Summary of Environmental Law in Mexico

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6 Public Participation

 

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6.1 Participation in Law-Making

 

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Participation in the Legislative Process

Pursuant to Articles 40 and 41 of the Political Constitution of the United States of Mexico (hereinafter Mexican Constitution), citizen participation in the law-making process is confined to the ballot box and elected representatives in the state and federal legislatures. While the public has the right to request the Congress (Congreso de la Union) to consider adopting particular legislation, in practice the Congress has generally ignored such requests.

Participation in the Adoption of Official Mexican Standards)

Mexico has no statute providing for the general right to public comment on proposed regulations. Citizen participation is provided for, however, under the Federal Law on Metrology and Standardization (Ley Federal de Metrología y Normalización) (hereinafter Standardization Law), which governs the process for adopting Official Mexican Standards (Normas Oficiales Mexicanas (NOMs)), which prior to 1992 were referred to as Technical Ecological Standards (Normas Técnicas Ecológicas (NTEs)). NOMs are technical standards, specifications, criteria, rules, instructions, or circulars adopted by different Secretariats pursuant to the National Standardization Program (Programa Nacional de Normalización), which is under the direction of the Secretariat of the Economy (Secretaría de Economía (SE)).

NOM Committees

The National Standardization Commission (Comisión Nacional de Normalización (CNN)), which is made up of representatives from various Secretariats and private and public institutions, associations, and organizations, implements the Standardization Program and recommends the adoption of NOMs, as well as undertaking all actions related to the development, modification and publication of NOMs. In addition to the CNN, there are National Standardization Advisory Committees (Comités Consultivos Nacionales de Normalización) with technical representatives from the corresponding Secretariats and the public and private sectors, which are responsible for elaborating the NOMs and overseeing their compliance.

Procedures for Adopting NOMs

Once the Advisory Committee receives a draft NOM from the Secretariat, the corresponding Advisory Committee has 75 days to make its comments. The original proponent of the draft NOM then has thirty days in which "to make the corresponding modifications." The revised draft NOM is then published in the Federal Official Gazette (Diario Oficial de la Federación), within 60 days for public comment. The proponent of the draft NOM can petition to have the proposed NOM published in the Federal Official Gazette without the modifications made by the Advisory Committee, if it considers the Advisory Committee's comments to be unjustified.

The public is free to consult any analysis of the proposed NOM by the Advisory Committee. At the end of the public comment period, the Advisory Committee has forty five days in which to study and make changes to the proposed NOM and prepare responses to the comments received which are then published in the Federal Official Gazette. Members of the Advisory Committee, the National Standardization Commission and the corresponding authority (Secretariat) may also recommend that the NOM be cancelled.

Once the respective Standardization Committee approves the text of the standard, it will then be issued by the competent authority, which must be published in the Federal Official Gazette to have effect.

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6.2 Participation in Implementation and Enforcement

 

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Ecology Law

The General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y Protección al Ambiente) (hereinafter Ecology Law) makes numerous references to general public or "social participation." The Law assigns the Secretariat of the Environment and Natural Resources (Secretaría del Medio Ambiente y Recursos Naturales (SEMARNAT)) with the responsibility of promoting citizen participation in environmental protection.

With this objective, Articles 157 and 158 of the Ecology Law mandate the Federal Government, through SEMARNAT to establish a close participatory relation with civil society organizations, non-profit private institutions and citizens to start joint ecological actions for environmental restoration and protection.

In addition, pursuant to Articles 157 and 158 of the Ecology Law, SEMARNAT shall implement Advisory Councils for the implementation and monitoring of environmental policies with the participation of universities, NGOs, entrepreneurs, and local and federal authorities. SEMARNAT shall revise and analyze the proposals given by the Advisory Councils and shall resolve by writing whether it accepts or rejects the council's proposals and explain its reasoning to do so.

These Councils are advisory bodies responsible for advising, assessing and following through on environmental policy, and they may issue the opinions and observations they deem appropriate in order for SEMARNAT to respond to civil society's environmental policy demands.

The current SEMARNAT Councils are as follows:

Other Laws and Regulations

Other environmental legislation and regulations, including the Forestry Law (Ley Forestal), the General Human Settlements Law (Ley General de Asentamientos Humanos) and the Regulations to the Ecology Law in Matters Relative to the Prevention and Control of Contamination in the Atmosphere (Reglamento de la Ley General de Equilibrio Ecológico y Protección al Ambiente en Materia de Prevención y Control de la Contaminación Atmosférica) also make general reference to the promotion of social participation and cooperation agreements with members of the private sector.

Enforcement

Although Mexican environmental law does not provide for citizen suits per se, other mechanisms for the public's participation in environmental planning and policy and the enforcement of environmental laws and regulations exist. These mechanisms include the right to bring:

  1. Participation environmental planning;
  2. A citizen complaint;
  3. An Appeal of Review;
  4. A public consultation and information meeting on the Environmental Impact Assessment of a project;
  5. A request for a technical report;
  6. A criminal complaint;
  7. Participation in the development of ecological development programs;
  8. Participation in the establishment of Protected Nature Areas;
  9. Participation in ecological restoration programs; and
  10. An amparo Demand.

