Environment 2017

Last verified on Wednesday 12th April 2017

Mexico

Adrián del Paso Puente and Alejandra Guraieb Elizalde
Ibarra, del Paso, Gallego y Berezowsky, S.C.
  1. 1.

    Are there any environmental rights or protections included in your constitution? If so, please describe the provisions and their implications.

  2. The environmental rights and protections under the Mexican Constitution are included in the following articles:

    • Article 4 – Sets forth the human right to a healthy environment for the development and welfare of individuals. The Mexican State shall guarantee such right as well as the human right of access to water for personal and domestic consumption in a sufficient, sanitary, acceptable and affordable way;
    • Article 25 – establishes the promotion of economical activities under sustainable criteria (among others), ensuring the conservation of productive resources and the environment;
    • Article 27 – foresees the Mexican Nation’s ownership of land, water, oil, gas and mineral resources as a general rule, subject to certain rules and exceptions;
    • Article 73 – empowers the Federal Congress to issue legislation that establishes the concurrent authority of the federal, state, and municipal governments, within the limits of their jurisdiction, on environmental protection and preservation and restoration of the ecological equilibrium; and
    • Article 122 – empowers Mexico City’s Legislative Assembly to legislate on the preservation of the environment and ecological protection, within the limits of its jurisdiction.

    These provisions set the basis for the creation of substantive legislation at the federal, state and municipal levels for the regulation and protection of the environment and the natural resources in Mexico.

  3. 2.

    What is the environmental statutory and regulatory framework? Are environmental requirements imposed by sector or on a general basis? Please identify the primary environmental statutes and regulations and the agencies with responsibility for environmental regulation and enforcement.

  4. The Mexican environmental statutory and regulatory framework has been widely developed at the federal, state and municipal levels, each concurrently (or separately) addressing particular environmental matters within the limits of their jurisdiction (eg, in general terms, hazardous wastes fall under the authority of the federal environmental agency, special handling wastes under the authority of the state environmental agency and solid urban wastes under the authority of the municipal environmental agency).

    Environmental requirements are imposed by sector in particular cases, as it is the case of environmental impact and air emissions, which generally fall under the federal and state levels.

    The most relevant environmental statutes at the federal level are the following:
    The General Law on Ecological Equilibrium and Environmental Protection (LGEEPA) and its Regulations, which set forth the basis for the development of environmental legislation in Mexico;

    • the National Waters Law (LAN) and its Regulations;
    • the General Law on the Prevention and Comprehensive Management of Waste (LGPGIR) and its Regulations;
    • the General Law on Sustainable Forestry Development (LGDFS) and its Regulations;
    • the General Law on Wildlife (LGVS) and its Regulations; 
    • the General Law on Climate Change (LGCC) and its Regulations on the National Registry of Emissions; and
    • the Federal Law on Environmental Liability (LFRA).

    Mexican Official Norms derive from the General Law on Metrology and Normalisation. They are binding technical standards issued by the competent administrative authorities, which provide, among others, the characteristics and specifications applicable to products, processes and activities that may constitute a risk to the environment or the preservation of natural resources and maximum permissible limits of pollutants.

    Mexico’s main federal environmental authority is the Ministry of the Environment and Natural Resources (SEMARNAT), which is generally in charge of the application and enforcement of the federal legal environmental framework and organically has, among others, the following deconcentrated authorities for the compliance of such duties:

    • The Federal Prosecutor for Environmental Protection (PROFEPA), which among its duties is in charge of the enforcement of federal environmental legislation (excluding the enforcement of the LAN and its Regulations);
    • The National Waters Commission (CONAGUA), which among its duties is in charge of the enforcement of the LAN and its Regulations;
    • The National Agency of Industrial Safety and Environmental Protection of the Hydrocarbons Sector (ASEA), which is generally in charge of all environmental matters and permitting related with the hydrocarbons sector; and
    • The National Commission for Natural Protected Areas.
  5. 3.

    Please identify major environmental treaties and conventions that your jurisdiction has ratified or to which it is otherwise subject? 

  6. Mexico is a signatory to and has ratified the following treaties:

    • Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES);
    • International Convention for the Regulation of Whaling;
    • Vienna Convention for the Protection of the Ozone Layer;
    • Montreal Protocol on Substances that Deplete the Ozone Layer;
    • Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal;
    • Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade;
    • Stockholm Convention on Persistent Organic Pollutants;
    • Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter;
    • International Convention on Oil Pollution Preparedness, Response and Co-operation;
    • United Nations Framework Convention on Climate Change;
    • Kyoto Protocol to the United Nations Framework Convention on Climate Change;
    • Paris Agreement to the United Nations Framework Convention on Climate Change; 
    • Convention on Biological Diversity;
    • Cartagena Protocol on Biosafety to the Convention on Biological Diversity;
    • Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity;
    • The Ramsar Convention on Wetlands;
    • North American Free Trade Agreement (trilateral treaty); and
    • ILO 169 – Legal actions initiated by individuals in Oaxaca where violations to this agreement were argued have proved to be successful in specific cases.
  7. 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 commencing construction of a facility? What is the average timeline for a facility to obtain environmental permits?

