Summary of Environmental Law in Mexico

Chapter: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1. Introduction to the Legal System

1.1 Structure of Government

The basic structure of the Mexican government is set forth under Article 40 of the Political Constitution of the United States of Mexico (Constitución Política de los Estados Unidos Mexicanos) (hereinafter Mexican Constitution) which establishes Mexico as a "representative, democratic and federal republic."

Civil Law Systems

The Mexican government is based on the ancient Roman system of codified law known as the "civil law" system. In the civil law system, the legislative branch plays a key role in the development and passage of laws through its two houses, the House of Representatives and the Senate. The House of Representatives is intended to represent the people, while the Senate represents the 31 states and the Federal District. Both houses of Congress propose and pass laws, and the Senate also is responsible for ratifying Mexico's international treaties and agreements.

Commissions are formed within the congressional houses, specializing in the various matters arising under the Constitution, for which the members must have technical and specific knowledge. The Mexican civil system reduces the need for judicial interpretation. There are very few instances when, due to the lack of a specific provision in the law, the court is required to interpret the law and create a new rule. In addition to the legislative process, the executive branch creates administrative law by issuing regulations and official standards that implement existing legal provisions. The executive branch has also dominated the creation of new laws, through the tabling of proposed legislation before Congress (Congreso de la Unión).

National - Sub-national Relations.

The Mexican Constitution establishes areas of federal and state competency. In some areas, however, federal and local jurisdictions overlap (as is the case for environmental regulation). Constitutional Article 124 clearly provides that "Any powers not expressly conferred by this Constitution to federal officials are understood to be reserved to the States." The coordination of federal and local efforts is achieved through guidelines established in the federal legislation and by compacts made between the various authorities. In accordance with Article 11 of the General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente) (hereinafter Ecology Law), as far as environmental issues are concerned, the federal government may enter into coordination agreements or compacts with the states or the federal district in order for them to take on specific duties. Federal laws are mandatory in the entire Mexican territory, while state and municipal laws are only binding in the issuing state or municipality involved.

1.2 Federal Government

The federal government in the Mexican Republic is divided into three powers: the executive, the legislative and the judicial.

Executive Power

The President of the United States of Mexico is elected for a single six-year term through citizen direct vote. The President is in charge of the implementation and administration of laws. A cabinet composed of the heads of the secretariats and administrative departments and several advisory councils assist the President in the formulation and coordination of national policy.

The Federal Public Administration (Administración Pública Federal) is composed of both centralized agencies and state controlled entities. Centralized entities include the President, the federal secretariats, the administrative departments and the Federal Attorney General (Procurador General de la República (PGR)). State controlled entities include: decentralized entities, industries with state participation, national credit institutions and auxiliary organizations, national insurance and finance institutions and trust corporations.

Legislative Power

The Congress of the Union is composed of two chambers: the House of Representatives (Cámara de Diputados) and the Senate (Cámara de Senadores). The House of Representatives is made up of 500 local representatives or "deputies" each elected for a single three-year term. Representatives are precluded from seeking immediate re-election. Three hundred of them are elected directly by a majority vote from an election district, while two hundred are appointed by the parties based on the proportion of the national votes received by each one of the parties.

The Senate is made up of four senators from each one of the states and the Federal District (Distrito Federal). Of the four state senators, three are elected by a relative majority vote while the fourth seat is assigned to the first minority. Direct elections for the entire Senate are held every six years and senators, like representatives, may not run again for a second consecutive term.

Judicial Power

The general structure and operation of the federal judiciary is set forth in the Mexican Constitution and regulated under the Organic Law of the Judicial Power of the Federation (Ley Orgánica del Poder Judicial Federal (LOPJF)). The judicial power lies with the Supreme Court of Justice (Suprema Corte de Justicia de la Nación), an elections court, the Collegiate and Unitary Circuit Courts (Tribunales Colegiados y Unitarios de Circuito), and the Council of the Federal Judiciary (Consejo de la Judicatura Federal).

