- 1.Are there any environmental provisions in your constitution? If so, please describe the provisions and their implications.
The Political Constitution of the United Mexican States (Constitución Política de los Estados Unidos Mexicanos) regulates the protection of the environment in Article 4, which states that every person has the right to a healthy environment, suited to his development and wellbeing. It also refers to the right to access, dispose of, and manage water for personal consumption purposes in a sufficient, sanitary, acceptable and accessible manner. In that sense, the article establishes the liability that can derive from environmental damages.
Article 27, on the other hand, regulates the property of the State over its land and natural resources. It represents one of the longest most complex articles in the Political Constitution of the United Mexican States, and refers to the Mexican territory as a tri-dimensional sphere, including land (with its natural alterations – mountains, lakes, etc), air and underground. It details the way in which the ownership of the Mexican territory is divided between the Federation and the States. The text divides the environmental regulation for different sectors (forestry law, agricultural law, law of property, water rights law, etc).
- 2.What is the environmental statutory and regulatory framework? Please identify the primary environmental statutes and regulations and the agencies (at all levels) with responsibility for environmental regulation and enforcement.
Under the Mexican Legal System, the Federation, the States as well as the Municipalities have jurisdiction in environmental matters. At the federal level, the main statues are: (i) the General Law of Ecological Balance and Environmental Protection and its regulations (Ley General del Equilibrio Ecológico y la Protección al Ambiente, or LGEEPA); (ii) the General Law for the Prevention and Integral Management of Wastes and its regulations (Ley General para la Prevención y Gestión Integral de los Residuos, or LGPGIR); (iii) the National Water Law and its regulations (Ley de Aguas Nacionales or LAN); (iv) the General Law for Forestry Sustainable Development and its regulations (Ley General de Desarrollo Forestal Sustentable); (v) the General Wildlife Law and its Regulations (Ley General de Vida Silvestre); and (vi) the Mexican Official Standards issued for diverse environmental matters (Normas Oficiales Mexicanas).
On the other hand, every State in Mexico (out of the 32) has its own Ministry of the Environment, under different names. However, at federal level, the Federal Ministry of the Environment and Natural Resources (Secretaría de Medio Ambiente y Recursos Naturales or “SEMARNAT”) is in charge of issuing environmental permits, authorisations and licenses; the Federal Environmental Attorney (Procuraduría Federal de Protección al Ambiente or “PROFEPA”), is competent to watch the adequate fulfillment of all federal environmental laws and regulations (except with regards to water issues); the National Water Commission (Comisión Nacional del Agua or “CONAGUA”) is competent in matters related to waters of federal jurisdiction; the Natural Protected Areas National Commission (Comisión Nacional de Áreas Naturales Protegidas or “CONANP”), is in charge of the administration of Natural Protected Areas; and finally, the National Ecology Institute (Instituto Nacional de Ecología or “INE”), is in charge of environmental scientific research carried out in the country, aiming towards the improvement and evolution of environmental policy in Mexico.
- 3.Please identify major environmental treaties and conventions that your jurisdiction has ratified or to which it is otherwise subject (eg, Kyoto Protocol, Basel Convention, POPs)?
The major environmental treaties and conventions that Mexico has ratified are: (i) the Vienna Convention for the Protection of the Ozone Layer; (ii) the Montreal Protocol on Substances that Deplete the Ozone Layer; (iii) the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; (iv) the United Nations Framework Convention on Climate Change; (v) the Kyoto Protocol to the United Nations Framework Convention on Climate Change; (vi) the United Nations Convention on the Law of the Sea; (vii) the North American Agreement on the Environmental Cooperation; (viii) the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); (viii) the 1990 Global Convention on Oil Pollution Preparedness, Response and Co-operation; and the (ix), the Convention on Biological Diversity. At the regional level, the North American Free Trade Agreement (NAFTA) represents the most important environmental regulatory instrument for Mexico.
- 4.What is the environmental permitting process in your jurisdiction? Are separate permits required for air, water and waste? Are permits required as a condition to construction of a facility? What is the average timeline for a facility to obtain environmental permits?
Under the Mexican legal system, there is no unique environmental permit, licence or authorisation applicable for a series of activities as a whole, so several environmental permits, licences and authorisations have to be obtained in order to comply with the relevant regulations in all matters, such as environmental impact, air emissions, water supply and discharge, waste management, among others.