  8. The environmental permitting process in Mexico involves a wide range of considerations depending on the specific project to be reviewed and/or developed, as well as its stage of development.

    First, as pointed out in questions 1 and 2, it is essential to consider the concurrent legal nature of the environmental legislation, as a result of which permits at the federal, state and municipal level addressing common or separate particular environmental matters are required (eg, a Federal and State Environmental Impact Authorisation may be simultaneously applicable for the development of a specific project when the different activities to be undertaken are regulated by both federal and state applicable statutes within their limits).

    Moreover, although in certain cases at the federal and state level there are licences or permits that are comprehended as a whole within the figure of ‘Comprehensive or Sole Environmental Licences’ (which typically cover air emissions, along with other environmental matters), as a general rule environmental licences, permits and authorisations in Mexico are required on a separate basis for air, water, waste and other environmental matters and, consequently, the need of a thorough legal review prior to the development of a specific activity or project (or a specific stage of a project) becomes essential.

    Notably, depending on the specific activity or project to be developed, there are cases in which an Environmental Impact Authorisation is required as a prerequisite or condition precedent for the issuance of construction licences or similar permits. In addition, other state or municipal permits may be required as a condition to commencing construction of a facility.

    As a general rule, the average timeline for a facility to obtain applicable environmental permits ranges between three to six months. In addition, other state or municipal permits may be required as a condition to commencing construction of a facility.

    Furthermore, as a recent development on Environmental Impact, a Decree published by the SEMARNAT in the Official Gazette of the Federation on 3 February 2017 now allows individuals or entities to submit Environmental Impact Statements and related procedures through such authority’s online system. Despite the fact that the legal timeframes for resolution of the applicable environmental impact procedures remain the same, their submission through this system will most likely result in efficiencies.

  9. 5.

    Please explain the role of a ‘social licence to operate’ in your jurisdiction.

  10. The role of a social licence to operate in Mexico has undoubtedly become a crucial aspect of any major project over the past few years, particularly as of Mexico’s Energy Reform (as described in more detail in question 7). This, particularly if the relevant project: (i) is intended to be carried out close to or within indigenous communities; (ii) is related to certain sectors (eg, mining or hydrocarbons sector); and (iii) is intended to be carried out within environmentally impacted areas.

    As an example, within the State of Oaxaca there are well-known cases of renewable energy projects on hold and even in risk of being cancelled as they have not secured the relevant “social licence to operate” as a result of social conflicts with the existing indigenous communities.

    In the case of the energy sector, both the Hydrocarbons Law and the Law of the Power Industry (LIE) provide that projects pertaining to such sector shall obtain a Social Impact Authorisation prior to their development. Such authorisation is granted by the Ministry of Energy (SENER) after a thorough analysis of the social impacts that each project will have on the existing communities.

    As detailed in question 27, please note that the role of NGOs has increased during the last few years. Therefore, for parties intending to carry out major projects, it is advisable to perform a prior social analysis and allocate the necessary resources and time for approaching and undertaking integration and negotiation activities with the related communities. This, in order to minimise or mitigate future social risks that may jeopardise the relevant projects.

     Furthermore, there are certain related public intervention and/or denunciation processes worth mentioning:

    • Public consultation – An extract of the projects subject to the environmental impact evaluation proceeding before the SEMARNAT shall be published by the responsible or developing party as well as by such authority, so that individuals or entities are entitled to exercise their "right to know: and subsequent related actions, such as a public consultation process foreseen in the LGEEPA and its Regulations on environmental impact matters.
    • Individuals or entities may exercise similar consultation rights prior to the enactment of environmental legislation, Mexican Official Norms or other ecological instruments.

    •  Additionally, individuals or entities are entitled to exercise their right to know through the transparency means and related platforms available, as a result of the transparency laws in Mexico (see question 26).

    • Public denunciation – The LGEEPA, the NWL and related legislation, including legislation at the state level (which shall be reviewed on a case-by-case basis) sets forth denunciation procedures, which may be exercised by any individual, entity, social group and NGO due to actual or potential damages to the environment or the natural resources or actual violations or potential violations to applicable environmental legislation.

    • Environmental criminal denunciation is an additional procedure foreseen in the LGEEPA, which may be exercised by the SEMARNAT, the PROFEPA or any other person.

    • Other defence means – Individuals or entities affected in the context of the issuance of environmental permits and/or the enactment of environmental laws may exercise other legal defence means, including the administrative motion of appeal, the contentious administrative trial or even the constitutional or amparo trial, subject to certain rules.
  11. 6.

    Is there private ownership of oil, gas and minerals in your jurisdiction? If not, how are concessions granted and what environmental considerations apply?

  12. Mexican law does not allow private ownership of oil, gas and minerals located in the subsoil. Article 27 of the Mexican Constitution provides that all minerals and hydrocarbons located in the subsoil belong to the Mexican Nation.

