MEXICO Law and Practice Contributed by: Federico Ruanova Guinea and Isabella Guzman, Baker McKenzie
ment on the content of an environmental impact study; indigenous communities that may be affected by a project to be carried out on their land must also be consulted and social impact studies are required. In the case of energy projects that may affect vulnerable communities, permitting decisions may be appealed by any person or entity that may be adversely affected by a work or activity. 4.3 Regulators’ Approach to Policy and Enforcement Regulators are required by law to review and author- ise any activity that may cause environmental harm or adversely affect ecosystems. This is done through the environmental impact review/permitting process and through other permitting processes like the ones described in 4.2 Environmental Permits/Approvals . 4.4 Transferring Permits/Approvals Some environmental permits may be transferred by providing a written notice to regulators, stating the name of the transferee. This is the case with environ- mental impact authorisations issued by SEMARNAT or ASEA. Water concessions or waste water discharge permits may be transferred, but the transfer requires the prior approval of CONAGUA. Air emission licenc- es are generally not transferable; however, regulators may approve their transfers in certain cases, such as when an industrial site has been transferred to a new company and its operation will not involve an increase in air emissions. This is also true of companies that have secured environmental authorisations from state agencies. 4.5 Consequences of Breaching Permits/ Approvals Failure to comply with the requirements and condi- tions contained in an environmental approval or permit may bring about penalties such as fines and an order from regulators to fully comply with the permit. If there is a repeat offence, regulators may order a temporary shutdown of the pollutant source or may issue a sus- pension order that may remain standing until all legal violations or deficiencies have been corrected. In some instances, environmental violations may bring about criminal investigations and prosecutions, par- ticularly when there is evidence of wilful acts that have
caused serious environmental damage, affecting the environment and public health.
5. Environmental Liability 5.1 Key Types of Liability Operators or polluters may be subject to any of the following types of environmental liability. Administrative This is the most common and widespread form of liability and generally involves fines, temporary shutdowns, the seizure of pollutant sources and the revocation of environmental permits. Administrative penalties may be imposed by federal enforcement agencies, such as PROFEPA, ASEA and/or state or municipal agencies. Under the Liability Law, judges may impose monetary penalties that may be substan- tial (up to USD3 million in some cases) aside from ordering remediation or compensation. Civil Civil liability may stem from civil lawsuits, either in the form of collective actions or those that are based on the Liability Law, and generally result in judicial rulings ordering polluters to carry out restoration, compensa- tion or remediation requirements and in some cases to compensate plaintiffs in a collective action. Criminal This form of liability may be generated as a result of carrying out acts that are considered environmental crimes. Criminal liability involves prison sentences that may range from three months to 12 years, as well as fines that are calculated taking into account the yearly earnings of a person convicted of a crime. There is an entire chapter in the Federal Criminal Code devoted to environmental crimes. In instances of repeated serious crimes, judges may order the dissolution or liquidation of companies that have been involved in environmental crimes committed by their employees or legal representatives. However, this is rare. 5.2 Liability for Historical Environmental Incidents or Damage According to the Waste Law, owners or occupants of a contaminated site are jointly liable for remediation
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