A. Any person adversely affected by an administrative action taken by the environmental improvement board, the local board, the secretary or the director may appeal to the court of appeals. All appeals shall be upon the record made at the hearing and shall be taken to the court of appeals within thirty days following the date of the action.

B. For appeals of regulations, the date of the action shall be the date of the filing of the regulation by the environmental improvement board or the local board pursuant to the State Rules Act [Chapter 14, Article 4 NMSA 1978].

C. Upon appeal, the court of appeals shall set aside the action only if found to be:

(1) arbitrary, capricious or an abuse of discretion;

(2) not supported by substantial evidence in the record; or

(3) otherwise not in accordance with law.

D. After a hearing and a showing of good cause by the appellant, a stay of the action being appealed may be granted:

(1) by the environmental improvement board, the local board, the department or the local agency, whichever took the action being appealed; or

(2) by the court of appeals if the environmental improvement board, the local board, the department or the local agency denies a stay or fails to act upon an application for a stay within sixty days after receipt of the application.

History: 1953 Comp., § 12-14-8.1, enacted by Laws 1971, ch. 57, § 1; 1979, ch. 393, § 5; 1992, ch. 20, § 10.

The 1992 amendment, effective March 5, 1992, substituted the present section catchline for "Variances; judicial review"; in Subsection A, substituted all of the present language of the first sentence preceding "may appeal" for "Any person to whom the board denies a variance, after a hearing," and substituted "following the date of the action" for "after the board's denial" in the second sentence; rewrote Subsection B; substituted "action" for "board's denial of the variance request" in the introductory paragraph of Subsection C; and rewrote Subsection D.

Right to participate in appeal of administrative rule-making. — Persons who have participated in a legally significant manner in an administrative rule-making proceeding have the right to participate as parties to an appeal if they express such an intention. New Energy Econ., Inc. v. Vanzi, 2012-NMSC-005, 274 P.3d 53.

Where petitioners in an administrative rule-making proceeding initiated the proceeding; proposed or supported the adoption of a new rule, presented the kind of evidence that directly informed the environmental improvement board's decision on whether to adopt the new rule, submitted expert technical testimony and exhibits, and made legal and closing arguments in support of the new rule; under the statutes and rules governing the rule-making process of the EIB, petitioners were considered to be "parties" to the proceedings and assumed roles that imposed additional responsibilities and preparation on them that were not imposed on participants; participants in the administrative proceedings appealed the adoption of the new rule; and the court of appeals denied petitioners the right to intervene as parties in the appeal, the court of appeals did not have the discretion to deny intervention for the petitioners because the requirements imposed upon petitioners as parties in the rule-making proceeding, the contributions they made, highlighted by their technical testimony, and the possible challenge to those contributions on appeal, afforded petitioners a right to defend their positions on appeal. New Energy Econ., Inc. v. Vanzi, 2012-NMSC-005, 274 P.3d 53.

Declaratory judgment action to determine authority to enact regulations. — A plaintiff may file an action under the Declaratory Judgment Act to raise a purely legal challenge to the environmental improvement board's statutory authority to enact automobile emissions regulations under state law and may file the action independent of the administrative appeal process, with or without the environmental improvement board's consent. State ex rel. Hanosh v. State ex rel. King, 2009-NMSC-047, 147 N.M. 87, 217 P.3d 100, aff'g State ex rel. Hanosh v. N.M. Envtl. Improvement Bd., 2008-NMCA-156, 145 N.M. 270, 196 P.3d 970.

Standard of judicial review. — The substantial evidence rule for administrative appeals is supplemented with a "whole record" standard for judicial review of findings of fact made by administrative agency, so that the standard for upholding a decision by the environmental improvement board is whether the decision is supported by substantial evidence in record as a whole. Duke City Lumber Co. v. N.M. Envtl. Improvement Bd., 1984-NMSC-042, 101 N.M. 291, 681 P.2d 717.

Law reviews. — For article, "Substantial Evidence Reconsidered: The Post-Duke City Difficulties and Some Suggestions for Their Resolution," see 18 N.M.L. Rev. 525 (1988).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39A C.J.S. Health and Environment §§ 146 to 149.