Volume 6, Number 18, Page 1

Overview of Mexico’s Environmental Law

By George R. Gonzalez, Esq. and Lic. Maria Elia Gastelum

I. Introduction to the environmental laws of Mexico

During the 1950s and 1960s, Mexico began to industrialize and many farmers migrated to the cities searching for work.1 The formerly agrarian based society transformed itself into an industrial based society. Government subsidies kept the cost of fuel and energy low, which allowed the number of motor vehicles in use to increase quickly. The low cost of electrical energy also allowed industries to use more energy than was justified by the level of their production and much energy was wasted. Electrical generating facilities were major sources of air pollution. By the 1970s the high concentration of people, industry and air polluting motor vehicles inhabiting limited geographical areas created a visible and troubling pollution problem for Mexico. During the 1970s, the Mexican government made its first attempts to establish mechanisms designed to protect the environment.

On March 21, 1971, Mexico’s first consolidated environmental Law, the Ley Federal para Prevenir y Controlar la Contaminación Ambiental (Federal Law for the Prevention and Control of Environmental Pollution), went into effect. This Law primarily addressed public health concerns, including provisions for the control of atmospheric emissions. Three sets of regulations were enacted to implement this Law: regulations to prevent and control atmospheric pollution caused by dust and smoke; regulations to control water pollution; and regulations to prevent and control pollution of the sea.

In 1982, Congress enacted the Ley Federal de Protección del Ambiente (Federal Law for the Protection of the Environment) which covered omissions issues more broadly than the prior Law did. This Law included provisions for the protection and preservation of ecosystems, and initiated a new legal framework to protect flora, fauna, soil and water. This Law was the first to deal with environmental principles with mechanisms for socioeconomic development.

Mexico amended its Constitution in 1987 giving Congress, among other powers, the authority to enact laws to promote the participation of federal, state, and local authorities in environmental matters and to impose limitations on the use and ownership of real property in order to protect the ecological equilibrium. This amendment gave rise to the enactment of new federal environmental laws, such as LGEEPA, which are still in effect today.

LGEEPA, Mexico’s first comprehensive environmental law, went into effect on March 1, 1988.2 LGEEPA was amended in 1996. In contrast to its predecessor, LGEEPA addresses a broader range of environmental matters including protection of natural areas; exploitation of natural elements, including land and water; and protection of the environment, including atmospheric contamination, water and soil contamination, hazardous activities and waste, nuclear energy and other forms of pollution. LGEEPA also sets forth control and safety measures, penalties for non-compliance, guidelines for environmental impact statements and risk assessment. Additionally, LGEEPA addresses matters of jurisdiction, ecological zoning, and enforcement. The following five sets of regulations are currently in effect that implement this Law:

• Reglamento de la Ley General del Equilibrio Ecológico y Protección al Ambiente en Materia de Impacto Ambiental (Regulations of the General Law of Ecological Equilibrium and Environmental Protection for Matters Related to Environmental Impact). (DOF, June 7, 1988)
• Reglamento de la Ley General de Equilibrio Ecológico y Protección al Ambiente en Materia de Prevención y Control de la Contaminación de la Atmósfera. (Regulations of the General Law of Ecological Equilibrium and Environmental Protection for Matters Related to Atmospheric Pollution). (DOF, November 25, 1988)
• Reglamento de la Ley General de Equilibrio Ecológico y la Protección al Ambiente en Materia de Residuos Peligrosos (Regulations of the General Law of Ecological Equilibrium and Environmental Protection for Matters Related to Hazardous Waste). (DOF, November 25, 1988)
• Reglamento de la Ley General de Equilibrio Ecológico y la Protección al Ambiente para la Prevención y Control de la Contaminación Generada por los Vehículos Automotores que Circulan por el Distrito Federal y los Municipios de su Zona Conurbada (Regulations of the General Law of Ecological Equilibrium and Environmental Protection for the Prevention and Control of Pollution Generated by Motor Vehicles that Transit through the Federal District and the Municipalities of the Counties in the Metropolitan Zone). (DOF, November 25, 1988)
• Reglamento para la Protección del Ambiente Contra la Contaminación Originada por la Emisión de Ruido (Regulations for the Protection of the Environment against Pollution Originating from Noise Emissions). (DOF, December 6, 1982)3

