Summary of Environmental Law in Mexico
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4 General Environmental Law and Policies
4.2 General Environmental Rights and Responsibilities
- Mexican environmental principles are set forth primarily in the Ecology Law. However, the Ecology Law is complemented by a number of other media specific laws and regulations. In Mexico, environmental liability may arise under the administrative, civil or criminal provisions established by the federal and state governments; most environmental litigation, however, start at the administrative level.
- Civil Liability Article 203 of the Ecology Law deals with environmental responsibility, meaning that all persons are obliged to redress any damages caused to the environment in accordance with the applicable civil legislation. However, Article 203 does not expressly establish responsibility for damages caused to human health. On the other hand, Article 204 of the Ecology Law states that, where damages have been caused, those aggrieved may request from environmental authorities that a technical opinion be obtained. Such opinion may be introduced as evidence in civil suits.
- Under Civil Law, damages to individuals or property may be redressed in one of three ways. The first relates to the concept of subjective responsibility, analogous in some ways to the concept of injury, set out in Articles 1910, 1916 and 2110 of the Civil Code for the Federal District Regarding Common Matters and for the Entire Republic Regarding Federal Matters (Código Civil para el Distrito Federal en Materia Común y para toda la República en Materia Federal) (hereinafter the Federal Civil Code), which requires that damages caused by illicit acts or actions that go against generally accepted customs be redressed. Because all damages must be a direct and immediate consequence of the illicit act or breach of duty, environmental liabilities are, nevertheless, often difficult to prove. The second form of redress is brought about by the concept of objective responsibility provided for in Article 1913 of the Federal Civil Code, which is a form of strict liability requiring the redress of damages arising from the use of any mechanism, instrument, apparatus or substance that is inherently dangerous, due to its speed or by reason of its explosive, flammable, electrical or other hazardous nature. The third type of redress stems from a nuisance provision set out in Articles 1931 and 1932 of the Federal Civil Code which requires property owners to assume liability for all damages to third parties and their property arising from: the partial or total deterioration of a building; explosions or damages arising from explosive materials or machines located on the property; gases or fumes that are noxious or harmful to people or other property; sewage water leaks or disposal of infectious materials through the sewage system; water that floods or damages neighboring property; weight or movement of machines, accumulation of materials or animals harmful to health; and any other action that unrightfully causes damages.
- Corporate and Lender Liability. The Business Corporations Law (Ley de Sociedades Mercantiles), which regulates Mexican corporations, protects shareholders from liability beyond their share of capital investment unless the corporation fails to comply with its incorporating articles or has been set up for illegal purposes. Generally, the Mexican business law does not recognize the theory of piercing the corporate veil (holding a parent company liable for the actions of its subsidiaries). In a joint venture situation liability is generally governed by the terms of the agreement. Articles 1918 and 1924-27 of the Federal Civil Code do, however, recognize the principle of respondeat superior, which holds persons liable for damages arising from the actions of their agents or legal representatives when they are acting within the scope of their duties. Owners are only liable, nevertheless, when it can be shown that they themselves were negligent or at fault; otherwise employers have indemnification rights against employees. Mexico has no specific standards that govern creditor liability arising from the seizure of a pledged asset.
- Criminal Liability (Federal Environmental Crimes). The Ecology Law establishes in Article 182, essentially, two ways through which a federal criminal action may be brought in regard to environmental offenses. First, whenever federal authorities are aware of actions or omissions that might be construed as crimes, they shall denounce such crimes before the Federal Public Prosecutor (Ministerio Público Federal). Second, the Ecology Law provides that any person may directly bring a criminal action regarding environmental offenses before the Federal Public Prosecutor.
- Crimes under the Federal Penal Code. The environmental offenses referred to in the above paragraph are described in Articles 414 through 423 of the Federal Penal Code. The penalties set forth under the Federal Penal Code range from fines amounting to up to three thousand times the minimum daily wage to jail terms of six months to ten years. Both the jail terms and the fines may be increased, depending on the type of offense committed.
The following, amongst others, are considered federal environmental offenses:
- Undertaking activities with hazardous materials or wastes which harm public health, the wild flora and fauna, the natural resources or the ecosystems;
- Releasing pollutants into the atmosphere, causing damage to natural resources;
- Discharging wastewater, wastes or pollutants in soils, marine waters, rivers, lagoons and ground waters that cause harm to public health, the wild flora and fauna, the natural resources or the ecosystems;
- Destroying or filling wetlands, lagoons, marshes or mangrove swamps.
- Bringing into the country or dealing in forestry resources, flora and fauna specimens that suffer from contagious disease or plagues.
- Destroying or cutting trees without being so authorized.
- Causing forest or jungle fires.
- Capturing, harming or killing marine turtles, marine mammals, or deal in their byproducts.
- Dealing in endemic or endangered species.
- Introducing, dealing in and handling genetically modified organisms, in contravention of the law.
Criminal Liability - Crimes under State Laws
In accordance with Article 188 of the Ecology Law, every state must establish its own sanctions for environmental crimes committed under its environmental legislation. The Federal District now has its own Penal Code; previously the federal code applied in the Federal District by default. On the other hand, PROFEPA has delegations in every one of the states.