    Oil and gas – In the context of Mexico’s Energy Reform (as described in more detail in question 7), pursuant to the recently enacted Hydrocarbons Law, no concessions may be granted to any private party regarding oil and gas wells or reservoirs located within Mexican territory (including Mexico’s exclusive economic zone) as they belong to the Mexican Nation; however, one of the noteworthy modalities set forth in such statute allows the Mexican government to enter into licence agreements with private parties (Mexican or foreign individuals or entities), under which such parties (contractors) shall be entitled to the assignment of hydrocarbons once extracted from wells or reservoirs and upon payment of applicable fees to the Mexican government.

    Minerals – As set forth in the Mining Law and its Regulations, the exploitation of a wide array of minerals (with certain exceptions) is legally feasible through mining concessions, which may be granted to Mexican individuals or entities incorporated pursuant to Mexican laws, provided that certain specific rules are met, including payment of governmental fees or duties.

    Depending on the specific oil and gas or mining project to be developed, particular legal and technical environmental requirements and permits will be applicable, which shall be evaluated on a case-by-case basis. However, in general terms, projects of such type require the obtainment of an Environmental Impact Authorisation, along with other permits, such as the Forestry Land Use Change Authorisation (when removal of ‘forestry vegetation’ is required, as set forth in the LGDFS and its Regulations). 

    Additionally, as mentioned in question 5, projects pertaining to the energy sector require a Social Impact Authorisation issued by SENER. 

  13. 7.

    What is the regulatory environment for renewable and alternative sources of energy and fuels?

  14. Mexico has recently experienced a comprehensive energy reform (the Energy Reform), as a result of which several amendments to existing laws and the publication and enactment of new legislation took place, recently entering into force.

    Generation of energy based on renewable sources is largely regulated under the following statutes:

    • the LIE;
    • the Law for Energy Transition; 
    • the Law for the Promotion and Development of Biofuels; 
    • the Law of Geothermal Energy; and
    • the LGCC.

    Consistent with the legal framework listed above, Mexico’s federal government published the ‘Special Program for the Use of Renewable Energy’ (SPURE). According to the SPURE, the goal for 2018 is that 24.9 per cent of the energy generated is based on renewable sources. For 2024 such goal increases to 35 per cent.

    In terms of the LIE, clean sources are, among others, the following: (i) wind; (ii) solar radiation; (iii) wave energy; (iv) geothermal; (v) biofuels; (vi) hydroelectric energy; (vii) nuclear energy; and (viii) efficient cogeneration.

    The use of clean sources for the generation of energy is promoted under the above referenced legal framework through the implementation of Clean Energy Certificates (CELs). The CELs are notes issued by the Energy Regulatory Commission (CRE) to evidence the generation of energy from the use of renewable sources. CELs will be traded in the Wholesale Electricity Market as of 2018.

  15. 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.

  16. As described in question 2, the SEMARNAT is generally in charge of the enforcement of the federal legal environmental framework and organically relies on: (i) the PROFEPA, for the enforcement of federal environmental legislation (excluding the enforcement of the LAN and its Regulations); (ii) the CONAGUA, for the enforcement of the LAN and its Regulations; and (iii) the ASEA, for the enforcement of environmental matters pertaining to the hydrocarbons sector.

    The LGEEPA and most federal environmental statutes and regulations set forth common stages throughout the enforcement process: (i) notice of inspection visit; (ii) inspection visit; (iii) probatory period/response to inspection visit; (iv) initiation of administrative proceeding (in case the evidence provided in the latter stage is insufficient and further stages are required); (v) probatory period/response to administrative proceeding; (vi) allegations or pleadings; and (vii) resolution.

  17. 9.

    What types of administrative, civil and criminal penalties can be imposed for violations of environmental laws?

  18. Administrative penalties – Violations to federal environmental laws (other than the LAN and its Regulations) can lead to different penalties, such as:

    • fines ranging between 2,401.20 and 4,002,000 Mexican pesos; 
    • temporary or definitive closure, partial or total;
    • administrative arrest for up to 36 hours;
    • seizure of instruments, models, products or byproducts directly related to violations regarding forest resources, wildlife or genetic resources; and
    • the suspension or revocation of the corresponding concessions, licences, permits or authorisations.

    The penalties foreseen in the LAN and its Regulations mainly consist in fines ranging from 16,008 to 1,600,800 Mexican pesos.

    For the imposition of these penalties, the PROFEPA and the CONAGUA shall consider, among others: (i) the seriousness of the violation; (ii) the economic situation of the party in violation; (iii) the repeating nature of the violation; (iv) the intentional or accidental nature of the action or omission that caused the violation; and (v) the profits obtained directly by the party in violation as a result of the violation.

    Civil penalties – Based on applicable civil legislation, damages and lost profits may be claimed due to illegal environmental activities or works that may cause affectations to private estate or property.

    Criminal penalties – The Federal Criminal Code sets forth penalties derived from the commission of crimes against the environment and the environmental management, which mainly consist in economic fines and imprisonment between six months and 12 years, among others.

    The LFRA foresees additional economic penalties due to environmental liability incurred as a result of damages to the environment as well as such damages’ redress and compensation when enforced through federal judicial processes, irrespective of administrative, civil and/or criminal penalties. Such penalties range from: (i) 24,012 to 4,002,000 Mexican pesos for individuals; and (ii) 80,040.00 to 48,024,000 Mexican pesos for legal entities (which may be reduced by one-third provided that certain circumstances are met).

