The reform of the judiciary promoted by the President of Mexico, Andrés Manuel López Obrador and which has just been approved by the Congress of the Union, will have repercussions on access and the administration of justice in environmental matters, as warned by the Mexican Center for Environmental Law (Cemda).
Today, Mexico is ranked 14th in the ranking of 33 countries evaluated by the Global Index of Environmental Impunity in Latin America 2023. Of the aspects they evaluated, it was the worst rated in environmental degradation and the second to last highest in environmental crime, surpassed only by Colombia. In addition, in 2023 it was the fourth country with the most murders of environmental human rights defenders in Latin America, according to the Global Witness report.
To explain the impacts of this reform on access to environmental justice, Causa Natura Media interviewed Luis Miguel Cano, a specialist in strategic constitutional litigation in defense of human rights. He has been a consulting lawyer for organizations such as Greenpeace Mexico, PODER, Litiga OLE and Fundar, as well as an advisor to the Supreme Court of Justice of the Nation, and consultant for the Office of the United Nations High Commissioner for Human Rights — Central America and the Caribbean (OACNUDH) Mexico.
The interview with Cano has been edited for clarity.
— Did the environmental agenda influence the Executive Branch to promote this reform?
— Throughout the six-year term, there were clashes between the interest of the ruling party (the Executive Branch and the Congress of the Union) and the Federal Judiciary (PJF). One of the most relevant had to do with the questioning of national energy policy. The government tried, in many ways, to favor the state's productive companies, both Petrleos Mexicanos and the Federal Electricity Commission. There were many battles on the part of environmentalists to stop these attempts and there was a good response from the PJF. Practically, all regulations that were issued to favor the use of fossil fuels obtained suspensions through amparo lawsuits and suspensions with general effects. Also at the time, the Nationally Determined Contributions, which are climate commitments and the way to fulfill them, were questioned, where there were also flaws. This and other things motivated the government to have a tough confrontation for the six years with the PJF.
The judicial reform is due to many changes that the government has tried in this sector to subject it to the interests of the government, because it seeks to limit it in several fields.
— What would be the most crucial reform issues affecting access to environmental justice?
— For a long time, the right to a healthy environment was considered a programmatic norm, that is, not enforceable and much less justiciable. For example, amparo, which is the mechanism we have to defend ourselves, before the 2011 reform, was procedurally difficult to defend ourselves because there was only legal interest and some causes, making it difficult to defend ourselves. The suspension was also complicated and judgments that had the effect of restoring environmental pollution and ordering important, comprehensive measures to re-establish ecological balance, were not usual. But starting in 2017, the Supreme Court of Justice of the Nation (SCJN), which is the head of the PJF, set a favorable precedent in terms of the judicial guarantee of the right to a healthy environment. Today, it is recognized that a single person can protect an ecosystem, in matters of suspension, early protection is offered to environmental causes, and in matters of judgments, by interpretation or by effects, more people can benefit in addition to the complainants who sought amparo. Today we are doing quite well and we are getting better and bigger precedents. In this context, which was quite beneficial, favorable and hopeful, the reform is a setback, a serious regression due to the reforms to the amparo trial and the changes with respect to the election of all federal judicial offices.
— How would the amendments to the amparo judgment impact compliance with the Escazú Agreement?
— The amendment to article 107 of the Constitution, which refers to the amparo trial and states that judgments with general effects are not allowed when general rules are questioned. It also says that suspensions with general effects are not allowed, which is a precautionary measure that aims to paralyze the effects of the acts claimed while the amparo trial is being decided to ensure the effectiveness of the judgment that is handed down. Although suspensions with general effects do not apply exclusively to environmental issues, when there is an environmental judgment that requires questioning general rules, for example, sectoral energy policy programs or climate policies that affect the environment, you cannot expect suspensions with general effects or, in the end, judgments with general effects.
Let's say that all the energy policy of the next administrations is wrong and does not take into account climate commitments, how do you question it if they are going to tell you that this policy is general in nature, there is no protection against general regulations, yes it is, but let's say you cannot obtain a sentence with general effects, how can you ask to suspend it if you are going to be told that the judgments with general effects are not appropriate. So this procedural reform to the amparo trial has those two regressions that would excessively complicate access to environmental justice effectively and in the terms that the Escazú agreement recognizes us today.
— How will the election of all federal judicial offices affect access to environmental justice if the election of all federal judicial offices is submitted to a popular vote?
— Currently, whoever holds the presidency of the Republic proposes the ministers and ministers and the one who makes the final decision is the Senate. To designate those who will head the PJF, the reform proposes a filter so that the nominations come from the three powers and then go to popular elections.
In the middle of 2024, there are courts that do not know the most reliable precedents of our own SCJN in matters of environmental justice. Now let's imagine ourselves being tried with people with so few requirements and so little experience judging environmental causes. They're not going to have specialization. And the problem again is, not only the lack of training, but the possible lack of independence, because the fact that they arrive with democratic legitimacy remains to be seen, because whoever decides who is going to vote for is really for the most part the ruling party. I want to see the court that, without specialization and with little independence, will issue judgments or suspensions that are truly effective in ensuring a healthy environment.
— Is there a way to reverse this reform?
— Currently, it is under discussion in local congresses (as of September 12, 17 local congresses have voted in favor, enough to become law), to later enter into force when it is published in the Official Gazette of the Federation. If published with these observations, those who defend environmental causes from organizations or collectives have a legitimate interest in questioning the reform and in questioning that there are no courts that guarantee independent, effective and specialized justice in environmental matters and no effective remedy for these regressions in terms of the effects of suspensions and sentences. Amparo proceedings have to rain after the approval of the Senate to try to stop approvals in state congresses, and if none of that works against the reform, once it is published and comes into force, as domestic remedies have been exhausted, international bodies can be used to assert the violation of rights through these setbacks.
— What is needed to improve environmental justice?
— To have access to justice and effectively defend the environment, what we need are specialized courts with criteria that are very open to the defense of the environment, in the standards of the Escazú Agreement: that anyone can file lawsuits or as many people as possible; that the court does not require levels of proof from the parties, but that the evidence be taken and the burden of proof must be borne by the authorities; that they can give precautionary measures; that they offer early protection to stop damage to ecosystems and then restore them. That is what we need and the proposal for constitutional reform to the Judiciary does exactly the opposite, it is to start over as 25 years ago. Leaving ourselves in the hands of people without experience, without training, without credentials, selected in such a way that they do not guarantee us independence or sufficient knowledge to be able to offer the best level of judicial guarantee to the right to the environment. That's where I think I could aim for a more comprehensive reform for the entire defense of human rights, and specifically for environmental causes.
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