24 ELR 10431 | Environmental Law Reporter | copyright © 1994 | All rights reserved

Mexico's Legal System of Environmental Protection

Anne Rowley

Editors' Summary: Nongovernmental organizations and other critics of the North American Free Trade Agreement (NAFTA) have raised serious environmental concerns about Mexico's participation in NAFTA. The U.S. EPA has attempted to address these concerns by evaluating Mexican environmental laws, regulations, and standards. This Article is based on EPA's evaluation and provides a general overview of Mexico's environmental legal system, although its does not review Mexico's state and local environmental laws or its federal mechanisms for environmental law enforcement. The author examines Mexico's environmental government institutions; public participation mechanisms; and approach to environmental impact assessment, air pollution control, water pollution control, waste management, pesticides and toxic substances control, and environmental contingency planning and emergency response. The author concludes that Mexico has established the foundation of a credible legal framework to control environmental contamination, which if fully implemented and enforced, can provide relatively high levels of environmental protection.

Ms. Rowley is a staff attorney in the International Activities Division of the U.S. Environmental Protection Agency (EPA), Office of General Counsel. The opinions expressed in this Article are solely those of the author and do not necessarily reflect opinions of EPA. Ms. Rowley wishes to express appreciation to the following EPA employees whose analyses contributed to the production of the EPA EVALUATION OF MEXICO'S ENVIRONMENTAL LAWS, REGULATIONS AND STANDARDS, on which this Article is based: William Tyndall, Joseph Freedman, Joseph Vitalis, Marta Piniero, Efren Ordonez, Carrie Wehling, Steven Wolfson, Thomas Marshall, Lawrence Sperling, Lourdes Bufill, Maricruz Maguaran, and David van Hoogstraten.

[24 ELR 10431]

In 1991 and 1993, the U.S. Environmental Protection Agency (EPA) led two legal "missions" to Mexico to gather information and to learn from Mexican officials about the status, implementation, and enforcement of Mexico's environmental laws, regulations, and standards. EPA also undertook these missions in an effort to address the concerns of nongovernmental organizations (NGOs) and other critics of the North American Free Trade Agreement (NAFTA) relating to the perception that Mexico's environmental standards are less stringent than those of the United States or Canada.¹ These trips revealed a great deal about the state of Mexican environmental law and culminated in the generation [24 ELR 10432] of an EPA Office of General Counsel evaluation of Mexican environmental law.²

This Article is based on EPA's evaluation and provides a general overview of Mexico's environmental legal system. After reviewingthe general structure of Mexican environmental law and the government institutions and public participation mechanisms responsible for its application, this Article examines Mexico's approach to significant components of environmental law, focusing on environmental standards in six areas: environmental impact assessment, air pollution control, water pollution control, waste management, pesticides and toxic substances control, and environmental contingency planning and emergency response. Where appropriate, this review compares the U.S. and Mexican legal systems for environmental protection, but it does not evaluate Mexico's state and local environmental laws or its federal mechanisms for environmental law enforcement. This Article concludes that despite its short life, Mexican environmental law has a solid foundation and beginning structure that is sufficient to alleviate some of the concerns expressed by NGOs and others as Mexico and the United States move forward as trade partners under NAFTA.

Mexican Environmental Law

Legal Authority

To understand Mexico's system of environmental law, it is necessary to comprehend the legal framework within which it developed. Mexico has a civil code legal system. Such legal systems rely less on binding judicial precedent for development of law than do common-law systems.³ They also place greater emphasis on administrative proceedings as a means of developing and enforcing the law.⁴

Mexican environmental law derives more expressly from the Mexican Constitution than U.S. law does from the U.S. Constitution. Article 25 of the Mexican Constitution subjects economic development and productivity to consideration of environmental protection and natural resource conservation,⁵ but it is Article 27 that is the primary legal basis for most environmental conservation and land use planning in Mexico. Article 27 authorizes the Mexican federal government to impose measures on owners of private property to protect the general public's well-being.⁶ Under Article 27, all natural resources in Mexico are ultimately considered part of the heritage of the public held in trust for the Mexican people by the federal government.⁷ And since its amendment in 1976, Article 27 has permitted the federal government to take measures necessary to regulate human settlements and to establish reserved areas of territory.⁸

Article 73 of the Mexican Constitution is the primary basis for Mexico's legislation that addresses protection of human health from the adverse effects of environmental pollution.⁹ Section 16 of Article 73 authorizes the federal government to regulate sanitation, environmental cleanup, and environmental pollution as a general matter.¹⁰

Under the umbrella of the Mexican Constitution, Mexico has a three-tiered system of environmental law. The first tier is statutory: the 1988 General Law of Environmental Protection and Ecological Balance (General Ecology Law), enacted by the Mexican Congress of Deputies.¹¹ The General Ecology Law effectuates the Mexican Constitution's environmental provisions and it provides a comprehensive framework that is the basis for detailed regulations that govern environmental protection and natural resource conservation in Mexico.¹² Significantly, the General Ecology Law did not repeal certain scattered, sector-specific environmental provisions in other laws or administrative decrees.¹³ These provisions continue to govern the conservation [24 ELR 10433] of certain natural resources and protection of the environment from the adverse effects of certain activities.

