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Mayor Keeps City-County Joint Board

Vetoes ensure air permits can continue
November 22, 2023

Mayor Keller vetoed two pieces of legislation related to the Albuquerque-Bernalillo County Joint Air Quality Control Board,O-23-88 and R-23-176, to ensure air permits can continue to be issued and to preserve the City’s long-standing partnership with Bernalillo County. The legislation represented an overreach of Council authority, as the City should not act unilaterally to change a joint board. The legislation would have created dangerous legal ambiguity and put the future of permits in indefinite limbo. Now, communities and businesses still have a place to discuss air quality and air permits. Keeping the Joint Air Quality Control Board also protects the City of Albuquerque’s and Bernalillo County’s ability to adhere to federal regulations around air quality.

The Mayor’s veto message outlined guidance to find common ground going forward. It reiterated that the board’s jurisdiction is defined and limited by both federal and state law, and any rules adopted at the local level must adhere to federal and state standards. The message advised the board should immediately dismiss any issues not under their authority. It urged timely decision making on issues under the board’s purview, so that both the community and applicants can plan and make decisions accordingly. It’s important processes aren’t delayed for many months or even years.

His message reiterated that the City values environmental justice and rules should work to protect our community, especially those in low-income, historic neighborhoods of color that have been historically overburdened by pollution. Rules should also be tailored to account for the broad community benefit that critical business, non-profits, and key government operations bring residents. Mayor encouraged individual consideration for projects relating to sustainable economic development and carbon reducing technologies.

“Reactionary politics never serve our community well,” said Mayor Tim Keller. “As the elected official for all of the city and most of the county, it’s my responsibility to make sure City and County governments work together."

Mayor Keller’s full veto message and his memo to City Council on November 3, 2023 regarding O-23-88 and R-23-176 are below.

Veto Message from Mayor Keller Delivered to Albuquerque City Council on November 22, 2023 for O-23-88 and R-23-176 

On Friday, November 3rd, 2023, I delivered communication, attached, to City Council outlining my concerns regarding O-23-88 and R-23-176. Legislation requiring any delay in operations of the board would require an accompanying path forward for pending work already on the Albuquerque-Bernalillo County Air Quality Control Board’s agenda.  Conversely, any changes to the Board, would require a delay in the Board’s operations to enable a transition to new members.

While the prudently approved amendment to R-23-177 directs the City “to collaborate with Bernalillo County to address any differences in City and County air quality policies,” the resolution itself imposes a moratorium on board actions without any collaboration with the County having occurred. Council passed O-23-88 without any such collaboration with the County, making this ordinance even more problematic.

After my previous communication to City Council unfortunately went unanswered, it should not come as a surprise that I am exercising my Charter-given authority to veto this legislation.  I do so for the following reasons:

  1. First and foremost, unfortunately neither I nor my office was contacted in regards to this consequential legislation. Had we been consulted, we would have been clear from the start this proposal will not address concerns, whether valid or otherwise, about the Board’s membership, function or rulings.  This proposal also disregards our obligations under state and federal law, as well as our duty to our partner, Bernalillo County.  The legislation includes multiple changes to the Air Quality Ordinance, some that substantially change the Air Quality Control Board’s process and some that cannot go into effect unless also adopted by the County.  These proposed changes should have been vetted through discussions with the administration and the Board itself, and there should have been a rigorous process that allowed the County to give input on the various proposals.  Moreover, these changes to the Joint Air Quality Ordinance will not fix any criticisms of the Air Quality Control Board.  Instead, the proposed changes would likely lead to prolonged and costly legal complications and ultimately lead to the City and County losing local control of our air quality to the State.
  2. >Second, this legislation is premature, may be wholly unnecessary, and did not give proper deference to those that we have appointed to the Air Quality Control Board.  Through the Council meetings on this topic, and through multiple forms of public discourse and legal communication, I have been made aware of the pros and cons of various proposed rules coming before the Air Quality Control Board. However, there has not yet been an actual ruling by the Board on these contentious matters. It is wholly inappropriate to pre-empt the Board’s work before it takes any substantive action, especially when, as I understand it, their ruling is expected in the next few weeks. We should not deter the Board’s rule-making authority before they have a chance to perform their duties. O-23-88 puts the ‘cart before the horse’ for those worried about actions the Board ‘may’ take in the future. The Air Quality Control Board might reject proposed rules; it might also modify proposed rules. We should allow the process to play out before taking such drastic action to remove the Board’s members and rewrite multiple provisions of the Air Quality Ordinance without a full discussion of the proposed changes.
  3. Third, the legislation unnecessarily denigrates the current members of the Air Quality Control Board. As Council knows, the Cityis only partly responsible for the appointments to the Board.  However, those that we have appointed are qualified both by law and spirit.  Additionally, they were all confirmed by this Council.  So, while they may not act in manner that some Councilors, or I for that matter, might wish; they are duly selected and qualified under the law.  To question that is only to question the laws under which they were selected, or to question their personal integrity, neither of which I believe is acceptable when quasi-legislative matters are in on-going proceedings.

