Strategic environmental assessment, access to information, public participation, deadlines for resolving cases, protection of defenders and institutional capacity are some of the points that the Mexican Center for Environmental Law (CEMDA) places under the spotlight of the proposal for a new General Law on Ecological Balance and Environmental Protection (LGEEPA).
For Gustavo Alanís Ortega, executive director of CEMDA, updating the legislation requires reviewing its relationship with the country's other environmental laws. For example, regulations on circular economy, sustainable forest development, waste, water, climate change and wildlife as part of the legal package that would have to maintain a coherent relationship with the new LGEEPA.
“There has to be good synchrony” and “good harmonization” between these systems, he explains.
For the executive director of CEMDA, this review is necessary because the provisions of the LGEEPA have effects on different environmental policy instruments.
Another central point for CEMDA is the capacity of the institutions responsible for enforcing legislation. Alanís Ortega describes a gap between the production of environmental standards and the resources available to enforce them. “Mexico has been a champion in legislating,” he says.
For example, the Federal Attorney for Environmental Protection (Profepa) requires more inspectors, staff, budget and material resources to carry out inspection, surveillance and sanction tasks.
“Then when you talk to the people from Profepa in the states, you find that there is no money either for gasoline or to change a tire,” he says.
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Strategic environmental assessment, finally on the table
The bill incorporates strategic environmental assessment, which civil society organizations and academics have been requesting for years, since it is an instrument that allows us to analyze the environmental effects of plans, programs and public policies.
CEMDA recognizes this incorporation as an advance, but warns that there must be a relationship between strategic environmental assessment and environmental impact assessment. “One doesn't replace the other,” explains Alanís Ortega. Both instruments must preserve differentiated functions and be applied according to the type of decision or project that corresponds to the type of decision or project that corresponds, he adds.
It also refers to projects that start activities without authorization in terms of environmental impact and then seek to be regulated. For these cases, consider reviewing when to restore the site. “There are cases where there should be restoration, not regularization.”
Information from environmental impact files constitutes another of the key points. Alanís Ortega points out that data protected by industrial property, intellectual property or trade secrets can be treated confidentially. “Everything else has to be public,” he says.
Resolution deadlines are also part of the discussion. Alanís Ortega explains that there are currently 60-day periods to resolve, another 60 days when additional information is requested and up to 60 additional days when the authority considers that the dimensions or complexity of a work require more time.
At this point, CEMDA proposes to review the times based on the capacity of the authorities to process the files.
The organization also identifies a problem related to the additional information provided by promoters during the procedure, so it proposes to establish mechanisms that allow this information to be known to society and form part of public participation.
The participation of people in environmental decisions constitutes another component that CEMDA believes should be strengthened. Alanís Ortega mentions public consultations and public information meetings as mechanisms that must have clear rules and relates their strengthening to the commitments established in the Escazú Agreement.
Access to information is also linked to the way in which communities can use available legal tools. For CEMDA, the new legislation should make it easier for individuals, groups, communities and indigenous peoples and communities to know environmental information and participate in decisions affecting their territories.
In addition, it states that communities' experiences with existing environmental instruments should be incorporated into the legislative process. Legal and environmental information, he points out, must be presented in a way that can be understood and used by those who need access to it. “That information is easy, that it is accessible, that it is digestible,” he said.
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Favorable points
With regard to environmental protection, CEMDA also recognizes favorable elements of the proposal. Alanís Ortega highlights the incorporation of principles of international environmental law, including in dubio pro natura, the best interest of the environment, the principles of prevention and precaution, and the principle of maximum publicity related to access to environmental information.
The proposal also incorporates new categories of protected natural areas, such as geoparks, wetland sites and natural resources located in sacred sites. For CEMDA, these figures require sufficient resources to meet their conservation objectives and avoid the existence of “natural paper areas”.
The protection of environmental defenders is also part of the proposal. CEMDA believes that this component can be strengthened within the legislative discussion. During the interview, Alanís Ortega pointed out that 199 environmental defenders have been murdered in the last 11 years in the country.
Another element that CEMDA considers relevant is the incorporation of pollinator conservation as a principle of environmental policy and its recognition as a priority, and the incorporation of nature's rights.
The proposal proposes new criteria for ecological territorial planning related to the availability of ecosystem services, the care of degraded areas and restoration.
These criteria can help environmental planning to consider the conditions of ecosystems and their recovery processes.
On August 26, President Claudia Sheinbaum presented the initiative to issue a new General Law on Ecological Balance and Environmental Protection. On August 31, it was sent to the Chamber of Deputies and on September 1 it was turned to the Committee on Environment and Natural Resources to prepare the opinion and to the Committee on Budget and Public Accounts to provide an opinion.
During the presentation, the Secretary of Environment and Natural Resources, Alicia Bárcena, explained that the current legislation dates back to 1988 and that the proposal seeks to update it in the face of current environmental challenges such as climate change, loss of biodiversity and pollution. The initiative, he said, incorporates tools related to ecological restoration and seeks to integrate scientific, technological and ancient knowledge advances.
For CEMDA, the next step is the public discussion of the initiative. The organization has requested an open parliament with thematic tables and participation from different sectors, which has already been supported by Secretary Bárcena.
Ortega recalled that the 1996 reform had a discussion process of almost two years and set that precedent for the current legislative process.
Now, the process will allow, in agreement with the organization, to discuss evaluation tools, rules for access to information, public participation, the protection of those who defend the environment and the institutional capacities necessary to implement the legislation.
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