The regulations implementing the General Ecology Law are the second tier of the Mexican environmental law system. The regulations are promulgated by the Presidency of the Republic in coordination with affected federal agencies. In many respects these regulations are as comprehensive and important as environmental statutes are in the United States. To have the force of law, each regulation must be signed by the President of Mexico and endorsed by the Secretary of the federal Secretariat or Secretariats in charge of the subject matter of the particular regulation.¹⁴

The regulations are the basis for technical standards, or norms, which form the third tier of Mexico's environmental legal system. The norms are promulgated by agencies of the Mexican federal government. The norms tend to be media- and industry-specific.¹⁵ Because Mexico's environmental legal system is still developing, regulations and technical norms need to be promulgated for several areas of environmental protection and natural resource conservation for the General Ecology Law to have its full and intended impact. As of February 1994, Mexico intended to complete and promulgate 71 new technical norms.¹⁶ This very ambitious goal may be difficult to achieve, because the process of issuing norms has been modified by the Federal Law on Measurement and Standardization.¹⁷ This 1992 law has complicated matters by requiring virtually all new norms to undergo cost-benefit analysis before they can be promulgated.¹⁸ Under this law, nearly all existing norms must be repromulgated, and revised if necessary, in accordance with the same cost-benefit analysis procedure.¹⁹

The Law on Measurement and Standardization concerned some U.S. officials who believed that subjecting environmental norms to cost-benefit analysis under the new federal law might result in less stringent standards. It appears, however, that the new law contains provisions that could prevent relaxation of existing Mexican environmental standards. First, the law requires consideration of costs and benefits that cannot be expressed in monetary terms,²⁰ and environmental costs and benefits are often difficult to quantify using traditional cost-benefit analysis.²¹ Second, the statute requires each proposed norm to achieve the desired goal at the highest net benefit to society feasible.²² This might allow the rejection of options that would achieve the same goal at a technically higher net benefit level if there exists a sound legal basis or other compelling justification for selecting a different option at a somewhat lower net benefit level.

Overall, the requirements of the Mexican Law on Measurement and Standardization do not appear as rigid as the cost-benefit analysis requirements of Executive Order 12291 for U.S. regulatory initiatives.²³ Indeed, judging from information concerning the norms that have been reissued in accordance with the Law on Measurement and Standardization, the preliminary indications are that the law's cost-benefit procedure has not resulted in the promulgation of less stringent Mexican environmental standards in the hazardous waste management area.²⁴ In the area of water pollution control, however, preliminary analysis indicates that many of the standards for direct discharges have changed significantly -- some appear to be less stringent than before and others are more stringent.²⁵

Institutional Responsibilities

The Secretariat of Social Development (la Secretaria de Desarrollo Social, or SEDESOL) is the government agency that is chiefly responsible for environmental protection and natural resource management in Mexico. The environmental components of SEDESOL were created in 1992 when functions formerly pertaining to the Secretariat for Urban Development and Ecology (la Secretaria de Desarrollo Urbano y Ecologia, or SEDUE) were legally transferred to SEDESOL.²⁶ SEDESOL is a cabinet-level department of the Mexican federal government. It is responsible for overseeing programs relating to regional and urban development, housing, and indigenous peoples, in addition to environmental protection and conservation of natural resources.

Two semiautonomous agencies within SEDESOL have primary responsibility for environmental protection in Mexico -- the National Ecology Institute (el Instituto Nacional de Ecologia, or INE) and the Office of the Federal Attorney for Environmental Protection (la Procuraduria Federal para la Proteccion Ambiental, or PROFEPA). The [24 ELR 10434] INE is responsible for overall environmental policy formulation and implementation, development of environmental regulations and standards, and for conducting research concerning the environment.²⁷ These responsibilities are generally equivalent to EPA's regulatory or nonenforcement responsibilities in the United States, although the INE is also responsible for such issues as natural resource conservation and forestry,²⁸ which in the United States fall mainly within the purview of the U.S. Departments of the Interior and Agriculture. Other substantive areas handled mainly by the INE include hazardous waste cleanup and ecosystem management.²⁹

PROFEPA is the environmental enforcement arm of SEDESOL. It is authorized to monitor compliance with, investigate violations of, and enforce environmental regulations.³⁰ It has administrative prosecutorial powers and the authority to assess penalties.³¹ It also may refer violations to the Federal Public Prosecutor at the Office of the Federal Attorney General for the Republic with a recommendation that criminal sanctions be sought.³² As part of the Mexican government's effort to increase public participation in environmental matters, citizens are able, as a legal matter, to register complaints about harmful environmental conditions,³³ and PROFEPA is responsible for receiving, investigating, and otherwise addressing these complaints.

Although SEDESOL is the primary agency charged with environmental protection and natural resource management in Mexico, other Mexican federal agencies have environmental responsibilities. For example, the National Water Commission (Comision Nacional de Aguas, or CNA) has enforcement and regulatory authority, in cooperation with SEDESOL, over activities that may affect water quality. The Inter-secretarial Commission for the Control of Pesticides, Fertilizers, and Toxic Substances (la Comision Intersecretarial para el Control de Plaquecidas, Fertilizantes y Sustancias Toxicas, or CICOPLAFEST) is another important environmental entity in Mexico. It is composed of officials from SEDESOL, the Secretariat of Commerce and Industrial Development (la Secretaria de Comercio y Fumento Industrial, or SECOFI), the Secretariat of Agriculture and Hydraulic Resources (la Secretaria de Agricultura y Recursos Hidrolicos, or SARH), and the Secretariat of Health (la Secretaria de Salubridad y Asistencia, or SSA).

Public Participation in Mexican Environmental Law

An outgrowth of citizen participation in the larger context of development planning, consultation with citizens by the Mexican government for purposes of environmental planning began in earnest in 1984 with the First National Meeting on Ecology.³⁴ The growth in numbers and in political strength of NGOs in Mexico is suggested by a May 28, 1992, meeting between the Secretary of Social Development and more than 100 environmental NGOs, which resulted in a document addressing the procedures for consultation between the Mexican federal government and NGOs in Mexico on matters concerning the environment.³⁵

Article 6³⁶ of the Mexican Constitution, which was amended in 1977 to establish the "right to information guaranteed by the State," and Article 27,³⁷ which forms the basis for the right to "social participation" in government decisionmaking concerning natural resource use and conservation,³⁸ are the foundation for public participation in environmental decisionmaking in Mexico. Portions of the General Ecology Law and other environmental laws and regulations represent attempts to implement these constitutional provisions.³⁹

The provisions have been implemented with varying degrees of success. For example, although SEDESOL is legally required to publish environmental impact evaluations in the Ecological Gazette,⁴⁰ and did so for some time after the Mexican Congress enacted the General Ecology Law and SEDESOL issued the Regulation Implementing the General Ecology Law as it Relates to Environmental Impact, publication of the Ecological Gazette (Gaceta Ecologica) later was [24 ELR 10435] discontinued,⁴¹ making it difficult for the public to gain access to, and to review, environmental impact evaluations.

