One Step Away From Environmental Citizen Suits in Mexico

Greg M. Block

Mr. Block is an attorney practicing environmental law with the firm of Thelen, Marrin, Johnson & Bridges, in San Francisco, California. Mr. Block is currently teaching "U.S. Environmental Law and Public Policy" at the Instituto Tecnologico Autonomo de Mexico, in Mexico City, Mexico, under the auspices of a Fulbright Professorship Grant. Special thanks are extended to U.S. Environmental Protection Agency Environmental Attache Anne Alonzo, Esq., for sharing her wealth of materials, and to Virginia Nocetti for her splendid editing skills.

[23 ELR 10347]

Mexico's enactment in March 1988 of the General Law of Ecological Equilibrium and Environmental Protection under then-President Miguel de la Madrid marked the beginning of an ambitious environmental program that is being carried forth with equal or greater vigor by the present administration of President Carlos Salinas de Gortari. The Social Development Secretariat (SEDESOL), created in May 1992, to assume the responsibilities formerly discharged by its predecessor, the Secretariat of Urban Development and Ecology (SEDUE), today administers with but few notable exceptions a full panoply of environmental laws and regulations. The legislative and regulatory framework is complemented by an equally formidable array of enforcement tools.¹

Despite Mexico's improved environmental legal regime, increases in budgeted environmental expenditures, and a larger environmental staff, the perception remains, both domestically and abroad, that Mexico still lacks the enforcement capabilities needed to implement the legislative mandate of the 1988 General Law. This perception may explain why SEDESOL has pledged on numerous occasions to explore new means of increasing public involvement in the enforcement process.

Roughly concurrent with Mexico's enactment of a spate of environmental laws, the number of ecological interest groups has risen.² Approximately 399 nongovernmental organizations of virtually all sizes and descriptions have registered with the Attorney General's Office of Public Coordination. Their sheer number, however, does not negate their lack of adequate funding and failure to mount credible coalitions and to articulate clear goals. Nonetheless, despite their nascent tendencies, these organizations represent a potentially influential sounding of public concern.

The proliferation of environmental groups and environmental laws, however, is unrelated to access to the enforcement process by environmental interests. SEDESOL's current, exclusive management of enforcement authority denies environmental interests meaningful access to the process. Although environmental groups may one day be permitted to participate in backroom negotiations, significant in the initiation of the decisionmaking process, such behind-the-scenes bargaining hardly comports with the democratic principles espoused by the current administration. Therefore, as long as these fledgling environmental groups are excluded from the center of an effective resource protection program — enforcement — it is likely that they will continue to populate the outer contours of environmental policymaking.

This Dialogue first addresses the role of the public in the enforcement of Mexico's environmental legislation. Though well-intentioned, the current law nevertheless reduces the public to a virtual spectator, wholly reliant on the enforcement capabilities and political disposition of the executive branch. The Dialogue then generally examines the current effectiveness of agency enforcement measures. Subsequent sections reveal the government's willingness to broaden the base of public participation in environmental enforcement, introduce citizen suits, and then analyze their potential in Mexico. Finally, it is recommended that the existing public denunciation procedure provided under the 1988 General Law be expanded to allow citizens to bring suit directly against private parties or the government, if necessary.

The Role of the Public in Environmental Enforcement

The General Law

The 1988 General Law comprises 6 titles, 25 chapters, and 194 articles, establishing a comprehensive regulatory scheme for air, water, and hazardous materials. The General Law expressly abrogates the Federal Environmental Protection Act of 1982 (FEPA). FEPA controlled many of the [23 ELR 10348] same media and embodied many of the same provisions of the General Law, but the law suffered from an acute lack of technical regulations, norms, and standards.³ The General Law also confers upon the public a direct role in enforcement. Foremost among these rights are the provisions dealing with "citizen denunciations" set forth in Chapter VII, articles 185-194.

Citizen Denunciations. Chapter VII empowers any person to file with SEDESOL a denunciation for acts or omissions which produce "ecological imbalance or injury to the environment" in violation of the General Law.⁴ Once lodged, SEDESOL must impart notice of the complaint tothe alleged violator and to others potentially affected by any actions taken in response to the complaint.⁵ SEDESOL then must investigate the allegations underlying the denunciation.⁶ Article 193 provides that within 30 days of receipt of the denunciation, SEDESOL must inform the complainant of the investigation's results and the measures imposed, if any. If damage or injury is sustained by the aggrieved party, it may also petition SEDESOL for the formulation of a "technical opinion" on the matter.⁷ The opinion carries evidentiary value in the event a lawsuit ensues.⁸

