In this issue, a synoptic approach is made to the environmental obligations existing for the business sector within the Mexican legal system.
One of the main reasons that motivate the development of this topic lies in the fact that, in the daily sphere, there is a collective conviction that environmental requirements do not necessarily have to be fulfilled, since the probability that a supervisory body detects non-compliance is remote, and therefore, the probability that an establishment is harmed by such detection is low.
The aforementioned conviction is motivated by a factual platform that may be accurate a priori, consisting of the low number of inspectors existing in the departments assigned the supervisory competence in the matter, but its conclusion is not beneficial for the activity, since the negative consequences of regulatory non-compliance in the environmental discipline really exist, and if they have to be made effective, they will carry notes of severity even higher than those of other areas, such as the fiscal one.
Having made this clear, it is appropriate to indicate that the legal protection of the environment takes its source within diverse provisions throughout the entire hierarchy of the legal system, with references to it being found in International Treaties ratified by Mexico, Constitutional and Legal provisions of the three levels of government, and even within provisions related to the national system of Metrology and Standardization, such as the Mexican Official Standards.
The above leads to environmental matters being regulated from very diverse sources, emanating from different centers of power, generating a system endowed with characteristics (1) Diffuse, (2) Profuse and (3) Confusing.
It is indicated, first of all, that environmental legislation is Diffuse, because it is not concentrated in a specific legal body, as it occurs in disciplines such as Commercial, Labor, Tax or Agrarian, among other examples, but it is made up of a collection of provisions, issued by various authorities, with different degrees of competence at the Federal, State and Municipal level.
Secondly, the environmental legal system is given the note of Profuse, because it contains, within its different information sources, a high regulatory baggage. For proof of this, it is enough to observe the General Law of Ecological Balance and Environmental Protection, the General Law for the Prevention and Integral Management of Waste, the General Law of Climate Change, or the Federal Law of Environmental Responsibility, which could easily be small codes, due to their high degree of dispositive detail.
Finally, the note of Confusion is brought about by the combination of the two characteristics just mentioned. The fact that there are various legal regulations issued by different authorities, which in turn are very exhaustive and thorough in their respective bodies, lead to difficulties for the obligated subject when determining which are those provisions that apply to their factual situation, and that therefore, their compliance must be ensured.
As a corollary of the above, the subject obligated by the environmental regulatory framework must resort to systematized methodologies to determine how far their obligations in the matter will go, which at least must consider the normative hierarchy, their temporality, the competence of the issuing authority, and in case of doubt, the predominance of the regulations arising from a normative body of particular scope, over those emanating from another of a general nature.
The positive aspect of this uncertainty lies in the fact that the basic structure of environmental requirements for the business sector is common to each of the sub-sectors of the same, allowing to take as true the following “environmental jurist’s decalogue”, whose maxims will state that:
- Any future project that is to be carried out must go through the prior filter of an Environmental Impact Assessment, which will be translated in practical terms into a Preventive Environmental Impact Statement or Report.
Through these instruments, the interested party will aspire to obtain the proper Authorization from the competent authorities, whether at the Federal, State or Municipal level. This authorization must be requested with a quick prediction of future needs, as it will require considering all the stages of the “life” of the project, understood as site preparation, construction, operation, maintenance, and subsequent abandonment. - There will be no possibility of building an establishment without the so-called land use, construction, and later, building use licenses, whose issuing competence is primarily Municipal, being duly issued.
On the other hand, there will be no place for said licenses without the previously mentioned Environmental Impact Authorization having been previously issued. - Since the establishment under analysis will be a constant generator of pollutants in its interaction with the environment, it will be subject to a strict system of permits, having to obtain its Licenses for the emission of pollutants, Registrations as a generator (for each of the different types or categories of waste it generates), as well as Authorization of the Management Plans for the same, and finally, Concession Titles or Water Supply Contracts, with their respective Discharge permits.
- Once the primary obligations have been obtained, in order to maintain the validity of the indicated permits, accounts must be rendered on a constant basis, both in compliance with the conditions established in the different Authorizations, Licenses, Registrations and Permits, as well as in the generation of annual reports, such as the Annual Operation Certificate (COA) in its different scopes (Federal and State), which will feed the entry of the Registries: National Emissions (RENE), and Emissions and Transfer of Pollutants (RETC).
- Lastly, but not least, it should be noted that Authorizations, Licenses, Registrations and Permits will be valid as long as they have been obtained against the declaration of real conditions, and may become obsolete according to the dynamism experienced by the establishments subject to them (understood as the structural and functional changes that are constant).
For this reason, there are systems of expansion, extension and regeneration, the burden of execution of which falls on the holder of each authorization.
As a primary conclusion, it can be said that the environmental legal regime, despite the difficulties it entails, which have been indicated at the beginning of this work, can be perfectly mastered by the subject obliged to it, under the application of ordered methodologies, which ensure its understanding and categorization.
Needless to say, this issue does not seek to develop in depth any of the concepts expressed, but rather, with the pardon of the repetition, constitutes a synopsis of the topics that will be explained in subsequent issues, inviting the reader to keep up to date with them.
Leandro Manuel Lamas Stalla
Project Manager at CIS Consultores
Teacher and Researcher at the Risk Management Institute
Teacher at the University of Monterrey