Furthermore, SEDESOL has not yet developed regulations to implement the public participation provisions of Article 33 of the General Ecology Law.⁴² This lack of regulations might be mitigated in part by the fact that the constitutional provisions guaranteeing the rights of social participation and access to government information are self-executing provisions. Regulations, however, might provide needed guidance to members of the public on how they could obtain access to the files of mandatory environmental impact statements.

The direct nexus between environmental protection in Mexico and the Mexican Constitution is significant from the perspective of citizens who file suits against the government for governmental compliance with, or enforcement of, environmental law. Under a unique Mexican law, the Law of Amparo,⁴³ it might be possible for any individual to gain direct access to the Mexican courts for this purpose by bringing a complaint alleging that governmental authorities have not complied with the applicable environmental provisions of the federal Constitution, so long as the complainant is directly affected by the alleged violation.⁴⁴ This process of bringing suit to enforce constitutional rights in Mexico is known as the right of amparo (literally "shelter").

Theoretically, a Mexican citizen can enforce through the right of amparo his or her fundamental right to have the government comply with constitutional authority.⁴⁵ If the right of amparo can be exercised in cases involving either illegal governmental action or a failure by the government to discharge a nondiscretionary duty to act, not only under the constitution, but in accordance with statutory authority, the right of amparo would be the functional equivalent of the citizens suit provision of § 702 of the U.S. Administrative Procedures Act.⁴⁶ The full availability of such an action in the environmental context is not yet clear. To date, few environmentally related amparo suits have been filed; moreover, it is unclear to what extent the environmental provisions of the Mexican Constitution may be used as the basis for a private right of action. Also, standing has been established for judicial review of environmentally related amparo proceedings in only a few instances.⁴⁷

With regard to citizen suits under the civil code, Mexican law does not authorize lawsuits by members of the public for violations of law by other citizens or nonpublic entities that have resulted in generalized harm to the environment, as opposed to violations of environmental law that have resulted in harm to the plaintiff or to the plaintiff's property.⁴⁸ In part due to lack of standing to sue, and in part due to the nature of Mexico's civil code legal system, if a member of the Mexican public believes that an environmental law has been violated and generalized harm to the environment has occurred or is occurring, the main avenue of redress is the filing of a complaint with governmental authorities pursuant to Articles 189-194 of the General Ecology Law.⁴⁹ The complaint is filed with the claims branch of PROFEPA, which under the General Ecology Law must provide notice of each complaint to the alleged violator and to other affected parties. The PROFEPA has 30 days from the receipt of the complaint to investigate it and to inform the complainant of the results of the investigation and of the enforcement measures taken, if any.⁵⁰

[24 ELR 10436]

Environmental Regulation

Environmental Impact Assessment

Both U.S. and Mexican law contain environmental impact review requirements for proposed projects. Although environmental impact assessments in each country must provide an analysis of a proposed action's potential environmental impacts, possible mitigation methods, and compliance with other environmental laws, there are significant differences between the two programs. The differences center around what is required for what projects, and they suggest that certain aspects of Mexico's environmental impact evaluation system may be more comprehensive than the U.S. system.

An important example of this difference is that under U.S. federal law -- the National Environmental Policy Act (NEPA)⁵¹ and its implementing regulations -- the preparation of an environmental impact statement (EIS) is only required for "major Federal actions significantly affecting the quality of the human environment."⁵² Under Mexico's General Ecology Law,⁵³ all proposed public and private projects that could result in ecological imbalance or exceed environmental conditions prescribed by statute, regulation, or ecological technical norm must undergo preconstruction environmental impact review.⁵⁴ The review must be submitted by the applicant seeking approval from the INE to carry out the proposed project or activity.⁵⁵

The severity of a project's potential impact on Mexico's environment determines the level of evaluation required. A "general" evaluation must be prepared for all projects subject to environmental impact review under Mexican law. An "intermediate" evaluation or a "specific" evaluation may be required if SEDESOL determines that the characteristics of the project or activity, the magnitude of the project or activity's potential impact on the environment, or the conditions of the site of the proposed project or activity require the submission of additional, more detailed information.⁵⁶

Mexico's environmental impact evaluation system is also arguably broader in its scope of review than its U.S. counterpart. The Mexican system requires the preparation of a separate risk study for highly dangerous activities.⁵⁷ The risk study is used to draft contingency plans to combat environmental emergencies.⁵⁸

Portions of the U.S. environmental impact review process, however, are more comprehensive than the Mexican process. For example, the U.S. process can require an evaluation of the cumulative impacts resulting from the proposed action in combination with other past, present, and reasonably foreseeable future actions, or require exploration of all reasonable alternatives to the proposed action.⁵⁹ Mexican impact evaluation submissions need not evaluate cumulative impacts or alternatives to the proposed project or activity. Evaluation of cumulative impacts can be particularly important in assessing the environmental effects of numerous small-scale projects and in assessing the indirect effects that one project can have on the environment based on the nexus between that project and another project that has its own environmental impacts.

Another example of NEPA's more extensive reach is the arguably greater degree of public participation it mandates in the review process. NEPA requires public notification when an EIS is being prepared.⁶⁰ Also, the U.S. Council on Environmental Quality's NEPA regulations require an opportunity for public review and comment on draft EISs so that the comments can be taken into consideration by the government before a draft EIS becomes final.⁶¹ Public participation in the Mexican environmental review process does not begin until the environmental impact evaluation is complete.⁶² At that point, notice of the evaluation's completion and a summary of the evaluation must be published in the Ecological Gazette,⁶³ and access to the evaluation file is allowed⁶⁴ with the exception that certain information relating to industrial or intellectual property rights or other legal interests of a commercial nature may be withheld from disclosure.⁶⁵

SEDESOL, through the INE, is the agency of the Mexican government in charge of implementing Mexico's environmental impact evaluation process. The INE is empowered to deny a project authorization⁶⁶ or to impose conditions on its design, construction, or operation based on the findings of the project's environmental impact evaluation.⁶⁷ In addition, each project or facility for which an environmental impact evaluation is submitted must comply on a continuing basis with any conditions imposed by SEDESOL through the environmental impact evaluation process.⁶⁸ SEDESOL's ability to place conditions on facilities through the environmental impact evaluation process is important in ensuring that the "best available control technologies" or other site-specific regulatory conditions are applied to new projects. Imposing these conditions can also work to ensure that environmentally sound growth occurs even in situations in which environmental standards have not yet been developed.