  19. 10.

    How and under what authority are air emissions regulated in your jurisdiction?

  20. Air emissions of Federal jurisdiction are foreseen in the LGEEPA and its Regulations on the Prevention and Control of Atmospheric Pollution (LGEEPA’s Regulations on Air Emissions).

    The air emissions generated by stationary sources are subject to Federal jurisdiction when these are related to the chemical, petroleum, petrochemical, paint, automotive, pulp and paper, metal, glass, electricity, asbestos, cement and hazardous waste industries.

    LGEEPA’s Regulations on Air Emissions set forth the obligation of federal stationary sources to obtain certain permits to operate and to file certain periodic reports, including the obtainment of a Sole Environmental Licence (LAU) from the SEMARNAT and the yearly filing of an Annual Operating Card before such authority.

    On the other hand, state authorities are in charge of the prevention and control of air emissions generated by stationary sources located within their jurisdictions, which are not subject to federal jurisdiction and which requirements vary on a case-by-case basis. 

  21. 11.

    Who is liable for environmental contamination of soil, surface water and groundwater, and is the liability based on fault or on status? What reporting and notification obligations apply in the event of a spill or release or upon discovery of historical contamination?

  22. Soil contamination – As a first approach to address this significant environmental concern, following international legal environmental principles, the polluter pays principle is established in Mexican environmental legislation as a general rule. A specific rule set forth in the LGPGIR that fosters enforceability by the PROFEPA deems owners and possessors of contaminated sites as jointly and severally liable for the relevant remediation activities required, regardless of the actual contaminating party and the legal actions that may be applicable against it (mainly through civil legal action).

    Once a property is deemed as contaminated (following soil samples, analyses and confirmatory comparison against applicable Mexican Official Norms), in general terms the contaminating or affected party is bound by statute to inform and notify the PROFEPA and competent authorities of the actual contamination, spill or release event and is generally required to submit a remediation programme for such authority’s approval, performing relevant remedial actions until a final resolution is issued. 

    Water contamination – The LAN and its Regulations set forth specific rules for this additional significant environmental concern, which generally fall under the authority of the CONAGUA (eventual intervention from the PROFEPA may be seen in particular cases, such as in the matter described in question 29).

    For surface water and groundwater contamination, liability is allocated to the individual or entity that discharges wastewater in breach of the provisions of the LAN and its Regulations, particularly when the relevant discharges are performed fortuitously.

    Reparation or compensation of the environmental damage as well as notice to the CONAGUA due to water contamination are also required on a statutory basis. 

    Contamination pertaining to the hydrocarbons sector – Please note that in this particular case the preceding rules may be to a certain extent applicable, with the particularity that the competent authority is the ASEA. 

  23. 12.

    What is the law governing the remediation of contaminated property? What standards are applied to determine clean up levels? 

  24. The LGPGIR and its Regulations set forth the basis for remediation of soil contamination with hazardous substances or wastes. Additional provisions set forth in the LFRA may apply due to damages to the environment as a result of such contamination.

    Available standards for soil contamination purposes are mainly set forth in Mexican Official Norms NOM-138-SEMARNAT/SSA1-2012 and NOM-147-SEMARNAT/SSA1-2004, which set forth maxim permissible levels of hydrocarbons and heavy metals, respectively.

  25. 13.

    What is the nature of liability for damage to natural resources and who can enforce and recover for such damages?

  26. Liability for damages to natural resources is generally and initially enforced by the PROFEPA from an administrative standpoint on the basis of violations to the LGEEPA, its Regulations or related federal environmental legislation, including the one described in question 2 (excluding the LAN and its Regulations, in which case enforcement is in charge of the CONAGUA and in case of liabilities pertaining to the hydrocarbons sector, the competent authority is the ASEA).

    As parallel and non-excluding scenarios, depending on the extent of the damages: (i) civil legal actions or claims for the reparation of damages and lost profits may be initiated before the civil courts; (ii) environmental judicial actions in terms of the LFRA may be initiated before the district courts; and (iii) criminal legal actions may be initiated before Mexico’s Federal District Attorney. 

  27. 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?

  28. As such, no specific laws in Mexico govern environmental aspects within the context of corporate transactions. However, there are certain considerations that are worth to be mentioned for acquisitions, as follows:

    Asset transactions – As a general rule, environmental liabilities associated with the condition of the asset involved in the transaction tend to follow the asset (eg, soil contamination), while environmental liabilities associated to the individual or entity that owns or possesses the asset tend to remain with such individual or entity (eg, environmental permits for the operation of a certain project within the asset).

    Taking the foregoing into consideration, an individual or entity acquiring title to an asset affected with soil contamination will in principle "inherit" the liability of its remediation from an administrative standpoint. As pointed out in question 11, it is worth emphasising that if the soil contamination is detected before the transaction is consummated, notice shall be given to the SEMARNAT and the seller shall request such authority’s authorisation for the transfer of the asset.

    Finally, it is important to note that purchasers of assets or real estate properties will require the transfer or re-issuance of environmental permits originally granted in favour of the seller or the past possessor for operation within the relevant asset.