Citizen complaints are processed by the Complaint Branch of the Environmental Attorney General's Office, which began operating in July 1992. Complaints are received, classified, and pursued by different operational units within the department. The Complaint Branch is currently developing both informal and formal conciliation procedures and, if necessary, full agency hearing procedures to resolve complaints.⁹

Since its inception in July 1992, through October 9, 1992, citizens have registered roughly 242 complaints with the Attorney General's Office. Of the total number of complaints filed, 30 percent originated in greater Mexico City, 11 percent in the state of Mexico, and 59 percent in other regions of Mexico. A detailed statistical breakdown analyzing the nature of the conditions complained about is unavailable, however, SEDESOL estimates generally that 16 percent of the complaints dealt with contamination of water, 14 percent with air pollution, and 14 percent with hazardous activities. The remaining 56 percent consist of diverse complaints ranging from noise pollution to a neighbor's careless gardening practices. Information regarding the outcome of the denunciations is presently unavailable.

Public denunciations under the General Law may look and sound a lot like the citizen suit provisions discussed infra, but they are not. A significant difference is the forum that is available to complainants. The forum for public denunciations is entirely within the Environmental Attorney General's Office, an administrative faculty of the executive branch. Citizen suits, on the other hand, are usually civil in nature, invoking the authority of the judiciary. Consequently, even though SEDESOL anticipates implementing rather sophisticated dispute resolution mechanisms to handle complaints, the ultimate remedies available to disgruntled citizens involved in this process are limited.

For example, should the Attorney General's Office resolve a denunciation in a manner unacceptable to the complainant, perhaps entering a sweetheart agreement with a noncomplying enterprise, conducting inadequate or tainted inspections, or simply ignoring a complaint, the aggrieved party has essentially two courses of action from which to choose. The party may file a civil suit to redress environmental harm or, in the event the government has acted in derogation of a plaintiff's constitutional right, a party may commence an "amparo" action.¹⁰ Apart from considerations of cost, delay, and a maze of legal technicalities, both alternatives remain unavailable to many potential environmental litigants. In past decisions, the Mexican Supreme Court has construed standing, or "legitimacion," narrowly by continuing to regard litigation as a dispute between individuals. Accordingly, a plaintiff must demonstrate actual, individualized harm before standing to sue is recognized.¹¹ Environmental damage, however, tends to be "collective" or "diffuse," and is just now beginning to gain recognition in Mexican courts as a harm.¹²

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Thus, current Mexican law creates a paradox where groups entitled to complain of environmental harm at the administrative level are legally precluded from pursuing the same grievance in civil or constitutional claims. Similarly, a resident of Mexico City who denounces an industrial plant contaminating a river in Chiapas can do no more than complain to SEDESOL, since it is more likely that a court would refuse to hear a legal claim on grounds that the plaintiff has not suffered individualized harm. Thus, civil or constitutional suits are left to those least capable of funding litigation — individuals suffering actual harm from a specific, usually neighboring, source. In this context, the rights conferred to citizens under the General Law are reduced, in essence, to the relatively bare right of citizen denunciation.

Widely regarded as a novel feature of the 1988 General Law, public denunciations actually trace their ancestry back one generation to FEPA.¹³ Seldom invoked, the almost identical provisions of the 1982 Act became as little more than a dormant appendage to the law. Although it is too early to predict the fate of the current procedure, the relative popularity of public denunciations suggests that the earlier program was poorly publicized and was administered without the enthusiasm or resources of its current caretakers.¹⁴

Another condition, endemic in nature, also may explain the dearth of denunciations under FEPA and, if operative, could drain the current legislation of its vitality. Widespread belief of corruption among enforcement-level regulatory officials engenders mistrust of SEDESOL's willingness to compel compliance with environmental laws. Although a citizen may be unaware of specific corruption among SEDESOL employees, personal experience with other enforcement officials appears to suffice. If enforcement-type activities, such as the collection of traffic fines, permit renewals, or inspections are infused with foul play, a citizen will expect environmental enforcement to be administered in a like manner. The more the environmental enforcement activity resembles the enforcement tools familiar to the ordinary citizen, the more magnified the association between enforcement and corruption. Like most environmental enforcement bodies, SEDESOL coerces compliance through fines and closures. Unfortunately, the assessment of fines is the enforcement tool most tainted by corruption in the eyes of the average Mexican.¹⁵

Anticorruption measures implemented to overcome public mistrust are likely to be met with great skepticism, given the almost routine invocationof similar responses by earlier administrations that achieved dubious results.¹⁶ Perhaps the only means of defeating such profound public cynicism is to hold the enforcement process to greater scrutiny by conferring on citizens a meaningful role in enforcement proceedings. By falling short of providing citizens a private right of action to enforce the General Law in the event SEDESOL does not, the current denunciation procedure will almost surely follow the path of its predecessor into obscurity.

