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25 July 2011
The right to bring class or representative actions is vital for the protection of collective human rights, especially for environmental matters. One of the most recent amendments to the Constitution established a legal basis for such actions. This amendment represents a major step forward for Mexico's environmental law. Although Congress must enact secondary legislation before such actions can be brought, the constitutional amendment is already in force.
The introduction of class actions is potentially even more significant in light of amendments to the General Law on Ecological Balance and Environmental Protection, Mexico's main federal environmental law. The new provisions include and recognise the concept of 'legitimate standing'. Under this principle, individuals and legal entities may challenge administrative acts (eg, authorisations and permits) concerning construction projects or other public works that may violate applicable legal provisions - namely, those set forth in the law itself, as well as in supplementary environmental laws, regulations and official standards. Moreover, individuals and entities may demand the performance of actions to ensure that such provisions are observed.The petitioning party need not show evidence of a direct legal interest in the project in question.
In the General Law on Ecological Balance and Environmental Protection, legitimate standing for the purposes of filing applications for review before the Federal Court of Taxation and Administrative Justice requires an individual or entity to be a member of a "potentially affected" community. However, the federal courts have previously held that legitimate standing does not require an individual or entity to prove a right that is connected to the allegedly damaging actions; rather, the petitioning party need prove only that the actions, even if performed as authorised, may cause or are causing damage to the environment. In such cases the breadth of the concept of 'legitimate standing' could extend not only to individuals or entities, but also to non-governmental organisations. This will inevitably lead to increased exposure for individuals and entities in performing activities and securing approvals under federal environmental legislation.
Although no procedural regulations are yet in place for an environmental class action, the amendments to the cornerstone of environmental law may facilitate an individual's action against a project. In order to protect a project from future problems arising from environmental authorisations, it will be vital to perform thorough legal and technical due diligence, secure all applicable authorisations for the performance works or activities and ensure full compliance with legal requirements.
For further information on this topic please contact Juan Francisco Torres Landa, Jorge Yanez, Adrián del Paso or Jeanett Trad Nacif at Barrera, Siqueiros y Torres Landa, S.C. by telephone (+52 55 5091 0157), fax (+52 55 5091 0123) or email (firstname.lastname@example.org, email@example.com, firstname.lastname@example.org or email@example.com).
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