    Stock transactions – as opposed to what occurs in an asset transaction, in a stock transaction the obligation to obtain an authorisation from the SEMARNAT to sell and purchase stock of a company with underlying owned or possessed assets with soil contamination is not applicable.

    As a result of the acquisition of a Mexican corporation, the purchaser would indirectly acquire, through the acquired entity, a proportionate portion of any and all liabilities of such entity, which liability would be limited to and would not exceed the purchaser’s equity contribution in the target. Notably, the figure of "piercing of the corporate veil" is not applicable in Mexico with respect to environmental matters.

    Finally, as a general rule, transfer or re-issuance of environmental permits is not required in stock transactions. 

  29. 15.

    What environmental laws apply to the shut down or sale of a facility?

  30. The Regulations of the LGPGIR set forth that generators of hazardous wastes shall submit before the SEMARNAT a notice of shut down of operations, derived from which such authority may order, within a year following such notice, a physical inspection of the site to confirm consistency between what was reported and its actual condition, as well as general compliance with applicable environmental legislation.

    Additionally, environmental impact conditions or obligations may be applicable to the stage of abandonment of a specific facility or project, provided that it was originally subject to the obligation to secure an Environmental Impact Authorisation.

    As to the sale of a facility, the LGPGIR provides certain rules and restrictions for the transfer of contaminated sites, which require prior approval from the SEMARNAT. Although from a legal civil standpoint the transfer of the property would be strictly perfected, not securing such approval would lead to administrative violations and potential imposition of administrative sanctions by the PROFEPA. The logic behind these provisions is to allow the Federal environmental authorities to have a better control over contaminated sites, to avoid transfers of contaminated sites without the acquiring party knowing their actual condition and to ultimately have a party that will respond before them.

  31. 16.

    Does your jurisdiction regulate or provide incentives to conduct environmental audits or assessments? If so, please describe.

  32. The performance of environmental audits in Mexico is voluntary (for environmental assessments, please refer to question 17) and is implemented through the PROFEPA’s National Program on Environmental Audit.

    Companies adhering to the aforementioned programme shall evidence full compliance with applicable environmental legislation and are allowed to correct deviations within a certain timeframe, as a result of which an environmental compliance certificate is issued by the PROFEPA evidencing different levels of fulfilment.

    Comprehensive amendments to the Regulations of the LGEEPA on Environmental Audit included new types of environmental compliance certificates in addition to the existing Clean Industry Certificate, such as the Environmental Quality Certificate and the Tourism Environmental Quality Certificate.

    Incentives, other than the obtainment of the relevant certificate per se, are not expressly foreseen in the aforementioned Regulations as such. However, an indirect or implied incentive for companies that adhere to the National Program on Environmental Audit and obtain an environmental compliance certificate is the following: considering that they fully comply with applicable environmental legislation, they are consequently less exposed to the review or intervention of environmental authorities.

  33. 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.

  34. As such, conducting or undertaking environmental assessments or technical studies in Mexico in the context of transfers of real property is not an actual obligation (eg, Phase I Environmental Site Assessment Studies or similar related assessments or studies). Knowledge of the existence of soil contamination is what strictly triggers the performance of such assessments or studies and the undertaking of subsequent actions before competent environmental governmental agencies.

    As the latter limits such agencies’ exercise of authority to a certain degree, what in practice has occurred in specific cases is that, the PROFEPA has initiated presumptive administrative proceedings without strictly knowing the actual condition of specific real properties, shifting the burden of proof to their actual owners or possessors.

    Additional considerations are worth to be mentioned in the context of the obtainment of environmental permits: (i) specific environmental assessments or technical studies may be required as requisites for the issuance of such permits; and (ii) as described in question 4, an Environmental Impact Authorisation may be required as a pre-requisite or condition precedent for the issuance of construction licences or similar permits.

  35. 18.

    What is the process and timetable for conducting and receiving approval of environmental impact assessments?

  36. First, it is essential to consider that the concurrent legal nature of Mexican environmental legislation is applicable in the case of environmental impact assessments, as a result of which specific works or projects may simultaneously fall under different levels of authority (eg, a federal and state Environmental Impact Authorisation may be applicable for a specific project when the different activities to be undertaken for its development are listed as activities that require such authorisation at both the federal and state levels).

    Environmental impact assessments at the federal level are in charge of the SEMARNAT (with the exemption of projects pertaining to the hydrocarbons sector, which are in charge of the ASEA), which are initiated with the filing of an Environmental Impact Statement and relevant paperwork for such authority’s evaluation and conclude with the issuance of an environmental impact resolution, in which three scenarios may be legally determined: (i) authorisation of the relevant works or project without any particular obligation or condition; (ii) authorisation of the relevant works or project subject to particular conditions for each of its stages; and (iii) denial of the relevant works or project.

    The legal time frame for the SEMARNAT’s issuance of an environmental impact resolution is 60 business days and may be doubled (the latter, subject to prior notice from the SEMARNAT), depending on the complexity of the works or project.

    As detailed in question 4, it is relevant to note that the environmental impact assessment procedure can now be undertaken through the SEMARNAT’s online system.

  37. 19.

    How are water rights allocated and transferred?

