The evolution of environmental law has developed efficient mechanisms for environmental protection. This is reflected in the new Federal Environmental Liability Act, which aims to regulate Environmental liability and the repair of environmental damage. This act was approved on April 25, 2013 and published on June 7, 2013 and shall take effect thirty days after its publication in the Official Journal of the Federation.
The act clearly marks the birth of a new liability, one that is not civil, criminal or administrative, but environmental, and arises from damage to the environment. Article 2 of the Act sets various definitions and concepts, including environmental damage which means: “loss, change, deterioration, impairment or adverse modification of measurable habitat, ecosystems, natural resources and elements, their chemical conditions, physical or biological interactions relationship between them, as well as the environmental services they provide”. Article 6 however, excludes situations that, despite the existence of impairment, deterioration or loss, will not be adverse if, prior to committing the act, there is compliance with the conditions of authorizations and or permits issued by SEMARNAT, and have complied with environmental laws and official Mexican standards.
The Act considered within Environmental Liability the so called “Joint Liability” when the cause of the damage requires a second party to carry out the damage and when it is found that the damage was caused by two or more parties and it is not possible to accurately apportion the contribution of damage; such liability will be enforceable in court, within 12 years of the event by the following parties: the residents adjacent to the damage, NGO’s whose purpose is the protection of the environment, inhabitants representing adjacent to damage, PROFEPA and local Environmental procurators.
To meet the purpose of the Act, a judicial procedure is established in which legitimized individuals and institutions may demand Environmental liability and compliance with obligations as well as expenses caused by the environmental damage. Parties whose behavior actually intends to harm the environment, depending on the degree of impairment, could result in criminal consequences (felony charges).
The judgment derived from the aforementioned legal proceedings may impose damage repair, environmental compensation, measures to prevent further damage, financial penalties, and, if applicable, a specified time length to fulfill the obligations in time for the fulfillment of obligations.
The aforementioned financial penalty in the case of legal entities, may consist of a fine ranging from 1,000 to 600.000 days of minimum wage in the Federal District. The penalty may mitigated if firms have undergone internal surveillance, internal management systems and constant environmental training as well as the issuance of environmental audit certificates.
In addition, the Act calls for an Environmental Liability Fund, which will aim to compensate for the environmental damage, where such damage is deemed urgent or highly important by the Federal Public Administration. The fund will operate in accordance with the Federal Transparency and Access to Public Government Information Act.
Moreover, the Act stipulates that the repair of environmental damage will seek to restore to the state immediately preceding the damage to habitats, ecosystems, and natural elements, their physical, chemical or biological weapons, and the interactions between these as well as the environmental services they provide, through restoration, treatment, recovery or remediation.
With regards to the compensation of environmental damage, this will entail the investment or actions by the wrongdoer in order to generate improvements, restore the damage to the environment in whole or in part, whichever one applies, and the equivalent of the adverse effects caused by the damage.
It is important to note that the environmental liability regime recognizes that the damage to the environment is independent of all patrimonial loss suffered by the owners of the elements and natural resources.
Therefore, in order for organizations and or companies to comply with the current environmental regulatory framework and the Federal Environmental Responsibility Act, it is advisable to initiate actions to design, implement, coordinate and evaluate an Environmental Management System that fits the modus operandi of every business, through the implementation of sustainable strategies, the use of clean technologies and the implementation of adequate environmental practices that optimize a company´s environmental performance.
The views expressed in this article reflect only the opinion of the members of the firm.
For more information about this please contact
Mrs. Regina Gallegos [email protected]
and Mr. Daniel Basurto [email protected]