The local court system is composed of a Superior Court of Justice (Tribunal Superior de Justicia) at the top of the judicial branch, followed by the courts of appeals or of second instance, the court of first instance, and the justice of the peace courts.

The federal judiciary is divided up into three levels of courts. The first level consists of Federal District Courts (Juzgados Federales de Distrito), which are trial courts with a single judge that have general federal jurisdiction. Federal district judges may, nevertheless, specialize by issues, namely criminal, civil, labor and administrative matters. The second level consists of two types of intermediate appeals courts: Unitary Circuit Courts (Tribunales Unitarios de Circuito) and Collegiate Circuit Courts (Tribunales Colegiados de Circuito). The Unitary Circuit Courts are appeals courts, with a single magistrate, that handle ordinary appeals from District Courts. As for Collegiate Circuit Courts, they each have three magistrates and hear amparo appeals. The third level is the Supreme Court of Justice, the court of last resort. It is composed of 11 judges and operates as a full court or in chambers. The Supreme Court rules of constitutional disputes arising between the federal, state and municipal governments and on matters of constitutionality, and may assume matters it deems important. The elections court is the top judicial authority for electoral matters. It is divided into a superior chamber and five regional chambers dealing with all matters arising under federal elections law.

The federal judiciary also includes the Council of the Federal Judiciary, which is in charge of overseeing the administration of the federal court system. Finally, the judiciary includes the Federal Citizens Jury (Jurado Federal Ciudadano) that decides on matters of fact submitted to it by district judges in a limited number of special cases.

The case in contention will determine which court has initial and appellate jurisdiction. Mexico has a constitutional appeals system that is independent from the ordinary appellate structure. Generally, the Unitary Circuit Courts are the appellate courts for ordinary appeals from District Courts. Collegiate Circuit Courts handle amparo appeals from District Courts and administrative tribunals. The Supreme Court has final appellate jurisdiction over all state and federal courts for both ordinary and amparo appeals.

Administrative Bodies

The resolution of legal conflicts involving fiscal, labor and agrarian matters is also handled by auxiliary administrative bodies within the executive branch. The rules and procedures of these systems are set forth in the internal organic laws of each specific body. Administrative decisions may be appealed through the review recourse, as provided under the Federal Administrative Procedure Act (Ley Federal del Procedimiento Administrativo). On the other hand, where a constitutional right has been violated the aggrieved party may bring an amparo appeal before the Federal Courts.

1.3 Sub-national Governments

The Mexican Federal Republic (República Mexicana) is composed of 31 states and a Federal District (Distrito Federal (DF)), which serves as the seat of the Federation's powers. Each state is subdivided into municipalities while the Federal District is made up of delegations. The Mexican Constitution establishes the basis for the form and structure of state governments. Each state has its own local constitution as well as a governor who serves as the highest local executive authority. The Federal District does neither have a local constitution nor a governor, but rather Government Bylaws (Estatutos de Gobierno). The local government authorities in the Federal District are the Legislative Assembly of the Federal District, the Head of Government of the Federal District, and the Superior Court of Justice of the Federal District.

Native Governments / Indigenous People

In Mexico, some municipalities are mainly populated by indigenous peoples who have distinct organizations, laws, religions, languages, traditions and customs. These indigenous groups are granted special protection under Mexican law as minorities. Indigenous people are subject to all applicable federal and state laws and provisions and may only use their own organizations to deal with local issues.

It should be noted that in August 2001, the Constitution underwent the "Indigenous Reform" in which some constitutional articles were amended to include provisions on indigenous groups. One of the key reforms is found in Article 2, recognizing Mexico's pluricultural makeup. Section I of the same article acknowledges and guarantees the rights and autonomy of indigenous peoples and communities, to decide internally the form of their community living and their social, economic, political and cultural organization, among other aspects.

1.4 Sources and Hierarchy of Law

Sources

The sources of Mexican law are formal, historical and material.