  38. In terms of the LAN and its Regulations, the extraction of underground or surface national waters (eg, through a water well or directly from a surface water body, respectively) requires prior obtainment of a Concession for the Use of Underground or Surface National Waters from the CONAGUA.

    Related obligations include the following:

    • compliance with the conditions set forth in the relevant concession title;
    • payment of federal duties due to the use of national waters; 
    • installation and maintenance of measuring devices; and
    • periodic filing of volume consumption reports before the CONAGUA.

    National water concessions may be transferred to third parties, provided that certain rules are met, the CONAGUA authorises the relevant transfer procedure and the relevant authorisation is registered in CONAGUA’s Public Registry of Water Rights. 

  39. 20.

    What regulatory requirements apply to the discharge of industrial waste water in your jurisdiction?

  40. In terms of the LAN and its Regulations, the discharge of industrial wastewater to a federal recipient body (eg, a lake or a river) requires prior obtainment of a Wastewater Discharge Permit from the CONAGUA.

    Related obligations include the following:

    • Compliance with the particular discharge conditions set forth in the Wastewater Discharge Permit, as well as with the maximum permissible levels set forth in NOM-001-SEMARNAT-1996, which sets forth the maximum permissible levels of pollutants of wastewater discharges to national waters and assets;
    • Payment of federal duties due to the use of federal property as a wastewater recipient body;
    • Installation and maintenance of measuring devices and performance of periodic water sampling; and
    • Periodic filing of quality reports before the CONAGUA.

    The discharge of industrial wastewater to other recipient bodies (mainly to the municipal sewage system) is subject to the jurisdiction of the relevant municipality and shall comply with the maximum permissible levels set forth in NOM-002-SEMARNAT-1996, which sets forth the maximum permissible levels of pollutants of wastewater discharges to urban or municipal sewage systems, as well as with applicable municipal statutes.

  41. 21.

    Are there any laws or regulations in your jurisdiction addressing climate change in your jurisdiction, such as regulation of greenhouse gas emissions? If so, describe the regulatory regime.

  42. As briefly described in question 3, Mexico is a signatory to, and a Non-Annex I party of the United Nations Framework Convention on Climate Change, its Kyoto Protocol and its recently ratified Paris Agreement.

    As a result of the foregoing, as an attempt to internally regulate Mexico’s commitments to the Kyoto Protocol, the LGCC and its Regulations on the National Registry of Emissions were published in the Official Gazette of the Federation on 6 June 2012 and 28 October 2014, respectively, which generally set forth provisions to face the effects of climate change, foster the development of clean development mechanisms (CDMs) and the functioning of the National Registry of Emissions. As to the Paris Agreement, it is still to be seen if new provisions and/or mechanisms will be implemented in Mexico as an effort to limit global temperature increase in no more than 2°C.  

  43. 22.

    Are there any chemicals or products that are subject to special environmental requirements in your jurisdiction, such as asbestos or PCBs?

  44. The handling of certain chemical substances above applicable thresholds may be considered as a ‘High Risk Activity’, which according to the LGEEPA entails compliance with several obligations and regulatory requirements, such as the filing of a Risk Study and Accident Prevention Program before the SEMARNAT for approval.

    Additionally, specific Mexican Official Norms for the handling of Asbestos and PCBs are briefly described below:

    NOM-125-SSA1-1994, which sets forth the sanitary requirements for the use and process of asbestos.

    It is to be noted that: (i) the aforementioned Mexican Official Norm regulates asbestos from a health and safety perspective, focusing on human exposition to asbestos rather than from an environmental perspective; and (ii) the use and process of asbestos is still allowed in Mexico.

    From an environmental perspective, wastes containing asbestos are considered as hazardous wastes by Mexican Official Norm NOM-052-SEMARNAT-2005.

    NOM-133-SEMARNAT-2000, which originally included the specifications of environmental protection of PCBs, as well as equipment and waste containing them and the specific dates for their suppression.

    Two subsequent amendments to the aforementioned Mexican Official Norm have been proposed and published in the Official Gazette of the Federation on 5 March 2003 and 16 December 2014, the latter including mechanisms to avoid cross-contamination and eliminating the specific dates for the suppression of PCBs, taking into consideration that as a signatory of the Stockholm Convention on Persistent Organic Pollutants, Mexico has committed to nonetheless comply with the PCBs suppression obligations therein established.

    Regarding hydrofluorocarbons (HFCs) and considering the damage they cause to the ozone layer, SEMARNAT has published a National HFCs Elimination Plan whose main goal is to reduce them by 30 per cent as of 2018. 

  45. 23.

    What legal protections are afforded to patrimony or cultural heritage and environmentally sensitive areas?

  46. Natural Protected Areas of Federal jurisdiction are regulated by the LGEEPA and its Regulations on Natural Protected Areas. In general terms, Natural Protected Areas can be created either by the government or upon voluntary request and their main objectives include the environmental preservation and protection, safeguard of genetic diversity of wildlife species, sustainable use of ecosystems, fostering of scientific investigation, knowledge, practices and technologies that allow the preservation and sustainable use of biodiversity within Mexican territory.