Environmental Impact Appraisals. Enhancement of the public's role in assuring environmental compliance cannot be achieved without simultaneously providing public access to an array of ecological data. For example, without access to operating permits, chemical inventories, waste manifests, and related documentation, even the most aggressive citizen enforcement efforts are bound to founder. The current lack of public information in Mexico deprives citizens of a factual basis upon which to demand corrective action. The 1988 General Law establishes a potentially formidable source of public information by requiring the preparation of environmental impact appraisals (EIAs) that cover a broad range of public and private activities.¹⁷ Articles 28 through 35 of the General Law require the drafting of EIAs prior to engaging in actions that could cause adverse ecological effects or violate federal regulations and standards.¹⁸ SEDESOL must review, approve, reject, or request modification of the EIA, which, upon approval, serves as the basis for issuing air emissions licenses, wastewater discharge permits, and various hazardous waste generation and handling authorizations.

Public access to EIA information is presently in flux. Once the EIA is filed and the requirements established by the appropriate authority are fulfilled, Article 33 authorizes "any person" to consult the file. According to agency officials, the public is afforded the opportunity to review EIAs only after the document is approved by the department.¹⁹ A list of approved EIAs is published in the Ecological Gazette, and a single copy of the EIA is made available to the public at the Center for Public Information, Mexico City.²⁰

Under certain circumstances, SEDESOL may publish a draft of the EIA prior to approval. Such occasions, however, are infrequent and arise on a purely voluntary basis. In sum, the public is provided an opportunity to read an EIA at the [23 ELR 10350] end of the process, but is denied the right to participate in the elaboration of the document.

This bar to public participation, however, appears to be near an end. With the assistance of World Bank funding, Mexico has committed to revising the EIA process to allow a greater degree of public participation.²¹ The target date for these revisions is December 31, 1992.²² EIAs may address only a single aspect of information availability, but the substance of the anticipated revisions may set an important precedent, creating possibilities in other related areas. For example, it has been rumored that SEDESOL officials are considering adopting a modified form of the U.S. Emergency Planning and Community-Right-To-Know Act of 1986. Whatever the outcome of the anticipated revisions, if Mexico chooses to involve its citizens in environmental compliance, the present information deficit must be remedied.

Other Forms of Public Enforcement

The Mexican government has on occasion sought to include different sectors of the public in quasi-enforcement activities administered by one or more lead agencies. These cooperative efforts are usually authorized under Article 157 of the General Law, which reads:

The Federal Government shall promote participation and responsibility of society in the formulation of ecological policy, application of its instruments, and information and oversight activity, in the ecological actions undertaken.

An example of such collaboration is the recent invitation extended by the Salinas Administration to diverse members of the academic and professional community to assist in conducting environmental audits of targeted industries within the Valley of Mexico. Such moves to broaden the base of public participation in the formulation and implementation of public policy not only provide for better communication and enforcement, but also serve to educate both the public and the administration.

There is no apparent reason to question the government's sincerity in these efforts. Nevertheless, as long as the public is effectively precluded from intervening in enforcement proceedings without official state patronage, many will remain skeptical. As critics have suggested, these invitations are extended selectively and can be withdrawn without notice. Moreover, some view these joint exercises as a means of assimilating or co-opting dissenting voices by luring them into the system to act out a role on the periphery of most major issues.

The Efficacy of Current Enforcement Actions

Citizen suits would be unnecessary if government enforcement bodies prosecuted every environmental infraction. Obviously, no society has achieved such results, indicating that some noncompliance is tolerated if high priority violations are pursued. In recent years, Mexico has posted impressive environmental enforcement numbers. Environmental Attorney General Santiago Onate Laborde reports that during the period from 1988 to 1991, SEDESOL nearly tripled the number of site inspections, from 1113 to 3119.²³ Temporary plant closings reflect a similar increase over the same period, up from 182 in 1988 to 901 in 1991. SEDESOL further reports that although only 6 percent of the "maquiladora" (duty-free, in-bond assembly facilities) operating along the U.S.-Mexico border complied with operating licenses in 1988, by 1991 the compliance rate approached 55 percent. Similar increases in compliance percentage are indicated for facilities declaring hazardous waste generation (30 percent in 1990, 55 percent in 1991), and maquiladora facilities returning hazardous waste to its original source (14.5 percent in 1990, 31 percent in 1991).

