nanasi welcomed Shepherd鈥檚 recusal 鈥渁fter a litany of reversals that repeatedly undermined confidence in the fairness of this proceeding,鈥� she said.
鈥淭hat withdrawal speaks volumes,鈥� she continued. 鈥淭he process became so compromised that even the presiding officer could no longer credibly continue.鈥�
The Center for Biological Diversity鈥檚 senior attorney in New Mexico, Colin Cox, told the Journal Monday he met Shepherd鈥檚 decision with 鈥渁 mixture of surprise and relief.鈥�
鈥淲e鈥檝e consistently been asking just for the bare minimum level of due process,鈥� Cox said. 鈥淢r. Shepherd has repeatedly denied our requests for information and for time to review a proposal for what would be the largest source of air pollution in the state of New Mexico. It deserves a thorough hearing.鈥�
Maslyn Locke, the New Mexico Environmental Law Center鈥檚 senior attorney, said Shepherd made the right call.
鈥淗is pattern of reversing his decisions showed what we perceived to be a clear pattern of favoritism and bias towards NMED and YGI that would have made a fair hearing completely impossible,鈥� Locke said Monday afternoon. 鈥淲e鈥檙e hopeful that, if this process moves forward, impacted community members and supporting organizations will not only have a say in the selection of the next hearing officer, but will also be provided all constitutional guarantees we are entitled to.鈥�
Shepherd did not respond to a query from the Journal.
NMED spokesperson Drew Goretzka said the department would file a response by Sept. 2, and also planned to release a draft administrative record it had prepared for Monday鈥檚 deadline ahead of the public hearing. The record would be publicly available , he said.
鈥淥nce the Supreme Court lifts the stay on administrative proceedings, the Department will appoint a new hearing officer,鈥� Goretzka wrote to the Journal. 鈥淎s for the September 14 hearing date, NMED continues to prepare for the hearing as currently scheduled and will adapt to any subsequent order issued by the Supreme Court.鈥�
Cox also welcomed the state Supreme Court鈥檚 review of the process, saying, 鈥淲e need someone outside of the Michelle Lujan Grisham administration to give this project the scrutiny it deserves and make sure agencies are following the law.鈥�
The Environment Department did not immediately comment on Shepherd鈥檚 recusal. The Journal has also reached out to Yucca Growth Infrastructure for comment, but has not heard back.
Algernon 顿鈥橝尘尘补蝉蝉补 is the Journal鈥檚 southern New Mexico correspondent. He can be reached at adammassa@abqjournal.com.
