Remediation and compensation
The Federal Environmental Liability Law was published in the Federal Official Gazette on June 7 2013. The new law is based on amendments to Article 4 of the Constitution that were published on February 8 2012 and which expressly establish direct responsibility for parties that cause damage and degradation to the environment and natural resources of Mexico. The law was published along with other environmental regulations and provisions that were amended, supplemented and/or repealed in order to comply with the new statute (eg, the General Law for the Prevention and Management of Waste).
The new law mainly regulates two areas:
- environmental liability that arises from damages caused to the environment and natural resources; and
- remediation and compensation of environmental damage where the latter is claimed by means of class action, alternative dispute resolution mechanisms or administrative and criminal procedures.
Environmental liability is a new kind of liability under the Mexican legal system, and is separate from civil, administrative and criminal liability – all of which must be substantiated independently of environmental liability pursuant to specific rules. The new law recognises that environmental damage is independent of property damage suffered by owners of land on which natural resources or elements are located. 'Environmental damage' is defined as:
"an adverse and measurable loss, change, deterioration, diminishment, impact or modification of the habitats, ecosystems, natural resources and elements and their chemical, physical or biological conditions, the interaction relationships that exist among them, as well as the environmental services they provide."
According to the new law, effects on the environment are not considered to be environmental damage subject to remediation or compensation where:
- the relevant party has assessed, mitigated and compensated for the environmental effect, thus meeting all conditions set forth in the corresponding authorisations issued by the Ministry of Environment and Natural Resources;
- no contamination or pollution limits established by environmental laws or official standards have been exceeded; or
- the environmental effect was caused solely by an act of God or force majeure.
Environmental liability is claimed against individuals or legal entities that, through either action or omission, directly or indirectly caused environmental damage. Liable parties must repair the damage or, where repair is impossible, make environmental compensation. Offenders are also obliged to take necessary actions to prevent further environmental damage. In view of this, responsibility for environmental damage is borne even by parties that acted without malice or negligence, since environmental liability under the law is based on the 'who caused the damage must repair it' principle.
According to the law, environmental liability can be objective or subjective. For objective cases, fault or negligence are not required for an offender to be held liable for environmental damage caused directly or indirectly by:
- activities related to the use of hazardous materials or waste;
- the use or operation of boats over coral reefs;
- performance of highly dangerous activities; or
- activities specified in Section 1913 of the Federal Civil Code.
Subjective environmental liability arises from illegal acts or omissions that, when done with malice, are subject to fines under the new law. The amount of the fines will depend on:
- the seriousness and materiality of the environmental damage;
- whether the violation was intentional or negligent; and
- the identity of the offending party, as follows:
- a fine of 300 to 50,000 days of general minimum wage in force in the Federal District for individuals; and
- a fine of 1,000 to 600,000 days of general minimum wage in force in the Federal District for entities.
Remediation of environmental damage involves restoring habitats, ecosystems, elements and natural resources to their original state,(1) as well as their chemical, physical or biological conditions, the interactive relationships among them and the environmental services provided by them.
Environmental compensation includes investment or actions undertaken by the offender to:
- generate an environmental improvement;
- replace environmental losses in full or in part (as appropriate); and
- counteract the adverse effects of the environmental damage.
The compensation must be carried out in the place where the environmental damage occurred or at a priority site to be established by the Ministry of Environment and Natural Resources.
The new law entitles the following individuals and entities to file environmental liability complaints:
- individuals who are members of a community adjacent to the environmental damage;
- non-governmental organisations (NGOs) filing a complaint on behalf of a member of a community adjacent to the environmental damage, provided that the NGO has been legally established for at least three years;
- the Federal Attorney Office for Environmental Protection (PROFEPA); and
- environmental prosecutors or state environmental authorities filing a complain jointly with PROFEPA.
The right to file an environmental liability complaint has a statutory limit of 12 years from the date on which the environmental damage occurred.
Finally, the new law establishes a judicial process by which to claim environmental liability. The claim must be filed with the federal judiciary through specialised district courts for environmental matters, which are soon to be established. Environmental liability claims submitted before establishment of these specialised will be heard by regular district courts for civil matters.
For further information on this topic please contact Juan Francisco Torres Landa, Jorge Yanez, Brenda Rogel Salgado or Jeanett Trad Nacif at Barrera, Siqueiros y Torres Landa SC by telephone (+52 55 5091 0157), fax (+52 55 5091 0123) or email ([email protected], [email protected], [email protected] or [email protected]). The Barrera, Siqueiros y Torres Landa website can be accessed at www.bstl.com.mx.
(1) That is, the condition of habitats, ecosystems, natural resources and elements, and their interactive relationships and environmental services, immediately before the damage occurred.