On May 8 2015 three judicial precedents were published in the Judicial Gazette concerning the interpretation and application of the Federal Law for Environmental Responsibility.
The first ruling dealt with the interpretation of Article 29 of the law, which provides for a 12-year statute of limitation for filing suit for environmental responsibility. The key holding in the decision is that the statute of limitation will commence from the moment that the damages become known – not from the moment that they are produced (Tesis Aislada 1a CXLVII/2015).
The second judicial precedent held that Articles 28(1) and (2) of the law violate the right to effective judicial protection. These articles recognise the right of civil associations to file suit for environmental responsibility provided that at least three years have passed since their creation and that they are representing an inhabitant of the community that has suffered the environmental damage. As these requirements are additional to those contained in class actions as regulated under the Federal Civil Procedure Code, they are considered an impediment to the exercise of the civil associations' rights and therefore violate Articles 4 and 17 of the Mexican Constitution (Tesis Aislada 1a CXLIV/2015).
Finally, the third judicial precedent stated that the legislature unreasonably modified the essence of the fundamental right of access to justice. The Federal Civil Procedure Code sets out the right to file a class action for environmental damage to defend collective rights; similarly, Article 28 of the Federal Law for Environmental Responsibility establishes that civil associations must comply with two additional prerequisites in order to file suit for environmental damage. For this reason, the legislature exceeded the authority granted to it by Article 17 of the Constitution, as it can only regulate – and not constrain – the terms under which a fundamental right of access to justice may be exercised (Tesis Aislada 1a CXLVI/2015).
For further information on this topic please contact Juan Francisco Torres Landa, Mario Jorge Yanez, Brenda Rogel Salgado or Jeanett Trad Nacif at Hogan Lovells BSTL, SC by telephone (+52 55 5091 0000) or email ([email protected], [email protected], [email protected] or [email protected]). The Hogan Lovells BSTL, SC website can be accessed at www.hoganlovells.com.
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