  1. Law or Derecho. This is the most important formal source of Mexican law. The law includes all those provisions enacted pursuant to the law-making process.
  2. Custom. This is considered a secondary source in the Mexican judicial system and includes two elements: (1) inveterata consuetudo, long-established practice within a social group; and (2) opinio juris sive necessitatis, compulsory behavior for everybody in that social group.
  3. Jurisprudence. This source of law comes from the federal courts. Court resolutions only constitute jurisprudence when there have been five consistent uninterrupted resolutions. In comparison with the common law system, where jurisprudence is a primary source of law, jurisprudence in the Mexican civil law system is only a secondary source.
  4. Agreement. This is a contractual relationship between two or more persons that creates, transfers, modifies or extinguishes obligations.
  5. Doctrine. This includes primarily the opinions of academic authorities and is not a compulsory formal source of Mexican law. These opinions may, nevertheless, have an influence on legislators and judges.
  6. Unilateral will. This is a specific action taken by a single person identified by law, which establishes a rule or creates a new standard for this very person or others and by which the legal order is modified. There are both public and private examples of unilateral will. An example of a public action would be when the President, under authority granted by the Mexican Constitution, introduces a law before Congress, which will be mandatory for everyone. An example of a private action would be when a testator dictates provisions for a will.

Hierarchy

Article 133 of the Mexican Constitution states that the supreme laws of the Republic are: the provisions contained in the Mexican Constitution, the laws of Congress emanating from the Constitution and the international treaties signed by the President and ratified by the Senate.

Notwithstanding the above, the Supreme Court has an isolated thesis entitled "International treaties. Hierarchically above federal laws and below the Federal Constitution." In this thesis, the Supreme Court finds that international treaties fall immediately below the Constitution and above federal and local law. "This interpretation of Constitutional Article 133 arises because these international commitments are assumed by the Mexican State as a whole, binding upon all authorities before the international community." This is an isolated thesis that in and of itself does not constitute jurisprudence until four other theses are issued in the same sense. However, it should be noted given its importance.

The following is a brief description of the hierarchy of Mexican laws:

  1. The Mexican Constitution, or "law of laws", has supremacy over all other laws.
  2. Federal Laws enacted by Congress and International Treaties proclaimed in accordance with the Constitution share the same level but are considered to rank below the Constitution. Considering the text of the above-mentioned isolated thesis, we find that contrary to the provisions of this paragraph, international treaties would be placed above federal laws. However, as noted, the thesis does not yet constitute a jurisprudential provision.
  3. Secondary Laws approved by Congress are at the next level and include: (1) "simplicidades" or ordinary laws enacted by Congress, which do not refer to constitutional matters; and (2) "secundum quid" laws, which may be either organic regulations that develop constitutional text by establishing the structure and functioning of a governmental authority, or a complementary regulation whose purpose is to add to or elaborate upon the Constitution.
  4. Regulations issued by federal executive authorities facilitate the understanding of and the compliance with the law. These include the internal administrative regulations issued by the federal secretariats and their executive officials.
  5. Official Mexican Standards (Normas Oficiales Mexicanas (NOMs) are specific measures and standards required by law, which are proposed by the different administrative secretariats in their corresponding area of jurisdiction and issued by the Federal Executive. NOMs are regulated under the Federal Law on Metrology and Standardization.
  6. Other authoritative acts include federal orders, agreements, resolutions, notices and internal official circulars that clarify certain aspects of the law for civil employees.
  7. Individualized standards can be either public or private, such as contracts and wills.

1.5 Role of the Legislature in the Law-Making Process

In the Mexican legal system there are two types of law-making processes. The first type consists in amending the Constitution, while the second one has to do with the making of new laws. The procedural requirements for amending the Constitution are established under Article 135 of the Mexican Constitution and require a two-thirds vote of the Federal Congress, as well as the approval of a majority of the state legislatures. The legislative process is set forth under Articles 71 and 72 of the Constitution and in the Law of the Congress (Ley Orgánico del Congreso de la Unión). The process is the same for both the House of Representatives and the Senate and comprises the following stages.

