Pulse Point Newsletter for November 20, 2001
Published by Alliance Consulting International
Partners in Environmental and Occupational Health and Safety
FOX ADMINISTRATION SENDS ENVIRONMENTAL CRIMES
LEGISLATIVE PROPOSALS TO THE MEXICAN CONGRESS
By Enrique Medina, MS, CIH
This month we present an excerpt from a brief legal analysis recently
issued by the Mexican law firm Lex Corp Abogados, which we believe you
will find informative. It highlights important aspects of a package of
reforms and additions to a number of laws and codes, which was formally
presented by the Fox administration to the Chamber of Deputies in the Federal
Congress on October 4, 2001. We present below the changes that would impact
the Federal Penal Code, and the General Law of Ecological Equilibrium and
PROPOSED REFORMS AND ADDITIONS TO THE FEDERAL PENAL CODE
The reforms and additions under this proposal affect a number of articles
of the code. The most relevant are the following:
a) The introduction of legal concepts intended to provide a more equitable
treatment to the offender, such as:
b) The introduction of guilty conduct when imposing sanctions for environmental
damage caused by the failure to duly observe provisions, especially for
those crimes that relate to the handling of hazardous substances and those
that damage ecosystems or protected species. The crimes currently listed
in the Federal Penal Code are classified only as intentional, which necessarily
implies that there was intent to cause the environmental damage for the
environmental liability to arise. By introducing the “guilty” element in
environmental crimes, the range of possibilities of incurring a criminal
environmental liability expands, since when causing an environmental harm,
the intent or lack of intent to cause the damage would not be an element
to be considered at the time the criminal environmental liability is determined.
Exclusions from criminal liability, in the case of conduct not to be considered
under criminal law- that is, where no criminal penalty shall apply. This
applies to those who capture, harm or slaughter any sea turtle or marine
mammal, or collect or store any of their products or byproducts, provided
the person is a fisherman and conducts the activity for purposes of satisfying
his basic needs.
Attenuating factors in criminal liability, which imply a reduction of the
penalty. This concept applies in the cases of microgenerators of hazardous
Aggravating factors in criminal liability, for especially harmful and serious
conduct. This applies in cases where risks or damages are generated in
areas that should be especially protected, such as in population centers
and protected natural areas.
Serious crimes for cases where the offender represents a serious social
and environmental threat, making it necessary to restrict his right to
c) An increase in the amount of monetary penalties.
d) The terms of hazardous waste and materials are unified under the
sole concept of hazardous substances.
e) The name of Title 25 of the Federal Penal Code is changed, from the
current “Environmental Crimes” to “Crimes Against the Environment.” In
addition, this same Title is divided into five Chapters, including the
The statement of purpose of this proposal emphasizes the need to develop
an Environmental Penal Code that allows for the creation of an integral
and more effective system of criminal environmental liability, which includes
currently excepted concepts such as the environmental liability of corporate
“Technological and Hazardous Activities.” This chapter changes the current
condition set forth in Article 414 of the Code, which provides that a penalty
shall be imposed for “not having the respective authorizations or violating
the Mexican standards to which Article 147 of the General Law of Ecological
Equilibrium and Environmental Protection refers”. The proposed condition
also imposes a penalty “on a person who illegally, or without applying
the minimum prevention or safety measures...” This modification is intended
to impose liability on persons who engage in conduct and generate environmental
damages illegally in a general sense, and not only those who do so without
having the corresponding authorizations or in violation of the conditions
“Crimes Against Environmental Affairs.” This chapter introduces the characterization
of conduct that seriously affects the veracity of the information in the
Registry of Emissions and Pollutant Transfers (similar to the U.S. Toxics
Release Inventory or TRI). It also characterizes the conduct of falsehood
by environmental service providers, and conduct intended to cover up other
environmental crimes, or to make it look as though the obligations set
forth in the environmental standards have been complied with.
“Common Provisions for Crimes Against the Environment.” This chapter adds
a power for criminal court judges to order “safety measures,” and incorporates
the disqualification from office of public servants.
PROPOSED REFORMS AND ADDITIONS TO THE GENERAL LAW OF ECOLOGICAL EQUILIBRIUM
AND ENVIRONMENTAL PROTECTION
The reforms and additions under this proposal affect a number of articles.
Key aspects of this proposal include the following:
a) It provides a legal basis for the Registry of Emissions and Pollutant
Transfers by stating that the Secretariat of the Environment and Natural
Resources (SEMARNAT) shall keep an inventory of atmospheric emissions,
wastewater discharges into federal receiving bodies, and hazardous waste
under its jurisdiction. The inventory will be based on the information
contained in the environmental authorizations, licenses and permits it
b) An increase in the amount of fines.
c) The proposal establishes the possibility of signing Coordination
Agreements between the Federal Government (through SEMARNAT) and the states
or the Federal District, in order that they assume, within the scope of
their jurisdiction, the powers that at present solely reside with the Federal
Government. Such powers include:
d) The possibility of imposing sanctions is set forth, not only with regard
to the damages caused but also taking account of the damages that may arise,
basing the criteria for offenses under the Law not only on environmental
damages but also on environmental risk.
Environmental impact evaluations for activities referred to in Article
28 of the Law, and issuing the corresponding authorizations when appropriate,
except for activities relating to water works, general communication, oil
pipelines, the petroleum industry, exploration, exploitation, mining, etc.
Inspection and oversight of compliance with the Law and its provisions.
As a condition in the event that a Coordination Agreement is signed, the
inspection and oversight powers shall be executed as provided in the General
Law of Ecological Equilibrium and Environmental Protection and all other
applicable federal provisions. Likewise, the appeals and defense measures
available to private interests would be as set forth in the same Law.
Information for this article was provided by LexCorp Abogados, an environmental
and general business law firm headquartered in Mexico City. LexCorp's environmental
group leader, Daniel Basurto can be reached at email@example.com.
If you have questions about how this article or
other health, safety or environmental issues, please contact us at (619)
297-1469 or send us an email at firstname.lastname@example.org.
Alliance Consulting International
Partners in Environmental and Occupational Health and Safety
3361 28th St.
San Diego, California 92104
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