Air Pollution Control

The framework for Mexico's air quality control program is set forth in Articles 110-116 of the General Ecology [24 ELR 10437] Law.⁶⁹ The fundamental principles behind Mexico's approach to air pollution control are similar to those of its U.S. counterpart, the Clean Air Act (CAA).⁷⁰ Health-based national standards for ambient air quality for specific pollutants are central to both the U.S. system and the Mexican system of air pollution control. The U.S. system refers to them as primary national ambient air quality standards (NAAQS)⁷¹ and the Mexican system calls them maximum permissible levels of emissions (MPLs).⁷²

Most of the Mexican MPLs for ambient air quality are the same, or nearly the same, as the U.S. primary NAAQS. (See Table 1). Mexico's MPLs also compare favorably to many of the ambient air quality standards for developed countries, such as the countries of the European Community or Japan. (See Table 1). Significantly, however, Mexico does not have any standards comparable to the U.S. program's "secondary" NAAQS, which are designed to protect public welfare, as opposed to public health.⁷³

Table 1 -- Comparison of Mexico's Ambient Air Quality Standards With the Ambient Air Quality Standards of the United States, the European Union (E.U.), and Japan⁷⁴

Mexico has promulgated two specific regulations to enhance the implementation of its air quality control program. One addresses air quality throughout Mexico,⁸¹ and the other addresses air quality problems from automotive vehicle exhaust in and near Mexico City.⁸² Pursuant to these regulations, the Mexican government has adopted several environmental norms, most of which establish emissions standards and other control mechanisms for various classes of stationary and mobile sources of air pollution.⁸³

[] Stationary Sources. Mexico controls stationary source air emissions through a source registration and permitting program.⁸⁴ Permitted emissions limits vary based on the source's location and whether it is a new or existing source.⁸⁵ If a norm, or emission standard, has been established for a given type of source, the norm is used to establish emissions limits for individual stationary sources within that industrial category.⁸⁶

The Mexican norms and U.S. new source performance standards (NSPS)⁸⁷ differ in terms of the methods used to determine emissions limitations for individual sources within certain industries. The Mexican government relies heavily on the characteristics of raw materials used in a particular industry to determine the emissions limitations for individual emissions sources within that industry. For example, the Mexican air [24 ELR 10438] emissions norm for coal-fired power plants⁸⁸ directs that each plant's permitted emissions levels for sulphur dioxide (SO₂), particulate matter, nitrous oxides (NO_x), and carbon monoxide (CO) are subject to limits measured in terms of kilograms of pollutant per cubic meter of dry coal burned.⁸⁹ Thus, the emissions standards for these pollutants from coal-fired plants are tied to the coal density and the heat value of the coal to be burned. In contrast, U.S. NSPS are usually based on end-of-the-stack pollutant emissions levels from various industries, and provide a floor for the application of control technology requirements.⁹⁰

Differences between the data used to determine each country's standards, the means of developing the standards, and how they are applied, make it difficult to compare the Mexican norms with U.S. standards for stationary source air emissions. Nonetheless, EPA estimates indicate that some of Mexico's stationary source air emissions norms may be substantially less stringent than counterpart U.S. NSPS.⁹¹ For example, based on the heat value of the coal burned at Mexico's Carboelectrica I facility near Piedras Negras, Mexico, approximately 20 miles south of the U.S.-Mexico border, EPA estimates the difference between the countries' applicable standards for SO₂ emissions from coal-fired power plants to be 8.16 lbs. per million British thermal units (Btu).⁹² (See Table 2).

Table 2 -- Comparison of Mexican and U.S.⁹³ Air Pollution Emissions Standards for Coal-Fired Electrical Power Plants⁹⁴

[] Hazardous Air Pollutants. Although perhaps authorizing the development of specific standards for hazardous air pollutants (HAPs), Mexican law does not provide for a program comparable to that established by the U.S. Clean Air Act Amendments of 1990, which require that EPA set specific standards for HAPs.⁹⁶ Current Mexican law addresses toxic emissions only to the extent of requiring prior authorization for HAP emissions,⁹⁷ and requiring industries to report emissions of HAPs, including reporting through air emissions inventories. Overall, however, environmental reporting and data handling procedures are not yet well-developed.⁹⁸

[] Mobile Sources. Mexico and the United States rely on similar approaches to control mobile source air pollution -- [24 ELR 10439] tailpipe emissions standards, vehicle inspection and maintenance, fuel content requirements, and transportation controls. The degree to which each country relies on any one of these four approaches, however, varies considerably.⁹⁹

Title IV of Mexico's General Ecology Law authorizes regulation of mobile source air emissions.¹⁰⁰ Exercise of this authority is leading to the development and implementation of a tailpipe emissions program comparable to the U.S. tailpipe emissions program. For example, the original Mexican norm governing light-duty vehicles established a schedule for decreasing tailpipe emissions from such vehicles beginning in 1989, with the apparent intent of phasing in the use of catalytic converters.¹⁰¹ Moreover, installation of catalytic converters on new cars to be driven in Mexico has already been underway for the last three years,¹⁰² since 1991. In addition, Mexico's 1993 MPLs for hydrocarbons, CO, and NO_x emissions from light-duty vehicles are comparable to U.S. standards under the CAA for those pollutants emitted from the same class of vehicles.¹⁰³ The comparability of current U.S. and Mexican CO and NO_x emissions standards for the same class of vehicles, and the relatively rapid time frame in which Mexico has increased the stringency of its automobile emissions standards are apparent from Table 3.