If this veto stands, it will effectively preserve the Albuquerque- Bernalillo County Air Quality Control Board for the time being. As such, I want to also make it clear that this Administration has guiding principles for air quality that I trust will be considered and tailored by the Board to help our broader community ensure that we leave the next generation with better air quality:

  1. The board has a limited jurisdiction related to air pollution, as defined in relevant federal and state law, and does not have jurisdiction beyond in these areas. It should not adjudicate matters beyond its authority.  Moreover, the Board should immediately dismiss actions that are outside its jurisdiction, rather than tying up resources and leaving parties in limbo for several months.
  2. All rules should be promulgated with in applicable federal and state laws, including those relevant to air quality, and those relevant to federal and state contractual agreements, which always supersede local government authority. Accordingly, the city will exercise is legal rights to pursue remedy in the courts if jurisdiction or over burdensome or unreasonable rules promulgated.
  3. It is always my request of any city related board or commission that issues are promptly adjudicated, under proper public meeting notice and documentation.  While community input is always paramount, formal decision making should occur within a reasonable business cycle such that both our community and applicants can appropriately plan and make business decisions; thus, action should not be delayed for periods of time that extend several years.
  4. Environmental justice is core to preserving and protecting our community for generations to come. Rules should work to reduce the decades-long institutional practice of consolidating air quality-detracting industries in certain sections of the metro area, particularly in the South Valley.  It is imperative that cumulative effects of pollution be considered and that any discrimination against the same low-income historic neighborhoods of color be reversed. These issues should also be addressed through the City and County zoning procedures.
  5. It is also imperative that critical business, non-profit, and government operations, working in the areas of national security, public education, healthcare, and safety be thoughtfully considered, and that any rules should be sufficiently tailored to delineate between these institutions, their broader public good, and others.
  6. Similarly, entities working with local government to bring or build sustainable economic development and carbon reducing technologies should be considered individually based on their specific merits and environmental benefit and impact.

Lastly, should prompt adjudications and rule promulgations by the Air Quality Control Board not occur within a responsible time frame, or any factual – not hearsay or speculative – evidence suggesting illegal process and procedure come to light, I am certainly open and willing to further discuss these issues and to consider subsequent proposals that include input from our partners at Bernalillo County and a full diverse range of stakeholders, including the Albuquerque-Bernalillo County Air Quality Control Board itself.

Memo from Mayor Keller to Albuquerque City Council on November 3, 2023 regarding O-23-88 and R-23-176

Councilor Dan Lewis, District 5, has introduced two bills, O-23-88 and R-23-176 concerning the Albuquerque-Bernalillo County Air Quality Control Board. State law authorizes the local board to enforce clean air regulations. The proposed legislation, if enacted, would interfere with the Board’s required duties regarding the City and County complying with all state and federal regulations that ensure Albuquerque has clean, breathable air.

The proposed legislation would halt adoption of regulations by the Board by delaying their implementation, and by giving City Council the authority to void proposed regulations before they are adopted by the joint city-county board. This is a troubling proposition as these bills would subject expert determinations to political pressures, and they have the potential to undermine the board’s ability to maintain air quality standards.

More concerning, the County has not been consulted about how this proposed change would affect the County’s air or the County’s authority, although it would have an impact on both. The result of an inconsistency between county and city legal requirements would likely both render the board subject to lawsuit and result in the state revocation of air quality powers granted to our city all together.

For the foregoing reasons, the Administration concurs with the Bernalillo County Commission’s resolution (enacted on Oct. 24, 2023) respectfully requesting that Council and my administration engage with and consult collaboratively before moving forward with any changes to the Board’s authority or procedures.