In that sense, at the federal level, an Environmental Impact Authorisation has to be obtained from SEMARNAT for the works or activities referred to in article 28 of the LGEEPA; an Environmental Unique Licence has to be obtained from SEMARNAT for air emissions activities; a registry as a waste generator has to be obtained from SEMARNAT to handle hazardous wastes; and a concession and permit must be obtained from CONAGUA in order to have national water supply and discharge waste water, in national body water receptors.
On the other hand, in terms of article 35-Bis 3 of the LGEEPA, the municipal authorities must abstain from emitting the permits for the initiation of activities, until SEMARNAT hasn’t issued the relevant Environmental Impact Authorisations, when applicable.
Finally, there is no unique timeline in order to obtain environmental permits, due to the fact that each process has a different set of rules. However, in general terms, the average time taken for authorities to issue authorities is 60 working days.
- 5.Please explain the role of a ‘social licence to operate’ in your jurisdiction.
In Mexico, there is no thing such as a “social licence to operate”, but in the cases in which an Environmental Impact Authorisation is required, any person can request a public consultation on the project, in order to carry out comments and objections to the its implementation.
- 6.Is there private ownership of oil, gas and minerals in your jurisdiction? If not, how are concessions granted and what environmental considerations apply?
Ownership of oil, gas, or minerals, is regulated in the Political Constitution of the United Mexican States’ article 27, 4th and 5th paragraphs, oil and gas are considered strategic areas, meaning that the State holds the exclusiveness of the exploitation and development of such activities. Regarding minerals, as long as they are not radioactive minerals (also classified as strategic areas), they can be exploited via concessions, since they belong to the group of prioritary areas.
In that sense, the Mining Law (Ley Minera) and its regulation sets the procedures and requirements to obtain concessions regarding minerals, the general rule being that the government carries out public contests in which many candidates, interested in exploiting the given minerals take part, with a presentation of their proposals for the intended activities.
The environmental implications involved in each of the three activities vary depending on a series of factors. In any case, an Environmental Impact Authorisation is needed for each.
- 7.What is the regulatory environment for renewable and alternative sources of energy and fuels (wind, solar, nuclear, biofuels, synfuels)?
The renewable and alternative sources of energy and fuels are subject to several special laws and regulations, such as the Law for the Public Service of Energy, and the Law for the Exploitation of Renewable Energies (Ley del Servicio Público de Energía Eléctrica) and the Financing of Energetic Transition (Ley para el Aprovechamiento de Energías Renovables y el Financiamiento de la Transición Energética) and its Regulations. However, no specialized environmental regulations exist on that matter.
In that sense, any kind of project of renewable and alternative sources of energy and fuels has to be regulated in the same way than other environmental projects, due to the implications of environmental impacts that can derive from each.
- 8.How are environmental laws and regulations enforced in your jurisdiction? Describe the approach to enforcement and the roles of the authorities responsible for enforcement.
Environmental governance is controlled by SEMARNAT, which is in charge in issuing licences, permits and authorisations. The vigilance and enforcement of such licences, permits, and authorisations, as well as the compliance of environmental law in general is jurisdiction of PROFEPA, who initiates administrative procedures, in order to impose fines or other sanctions.
- 9.What types of administrative, civil and criminal penalties can be imposed for violations of environmental laws?
In administrative matters, PROFEPA can impose, in the cases of violation of environmental laws, the following sanctions: Fines (20-50,000 minimum wages in Distrito Federal, (at 62.33 pesos throughout 2012); temporary or absolute site closures, administrative arrest (that can only go up to 36 hours), seizure of assets, suspension or revocation of concessions, licenses, permits, etc.
Under the scope of civil law, the violation of environmental laws can give foot to liability, sanctioned with damages and lost profits. The amount of the sanctions may vary depending on the circumstances surrounding each case.
Finally, some violations to the environmental laws can be considered as crimes, sanctioned with prison and fines; with the possibility to combine both. Local Crime Codes can also establish a series of conducts that constitute crimes.
- 10.How and under what authority are air emissions regulated in your jurisdiction?
According to the LGEEPA and its Regulations for the Prevention and Control of Atmospheric Pollution and the Regulations for Recording of Emissions and Transfer of Contaminants (Reglamento de la Ley General del Equilibrio Ecológio y la Protección al Ambiente en Materia de Registro de Emisiones y Transferencia de Contaminantes), SEMARNAT is the authority in charge of regulating air emissions, originated by any source, that are subject to the federal jurisdiction.