Table 3 -- Comparison of Emissions Standards in Mexico With Emissions Standards in the United States for New Gasoline-Powered Motor Vehicles at the Plant (grams of contaminant per kilometer traveled)¹⁰⁴

SEDESOL is responsible for regulating the content and characteristics of automotive fuels, having recently been given the authority previously held by Petroleos Mexicanos (PEMEX), the state-owned petroleum company.¹⁰⁵ Currently, much of the automotive fuel available in Mexico is leaded, although unleaded fuels, introduced in Mexico in 1990 with the same specifications as the most frequently purchased U.S. gasolines,¹⁰⁶ are becoming more readily available, particularly in urban areas.¹⁰⁷

The Mexican federal government has been involved in urging the shift to unleaded fuels. In 1991, the government cut the price differential between leaded and unleaded fuels in half by increasing the price of leaded fuels at a rate faster than that for unleaded fuel prices.¹⁰⁸ Overall, Mexico achieved an 88 percent reduction in the lead content of gasoline between 1988-1992, decreasing lead concentration levels in gasoline from 1.0 to 0.1 grams per liter.¹⁰⁹ It is noteworthy that a 50 percent reduction in the amount of lead in gasoline occurred between 1991 and 1992 alone.¹¹⁰ Regarding diesel fuel, much of that which is currently produced in Mexico has low-sulphur content.¹¹¹

Mexico also has a developing vehicle inspection and maintenance program to help control vehicle emissions.¹¹² Under the General Ecology Law, state and local officials have authority over actual vehicle inspection and maintenance.¹¹³ SEDESOL's role in this program is to promote the establishment of a network of state and local vehicle inspection and maintenance programs and, with the assistance of other federal agencies, to oversee the inspection and maintenance of vehicles in the federal public transportation sector.¹¹⁴ The program for vehicles used in public cargo and transport on federal roads is better established. These vehicles are required to be inspected semiannually.¹¹⁵

[24 ELR 10440]

Water Pollution Control

Mexican water pollution control is governed primarily by three legal instruments. They are the 1988 General Ecology Law¹¹⁶ and its implementing regulations and technical norms, the 1992 Water Law,¹¹⁷ and a 1979 regulation that controls contamination of marine waters by spilled waste materials.¹¹⁸ This division in the law explains the existence of separate institutions and their respective legal authorities over the various aspects of Mexico's water pollution prevention and control system. The institutions are SEDESOL; the Secretariat of the Navy (la Secretaria de Marina); the CNA, which is part of the SARH; and the SSA. SEDESOL has primary authority to set Mexico's water quality criteria and effluent discharge standards for inland and marine waters within federal jurisdiction. The Secretariat of the Navy is responsible for controlling the quality of national marine waters and for controlling pollution from Mexican ships and other maritime vessels operating under the Mexican flag. The CNA is generally responsible for classifying the uses of water bodies and determining their assimilative capacity for purposes of assisting SEDESOL in the establishment of water quality criteria, and for the control of pollutant discharges to inland water bodies within federal jurisdiction, in coordination with SEDESOL. The SSA sets water sanitation standards and becomes involved in the permitting process if drinking water supplies are implicated.

Overall, the Mexican and U.S. legal regimes for controlling water pollution are similar. Both the Mexican General Ecology Law and the U.S. Federal Water Pollution Control Act (FWPCA)¹¹⁹ provide for the adoption of direct and indirect discharge restrictions that are implemented through state and local permit programs.¹²⁰ Moreover, both legal schemes rely on technology-based controls, effluent limitations, water quality criteria and standards, and consideration of the assimilative capacity of receiving waters to determine the degree of control necessary for a particular source.¹²¹

[] Discharge Authorization. Wastewater may not be discharged in Mexico without proper authorization.¹²² It is unclear if authorization of a source in Mexico is equivalent to issuance of a national pollutant discharge elimination system permit in the United States,¹²³ which allows the U.S. permitting agency to attach to the permit special compliance conditions specific to the permitted source.¹²⁴ Nonetheless, all sources in Mexico are required to meet relevant technical standards,¹²⁵ and all new sources must be permitted under Mexico's new source review program.¹²⁶ Also, sources may be subject to CNA legal authority, should it choose to exercise it, to apply source-specific special conditions to discharges from particular sources.¹²⁷ The CNA will most likely apply this authority to new sources for which special conditions are developed through Mexico's environmental impact evaluation process.¹²⁸

[] Discharge Limits. As in the United States, effluent discharges in Mexico are limited through the application of specific numerical discharge standards.¹²⁹ The standards are embodied in technical norms.¹³⁰ As of March 1993, 33 technical norms addressing pollutant discharges to water had been issued by the Mexican government.

An examination of Mexico's restrictions on direct discharges to water from five major industries¹³¹ operating in Mexico near the border with the United States reveals control standards comparable to U.S. standards. (See Table 4). In general, when compared to the U.S. effluent guidelines and standards requiring direct dischargers to use best practicable control technology currently available (BPT), the Mexican discharge requirements for four of those five industries are in the same range, based on concentration.¹³² All of the Mexican direct discharge requirements for these five industries rely solely on pollutant concentration limits as a control mechanism, whereas some of the U.S. direct discharge standards applicable to the same industries operating in the United States rely on production-based standards, in addition to pollutant concentration limits. The result is that some of the direct discharge standards in the United States for the five industries examined are technically more stringent than the Mexican concentration-based discharge standards.

Table 4 -- Comparison of Mexican Standards With U.S. Refining Standards for Direct Discharges From the Petroleum Industry in Their Respective Countries¹³⁵

They are more stringent as a technical matter because, for those U.S. standards that are production-based, the ability to reduce the mass of pollutant per unit of production in the United States is available at the best available technology economically achievable (BAT) and NSPS levels of control.¹³³ Although the pollutant concentration in the effluent remains the same, the allowed flow is reduced at BAT and NSPS levels, and the pollutant mass discharged is thereby decreased.¹³⁴ The importance of the results of the five-industry comparison, however, is the indication that Mexico has laid the legal groundwork for a meaningful effort to control direct industrial discharges to surface waters.