B. The 1996 amendment to LGEEPA

The amendment to LGEEPA was published in the DOF on December 13, 1996 (the “Amendment”), and went into effect the next day. Some of the changes to LGEEPA brought about by this Amendment included:

• Purpose of the Law. The Amendment changed the stated purpose of LGEEPA, expanding the purpose of the Law and adding the concept of sustainable development which had not existed previously in the Law. The Amendment also added elements which established the following:
• A guarantee of the right of all persons to live in an environment suitable for their development, health and well being;
• A specific environmental policy and the instruments for its implementation;
• The preservation of biodiversity;
• The establishment and administration of protected natural preserves;
• Sustainable use, preservation and remediation of soils, water and other natural resources in ways that make the obtaining of economic benefits and activities of society compatible with the preservation of the ecosystem;
• A guarantee of the participation of responsible persons, collectively or individually, in the preservation, restoration, and protection of the environment;
• The exercise of powers related to environmental matters delegated to the federal government, the states, the Federal District and the municipalities under the principle of concurrence provided for in Article 73 Section XXIX-G of the Constitution;
• The establishment of mechanisms for coordination, inducement and cooperation among authorities, the public and private sector, as well as with persons and public groups on environmental matters; and
• The establishment of control and security measures to guarantee compliance with, and the application of, this Law and the provisions derived from it and to impose applicable administrative sanctions and penalties.
• Sustainable Development The Amendment of Article 3 replaces the rational use theory with the sustainable use theory. Prior to the Amendment, Article 3 of LGEEPA defined “Rational Development” as the use of natural elements in the most efficient, socially useful manner and in a manner that tends to preserve them and the environment. Article 3, as amended, defines “Sustainable Development” as the use of natural resources for indefinite periods in a manner that respects the functional integrity and load capacity of the ecosystems of which those natural resources are a part.

SEMARNAP’s Environmental Program 1995 - 2000 provides that Sustainable Development includes a set of principles directed at confronting the challenge of designing a more rational, stable and equitable future. Sustainable Development combines the fulfillment of today’s social needs and aspirations with maintenance of biophysical and social balances that are indispensable in the present and future process of development itself.4 One of LGEEPA’s present objectives is to achieve Sustainable Development. In order to achieve Sustainable Development, a balance must be reached between what is considered sustainable from the biophysical point of view and what is considered sustainable from the socioeconomic point of view.

Jurisdiction Prior to the Amendment

LGEEPA contained only a vague statement of environmental matters under federal, state and local jurisdiction.5 After the Amendment, Articles 5, 7, and 8 of the LGEEPA more clearly established federal, state and local jurisdiction. Currently, designation of jurisdiction is based on: the territory in which the activity takes place (i.e. underground, bodies of water, mines, air space, etc.), the type of activity (i.e. water works, oil, mining, hazardous waste, paint, etc.), and the source of pollution (i.e. fixed or mobile, industrial, commercial or for services). The federal government controls matters critical to the well-being of the population, and is in charge of the creation and implementation of environmental directives and guidelines. State and local governments assist in the implementation of these guidelines.