Mexico's growing concern over environmental issues is reflected in increases to environmentally related segments of its budget. Mexico's 1988 expenditures for environmental protection totalled less than $100 million, whereas the 1991 budget projects expenditures nearing $250 million, or approximately 1 percent of Mexico's gross national product. SEDESOL's budget has grown from $4.2 million in 1988 to $150 million in 1992.²⁴

Despite the accomplishments of the current administration, other data suggest that enforcement is uneven. Environmental Attorney General Santiago Onate reported recently that approximately 4,000 of the 30,000 industries operating in and around Mexico City are ignoring warnings to abide by antipollution regulations.²⁵ Of 188 industries inspected in August 1992, approximately 100 were in violation of environmental standards.²⁶ Moreover, of the 1,323 consent agreements reached between SEDESOL, then SEDUE, and noncomplying enterprises, little or no information is available to verify whether or not these industries have since corrected their problems. In addition, information is not readily accessible to total the number of fines actually collected by the government.

Those who question SEDESOL's administrative efficiency find support from a recent U.S. General Accounting Office assessment of Mexico's environmental controls for new companies.²⁷ The investigation, commissioned by Sen. Fritz Hollings (D-S.C.), reviewed the environmental compliance record for six new U.S. majority-owned maquiladoras between May 1990 and June 1991. EPA classified the companies as potentially high or medium polluters. According to the report, none of the firms had complied with the requirement of either preparing an EIA or obtaining a waiver.²⁸ Four of the six firms were operating prior to obtaining operating permits of any kind.²⁹ Although limited [23 ELR 10351] in scope, the investigation revealed a potentially widespread pattern of noncompliance, signaling additional enforcement deficiencies.

Enforcement questions also continue to plague environmental compliance outside the realm of hazardous wastes. The government has been attacked for not safeguarding against the depredation of endangered species and accelerated deforestation.³⁰ The state of Chiapas, for example, home to the most diverse and populous of Mexico's threatened species, this year has charged only four individuals with violating wildlife protection laws.³¹ Mexico has also exceeded the maximum number of dolphin kills allowed under the U.S. Marine Mammal Protection Act, leading to a U.S. tuna embargo. In addition, both U.S. and Mexican observers have questioned the ability of Mexico's government officials to enforce the ban on turtle and turtle egg harvesting along Mexican beaches.³²

These gaps in enforcement must be viewed in light of the rapid pace with which the administration is implementing a complex regulatory program while facing several intimidating problems. First, the Mexican government and Mexican industries are under significant financial constraints in their efforts to obtain pollution control technology. Second, Mexico has few experienced compliance inspectors, and, moreover, the inspectors' tasks are complicated by having to deal with a community unaccustomed to stringent environmental regulation.³³ Unfortunately, detractors seize on the negative reports as evidence of government ineptitude, or worse, complicity. Thus, U.S. lawmakers continue to express concern that Mexico will enjoy a competitive advantage under the North American Free Trade Act (NAFTA), as long as Mexican industry fails to shoulder the extra operational costs required to comply with antipollution laws. Others fear the prospect of U.S. firms relocating to Mexico to take advantage of less stringent environmental enforcement standards.³⁴ Effective environmental citizen suits could address these apprehensions.

Broadening the Role of Public Enforcement: Citizen Suits

Heightened global ecological concerns, the negotiation of NAFTA, and internal recognition of urban and rural ecological degradation have moved Mexican public officials increasingly to pledge to expand the public's role in environmental protection. SEDESOL's Secretary Luis Donaldo Colosio recently stated before a U.S. audience,

There is no substitute for strict compliance with environmental law. Mexico will dutifully provide the means required to enforce it. Beside government actions, SEDESOL is also building a wide basis for social participation.

Environmental issues cannot be properly dealt with by government alone. Citizen and social organization involvement is of the utmost importance to reach effective solutions.³⁵

Similar proclamations by Mexico's government officials are frequently heard in conferences or appear in various publications. Citizen suits can provide the means to promote these oft-stated objectives.

Citizen Suits

Citizen suits grant interested parties a direct role in environmental enforcement by enabling individuals to sue any entity alleged to have violated an applicable environmental law. Traditional standing elements requiring a personal stake in the outcome of the lawsuit, such as individualized concrete harm, are relaxed or eliminated altogether on grounds that the complainant seeks to protect resources common to all.³⁶ As noted earlier, the notion of standing in the United States and Mexico is fundamentally alike.³⁷

Citizen suit, or "private attorney general" provisions in federal U.S. law generally provide the following:³⁸ "Any person" (individuals, groups, or organizations) may commence a civil action against another party that has allegedly violated a standard, limitation, rule, or order established by a specific environmental law or regulation. Most provisions go further, allowing any person to sue an administrative agent who fails to carry out a nondiscretionary function.

Operation of the provisions are straightforward. Before filing suit, typically the plaintiff must impart notice of the substance of the complaint to the alleged violator and [23 ELR 10352] regulatory authorities. The complainant then waits a statutorily set period of time, usually 30 to 90 days, to afford the accused an opportunity to comply and/or permit the lead agency to investigate the alleged infraction. If neither occurs and the agency is not diligently prosecuting the offender, the citizen suit goes forward.³⁹ Finally, and perhaps most important, in the discretion of the court, a prevailing plaintiff may be awarded legal costs, including reasonable attorneys fees.