[24 ELR 10441]

Mexico's standards for indirect discharges to water are also generally within the same concentration range as U.S. indirect discharge standards.¹⁴¹ Mexico, however, currently employs a single set of indirect discharge limitations for all of the industries that it regulates.¹⁴² The United States, on the other hand, has set pretreatment standards for both existing and new sources in 50 industrial categories.¹⁴³ In addition, in many cases these 50 categories are broken down into subcategories for which there are specific pretreatment standards.¹⁴⁴

Requirements more stringent than those of the technical norms can be set in Mexico for discharges to sources of drinking water, for underground injection, and for discharges to marine waters.¹⁴⁵

[] Groundwater. In many respects, U.S. and Mexican legal requirements addressing groundwater contamination are similar. For example, in Mexico, as in the United States, underground injection is only allowed if studies demonstrate that groundwater aquifers will not be damaged.¹⁴⁶

However, in Mexico, unlike in the United States, the federal government has virtually complete authority to regulate comprehensively sources of potential groundwater pollution.¹⁴⁷ U.S. groundwater regulation is primarily the responsibility of the individual states.¹⁴⁸ The U.S. government's authority under the FWPCA to regulate pollutant discharges that will affect groundwater might only be permissible if there is a direct hydrological nexus between the groundwater and navigable interstate surface waters.¹⁴⁹ Some additional authority for federal regulation of groundwater in the United States is provided by the Safe Drinking Water Act¹⁵⁰ and other federal statutes,¹⁵¹ but this additional authority is far from comprehensive.

[24 ELR 10442]

This disparity in federal legal authority over groundwater regulation in the two countries has profound implications for the U.S.-Mexico border area, where virtually every set of "sister cities" straddling the border is located on top of transboundary groundwater aquifers that supply those cities and the surrounding rural areas. Perhaps the most prominent example is that of the area near El Paso, Texas, and Ciudad Juarez, Chihuahua, Mexico. There the Hueco and Mesilla Bolsons are important sources of water for portions of Texas, New Mexico, and Mexico. Yet the groundwater regulatory schemes in Texas and New Mexico, and Mexico for that matter, differ greatly.¹⁵²

Sewage Treatment. In Mexico, federal law calls for pretreatment of indirect discharges to wastewater treatment systems and standards for municipal wastewater treatment systems.¹⁵³ There does not appear, however, to be a federal requirement that a local municipal water treatment system use secondary, or even primary, treatment as those terms are defined in the United States.¹⁵⁴ In the case of Mexican urban wastewater, Article 117(IV) of the General Ecology Law calls only for an undefined form of treatment prior to discharge.¹⁵⁵

One of the more interesting and new developments under Mexican environmental law is the application of discharge standards to wastewater that is destined for use in agricultural irrigation. In Mexico, as in some other countries, untreated or partially treated wastewater from urban areas is frequently used for agricultural irrigation, often at the request of local farmers. However, "las aguas negras," or "black waters" as they are referred to in the areas just north of Mexico City, can contaminate local drinking water supplies and increase dramatically the rate of waterborne diseases in the areas drawing that water. Such waters are often easily spotted by huge walls of foam forming on and near the contaminated water due to phosphates and nonbiodegradable detergents in the water.¹⁵⁶ Similar conditions due to untreated sewage have been observed in the U.S.-Mexico border region near the cities of Mexicali and Juarez.

In response to these problems, Mexico has promulgated two technical norms for application to such discharges.¹⁵⁷ One norm establishes the maximum permissible levels of various chemicals such as aluminum, lead, arsenic, cyanide, or zinc that may be found in urban or municipal wastewater used for agricultural irrigation, as well as certain physical parameters (for example pH) of such wastewater.¹⁵⁸ SEDESOL may establish additional parameters for discharges from specific facilities for fecal coliform, biological oxygen demand, heavy metals, total phosphorous, and other pollutants.¹⁵⁹ Sampling of wastewater to determine conformity with these standards is to occur every four-and-one-half to six hours, and the results of the sampling must be reported to federal regulatory agencies by municipal wastewater authorities.¹⁶⁰

The second norm attempts to prevent cholera and other waterborne diseases by establishing the total coliform and fecal coliform levels that may not be present in wastewater used to irrigate particular types of crops that may be consumed raw. Monitoring and enforcement of this norm is to be carried out by the CNA.¹⁶¹ Noncompliance can result in revocation of user permits or concessions granted by the CNA to those who use such wastewater.¹⁶²

Hazardous Waste Regulation

Like the U.S. Resource Conservation and Recovery Act (RCRA),¹⁶³ Mexican law provides for regulation of the management of active hazardous waste sites and hazardous waste generation, transport, storage, and disposal.¹⁶⁴ Although individual provisions of Mexico's hazardous waste regulatory system are not as stringent as equivalent provisions of RCRA, which at present provides for a more comprehensive hazardous waste management system than its Mexican counterpart,¹⁶⁵ some aspects of the Mexican program can be considered more stringent in terms of environmental protection than the corresponding aspects of RCRA.