Article 5 of the amended LGEEPA provides that the following matters are exclusively within federal jurisdiction:

• Transportation, storage, recollection, handling, treatment and final disposition of hazardous waste;
• Industrial and commercial activities defined as highly hazardous;
• The issuance of NOMS;
• The management and oversight of federally protected natural areas;
• The prevention and control of environmental emergencies and contingencies ;
• The assessment of the environmental impact of industries under federal jurisdiction (i.e. water works, communications, oil ducts, petroleum industry, cellulose, sugar, concrete, electric industries, and mining);
• Air pollution from fixed sources under federal jurisdiction; and
• The enforcement of the Law.
• Notwithstanding the provisions of Article 5, Article 11 of the amended LGEEPA authorizes the federal government to enter into coordination agreements or conventions with state government for purposes of delegating the following functions to the states or the Federal District:
• The management and oversight of protected natural areas under federal jurisdiction;
• The control of hazardous waste considered to be low hazard in accordance with the provisions of LGEEPA;
• The prevention and control of air pollution emanating from fixed and mobile sources under federal jurisdiction;
• The control of actions for the protection, preservation and restoration of the environmental balance and protection of the environment in the federal lands maritime zone as well as the federal zone in national bodies of water;
• The protection, preservation and restoration of natural resources to which this Law refers, and of the wild flora and fauna, as well as control of their Sustainable Development;
• The carrying out of operative actions tending to accomplish the ends anticipated by LGEEPA; and
• The carrying out of actions to oversee compliance with the provisions of the LGEEPA.
• SEMARNAP created the Coordinación General de Descentralización (CGD) (Office of General Coordination of Decentralization) to complete decentralization. CGD’s main purpose is to direct, promote, coordinate and evaluate the decentralization process to the state and local governments, social organizations and private parties in accordance with the provisions of LGEEPA. So far, CGD has signed numerous agreements with a number of states to promote decentralization.

Environmental Crimes

The Código Penal para el Distrito Federal en materia del Fuero Común y para toda la República en materia de Fuero Federal (CPDF) (Penal Code for the Federal District6 on Matters of General Jurisdiction and for All of the Republic on Matters of Federal Jurisdiction) was amended the same day the Amendment went into effect, repealing Articles 183 to 187 of LGEEPA and adding a new section to the CPDF titled Environmental Crimes. The effect of the Amendment to the CPDF was to delete the section of LGEEPA dealing with environmental crimes and add it to the CPDF.

While LGEEPA does not contain sanctions and penalties for environmental crimes, it does provide for administrative sanctions for violations of environmental law. Such administrative sanctions may consist of the following: a fine equal to 20 to 20,000 days of minimum wage (approximately $70 to $70,000) which may be doubled in the case of repeat offenders; temporary or permanent closure of all or part of the facility; administrative arrest for up to 36 hours and revocation of permits and confiscation of equipment.

The sanctions for environmental crimes contained in the CPFD range from three months to six years of prison and a fine equal to 100 to 20,000 days of minimum wage (approximately $350 to $70,000). In addition, violators may be required to perform community service and execute remediation measures, such as the demolition of facilities or the removal of equipment causing the environmental damage.

Examples of environmental crimes listed in the CPDF are the performance of highly hazardous activities without the required license, the performance of any activity related to hazardous waste without a license, and pollution of air and water in violation of the law.

II. Environmental governmental agencies and their procedures

A number of governmental agencies on both the federal and state levels administer and enforce environmental laws, regulations, administrative orders, and standards in Mexico. These agencies differ in size, jurisdiction, and mission. Companies are often required to comply with the orders and standards of more than one agency.

A. Evolution of federal regulatory environmental agencies in Mexico

Regulatory environmental agencies in Mexico have changed over the past twenty years. Mexico’s first federal environmental agency, the Secretaría de Desarrollo Urbano y Ecología (SEDUE) (Secretary of Urban Development and Ecology) was created in 1982 to oversee environmental laws and address national air pollution, water pollution, hazardous waste, and environmental impact assessment studies.

In 1992 the Secretaría de Desarrollo Social (SEDESOL) (Secretary of Urban Development and Ecology) was created. SEDESOL’s duties included without limitation, coordinating social policy programs for the federal government and the operation of programs to overcome poverty, foster production and job opportunities, help low-income families to purchase homes, and provide subsidies to purchase food items such as tortillas and milk.7 SEDESOL was also entrusted with all the environmental duties previously assigned to SEDUE, and SEDUE ceased to exist.

