MEXICO Law and Practice Contributed by: Federico Ruanova Guinea and Isabella Guzman, Baker McKenzie
6. Corporate Liability 6.1 Liability for Environmental Damage or Breaches of Environmental Law The Liability Law states that legal entities are liable for environmental damage caused by their legal repre- sentatives, directors, administrators, managers, direc- tors, employees and by any party having functional control over their operations, including whether such persons are either careless or acting in accordance with their functions. Officers, employees and agents are generally liable for: • negligence or misconduct when discharging their duties; • breaches of instructions received from manage- ment; • actions that exceed their authority; and • allowing, within the scope of their functions, viola- tions to the Federal Criminal Code, solely in the case of officers, legal representatives, managers or employees. 6.2 Environmental Taxes Several states in Mexico have enacted laws that impose “green taxes” over greenhouse gas (GHG) emissions, solid waste disposal activities as well as waste water discharges. These taxes vary because they are based on the annual volume of emissions (including GHGs) that are generated by stationary air emission sources, on the quantity of waste being sent to landfill or on the chemicals and particles contained in waste water discharges. There are currently 13 states in Mexico that require the payment of environ- mental taxes. It should be noted that, as a result of a legal challenge to the state of Zacatecas Green Tax Law in 2018, the Supreme Court ruled that environmental taxes do not violate the tax proportionality principle enshrined in the Constitution and therefore such taxes are legal. 6.3 Incentives, Exemptions and Penalties Even though the General Law and all state laws estab- lish the legal possibility of awarding financial incen- tives for being a good environmental citizen, these
regardless of fault, and irrespective of historic envi- ronmental contamination. They, in turn, can bring a legal action against the party that caused contami- nation. Prior to transferring title over a contaminated site, seller and buyer must agree on who will carry out remediation if the site is contaminated. Agreeing on who will remediate involves having actual knowledge of the existence of contamination and this may also involve conducting characterisation studies and find- ing out whether there is a remediation obligation. The federal government has published two standards in the area of soil contamination. Standard NOM- 138-SEMARNAT/SSA1-2012 establishes maximum allowable limits for hydrocarbons in soils; stand- ard NOM-147-SEMARNAT/SSA1-2004 sets limits for heavy metals. In the absence of clear regulatory guidelines, however, human health and risk studies may have to be performed to determine if remediation must be carried out. SEMARNAT and/or ASEA must approve the transfer of a contaminated site. However, failing to secure this authorisation may not prevent the transfer from tak- ing effect. If a seller failed to inform a buyer that a site was contaminated and the buyer later discovers that it was, the seller will be liable for remediation. The statute of limitations for making a claim of envi- ronmental liability is 12 years as of the moment when contamination occurs or its effects cease. 5.3 Key Defences In the case of a resolution imposing administrative liability (such as a fine), it may be contested through a recourse or an annulment complaint (at federal level) filed before an administrative court. A final defence may be in the form of an “amparo” lawsuit filed before a federal circuit court, particularly if there may be con- stitutional violations incurred by a regulatory agency. A civil judgment (requiring the remediation of a con- taminated site, for example) may be contested through an appeal before a superior court and also through an amparo lawsuit. A criminal judgment imposing a prison sentence may be contested through an appeal heard before a state or federal superior court and through the submittal of an amparo lawsuit.
307 CHAMBERS.COM
Powered by FlippingBook