Defining Hazardous Waste. For purposes of regulation, the starting point for each country's hazardous waste management program is defining what constitutes hazardous waste.¹⁶⁶ Both programs identify wastes according to sets of physical characteristics that render a waste hazardous. The characteristics used by SEDESOL are similar to those used by EPA -- ignitability, corrosivity, reactivity, and toxicity -- and also include "explosiveness," which is not explicitly covered by RCRA.¹⁶⁷ Both programs examine a waste's toxicity, and both require the use of an extraction test to measure toxicity.¹⁶⁸ [24 ELR 10443] Under the test, if the procedure yields any of a list of certain chemicals above specified concentrations, toxicity is established. The Mexican test may be more inclusive than its U.S. counterpart for a couple of reasons. First, the number of chemicals that, through the extraction procedure, can trigger a finding that a particular waste is hazardous under Mexican law is greater than the number under RCRA.¹⁶⁹ Second, of the 27 chemicals evaluated under both the Mexican toxicity test and the U.S. toxicity characteristic leaching procedure, 23 have maximum permissible concentration levels that are lower than that of the U.S. toxic chemical leaching procedure equivalent.¹⁷⁰

In addition to identification of characteristic wastes, both programs list specific wastes as hazardous. In terms of scope, the Mexican list specifically includes approximately 61 percent of the wastes on the RCRA "K" list,¹⁷¹ 45 percent of the wastes on the RCRA "F" list,¹⁷² one of the wastes on the RCRA "U" list,¹⁷³ and none of the wastes on the RCRA "P" list.¹⁷⁴ These differences are significant because the U and P lists' wastes are among the most toxic wastes regulated by RCRA. Unlike RCRA, however, the Mexican program does not clarify the extent to which waste mixtures or residues derived from the treatment of wastes are to be regulated.¹⁷⁵

Generators. Mexican environmental law generally requires more oversight of hazardous waste generation than does U.S. law. New hazardous waste generators must receive authorization from SEDESOL to operate.¹⁷⁶ In the United States, generators usually are not required to obtain a permit to operate unless they store hazardous waste for more than 90 days or engage in treatment or disposal of hazardous waste.¹⁷⁷ Generators, however, must obtain identification numbers from EPA and are subject to detailed regulatory requirements and agency inspections.¹⁷⁸

Transporters. The Mexican requirements for domestic hazardous waste transport are comparable to those in the United States. Mexican law requires manifests for delivery, transport, and receipt of hazardous waste, as well as for any "incidents" involving hazardous waste, such as hazardous waste spills during transport.¹⁷⁹ Mexico's Secretariat of Communications and Transport recently issued a regulation governing the transport of hazardous materials by truck.¹⁸⁰ The regulation is based on United Nations recommendations on the land transport of hazardous materials.¹⁸¹ They cover a large range of legal requirements, including specifications for containers and equipment, and a hazardous waste generator's responsibility to provide liability insurance. The regulations also provide penalties for noncompliance.¹⁸²

Mexico and the United States address hazardous waste importation regulation differently. Article 142 of the General Ecology Law prohibits the importation of hazardous waste into Mexico for storage or disposal.¹⁸³ Hazardous wastes may be imported only for treatment, recycling, or reuse,¹⁸⁴ and each shipment of hazardous waste imported into Mexico requires a permit.¹⁸⁵ In the United States, which is a net importer of hazardous waste for purposes of treatment, storage, disposal, or recycling,¹⁸⁶ the receiving facility need only submit a one-time notification of expected receipt of a waste stream from a foreign source. It does not matter whether the imported waste stream is for treatment, storage, disposal, or recycling.¹⁸⁷

Despite Mexico's prohibition of the importation of hazardous waste for purposes other than treatment, recycling, or reuse, the difficulty of continually monitoring the country's long border with the United States has resulted in numerous instances of illegal export of hazardous waste from the United States to Mexico. The hazardous waste is often dumped indiscriminately in Mexico, posing potentially severe dangers to public health and the environment.¹⁸⁸

[24 ELR 10444]

Mexico also has had to address the troublesome problem of dumping of hazardous waste generated at maquiladora plants.¹⁸⁹ Mexico estimates that of the 1,502 maquiladora plants operating in Mexico as of June 1992, 821 generate hazardous waste.¹⁹⁰ Of these, 525 have presented a declaration to the Mexican government that they are hazardous waste generators.¹⁹¹ Nonetheless, the potential for illegal hazardous waste dumping in and near maquiladora facilities apparently remains large. Between January 1 and June 18, 1992, 135 inspection visits were made to maquiladora plants in the border area of Mexico near the United States, and 60 of those plants were closed temporarily for violation of Mexican law relating to management of hazardous waste.¹⁹²

In an effort to control the problem of improper hazardous waste management at maquiladora plants, Mexican law requires that hazardous waste generated from raw materials imported to Mexico under the temporary import regime, i.e., the maquiladora program, be exported from Mexico to the country from which the raw materials originated.¹⁹³ This requirement has been formalized between the United States and Mexico under the terms of Annex III¹⁹⁴ to the 1983 U.S.-Mexico Agreement on Cooperation for the Protection and Improvement of the Environment in the Border Area.¹⁹⁵

Disposal. Mexican hazardous waste disposal requirements are not as fully developed as their U.S. counterparts. Mexico has regulations governing controlled confinement for hazardous waste disposal.¹⁹⁶ With the exception of required treatment of ignitable and incompatible waste prior to disposal,¹⁹⁷ however, Mexico has no treatment-oriented land disposal restrictions comparable to the restrictions under RCRA requiring treatment of certain wastes prior to land disposal of those wastes.¹⁹⁸ Also, although Mexican law requires hazardous waste leachate collection and treatment,¹⁹⁹ it does not mandate the installation of a double liner below the deposited waste. Double liners are required under U.S. law for all landfills constructed after 1984.²⁰⁰

Nonetheless, SEDESOL is legally authorized to require treatment of individual hazardous wastes prior to disposal.²⁰¹ Mexican law also restricts storage of liquid hazardous wastes in landfills.²⁰²

Corrective Action. For releases from active hazardous waste sites, Mexican law requires corrective action in the form of reporting and closure of leaking units.²⁰³ Additional measures may be required as part of a facility's operating authorization.²⁰⁴ Unlike RCRA's corrective action requirements,²⁰⁵ however, there are no financial responsibility requirements in Mexico for corrective action in cases involving releases from active sites that would apply "across the board" to all hazardous waste facilities.