    Natural Protected Areas include the following: (i) biosphere reserves; (ii) national parks; (iii) natural monuments; (iv) areas of protection of natural resources; (v) areas of protection of flora and fauna; (vi) sanctuaries; (vii) State parks and reserves; (viii) Municipal ecological conservation zones; and (ix) areas voluntarily destined to conservation.

    Environmental feasibility of Natural Protected Areas depends to a certain extent on the publication of Management Plans that set forth clear rules and specifications for their correct implementation.

    As to wildlife protections, the principal statute is the LGVS and its Regulations. As an example of such protections, mangrove is a species subject to particular protection thereunder.

    In addition, Mexican Official Norm NOM-059-SEMARNAT-2010 describes the protected native species of flora and fauna, which species are classified into three categories: (i) endangered; (ii) threatened; and (iii) subject to special protection.

    Wetlands are foreseen in the LAN and its Regulations and may turn into Natural Protected Areas, as it occurs in specific cases within the Mexican territory.

    As described in question 3, Mexico is a party to several international treaties on the protection of wildlife and wetlands, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Convention on Biological Diversity, and the Ramsar Convention on Wetlands.

    Finally, please note that in terms of the LGEEPA and its Regulations on environmental impact matters, works or activities involving Natural Protected Areas and Wetlands require prior obtainment of a Federal Environmental Impact Authorisation from the SEMARNAT. Likewise, wildlife shall be considered within the Environmental Impact Statement filed for obtainment of the latter authorisation.

  47. 24.

    What constraints are there on availability of landfills for disposal of waste?

  48. Environmental Mexican legislation includes a wide range of Mexican Official Norms and consequential obligations for the disposal of hazardous and non-hazardous waste, among which the most relevant are the following:

    • NOM-055-SEMARNAT-2003, which establishes the requirements for sites destined for controlled confinement of hazardous wastes subject to previous stabilisation.
    • NOM-145-SEMARNAT-2003, on wastes’ confinement in cavities constructed by dissolution in geologically stable salt domes.
    • NOM-083-SEMARNAT-2003, on the specifications of environmental protection for the site selection, design, construction, operation, monitoring, closure and complimentary works of sites for the final disposal of solid urban and special handling wastes.
    • NOM-141-SEMARNAT-2003, which establishes the proceeding for the characterisation of tailings, as well as the specifications and criteria for the characterisation, preparation, project design, construction, operation and post-operation of tailing dams.
    • NOM-058-SEMARNAT-1993, which establishes the requirements for the operation of hazardous wastes’ controlled confinement facilities.
    • NOM-056-SEMARNAT-1993, which establishes the requirements for the design and construction of complimentary works of hazardous wastes controlled confinement facilities.
  49. 25.

    What regulations or government initiatives are there in your jurisdiction relating to extended producer responsibility or to sustainability?

  50. The LGPGIR and its Regulations include the definition of joint responsibility and related provisions, which are focused on the mutual social responsibility and joint but differentiated participation and coordination of producers, distributors, consumers, users of by-products and the federal, state and municipal government in the management of wastes.

    The latter is mainly materialised through ‘Management Plans’, which are binding instruments that consider a series of actions, proceedings and viable means related to the generation and valorisation of wastes, involving producers, importers, exporters, distributors, merchants, consumers, users of by-products and large generators of wastes, as well as the federal, state and municipal government.

  51. 26.

    Describe the laws in your jurisdiction regarding public access to information filed with environmental agencies and any protection from its disclosure to third parties. 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 or trade secrets.

  52. Public access to information derives from the Mexican Constitution. The right to environmental information is foreseen in a specific chapter of the LGEEPA, which entitles any person to request environmental information to the SEMARNAT and the state and municipal governments, including the government of Mexico City.

    According to the LGEEPA, environmental information is defined as any written, visual or data base-form information in possession of the environmental authorities on water, air, soil, flora, fauna and natural resources in general, as well as on the activities or measures that affect or may affect them.

    It is important to consider that certain exceptions are applicable, such as the cases of confidential or reserved information (which may entail the protection of trade secrets). These constitute a right that individuals and entities have in terms of public transparency laws and may be exercised when providing information to the environmental authorities. 

    Public transparency matters are specifically and thoroughly covered by the Federal Law of Transparency and Access to Public Governmental Information and its Regulations.

  53. 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?

  54. The participation of public or NGOs/environmental groups in environmental permitting is typical and has become increasingly noteworthy in the past few years, especially: (i) in the context of activities or projects that are subject to the environmental impact evaluation proceeding before the SEMARNAT or the ASEA, through the figure of public consultation; (ii) as of the Energy Reform; and (iii) through the figure of public denunciation.

    As mentioned in question 5, individuals or entities that are affected in the context of the issuance of environmental permits or the enactment of environmental laws may exercise other legal defence means, including the administrative motion of appeal, contentious administrative trial or even constitutional or amparo trial, subject to certain rules.

  55. 28.

    What are the most significant current trends or issues in environmental policy, regulation and enforcement in your jurisdiction?