The President, Congressional Representatives and Senators and State Legislatures (Legislaturas de los Estados) are authorized under the Constitution to introduce proposed legislation in the form of bills before Congress. Private individuals, corporations or associations may submit proposals to their corresponding elected representative. A draft bill may be presented to the President of either the House of Representatives or the Senate, who then forwards it to the appropriate Congressional Committee (Comité del Congreso).

Legislative approval of the bill must be obtained from both chambers by a majority vote. If the proposed law is approved in the House of Origin (Cámara de Origen) (where the bill has been tabled), it is then discussed in the Review House (Cámara Revisora) (the other House). If the proposed law is rejected by the House of Origin, it cannot be presented again during the course of the same legislative session. If the Review House approves the proposed law, it is forwarded to the President. Should the project not be returned with comments to the House of Origin within 10 days, it is considered approved. Where the President vetoes the legislation, it is returned to Congress where it may be discussed again; should it be passed by a two-thirds vote, the President then must sign it. If the proposed law is partially changed, that part of the law, and only that part, must be discussed again and approved by a three-fourths vote in the House of Origin. Federal laws must be published in the Federal Official Gazette (Diario Oficial de la Federación) in order to come into force. Likewise, state and municipal laws must be published in their corresponding official gazettes.

1.6 Role of the Executive in the Law-Making Process

The executive participates in the law-making process in three ways. First, the President may table a bill before Congress. Second, the President must approve and proclaim the legislation enacted by Congress before it becomes law. Finally, the President and auxiliary administrative entities participate in the implementation of promulgated laws by issuing regulations and NOMs. Regulations are issued exclusively by the Executive and must be signed by the Secretary of the Interior (Secretario de Gobernación). This process of executive rule-making is known as "referendum". Generally, executive referendums elaborate upon specific laws passed by Congress.

In an effort to modernize the law making process, Congress recently enacted the Federal Law on Metrology and Standardization (Ley Federal de Metrología y Normalización) (hereinafter Standardization Law) on 1 July 1992. The Standardization Law changed the status of all technical standards issued before 1 July 1992, from mandatory to voluntary. Nearly all technical standards were subsequently issued anew or consolidated as NOM pursuant to the new Standardization Law. The Law makes the distinction between Mexican Official Standards With regard to environmental protection, NOMs impose standards in the areas of: biodiversity and natural resources, water usage and the prevention and control of water pollution and the pollution of aquatic ecosystems, the exploration and exploitation of nonrenewable resources, the prevention and control of air pollution, hazardous waste management, environmental risks, noise emissions, vibrations, thermal and light energy, and the generation of pollution. For information on citizen participation in the standardization process, see Chapter 6.1.

It should be noted that Chapter II of the Standardization Law provides for citizen participation in the development and modification of Mexican Official Standards. Note that the Regulations to the Law were published on 14 January 1999, containing provisions on the standards and on the Standards Advisory Committees.

1.7 Role of the Courts

The Federal Courts (Tribunales Federales) have two basic functions in the Mexican legal system: the resolution of legal conflicts and the interpretation of law through jurisprudence. The most important function is the resolution of legal conflicts. Generally, this implies applying the law to a case in contention. In some instances, however, when the court is required to interpret or apply a law to special circumstances not directly addressed by the law, it creates jurisprudence when deciding on the conflict. The creation and effects of jurisprudence are established in the Amparo Law (Ley de Amparo). Only the Supreme Court of Justice and the Collegiate Circuit Court (Tribunal Colegiado de Circuito) may create jurisprudence that is binding upon all lower federal and state courts and tribunals. Obligatory jurisprudence of the Supreme Court is created only when there has been a series of five consecutive similar rulings or judgments. A single ruling to the contrary annuls the binding nature of jurisprudence. The Supreme Court has final appellate jurisdiction over all federal tribunals and, as a matter of fact, over state courts as well, through the amparo process described below.

Amparo. Mexico has a federal judicial review system for the protection of individual rights guaranteed under the Mexican Constitution, known as amparo. An amparo suit may be brought in regard to: (1) any law or action by authorities that violates an individual right guaranteed under the Mexican Constitution or federal laws; (2) laws or federal official actions that violate or restrict the sovereignty of the states or that of state laws; or (3) official actions that invade the sphere of federal authority. Only the parties that are directly affected by an action or a law of the government may bring an amparo suit. The amparo system does not empower the Mexican Federal Courts to make a general declaration that an action taken by Congress or the President is unconstitutional, since the declaration only applies to the parties involved in the proceedings.