On December 28, 1994, President Zedillo issued a decree which re-assigned SEDESOL’s environmental duties to a different agency, SEMARNAP. SEMARNAP is primarily responsible for carrying out environmental laws and regulations on the federal level. Although SEDESOL’s environmental duties shifted to SEMARNAP, SEDESOL remains in existence and continues to carry out the remainder of its previously assigned duties.

B. SEMARNAP and its decentralized departments

Presently, Mexico’s primary federal environmental agency is SEMARNAP. SEMARNAP is primarily responsible for the following matters:8

• Oversight and enforcement of the laws and standards concerning the environment;
• Administration of Mexico’s renewable and non-renewable natural resources and the protection of the environment;
• Support Sustainable Development programs in Mexico;
• Protection, restoration, and conservation of natural resources and environmental welfare to ensure the adequate development of health and general well being of the population;
• Establishment of NOMS for the preservation and restoration of environmental ecosystems, use of natural resources including aquatic flora and fauna, wastewater, and environmentally safe management of hazardous materials and non-hazardous waste, air pollution, and noise;
• Granting of contracts, licenses, permits, and authorizations in the areas of air, water, forestry, ecology, fishery, mining, exploitation of flora and fauna, beaches, and other marine zones mostly through its decentralized agencies.

Five decentralized administrative departments within SEMARNAP oversee specific areas of environmental law. The five departments are the Instituto Nacional de Ecologia (INE) (National Institute of Ecology), the Comisión Nacional del Agua (CAN) (National Water Commission), the Instituto Mexicano de Tecnología del Agua (IMTA) (Mexican Institute of Water Technology), the Procuraduría Federal de Protección al Ambiente (PROFEPA) (Federal Agency for the Protection of the Environment), and the Instituto Nacional de la Pesca (INP) (National Institute of the Fishery).

• INE: INE, one of SEMARNAP’s largest administrative departments, is responsible for ecological matters and the protection of the environment. INE develops environmental programs, issues administrative orders and standards, determines the adequacy of environmental impact statements, coordinates the development of environmental programs with state agencies, and grants federal approval on environmental impact studies.
• CAN: CAN is responsible for the administration and safekeeping of the national waters and related real property such as wetlands, marshes, and beaches. In addition, CAN oversees compliance with the Ley de Aguas Nacionales (LAN) (Law of National Waters) and its regulations, and issues orders necessary to ensure the preservation and quality of the national waters.
• CAN also oversees concessions and waste water discharge permits affecting national waters for the drilling of water wells, and for water use pursuant to the provisions of the LAN. Further, CAN maintains a public registry of waste water and inspects and verifies the measurement mechanisms for water consumption.
• IMTA: IMTA is responsible for the promotion and development of water technology including the management and use of water, research, and technological development.
• PROFEPA: PROFEPA, created in 1992, is the enforcement branch of SEMARNAP. PROFEPA is in charge of enforcing the law and is responsible for investigations and inspections of facilities and presides over administrative appeals of companies who have been sanctioned for failure to comply with the law. PROFEPA is also responsible for reporting violations of the CPDF to the Ministerio Público Federal (Federal Prosecuting Attorney) who is in charge of the prosecution of environmental crimes.9
• INP: INP designs, implements, and evaluates areas for fishing and aquaculture throughout Mexico. INP also prepares evaluations of water species, designs programs for use in issuing administrative orders to regulate fishery resources, prepares and updates the inventory of aquatic species, and explores and establishes new areas for species.

C. State agencies and their procedures

New and existing businesses in Mexico must comply with local, state, and federal environmental regulations and licensing requirements. Companies should be fully aware of the local, state, and federal environmental laws applicable to the place where the business will be located.