The import of citizen suits is severalfold.⁴⁰ Creating an army of private attorney generals acknowledges that compliance with environmental law is a duty shared between an alert citizenry and its law enforcement representatives. Moreover, the participation of society significantly augments enforcement resources. Further, the competition from private citizens sharpens the response of public officials.⁴¹

Citizen suit enforcement carries with it potential drawbacks as well. Private citizen enforcement supplants the traditional notion that the prosecution of the legal infractions is best left to those trained and specialized in such affairs. Consequently, private actions risk upsetting uniform application of the law and intrude upon the delicate negotiation process that agencies employ within the regulated community. By displacing the once exclusive authority of government to prosecute, citizen suits may debilitate the flexible administrative policy arm which measures sanctions and compliance deadlines.

Citizen suits may also contribute to an atmosphere of litigiousness and antagonism that can do violence to a society's traditional methods of out-of-court dispute resolution. Additionally, one might question the diversion of scarce resources into judicial or administrative processes. Arguably, Mexico's "green dollars" should all be invested to combat the most pressing public needs. The societal consequences of increased litigation and the allocation of "green dollars" to finance the administrative and judicial cost of such litigation raise legitimate questions, especially in an economically developing nation unaccustomed to redressing environmental wrongs through the legal system.

These arguments against introducing private citizen enforcement rights legislation in Mexico, though not lightly dismissed, overestimate the impact such legislation would have on the institutions and customs of Mexico. First, assuming SEDESOL's investigation of an alleged violation fails to create an evidentiary record capable of sustaining a private action, the prospect of an individual advancing a lawsuit is remote. Inadequate monitoring capabilities, limited public access to private property, and prohibitive litigation costs fairly well ensure that only the most egregious violations will be pursued. These hurdles safeguard against a deluge of lawsuits swamping administrative and judicial authorities.

If, on the other hand, SEDESOL were to uncover evidence capable of sustaining a private action, the alleged violator would probably either comply to avoid private litigation or would be "diligently prosecuted" by the agency. Either course of action obviates the need to pursue an action further. Most citizen suit actions, therefore, will arise only where SEDESOL has overlooked a matter, conducted an inadequate investigation, or reached an erroneous conclusion. Cases against the government will be limited to those few advocates with the resources and technical ability to demonstrate that the agency is in the wrong.

Second, the potential impact of private suits on the government's power to negotiate with violators may actually increase the Attorney General's leverage over polluters. The prospect of litigating against an intractable citizens group may induce a recalcitrant party to conform more readily to the demands of the agency. To promote this result, agreements reached between SEDESOL and an alleged violator should be entitled to some judicial deference by a reviewing body in the event an unsatisfied complainant challenges the agreement.

Third, the present denunciation procedure definitively moves public participation toward a legal, albeit informal, forum. It is therefore hard to imagine how fortifying the denunciation process with citizen suits would radically alter existing cultural norms. In any event, the potential for creating an active class of citizens cognizant of their individual and collective environmental rights probably outweighs any adverse societal ills caused by facilitating greater access to the courts.

Regarding monetary costs, the redistribution of funds once destined for other sectors will be left largely in the hands of potential litigators. Certainly citizen suits would be expected to increase government expenditures for both agency defense costs and servicing claims, as well as training civil judges in environmental matters. As a percentage of overall expenses, however, these costs are not significant and, coincidentally, reflect the reordering of societal preferences suggested by the environmental boom in Mexico. The greater share of expenses occasioned by public actions would therefore be borne primarily by plaintiffs and defendants in the private sector, whose decision to sue or how to defend will be governed in part by their own personal finances.

Ultimately, citizen suits, like Mexico's overall environmental program, will flourish only if the economy continues to expand. In this regard, President Salinas correctly asserts that there can be no realistic talk of environmental protection without sufficient and concomitant economic expansion to finance compliance. Indeed, the need to develop an enforcement scheme capable of preventing excessive exploitation of the nation's resources is implicit in Mexico's objective of achieving sustainable economic development.

A fair amount of political utility may result from the introduction of citizen suit provisions in Mexico. The availability of citizen suits would serve to enhance the survival of current environmental reforms while at the same time reducing governmental paternalism in the realm of ecological issues. By initiating environmental educational programs, promulgating norms and regulations, and enforcing the law, the current government is nurturing a fragile but growing infrastructure that provides employment opportunities in environmentally related fields. Thus, environmental engineers, construction personnel, hydrogeologists, toxicologists, attorneys and others are beginning to realize income potential from audits, lab work, EIAs, construction [23 ELR 10353] projects, and other activities. Strict enforcement of environmental law will provide a growing demand for the services of this new professional class which, in turn, will develop into an environmental constituency of its own. This professional network could be expected to seek more expansive and lasting environmental regulation and to oppose the dismantling of the same by succeeding governments.