  56. The legal environmental framework in Mexico experienced amendments as a result of the Energy Reform described in question 7, along with the publication and enactment of new legislation. Among the most relevant highlights, we can mention the following:

    • The LIE includes clean energy provisions, including the figure of CELs, whose acquisition requirements are set forth in temporary rulings issued by the Ministry of Energy (SENER). As a main highlight, the acquisition of CELs will be mandatory for certain industries as of 2018;
    • The LAN was amended for consistency purposes with the new Law of Geothermal Energy; and
    • The Law of ASEA was published (along with the SEMARNAT’s consequential organic amendments and the publication of the aforementioned agency’s internal regulations). Such agency’s functions officially began on 2 March 2015, assuming control of the federal legal environmental matters of the hydrocarbons sector in general, including related permitting.
  57. 29.

    Identify and describe the significance of any noteworthy court litigation or other disputes or controversies in your jurisdiction regarding the environment.

  58. As a result of a series extraordinary air quality contingencies in Mexico City, Mexico City’s and other competent authorities temporarily strengthened the “Hoy no Circula” programme during part of 2016, which was implemented as an attempt to improve the air quality of Mexico City by partially restricting the circulation of motor vehicles.

    As this measure had economic impacts and affected not only individuals but also a wide range of business sectors in Mexico, several legal actions and sector/group lobbying and negotiations with competent authorities were seen during 2016, some of them with successful results. In addition, as the results of such temporary measure were to a certain extent unnoticed and therefore questioned, this event intensified the debate of public transport improvement vis a vis fostering private motor vehicle transportation and the non-stop development of related infrastructure in Mexico City. 

  59. 30.

    What important features of your jurisdiction’s environmental laws are not covered by the previous questions?

  60. Ecological ordainment programmes throughout Mexican territory impose rules and restrictions for the development of works, activities and projects merely depending on their location; therefore, a thorough legal review prior to the development of specific works, activities or projects is of the essence.

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Questions

  1. 1.

    Are there any environmental rights or protections included in your constitution? If so, please describe the provisions and their implications.


  2. 2.

    What is the environmental statutory and regulatory framework? Are environmental requirements imposed by sector or on a general basis? Please identify the primary environmental statutes and regulations and the agencies with responsibility for environmental regulation and enforcement.


  3. 3.

    Please identify major environmental treaties and conventions that your jurisdiction has ratified or to which it is otherwise subject? 


  4. 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 commencing construction of a facility? What is the average timeline for a facility to obtain environmental permits?


  5. 5.

    Please explain the role of a ‘social licence to operate’ in your jurisdiction.


  6. 6.

    Is there private ownership of oil, gas and minerals in your jurisdiction? If not, how are concessions granted and what environmental considerations apply?


  7. 7.

    What is the regulatory environment for renewable and alternative sources of energy and fuels?


  8. 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.


  9. 9.

    What types of administrative, civil and criminal penalties can be imposed for violations of environmental laws?


  10. 10.

    How and under what authority are air emissions regulated in your jurisdiction?


  11. 11.

    Who is liable for environmental contamination of soil, surface water and groundwater, and is the liability based on fault or on status? What reporting and notification obligations apply in the event of a spill or release or upon discovery of historical contamination?


  12. 12.

    What is the law governing the remediation of contaminated property? What standards are applied to determine clean up levels? 


  13. 13.

    What is the nature of liability for damage to natural resources and who can enforce and recover for such damages?


  14. 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?


  15. 15.

    What environmental laws apply to the shut down or sale of a facility?


  16. 16.

    Does your jurisdiction regulate or provide incentives to conduct environmental audits or assessments? If so, please describe.


  17. 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.


  18. 18.

    What is the process and timetable for conducting and receiving approval of environmental impact assessments?


  19. 19.

    How are water rights allocated and transferred?


  20. 20.

    What regulatory requirements apply to the discharge of industrial waste water in your jurisdiction?


  21. 21.

    Are there any laws or regulations in your jurisdiction addressing climate change in your jurisdiction, such as regulation of greenhouse gas emissions? If so, describe the regulatory regime.


  22. 22.

    Are there any chemicals or products that are subject to special environmental requirements in your jurisdiction, such as asbestos or PCBs?


  23. 23.

    What legal protections are afforded to patrimony or cultural heritage and environmentally sensitive areas?


  24. 24.

    What constraints are there on availability of landfills for disposal of waste?


  25. 25.

    What regulations or government initiatives are there in your jurisdiction relating to extended producer responsibility or to sustainability?


  26. 26.

    Describe the laws in your jurisdiction regarding public access to information filed with environmental agencies and any protection from its disclosure to third parties. 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 or trade secrets.


  27. 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?


  28. 28.

    What are the most significant current trends or issues in environmental policy, regulation and enforcement in your jurisdiction?


  29. 29.

    Identify and describe the significance of any noteworthy court litigation or other disputes or controversies in your jurisdiction regarding the environment.


  30. 30.

    What important features of your jurisdiction’s environmental laws are not covered by the previous questions?


Other chapters in Environment 2017

  • Brazil
    BMA – Barbosa, Müssnich, Aragão
  • Chile
    Claro & Cia
  • Colombia
    Gómez-Pinzón Zuleta (Bogotá)
  • Mexico
    Ibarra, del Paso, Gallego y Berezowsky, S.C.