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Constitutional Provisions for Environmental Protection and Management
Given the breadth of the concept of environmental law, many constitutional Articles deal with environmental protection issues. For practical reasons, however, only the most important provisions pertaining to environmental protection and management are described below.
Article 4 of the Mexican Constitution establishes the right to health protection as a fundamental human right. Under the constitutional reform of 28 June 1999, it also establishes the right to a health environment, providing as follows : "All persons are entitled to enjoy an appropriate environment for their development and well-being." Despite the constitutional recognition of the right to a healthy environment, representing a leap forward in the fight to conserve the environment, it is does not in fact act as a right to be defended in court as such, but rather must be developed in the form of a law.
Article 25 of the Mexican Constitution addresses the general obligations of the government to promote public and private sector corporations according to principles of sustainability, social equity and productivity. Furthermore, the government may, in the public interest, regulate the structure of such corporations and their use of natural resources in order to preserve such resources and the environment. The concept of environmental conservation was first expressly incorporated into article 25 through amendments to the Mexican Constitution on 3 February 1983, known as the "Economic Reform" ("Reforma Económica"), which significantly advanced the principles of conservation of the Mexican government. The industries related to petroleum, basic petrochemicals, radioactive minerals and the generation of nuclear and electrical power are all considered "strategic activities" and are thus reserved exclusively to the public sector under the control of the federal government.
This article was reformed on 28 June 1999, along with Article 4, to incorporate the principle of comprehensive and sustainable development in the national democratic planning system.
Article 26 asserts that it is the State's responsibility to organize a democratic planning system for national development planning that warrants solid, dynamic, permanent and equitable economic growth. Under the Constitution, the State is required to issue a National Development Plan (Plan Nacional de Desarrollo), including a section dedicated to environmental protection, which must be adhered to by all programs that make part of the Federal Public Administration (Administración Pública Federal). Under this article, problems posed by environmental pollution and the exploitation of natural resources are considered as national priorities.
Article 27 establishes the Nation's original ownership over the nation's lands, waters and natural resources. It is the primary constitutional basis upon which the federal government is empowered to restrict private property rights in the public interest, including the advancement of environmental protection.. Since the adoption of the Mexican Constitution in 1917, Article 27 has embodied the concept of "natural resources conservation", which evidences the importance that Mexico has historically given to the social function of property and the limitation of private property as an absolute right.
Article 27, paragraph three, states that "the Nation shall, at all times, have the right to impose on private property the limitations that the public interest dictates . . ."
Under Article 27, the Nation is also granted the authority to regulate the exploitation and use of natural elements for the benefit of society, which includes their conservation, the achievement of a balanced development of the country and the improvement of the living conditions of the people. Furthermore, the Nation is required to establish those measures which are necessary in order to preserve and restore the ecological balance and prevent the destruction of natural elements and damage to property.
Article 27 provides a general definition of those natural resources over which the Mexican Nation has direct dominion; this includes minerals and substances whose nature is different from the components of the ground, as well as metals, precious stones, salts and petroleum. State ownership of national waters and natural resources is inalienable and imprescriptible; however, private parties may exploit certain resources through concessions being granted by the State. Other resources and related activities (oil, electricity and nuclear industries) are exclusively reserved to the State.
National Reserve Zones
Article 27, paragraph two, grants the Nation the power to establish national reserve zones.
In addition, Article 27, paragraph two, also establishes that the Nation is empowered to expropriate private property, but only in the public interest and upon payment of proper indemnity.
Article 73 contains an extensive list of the powers invested in the Congress of the Union (Congreso de la Unión), including the power to enact laws aimed at protecting the environment. In August of 1987, along with Article 27 of the Mexican Constitution, Article 73 (XXIX-G) was amended for the purpose of empowering Congress, "to enact laws that establish joint responsibility concurrencia of the Federal Government and state and municipal governments, in their respective jurisdictions, in regard to matters related to environmental protection and the preservation and restoration of the ecological balance."
Article 115 of the Mexican Constitution assigns certain powers to municipal authorities, including powers pertaining to environmental matters such as: general public sanitation; urban zoning and development plans; administration of territorial and ecological reserves; land use management; and issuance of building licenses and permits.
Article 122 (VI.G.) authorizes the Assembly of Representatives of the Federal District (Asamblea de Representantes del Distrito Federal) to create ecological regulations, establish natural reserves and protect the environment.