MEXICO Law and Practice Contributed by: Federico Ruanova Guinea and Isabella Guzman, Baker McKenzie
Civil liability in most cases is subjective, except when handling hazardous materials or waste, when carry- ing out high-risk activities, when operating vessels in coral reefs or when operating machinery or equipment that may cause environmental damage. The general rule is that if it is proved that environmen- tal damage was caused, a judge should order either restoration or compensation activities. “Restoration” implies returning a site to the state it was in prior to the damage being caused, but if this is not possible then compensation may be required. 10.2 Exemplary or Punitive Damages Traditionally, Mexican environmental laws have not contemplated exemplary or punitive damages. These were introduced into the Mexican legal system in 2011 through a constitutional amendment. In 2016, the Supreme Court ruled that in certain cases it is permissible to award punitive damages, particularly when there is gross negligence involved. Even though this ruling was not properly an environmental case, it opened the door for civil courts to award large sums to plaintiffs that are successful in demonstrating that certain acts or omissions incurred by defendants have caused serious environmental damage. Courts have the prerogative of awarding punitive (or moral harm) damages at their discretion and these damages may run to millions of US dollars, particu- larly if it is shown that environmental damage was the result of gross negligence or a wilful disregard for the environment or public health. 10.3 Class or Group Actions Under the National Civil and Family Procedure Code, collective actions may be brought in the case of envi- ronmental claims. A group of 15 or more individuals, NGOs duly registered as well as federal environmen- tal agencies such as PROFEPA, may file a collective action against a party accused of causing environ- mental damage. The main purpose of a collective action is for the damage caused to the environment to be restored and, if this is not possible, for compen- sation activities to be ordered. Collective actions may be brought to safeguard:
• diffuse and collective interests, defined as those that are of an indivisible nature, held by a specific or unspecified group of persons, all of them related by common factual or legal circumstances; and • individual rights and interests, but with a collective incidence, defined as those of a divisible nature, held by individuals that are identifiable members of a group of persons, all related by legal circum- stances. The statute of limitations for filing collective actions is five years from the moment when damage or injury was caused. However, in the case of damage or injury having continuous or ongoing effects, the term will run as of the last day (or more recent day) in which the damage has been caused. This contradicts the term contained in the Liability Law, which provides that the statute of limitations for demonstrating environmental damage is 12 years as of the moment contamination took place or when its effects cease. Since the Liability Law expressly deals with environmental liability as opposed to the Federal Civil Procedure Code, the 12-year statute of limita- tions would apply in the case of environmental col- lective actions. A federal judge may issue any of the following rulings once the procedural and probative phases have con- cluded in a collective action: • in diffuse actions, a judge may only condemn a defendant to repair the damage caused to the group, consisting in restoration to the state exist- ing prior to the damage having been caused, if at all possible – if this is not possible, a judge may impose substitute compliance (monetary compen- sation), taking into account the rights and interests of the group; or • in collective actions in a strict sense, as well as in homogeneous actions, a judge may order that the defendant repair the damage, by carrying out one or more actions or by requiring that each individual be compensated. 10.4 Landmark Cases Most cases in Mexico have focused on the area of consumer protection. However, by the end of 2015,
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