In this regard, SEMARNAT issued a Unique Environmental Licence to regulate air emissions and other matters, such as hazardous waste or water issues, which required an annual report to update it.
On other hand, point sources that aren’t subject to federal jurisdiction, can, however, be subject to the local ones, and must therefore account for the laws of the States where the air emissions points are located.
- 11.Who is liable for environmental contamination of soil, surface water and groundwater, and is the liability based on fault or on status?
According to the Polluter Pays Principle, the person that generates soil, surface water and groundwater contamination, is liable for the remediation of it, but in cases of soil contamination from hazardous wastes, both the possessor and the owner are equally liable for the remediation activities that correspond, with the possibility to turn to the contamination generator.
- 12.What is the law governing the remediation of contaminated property?
The General Law for the Prevention and Integral Management of Wastes and its regulations (LGPGIR).
- 13.What is the nature of liability for damage to natural resources and who can enforce and recover for such damages?
Environmental damages can give foot to civil, administrative and criminal liability, depending on the action or omission carried out, the authorities responsible for the enforcement and recovery for those damages being: PROFEPA, or any other person or group of people with an interest in the matter. Also, recent reforms introduced class actions as a means to demand environmental responsibility from damage to natural resources.
- 14.How are environmental issues typically addressed in property transfers or mergers and acquisitions? Are there any specific laws that govern environmental aspects of such transactions?
There are no environmental specific provisions under the Mexican system, but in case of authorisations, licences, permits or concessions’ transfers that derive from the merger or acquisition, a notice must be presented to the authorities, or an authorisation for such transfer may also be required, depending on the case.
- 15.What environmental laws apply to the shutdown or sale of a facility?
There is no special law for the shutdown or facilities’ sales, in any case, everyone has to comply with the LGEEPA, LGPGIR, LAN and other Laws and regulations, and noncompliance with them can provoke a shutdown order from the relevant authorities.
- 16.Does your jurisdiction regulate or provide incentives to conduct environmental audits or assessments? If so, please describe.
The LGEEPA Regulations for Environmental Audits (Reglamento de la Ley General de Equilibrio Ecológico y la Protección al Ambiente en Materia de Autorregulación y Auditorías Ambientales) establish a procedure to carry out environmental audits, which generate the right to obtain and use a Clean Industry Certificate. However there is no real incentive to carry out the above.
- 17.Are there any requirements for the conduct of environmental assessments or environmental impact assessments, such as a condition to obtaining a permit or in connection with a transfer of real property? If so, describe.
The unique requirement to carry out an environmental impact assessment is to be the possessor or owner of the real estate property that is going to be used for the relevant project. In any case, the preparation of the Environmental Impact Assessment has to be carried out, following the guidelines established in the Regulation of the LGEEPA that refers to environmental impact. (Reglamento de la Ley General del Equilibrio Ecológico y Protección al Ambiente en Materia de Evaluación del Impacto Ambiental.)
- 18.What is the process and timetable for conducting and receiving approval of environmental impact assessments?
Once an environmental impact assessment is submitted to the authority, 60 working days have to pass in order to obtain the relevant approval, but in some cases, and due to the magnitude of the project under evaluation, the authority can request another 60 working days to decide on the approval or denial of the project.
In any case, if the authority carries out a formal requirement of further information regarding the project, the original 60 working days can be suspended for another 60 working days until such information is submitted.
- 19.How are water rights allocated and transferred?
Firstly, the right to national water uses must be obtained via concessions, granted by the Federal Government through CONAGUA, according to the Political Constitution of the United States’ article 27, and the LAN.
However, if the user of a concession wishes to transfer the concession to a third party, it must be authorised by CONAGUA, who may modify the terms and extension of the concession once it is transferred.
- 20.What regulatory requirements apply to the discharge of industrial wastewater in your jurisdiction?
A waste water permit has to be obtained from CONAGUA or the relevant municipality in order to carry out waste water discharges, depending on whether they will be made in a national body or in a local sewer system.
In the same sense, the Official Mexican Standards named NOM-001-SEMARNAT-1996 and NOM-002-SEMARNAT-1996 are applicable to waste water discharges in national bodies and local sewer system, accordingly.
