Environment

Last verified on Tuesday 20th March 2018

Mexico

Carlos Canales and Ernesto Beltran
Canales Auty
  1. 1.

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

  2. The following provisions are recognised in the Federal Constitution:

    • Article 4 – this provision recognises and embodies different rights, such as health, development and environment. Particularly, it acknowledges the overall obligation to guarantee environmental conditions for development and welfare;
    • Article 25 – recognises sustainability as a key element for national development;
    • Article 27 – entitles the state to impose restrictions in private property to preserve or restore the environment;
    • Article 73 – establishes a concurrent jurisdiction between federal, local and municipality authorities regarding environment matters. It also authorises the Federal Congress to legislate on matters regarding natural resources and the environment; and   
    • Article 122 – entitles Mexico City General Assembly to legislate on environmental protection and preservation.
  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 environmental legal framework has been developed by the three levels of government (federal, local and municipal). However, all regulations must follow the general principles set forth by Congress in the Constitution.

    The most relevant or primary statutes and frameworks are:

    • the General Law on Ecological Equilibrium and Environmental Protection;  
    • the General Law on Wildlife;
    • the National Water Law;
    • the Federal Law on Environmental Liability;
    • the General Law for Prevention and Integral Management of Waste;
    • the General Law on Climate Change; and
    • the General Law on Sustainable Forest Development.

    The most important environmental authority is the Secretary of the Environment and Natural Resources. Its main functions are the protection, conservation and exploitation of natural resources. It is also in charge of environmental policy.

    The agencies responsible for environmental regulation and enforcement are: 

    • the Federal Prosecutor's Office for Environmental Protection;
    • the National Agency for Safety, Energy and Environment Protection of the Hydrocarbons Sector. This agency was recently created (2014) as a result of the Energy Reform;
    • the National Commission for Natural Protected Areas;
    • the National Water Commission;
    • the National Forest Commission; and
    • the Secretary of Navy.
  5. 3.

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

  6. The major environmental treaties and conventions ratified by Mexico are:

    • Convention on Biological Diversity.
    • Stockholm Convention on Persistent Organic Pollutant.
    • Montreal Protocol on Substances that Deplete the Ozone Layer.
    • Vienne Convention for the Protection of the Ozone Layer.
    • International Convention for the Regulation of Whaling.
    • Convention on International Trade in Endangered Species of Wild Fauna and Flora.
    • Cartagena Protocol on Biosafety on the Convention on Biological Diversity.
    • 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.
    • International Convention on Oil Pollution Preparedness, Response and Co-operation.
    • Convention on the Prevention of Marine Pollution by Dumpling of Wastes and other Matters.
    • The Ramsar Convention on Wetlands.
    • North America Free Trade Agreement.
    • Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Unitization to the Convention on Biological Diversity.
    • Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. 

    Regarding developments related to ILO 169, mandatory consultation with indigenous people regarding the feasibility of an oil and gas project is required.

  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 is complex mainly due to the numerous and extensive legal frameworks. Permit requirements depend largely on the technical characteristics of the project.

    First of all, it is important to consider the concurrent jurisdiction between federal, local and municipal authorities. Often permit requirements overlap between different authorities.

    Separate permits for air, water and waste exist. Frequently an environmental impact assessment is needed as a condition for obtaining other environmental permits.

    The average timeline to obtain a federal environmental permit is six months. Local and municipal permits vary depending on the complexity of the project.

  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 is a key aspect of the energy reform. Before the energy reform the role of a social licence to operate was not as important.

    Under the new Hydrocarbons Law, exploration and exploitation activities required a mandatory social licence to operate.

  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. The Mexican constitution does not allow private ownership of oil, gas and minerals located in situ. All minerals and hydrocarbons located in situ belong to the Mexican state (article 27).

    Oil and gas – the purpose of the energy reform was to liberalise the oil and gas market. Under the new Hydrocarbons Law different type of upstream contracts such as licences and production-sharing contracts are permitted.

    Minerals – unlike oil and gas it is feasible to obtain a mineral concession to exploit a specific area.

    All oil and gas and mining projects entail a mandatory environmental impact assessment and a social licence to operate.

  13. 7.

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

  14. As of 2014's energy reform, alternative sources of energy and fuels have been largely regulated and promoted. The most important frameworks are:

    • the Constitution of the United Mexican States;
    • the Electric Industry Law;
    • the Law for Energy Transition;
    • the General Law on Climate Change;
    • the Law of Geothermal Energy; and
    • the Law of Public Private Associations.
  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. In general terms, there are three authorities entitle to enforce environmental laws and regulations. Those are: (i) The Federal Prosecutor Office for Environmental Protection, (ii) The National Water Commission and (iii) National Agency for Safety, Energy and Environment Protection of the Hydrocarbons Sector. Each authority has a different jurisdiction over environmental matters.

    All enforcement procedures have a similar process: (i) notice of inspection; (ii) inspection; (iii) conclusions; (iv) response to conclusions; and (v) if any offence, the opening of administrative proceeding.

    Once an inspection is concluded, the competent authority may initiate an administrative proceeding. This proceeding is divided into: (i) The opening of administrative proceeding; (ii) notification of the administrative proceeding to the potential offender; (iii) offender’s response; (iv) a examination period; and (v) resolution.   

  17. 9.

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

  18.       Federal environmental violations can lead to different penalties, such as:  

    Administrative penalties:

    • Fine;
    • temporary or definitive cessation. It could be partial or total;
    • confiscation; or
    • withdrawal or relinquishment.

    Civil penalties – Direct damages could be claimed.