In this manner, the acceleration of environmental reforms under the Salinas Administration has raised the stakes for future governments, whose ability to threaten the continuity of existing policy grows ever more limited.⁴² Similarly, if citizen suits manage to attract a loyal following, government retreat from permitting the public to enforce the laws could invite an unpredictable political response.

Apart from concerns over the survivability of its reforms, SEDESOL officials have expressed an interest in promoting citizen involvement as a means of weaning the public from excessive reliance on state intervention to effectuate national policy. This vision of the government's role in promoting social welfare is consistent with the overall economic and political orientation of the Salinas Administration, which is characterized by privatization and free trade. As discussed earlier, providing for direct enforcement will enable the public to assume responsibilities formerly discharged solely by the executive branch. Effective public participation may be the only way to attack the pervasive cynicism that infects the average citizen's expectations regarding environmental enforcement.

Recommendation

After revitalizing the public denunciation procedure under the 1988 General Law, Mexico is one step away from completing the legal framework necessary for the introduction of citizen suits to enforce environmental laws. Implementation of citizen suits does not require, nor is it desirable, that the existing denunciation process be scrapped. Instead, the denunciation process should be regarded as a starting point, even a prerequisite, to commencing environmental litigation.

Once a complainant has proceeded through the complaint/investigation/conciliation procedure and thereby exhausted the administrative remedy, a party dissatisfied with the outcome should have access to a swift form of judicial review. The broad interpretation of standing under the denunciation process should be carried forward to allow the same individual or group to pursue a claim without a strict showing of individualized harm.⁴³

To avoid potentially crippling problems, such as delay, excessive legal formality, or a lack of qualified judges disposed to review administrative claims, independent environmental tribunals should be created. These specialized environmental tribunals, housed in the executive branch but administered by the judiciary, would expedite the review process and should be empowered to issue injunctions, order inspections, and award legal fees and costs. In order to resolve environmental claims, these specialized tribunals should relax many of the formalistic evidentiary and procedural rules that pertain to civil litigation. Because many of these rules protect defendants, the jurisdiction of the tribunals perhaps should be limited to claims for injunctive relief. Litigants seeking monetary damages for individual harm should resort to the traditional civil court system for relief. Alternatively, the special tribunals could apply different rules or procedures depending on the nature of the relief sought by the plaintiff. Precedent in Mexico for such courts already exists in fiscal and agricultural law.⁴⁴

Conclusion

Few individuals will have the resources or the independence to confront major polluters or federal, state, or local regulatory bodies that fail to execute nondiscretionary duties. These constraints will be amplified in smaller communities where such antisocial behavior could provoke unwelcome consequences. For this reason, the vitality of well-organized environmental interest groups is critical. Organizations can effectively shield individual exposure and directors can selectively pursue a group's ecological priorities according to the expressed preferences of its members. The trend to globalize environmental concerns and recent examples of cooperation between foreign and local environmental groups are signs that healthy, well-financed organizations will have a lasting presence in Mexico.⁴⁵

1. SEDESOL divides its environmental activities between two new administrative organs. The National Institute of the Environment designs and assesses environmental policies and programs. Enforcement of the standards and regulations developed by the National Institute is left to the Office of the Environmental Attorney General, presently headed by Santiago Onate Laborde.

2. See Directorio Ecologico, SEDUE (1991). The Office of Public Coordination was created in July 1992, to orient new environmental groups, promote ecological education, and channel environmental complaints to the appropriate authorities.

3. For a detailed and influential critique of FEPA and its regulatory deficiencies, see, Raul Brafies Ballesteros, Derecho Ambiental Mexicano, Universo Veintiuno (1987). SEDESOL has filled many of the regulatory gaps, which crippled the 1982 Act, by recently promulgating some 85 technical regulations. The department plans to draft nearly 100 more within the next 10 months. See THE NEWS, Mexico City, Oct. 5, 1992, at 2, 4.

4. General Law, art. 189. SEDESOL guidelines respecting the denunciation process have yet to be published, however, officials in the Office of the Attorney General have declared that groups have standing to file a denunciation as a "person" under the Act.

5. General Law, art. 191.

6. General Law, art. 192.

7. General Law, art. 193. Officials interviewed by the author differ over whether a complainant has a right to obtain copies of the investigative report and/or lab data generated by the complaint. The availability of this information has an obvious impact on the evidentiary record in later actions.