- 21.Are greenhouse gas emissions regulated in your jurisdiction? If so, describe the regulatory regime.
In Mexico, GHG emissions’ regulation does exist. It is mainly regulated through international agreements like the Kyoto Protocol and the United Nations Framework Convention on Climate Change, both signed by Mexico.
- 22.Are there any chemicals or products that are subject to special environmental requirements in your jurisdiction, such as asbestos or PCBs?
For PCBs a special regulation does exist, set in the Official Mexican Standard named NOM-133-SEMARNAT-2000, which establishes the specifications for environmental protection regarding equipment and other materials with PCBs.
On the other hand, and concerning asbestos, the Official Mexican Standard named NOM-125-SSA1-1994 establishes sanitary requirements to process and use asbestos.
- 23.What legal protections are afforded to patrimony or cultural heritage (protected areas, flora, fauna, species) and environmentally sensitive areas (wetlands, ecosystems)?
Species of flora and fauna declared as protected species under the NOM-059-SEMARNAT-2010 have to be handled according to such Official Mexican Standard for their protection and management.
On the other hand, environmentally sensitive areas can be protected through the establishment of a Natural Protected Area according to the LGEEPA, and its Regulation on that matter. In that sense, a series of actions and activities are restricted or prohibited within the boundaries of such areas.
- 24.What constraints are there on availability of landfills for disposal of waste?
The Official Mexican Standard named NOM-083-SEMARNAT-2003 establishes a series of specifications for environmental protection in matters of site selection and construction for the final disposal of wastes. For instance, if the site is estimated to be located at 13kms from an airport, an aviator risk study must first be carried out to determine the actual location. Distance limitations are also imposed on sites that are projected near population concentrations that exceed 2500 inhabitants, to those close to superficial body basins, or to extraction sites of water for domestic use. There is also a regime of exclusion when it comes to Natural Protected Areas, since final disposal sites can under no circumstance be located within them, unless the Natural Protected Areas’ Management Plans allow it. Similarly, the sites can’t be established in mangrove swamps, estuaries, swamps, wetlands, marine zones; or in flooding areas that have under 100 years of comebacks.
- 25.What regulations or government initiatives are there in your jurisdiction relating to extended producer responsibility or to sustainability?
A law initiative that will regulate environmental liability currently lies under discussion in the Federal Congress.
- 26.What right does the public have to access documents and reports filed with regulatory authorities? Describe the nature of and process for securing any protections for confidential business information.
In Mexico, the right to information access is recognised as a human right in the Political Constitution of the United Mexican States. Congruently, a Federal Institute for Access to Public Information (Instituto Federal de Acceso a la Información y Protección de Datos or IFAI) was created. The Institute’s main function is the implementation and vigilance of the Transparency and Access to Government Information Law (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental or LFTAIPG). It was created as a Constitutionally Independent Organism; politically and economically self sustained; parallel to the tri-dimensional legislative, judicial and administrative/presidential structure in Mexico.
Under the Mexican legal system, any individual has the right to request environmental information before the federal, state or municipal authorities, by following the rules stated in the Federal Law of Transparency, but in environmental matters, the LGEEPA contains provisions regarding access to environmental information.
- 27.What are the rights of the public or NGOs/environmental groups to participate in environmental permitting or enforcement of environmental laws? Is such participation typical?
NGOs have the right to request a public consultation on projects undergoing Environmental Impact Assessments, in order to carry out comments to the project during its evaluation.
In any case, such NGOs represent affected parties and, as such, have a standing to file a remedy of appeal against relevant Environmental Impact Authorisations as well the right to seek for a nullity claim of the project.
- 28.What are the most significant current trends in environmental regulation and enforcement in your jurisdiction?
Mexico is currently undergoing a structural constitutional shift, in light of a series of reforms that are yet to be implemented in our system. The changes made to our Amparo Trial, as well as the mechanisms to defend human rights, like the newly implemented class actions on that matter will allow a rapid progress in the defence of the environment and environmental management.
- 29.Identify and describe the significance of any noteworthy court litigation in your jurisdiction regarding the environment.
The Supreme Court of Justice has recently revoked Environmental Impact Authorisations given the lack of compliance of public consult procedures established in the LGEEPA, establishing henceforth important precedents in environmental law.
- 30.What features of your jurisdiction’s environmental laws are not covered by the previous questions?
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