    Criminal penalties – A criminal offence could also be claimed. Penalties vary depending on the level of the criminal offence.

  19. 10.

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

  20. Air emission has concurrent jurisdiction. Air pollution has federal jurisdiction when is generated by chemical, petroleum, gas, automotive, metal glass, electricity, cement, petrochemical, hazardous waste and paper industries. It has local jurisdiction if such activity is not set forth as a federal matter in the applicable law or regulation.

    The General Law on Ecological Equilibrium and Environmental Protection and its Regulation on the Prevention and Control of Atmospheric Pollution is the applicable federal framework.

  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. Overall, the polluter pays for environmental damages and remediation. However, there are a few exceptions, such as: (i) property owner and possessor are both liable for contamination, and (ii) an oil and gas operator is liable if the contaminated area was not previously reported to the environmental authority.

  23. 12.

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

  24. The law governing the remediation of contaminated property is the General Law in the Prevention and Comprehensive Management of Waste.

    There are also Mexican Official Norms (NOMS) that apply technical standards for soil contamination and maximum permissible levels of contaminants. Those NOMS are NOM-147-SEMARNAT/SSA1-2004 and NOM-138-SEMARNAT/SSA1-2012.

  25. 13.

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

  26. There is no specific regulation governing environmental matters in property transfer or mergers and acquisitions. However, often financial institutions and transnational entities require the inclusion of Equator Principles.  

  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 by soil contamination will in principle "inherit" the liability of its remediation from an administrative standpoint. As pointed out in question 11, it bears 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 concept 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. There are different laws and regulations regarding shut down of facilities. For example, the new Hydrocarbons law requires a mandatory decommission plan of the oil and gas facility.

    Also, the General Law on the Prevention and Comprehensive Management of Waste provides to generators of hazardous waste general obligations to shut down facilities.

  31. 16.

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

  32. In Mexico, environmental audits or assessments are a voluntary process. There implemented by the federal government through the Federal Prosecutor Office for Environmental Protection or in some federal states by the local environmental prosecutor's office.   

    An environmental audit often results in environmental clean industry certificates. However, there is no incentives for granting such certificates. 

  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. There is no requirement or obligation regarding environmental assessments as a condition for property transfer.

  35. 18.

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

  36. Although a federal authority is responsible for the granting of environmental impact authorisations, complementary authorisations from other authorities are often required.

    The timetable for approval is 60 working days once the information is completed and duly submitted.

  37. 19.

    How are water rights allocated and transferred?

  38. The Mexican water law through the National Water Commission allows water allocation rights by means of concession to private entities.

    Transfer of water concessions require prior authorisation by the water authority.

  39. 20.

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

  40. Discharge of industrial waste water is a concurrent jurisdiction between federal and local authorities. The discharge of industrial waste water to a federal recipient body requires the prior filing of a waste water discharge permit. The applicable Mexican Official Norm (NOMS) is NOM-001-SEMARNAT-1996.

    If the waste water discharge is going into a municipal drainage system, the applicable Mexican Official Norm is NOM-002-SEMARNAT-1996.

  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. Mexico is a signatory to the United Nations Framework Convention on Climate Change, the Kyoto Protocol and Paris Agreement, and recently published a General Law on Climate Change.

  43. 22.

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

  44. Asbestos or PCBs are regulated by detail Mexican Official Norms. Those norms are:

    • NOM-125-SSA1-1994. Use and process of asbestos from a health perspective;
    • NOM-133-SEMARNAT-2000. Specification of environmental protection of PCBs; and
    • NOM-052-SEMARNAT-2005. Waste containing asbestos.
  45. 23.

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

  46. Natural Protected Area can only be created by Presidential Order.

    Nowadays, there are 176 Natural Protected Areas. It represents 25, 394,779 hectares.

    Wildlife is widely regulated by national laws and international instruments. The primary frameworks are the General Law on Wildlife and international conventions, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora. 

    Applicable legislation classified protected species into three categories (i) endangered; (ii) threatened; and (iii) subject to special protection.

    Finally, wetlands are regulated through the National Water Law and its regulation.

  47. 24.

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

  48. Disposal of waste must comply with the following Mexican Official Norms:

    • NOM-056-SEMARNAT-1993;
    • NOM-058-SEMARNAT-1993;
    • NOM-083-SEMARNAT-2003;
    • NOM-141-SEMARNAT-2003;
    • NOM-145-SEMARNAT-2003; and
    • NOM-055-SEMARNAT-2003.
  49. 25.

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

  50. The General Law on the Prevention and Comprehensive Management of Waste provides instruments involving social responsibility but with differentiating roles regarding producer responsibility.     

  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 is a human right recognised by the Mexican Constitution. Federal laws regulate and promote transparency and public access to information including the creation of a federal authority.

    However, in Mexico public access to information is not an absolute right. There are a few exceptions when such information is classified as confidential or reserved.

  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. NGOs/environmental groups have equal rights to any other citizen in Mexico. Applicable frameworks allow them to participate in any environmental and social claim.

  55. 28.

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

  56. The environment legal framework has been updated as a result of the major energy reform in 2014. Further, the international commitments made by the Mexican government regarding climate change has trigger significant changes to the federal and municipal frameworks.

  57. 29.

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

  58. The recent incident of the Abkatum oil platform in the Gulf of Mexico. The incident affected ecosystems and fisheries of the Gulf of Mexico. 

    New platform safety regulation has been introduced.

  59. 30.

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

  60. Territorial programmes and protected areas throughout Mexico for the development of specific projects.

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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?


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