8. Id.

9. The conciliation procedure is derived from a model employed by the Department of Tourism.

10. An "amparo" is a constitutional remedy to guarantee the inviolability of the rights set forth in the federal Constitution. Amparo actions are frequently resorted to in Mexico, since the federal Constitution enumerates, often in great detail, many more rights and obligations than its U.S. counterpart. See generally Feliciano Calzada Padron, DERECHO CONSTITUCIONAL, Coleccion Textos Juridicos Universitarios 350-56 (1990).

There are two other less attractive alternatives. One is to characterize government malfeasance as a violation of human rights. Human rights issues often receive heightened scrutiny by an independent body whose pronouncements are monitored closely by the international community, however, the opinions are advisory in character and therefore unenforceable.

The other alternative is to report departmental irregularities to the Contraloria General de la Federacion. Most practitioners consulted regarding this alternative noted skeptically that the review body seldom rectifies or criticizes the administrative activities of its kin in the executive branch.

11. In this regard Mexican law resembles U.S. law sometime before the decision in Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972). See Branes, supra note 3, at 137. A thorough analysis of standing issues in an environmental context is presented by Dr. Lucio Cabrera Acevedo, in La Proteccion de Intereses Difusos y Colectivos en el Litigio Civil Mexicano (Intereses Difusos), Revista de la Facultad de Derecho de Mexico, 113-34 (1984) [hereinafter Intereses Difusos]. See also Luis Cabrera Acevedo, Los Sistemas de Proteccion al Interes Colectivo de los Consumidores y a Otros Intereses Colectivos en Mexico (Los Sistemas), Revista de la Facultad de Mexico, 489-502 (1984); Marina A. Ramirez, Los Intereses Difusos y Legitimacion para Accionar en la Jurisdiccion Constitucional, Revista de Derecho Constitucional, Jan.-Apr. 1991, vol. 1, 101-17, San Jose, Costa Rica.

12. See Cabrera, supra note 11, Los Sistemas, at 497-500 (discussing recent cases broadening the concept of standing). The literature reports just two constitutional cases relating to environmental issues. See CARMONA LARA & MARIA DEL CARMEN, DERECHO ECOLOGICO, UNIV. NACIONAL AUTONOMA DE MEXICO, INST. DE INVESTIGACIONES JURIDICAS, 43 (1991). Likewise, very few environmental civil suits are on record.

A handful of environmental practitioners in Mexico believe that obstacles to standing can be overcome by citing statutory language included in the 1988 General Law, however, the majority of attorneys consulted are ignorant of this approach to overcoming the traditional concept of personal harm. No published opinions could be located in support of expanding standing to include harm to the environment rather than to the individual.

13. Federal Environmental Protection Act of 1982, arts. 71-75.

14. Agency officials acknowledge that the earlier procedure was scarcely employed.

15. For an indicting though somewhat harsh discussion of administrative corruption in Mexico, see ALAN RIDING, VECINOS DISTANTES: UN RETRATO DE LOS MEXICANOS 140-64 (1985).

16. Id.

17. Like the public denunciations discussed supra, text accompanying notes 4-16, EIAs also were first introduced into Mexican law by FEPA. See generally Branes, supra note 3, at 114-21.

18. Important differences distinguish the EIA from its U.S counterpart under the National Environmental Protection Act (NEPA). For example, with regard to the legislation underlying the U.S. environmental impact reporting requirements, NEPA is regarded as procedural in nature, whereas the 1988 General Law is unequivocally substantive, conferring upon SEDESOL wide discretion to reject or modify proposals that exact too high a toll on the environment. For NEPA's mandate, see Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 10 ELR 20079 (1980) and Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 19 ELR 20743 (1989).

19. See General Accounting Office Report to the Chairman, U.S.-Mexico Trade: Assessment of Mexico's Environmental Controls for New Companies, GGD-92-113, Aug. 1992, at app. III-16 [hereinafter GAO Report].

20. Id.

21. Id.

22. Id.

23. SEDESOL is the source of all enforcement data not otherwise identified herein (sources on file with author).

24. Under the 1992-1994 Integrated Environmental Plan, Mexico has allocated $458 million in the following way: sewage and treatment plants ($220 million), urban traffic improvements ($118 million), public transportation ($51 million), treatment facilities ($43.3 million), and solid waste disposal ($25.5 million).

25. See THE NEWS, Mexico City, Sept. 30, 1992, at 2. A recent Mexican congressional report concluded that most producers are disposing of toxic waste "practically without any control." The report further noted that of the 5,000 companies that produce the highest levels of pollution, only 25 percent have installed pollution control devices. See id. Nov. 9, 1992, at 2.