There are three types of amparos:

Direct Amparo. Decisions made by state or federal courts, or by administrative tribunals may be appealed through a direct amparo. The direct amparo is brought before a Collegiate Circuit Court or the appropriate chamber of the Supreme Court and may be based on both procedural and substantive errors. It is independent from a standard appeal.

Indirect Amparo. An amparo brought to challenge an official action, which allegedly violates a constitutional right, is known as an indirect amparo. Such official actions involve the following issues: federal treaties; federal or local laws, regulations, decrees or agreements, or actions that do not involve judicial, administrative or labor tribunals. The procedure consists in the aggrieved party filing a petition for an order with the District Court where the offending agency is located or where the action took place, requesting the Court to require the responsible authority to cease and desist from such action.

Amparo Against a Law. Instead of pursuing the amparo against the implementing authority, the aggrieved party may bring an amparo suit "against a law", challenging the constitutionality of a federal or state treaty, law, regulation or decree. As discussed above, the decision of the court will only be binding upon the parties involved in the proceedings. Thus, other courts hearing similar appeals in the future are not compelled to follow such a ruling until obligatory jurisprudence has been created following five consecutive decisions of the same nature.

General limitations of the amparo system are set forth in the Amparo Law. One such limitation is that decisions of the Supreme Court are not subject to amparo appeals. Another one stems from the fact that judicial and administrative remedies must be exhausted before an amparo suit may be brought.

1.A Legal Instruments

CONST. or Mexican Constitution: PoliticalConstitutionof the United Mexican States, D.O., Feb. 5, 1917.Laws

LDA: Amparo Law, last modified D.O., Dec.23,1987.

LFEP or Parastatal Law:Federal Law ofParastatal Entities (D.O., May 14, 1986; modified July 24,1992)

LFMN: Federal Law on Metrology andNormalization, D.O.,July 1, 1992.

LGEEPA or Ecology Law: General Law ofEcological Equilibriumand Environmental Protection, D.O., Jan. 28, 1988.

LOAPF or Federal Administration Law:Organic Law of theFederal Public Administration, D.O., Dec. 29,1976, last modifiedDec. 28, 1994.

LOGC or Law of Congress: Organic Law of theGeneral Congress,D.O., July 20, 1994

LOPJF or Law of the Judicial Power.:Organic Law of theJudicial Power of the Federation, D.O., May 26,1995.Regulations

RLFEP: Regulation to the Federal Law ofParastatal Entities, D.O., January 26, 1990.Agreements, Instructions, Decrees

AOPR: Accord which Creates the Office ofthe Presidentof the Republic, D.O., June 5, 1992.Bibliography

Burgoa: Burgoa, Ignacio. The IndividualRights.Mexico: Editorial Porrùa, 1994. (ISBN:968-432-304-2).

Carpizo:Carpizo, Jorge. The 1917Mexican Constitution. Mexico: UNAM, 1973. p. 273.

Garcìa Maynez:García Maynez,Eduardo Introductionto the Study of Law. Mexico: Ed.Porrùa, 1992

Gutteridge, Harold & Cooke:Gutteridge,Harold &Cooke. Comparative Law: Introduction toComparative Methodin the Study and Investigation of Law.Barcelona: Instituteof Comparative Law, 1954.

Tena: Tena Ramìrez, Felipe.Mexican ConstitutionalLaw. Mexico: Editorial Porrùa, 1985.(ISBN: 968-432-220-8).

Valiente: Valiente, Tomás. LawHistory and ComparativeLaw. Mexico: UNAM, 1979.

Villoro: Villoro Toranzo, Miguel.Introduction to theStudy of Law. Mexico: Editorial Porrùa,1987. (ISBN:968-432-552-5).



 
Last update: September 2003