Environmental Planning

Article 18 of the Ecology Law provides that the federal government must further the participation of various citizen groups in the development of programs aimed at environmental protection. Citizen Complaint

Under the Ecology Law, any citizen may lodge a popular complaint with the Federal Attorney General for Environmental Protection (Procuraduría Federal de Protección al Ambiente (PROFEPA)), part of SEMARNAT, for any incident, act or omission within the federal government's jurisdiction, that harms, or may harm, the environment or natural resources. The person bringing the complaint must provide their name and address and sufficient information to locate the source of the complaint. If there is no PROFEPA in the locality, the complaint may be filed with municipal authorities. In the case of presentation of two or more complaints for the same facts, those shall be accumulated in a single file. The complaint may even be filed by telephone, although the complainant shall ratify it in writing in the next three days. The complainant may bring in evidence, documents and information related to the case in hand. On the other hand, PROFEPA may collaborate with universities, NGOs, and research centers to produce studies and expert reports related to complaints. Upon receiving the complaint, PROFEPA has 10 working days in which to inform the complainant of the actions that PROFEPA is taking to verify the complaint.

Appeal of Review

The Appeal of Review serves to appeal acts and resolutions issued by administrative authorities, including those of PROFEPA. It shall be presented within the next 15 days of the date of the resolution precisely before the authority that issued it. The Appeal of Review is regulated by the Federal Administrative Procedure Law.

Public participation in the environmental impact evaluation process

Article 34 of the Ecology Law requires that environmental impact reports should be made available to the public so that they can be consulted by anyone, while safeguarding the proprietary rights of industry and the confidentiality of commercial information. This article also establishes a procedure for public consultation that may be initiated by SEMARNAT by request of any member of the affected community. This procedure includes the possibility that the authority may organize a public information meeting when dealing with matters of works or activities that could generate serious ecological imbalance or damage to public health or ecosystems. In this meeting the promoter will explain the technical environmental aspects of the proposed works or activities and any interested party will be able to propose the establishment made by the interested parties will be included in the corresponding written proceedings and the resolution issued by the authority should reflect the process of public consultation carried out as well as the observations and proposals that were formulated in writing.

Request for a Technical Report

In accordance with Article 204 of the Ecology Law, citizens may request from SEMARNAT a technical report when they have been injured or harmed by a violation to the Ecology Law. The report may then be used as a form of proof in a civil suit by the citizen seeking compensation and redress for its harm.

Criminal Complaint

Article 182 of the Ecology Law provides that every person may file criminal complaints at the Federal Public Prosecutor (Ministerio Público) for actions or omissions that may constitute federal environmental crimes as described in the Federal Penal Code at Articles 415 to 420.

Amparo Demand or Suit

Based on Articles 103 and 107 of the Mexican Constitution, an amparo demand or suit is a legal action of last resort brought by an aggrieved party seeking reparation for, or the suspension or annulment of, an act by a government authority that violates the complainant's individual guaranteed rights. The two most common amparo demands are the indirect amparo and direct amparo. An indirect amparo demand may be brought in District Court (Tribunal de Distrito) to contest: (1) a local or federal law, an international treaty, executive or local state regulations, or other general regulations, decrees or accords; or (2) acts that do not come from judicial, administrative or labor tribunals. A direct amparo, on the other hand, may be brought to contest definitive sentences or decisions and resolutions that impose a final judgment, dictated by a civil, administrative or labor tribunal in violation of the law or its judicial interpretation.

Under the amparo Law (Ley de amparo) there are three potential parties: (1) the aggrieved party or parties (2) the responsible authority or authorities, and (3) affected third parties. In bringing an amparo, an aggrieved party must demonstrate a legitimate or legal interest in the wrong being sought to be redressed, and causation that is both "personal and direct." This burden of a legitimate or legal interest, however, is often difficult for citizens to prove because the environmental harm often tends to be "collective" or "diffuse." It is also hard for citizens to demonstrate a personal and direct causation between the government's action or inaction and the harm being alleged. In addition, amparo proceedings apply only to the aggrieved party bringing the case. As a result, amparo proceedings may not be used in a class action manner. Only after five consecutive amparo decisions, each with the same similar set of facts and legal reasoning, without any contravening decisions in-between, is jurisprudence created, establishing precedence for future decisions. In nearly every instance, a party to an amparo demand must first have exhausted all legal remedies before bringing the suit.

Ecological Zoning Programs

Article 20 Bis provides that the participation of citizen and business groups and organizations, as well as academic and research institutions should be sought in the development of the general ecological zoning of the territory.

Protected Nature Areas

Under Article 58 of the Ecology Law, prior to issuing declarations of Protected Nature Area designations, the prior opinion of public or private citizen organizations, indigenous peoples, universities, research centers and other groups must be sought.

Ecological Restoration Programs

Pursuant to Article 78, in the case of ecological restoration programs in areas showing degradation, the Secretariat must promote the participation of the owners, holders, public or private citizen organizations, indigenous peoples, and the interested parties.

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2003