26. See EXCELSIOR, Mexico City, Aug. 31, 1992, at 2. See also LA JORNADA, Mexico City, Nov. 6, 1992, at 41.

27. See GAO Report, supra note 19.

28. Id. at 3, 12.

29. Id.

30. See, e.g., EL NACIONAL, Mexico City, Aug. 24, 1992, at 11; THE NEWS, Mexico City, Sept. 29, 1992, at 2, 6.

31. Those charged had poached 12 turtles (casquitos), 1 Royal Tortoise, 26 Guacamayas, 35 baby lizards, and various parrots. EL NACIONAL, Mexico City, Aug. 24, 1992, at 11. To its credit, Mexico recently set aside over 312 square miles of tropical rain forest in Lacandona, Chiapas.

Former enforcement officials have privately acknowledged that extensive violations continue to go unpunished.

32. See THE NEWS, Mexico City, Sept. 29, 1992, at 2, 6.

33. Carlos Sandoval Olivera, President of the National Council of Ecological Industrialists, recently lamented the lack of environmental inspectors (200) charged with supervising safety standards for the more than 3,000 maquiladora plants along the U.S.-Mexico border. Mr. Olivera attributed lax enforcement, among other things, to there being only one adequate hazardous waste disposal site presently operating in the country. Id. Oct. 17, 1992, at 5.

It should be noted that U.S. companies demonstrated a comparable degree of noncompliance when first confronted with the onerous provisions of the Resource Conservation and Recovery Act of 1976 (RCRA). Seven years after enactment of RCRA, one in seven generators still illegally disposed of hazardous waste. See, e.g., ROGER FINDLEY & DANIEL FARBER, ENVIRONMENTAL LAW 231 (1992).

34. Examples of both arguments are found in EXCELSIOR, Mexico City, Sept. 17, 1992, at 1, 28.

35. U.S.-Mexico Border Environmental Assembly and Colloquy, Santa Fe, New Mexico, June 25, 1992, 3 (remarks of Secretary Colosio) (on file with author).

36. This Dialogue does not address the fate of U.S. litigants who invoke citizen suit provisions without alleging any of the traditional elements of standing following the U.S. Supreme Court's decision in Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 22 ELR 20913 (1992). For an incisive constitutional analysis of standing and a creative approach to protect statutory citizen suits, see Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, Injuries, and Article III, 91 MICH. L. REV. 163 (1992).

37. See supra text accompanying notes 11-12. Analogies between the legal principles and institutions of the two countries are ill-advised due to their many significant differences. These differences notwithstanding, the statutory nature of a great portion of U.S. environmental law more readily invites comparison.

38. Most of the 11 environmental citizen suit provisions in the United States are patterned after the Clean Air Act of 1970, § 304, ELR STAT. CAA 134. For examples of typical provisions see, e.g., Endangered Species Act, 16 U.S.C. § 1540(g), ELR STAT. ESA 023; Solid Waste Disposal Act, 42 U.S.C. § 6972, ELR STAT. RCRA 54; Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9659(a), ELR STAT. CERCLA 067; and Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. § 11046, ELR STAT. EPCRA 011.

39. Under exigent circumstances, such as violations dealing with dangerous substances, the notice period is waived and the plaintiff may file suit immediately. See, e.g., Resource Conservation and Recovery Act, 42 U.S.C. § 6972(b)(1)(a), ELR STAT. RCRA 54.

40. See generally WILLIAM RODGERS JR., ENVIRONMENTAL LAW § 1.13 at 75-76 (1977).

41. Id. at 76.

42. A prosperous NAFTA can only further hamper a future government's ability to backpeddle on environmental issues, as such conduct would draw a swift response from affected industries in the United States.

43. This Dialogue does not address the administrative, judicial, or legislative measures that would be necessary to clear the way for citizen suits in Mexico. Once on the books, the spirit of public actions could be broken in any number of ways, including paralyzing suits while the department "diligently" investigates, failing to award fees and costs to parties who advance environmental issues of public concern, or by condemning suits to oblivion by not appointing qualified judges to a fast-track review process. Only a good-faith attempt to implement new legislation will avoid these hurdles.

44. For example, the government recently formed an independent judicial body within the Department of Agriculture by reforming Article 27 of the federal Constitution. Commentators complain that the tribunals are not independent enough. See, e.g., Felix Velez, Impacto Economico de la Ley Agraria, REVISTA PUNTO CRITICO, No. 2., Oct. 1992, at 33.

At least one legal scholar advocates the expansion of these tribunals in Mexico to embrace "collective" or "diffuse" ecological harm. See Cabrera, Intereses Difusos supra note 11, at 134.

45. Examples of a few international environmental organizations that maintain offices in Mexico or manage ongoing projects here include: The World Wildlife Fund, The Nature Conservancy, The Wildlife Society of Mexico and Friends of the Earth. Numerous international foundations and universities also support ecological programs in Mexico.