The states’ role in environmental protection has expanded as a result of the Amendment. Although the federal government authorized the delegation of many environmental functions to the states in the Amendment, these duties have not been delegated in all states because some states may not have the necessary local laws and/or administrative agencies needed to carry out these environmental functions. LGEEPA states that SEMARNAP is responsible for enforcing environmental laws in the states which have not yet enacted environmental laws.10 LGEEPA provides that the following authority is delegated to the states: “establishment, regulation, administration and oversight of protected natural reserves as provided by local law, with the participation of municipal governments (Art. 7. V.); the regulation of systems for recollection, transport, storage, handling, treatment and final disposition of solid and industrial waste considered non-hazardous (Art. 7. VI); and the prevention and control of pollution generated by noise emission, vibrations, thermal energy, light, electromagnetic radiation or odors that negatively affect the ecological balance and the environment (Art, 7.VII).”

III. Conclusion

During the past decade, Mexico has taken steps to balance industrial expansion with environmental protection through the amendment of existing Laws, such as the Amendment, and the decentralization of environmental functions by delegation to the state governments. Current laws place emphasis on Sustainable Development, and state governments take more responsibility for environmental protection than ever before. Businesses in Mexico must now abide by strict and rigorous environmental laws. As Mexico enters the 21st century, a legal and governmental framework exists to protect its environment while continuing industrial progress.

George R. Gonzalez, Esq. is a Partner in Haight, Brown & Bonesteel’s International Cross-Border Practice in the firm’s San Diego office.

Maria Gastelum is a paralegal in Haight, Brown & Bonesteel’s San Diego office working with Mr. Gonzalez on diverse international transactions. Ms. Gastelum practiced law in Mexico until 1994, concentrating on commercial litigation and business transactions.

Haight, Brown & Bonesteel, L.L.P. maintains five offices throughout California. The firm’s practice areas include, environmental compliance and litigation, commercial litigation, intellectual property and tort and product liability litigation.

The following documents are available in the InterAm^SM Database. Some documents are also translated:

• Ley General del Equilibrio Ecologico y la Proteccion al Ambiente [English Translation]
• Reglamento de la Ley General del Equilibrio Ecologico y la Proteccion al Ambiente en Materia de Impacto Ambiental [English Translation]
• Reglamento de la Ley General del Equilibrio Ecologico y la Proteccion al Ambiente en Materia de Prevencion y Control de la Contaminacion de la Atmosfera.
• Reglamento de la Ley General del Equilibrio Ecologico y la Proteccion al Ambiente en Materia de Residuos Peligrosos.

For complete list of environmental laws and technical standards for Mexico, please visit the InterAm^SM Database.

1 Programa Nacional de Población 1995-2000 (National Population Program 1995-2000), Secretaría de Gobernación.

2 Diario Oficial de la Federación (DOF) (equivalent to U.S. Federal Register), January 28, 1988.

3 This regulation was enacted to carry out the law of 1982; however, it remains in effect as a regulation for LGEEPA.

4 Environmental Program 1995 - 2000.

5 LGEEPA as enacted in 1988.

6 The Federal District (Distrito Federal or “D.F.”) is a political entity originally organized in a manner similar to Washington D.C. in the United States. The Federal District is considered a sovereign, separate, political entity in the Republic of Mexico along with the various states that comprise it. Like the states, the Federal District has its own judiciary and local law, separate and apart from the federal court system. In some instances, such as is the case with the CPDF, the federal government has enacted laws that are the local law of the Federal District and federal law for the entire country. Encarta Encyclopedia Encarta Online Deluxe 8/17/99.

7 SEDESOL, www.sedesol.gob.mx. Article 32 of the Ley Orgánica de la Administración Pública Federal.

8 Mark Stuckey, Fernando Ortiz Monasterio, and Paola Romero Crespo, Environmental Management for Mexican Industry Including Maquiladoras (1994).

9 Article 62 XII of the Reglamento Interior de la Secretaría del Medio Ambiente, Recursos Naturales y Pesca.

10 LGEEPA, Transitory Provisions, Article 3 and 5, DOF, January 28, 1988.