Gustavo Alanís Ortega
Director General
CEMDA
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View from the Top

Environmental Rights Claim Their Place

Wed, 02/24/2016 - 12:42

Q: The Mexican Constitution guarantees the right to a ‘healthy environment’. Do you think the Energy Reform met the expectations of this right?

A: The Constitution grants the right to a healthy environment, to health, and to water, with these three rights harmonious to each other. At CEMDA, we believe these aspects were not prioritized in the drafting of the Energy Reform. If those rights are not fully protected, it will not be possible for the Reform to have positive effects on the economy. I think the government missed the chance for a fully integrated Reform, as this legislation contemplates many aspects but not in complementary ways. Even though it will be positive for the energy sector and for foreign direct investment into Mexico, it is not possible to achieve promising economic conditions while treating the environment poorly. Therefore, we need to ensure that environmental laws and regulations are put in place and fully enforced. This is a huge challenge, as SEMARNAT cannot handle all these obstacles on its own. If SEMARNAT cannot handle overseeing PEMEX, which is just one company, it remains to be seen how ASEA will oversee ten or more companies. Institutionally speaking, ASEA must be created with full support for its HR, finances, and infrastructure. If not, it will simply become another institution with no impact or influence.

We have no choice but to take the environment seriously, due to the far-reaching implications any damage creates. The second presidential report was mostly a political message and it barely touched upon the environment, although President Peña Nieto stressed that his government was committed to the preservation of natural resources, and that sanctions would be imposed on those who pollute. Now we have to see this political message being enacted in SEMARNAT’s actions, with support from PROFEPA and ANSIPA. 

Q: Do you believe the government ever considered social benefits to be a priority for the Energy Reform?

A: President Enrique Peña Nieto has barely touched upon the environment. However, he did say that his government was committed to the preservation of natural resources and sanctions were going to be imposed on polluters. 

The message was short but clear, and we now have to see enforcement by SEMARNAT, PROFEPA, and ASEA. In 1992, the government created PROFEPA during the NAFTA negotiations as a result of US concerns about Mexican environmental laws. The body was created but no meaningful enforcement was put in place. Now, 23 years on, the situation remains the same. With ASEA, we should learn from the lessons of the past about how to create institutions without them being seen as an obstacle. For example, governors blame PROFEPA for a lack of regional investment due to environmental constraints. Most recently, the governor of Sonora publicly rejected PROFEPA for trying to enforce the law. If Mexico cannot begin to respect the rule of law, the general public will have to intervene and pressure our institutions for change.

Overall, I view the Energy Reform in a positive light, and I believe things will move in the right direction, although this remains unclear because the economy remains a priority. The government needs to demonstrate its serious commitment to the environment and to safeguarding natural resources. My real concern is the political will, or lack thereof, at the highest levels of government, since this directly affects change, regardless of documents such as the National Climate Change Strategy. We need to voice our concerns and push the president into embracing an environmental agenda.

Q: Is the general public educated enough about the actions it can take?

A: Unfortunately, I do not think society understands the full scope of the reforms. Plans for the construction of a new airport in Mexico City were recently announced but nobody has seen the preliminary technical studies that back up this decision. This means that NGOs, think-tanks, and other entities must act as the voice of the Mexican public. Beyond this, the federal government has poorly communicated the full impact of the Energy Reform, the secondary laws, and the fallout of electricity prices. There is still an opportunity for the government to send out the message of how these legislative changes will benefit the population.

Even though the reforms are taking place on a federal level, states and municipalities should have a say. There are instances, such as in land use and construction permit disputes, where municipalities can intervene. A problem arises when things are dealt with at the federal level and are neglected at the state or municipal levels. The way agencies and institutions deal with this discrepancy is crucial because it can provide opportunity for corruption, and local governments should be taken seriously due to their ability to halt projects.

Finally, the question of where civilians can go to have their environmental concerns addressed is a complicated one. However, there are many legal mechanisms people can use, such as amparos, reviews of sentences, or nullity suits. For instance, the environmental impact assessment process is detailed in Articles 28-35 of the Federal Environmental Law. Within this process, people have the right to a public consultation and to an informative public meeting, where developers present projects before the larger population. Even though these laws exist, nobody can guarantee that the public’s concerns or suggestions will be taken into consideration.

Q: What does the government need to do to make sure that negative externalities are being sanctioned?

A: The general population is the first to feel negative externalities because of the quality of the water or air, and the way these impact the public’s health. Every year in Mexico, 14,700 people die due to the poor quality of the air, according to WHO, and the country lacks a policy to address this issue. The public is aware of the negative externalities, but I do not think the public is aware of how to address these issues or which organizations to approach for assistance.

As well as economic sanctions, which can reach US$4 million, other sanctions can be imposed, such as the revocation of concessions or the approved environmental impact assessment. There are also four modalities for shutting down a project: partial, total, temporary, and definite. Plenty of administrative sanctions are available, and in some severe cases criminal charges can be brought through the Attorney General’s Office. A party may fall foul of the Law of Environmental Responsibility or may be sued in a civil case and forced to pay damages, and class actions are another possibility. The main problem, however, is that these mechanisms are not being put into practice. Overall, I would say these sanctions have had little consequences over the past few years.

Q: Is there a risk that the environment will never be seen as a top priority?

A: Education, crime, and employment are important subjects that should be at the top of the public agenda. However, the environment must be at the same level or even higher. Everything stems from nature and this country has not fully understood how important nature is. We need to change the way we think about the environment and the way we drive public policy in order to integrate the environment into the country’s productive activities.

The first draft of the Energy Reform put some protected areas at risk because land use for energy generation was made a priority. CEMDA was integral in the campaign to change this clause because protecting natural areas is a priority for our organization. CEMDA was created mainly because we wanted to work on the compliance and enforcement of environmental regulations in Mexico.