Kennecott Copper Corp. v. New Mexico Environmental Improvement Board

I dissent.

While I agree with most of the majority opinion, in my view the regulation subject to review here should be set aside. For two separate reasons, I consider New Mexico Air Quality Control Regulation 652 limiting sulfur dioxide (SO2) emissions from existing copper smelters, to be not in accordance with law. Section 74-1-9 1(3), N.M.S.A. 1978.

The Air Quality Control Act directs the Board to consider the “economic value of the sources and subjects of air contaminants” and the “economic reasonableness of reducing or eliminating air contaminants from the sources involved.” Section 74-2-5…