Remediation and Cleanup of Inactive Sites. Despite the potentially severe problem of existing inactive or abandoned hazardous waste sites in Mexico, the country has no legal requirements governing cleanup for such sites. There is, however, a fledgling hazardous waste site remediation program for which the government solicits contributions from industry.²⁰⁶ [24 ELR 10445] Mexican officials are looking into the possibility of developing legal requirements for the cleanup of inactive sites and are examining the U.S. system -- the Comprehensive Environmental Response, Compensation, and Liability Act²⁰⁷ -- as well as several European systems, as potential models.²⁰⁸

Pesticides and Toxic Substances Regulation

The Mexican and U.S. approaches to pesticides regulation are similar. In both countries a pesticide cannot be marketed unless it is first registered for use.²⁰⁹ CICOPLAFEST regulates pesticides and toxic substances and oversees the registration process in Mexico.²¹⁰

Pesticide Data Requirements and Review. In Mexico, as in the United States, an applicant's registration process begins when it supplies the government with scientific data addressing the pesticide's human health and environmental effects.²¹¹ The data requirements are virtually the same in both countries and include toxicological data, efficacy data, and long-term environmental effects studies.²¹² Mexico also requires that imported pesticides have a certificate of registration from the country of origin.²¹³ CICOPLAFEST officials making pesticide registration decisions rely fairly heavily on data from pesticide studies conducted by the industrialized country of origin that approved the pesticide for use.²¹⁴ The officials also rely on information they obtain from the United Nations International Registry of Potentially Toxic Chemicals regarding the health, safety, and environmental problems that may be associated with imported pesticides.²¹⁵ If Mexican officials determine that the foreign data and pesticide studies do not account for conditions relating to Mexico's weather and climate, they may request additional data from the applicant that accounts for such conditions.²¹⁶

EPA, on the other hand, does not rely on the results of data reviews generated by other countries in its review of an application for registration, regardless of whether the pesticide's use has been approved by another country.²¹⁷ In part, the reason for this difference in data reliance is that Mexico imports many of the pesticides it uses, whereas many pesticides used in the United States are manufactured domestically. There is another important rationale behind Mexico's reliance on foreign data and studies. Mexico does not have a program of "good laboratory practices" that is to be followed in the generation of pesticide data, whereas most countries that export pesticides to Mexico are members of the Organization for Economic Cooperation and Development (OECD), which subscribes to good laboratory practices.²¹⁸ Mexico is discussing with the OECD the possibility of developing a domestic "good laboratory practices" program.²¹⁹

Pesticide Bans. Few pesticides banned for use in the United States are registered for use in Mexico. Dichloro-Diphenyl-Trichloroethane (DDT) is banned for use in the United States²²⁰ but is registered in Mexico for use by public health officials in malaria control programs, a use approved by the World Health Organization.²²¹ DDT is not registered for use on food goods in Mexico. Table 5 lists pesticides that in Mexico are prohibited for use and also those pesticides that are subject to restricted use in Mexico.

Table 5 -- Pesticides Prohibited for Importation, Manufacturing, Formulation, Sale, and Use in Mexico, and Pesticides With Restricted Uses in Mexico²²²

Pesticide Residue Levels. In at least one significant way, Mexican legal requirements for pesticide use are more stringent than the U.S. legal requirements. In Mexico, if use of a pesticide is prohibited, the manufacture of that pesticide in Mexico is [24 ELR 10446] also illegal.²²⁴ In the United States, a manufacturer of a pesticide banned for use in the United States that complies with the labelling, informed consent, and other export requirements of the Federal Insecticide, Fungicide, and Rodenticide Act²²⁵ may export the pesticide from the United States so long as the pesticide is produced solely for export to a foreign country.²²⁶ This practice has raised serious concerns in the United States regarding the "circle of poison," by which residues from a pesticide prohibited for domestic use but that is exported and used abroad, are supposedly returned to the United States via imported food-stuffs and other agricultural commodities. It has also raised concerns about the appropriateness of exporting pesticides for use abroad that are prohibited for domestic use.²²⁷

During the NAFTA negotiations and debate, individuals and groups in the United States displayed concern over potential differences between U.S. and Mexican permissible tolerance or residue levels for registered pesticides.²²⁸ According to a June 1992 study by the U.S. General Accounting Office,²²⁹ there are 58 pesticides for which tolerance levels have been established in both countries but for which Mexico has tolerance levels for some commodities that do not have corresponding established tolerance levels for these commodities in the United States. For 17 other pesticides, Mexico has established tolerance levels but the United States does not have established tolerance levels for those pesticides on any crop.²³⁰ For three other pesticides, tolerance levels have been established for the pesticide's application in both countries to the same commodities, but the tolerance levels differ.²³¹

The similarity between the Mexican and U.S. registration and tolerance setting programs perhaps indicates the importance of the U.S. market as a destination for Mexican agricultural exports. The U.S. market has certainly been a factor in leading Mexican officials to adopt as Mexico's maximum residue limits for pesticides, tolerance levels that are identical to some of U.S. pesticide tolerance levels, where such U.S. levels exist for agricultural commodities produced in Mexico.²³² Nonetheless, Mexico also uses the tolerance levels set by certain other countries and by Codex Alimentarius, an international organization, as the basis for establishing some of its tolerance levels. Overall, the tolerance levels set by Codex Alimentarius vary in stringency relative to U.S. levels, some being comparable to, some more stringent than, and some less stringent than existing U.S. tolerance levels.²³³

The differences between U.S. and Mexican tolerance levels stem in large part from variations in climate, weather, crops, and pest problems between the two countries. These factors will result, to some extent, in the continued existence of varying permissible pesticide tolerance levels, despite the establishment of a joint U.S.-Mexico pesticides working group and its efforts to reduce the variations.²³⁴

[] Toxic Substances Regulation. In terms of toxic substances, such as industrial chemicals, Mexico does not have a comprehensive program for screening all new chemicals for potential use in Mexico that is comparable to the U.S. program established under the Toxic Substances Control Act.²³⁵ Instead Mexico, through CICOPLAFEST, relies on international guidelines to determine if an industrial chemical may be used within the country.²³⁶ Mexico also relies on information from international organizations and countries that export industrial chemicals to Mexico to determine the potential health and environmental effects associated with a particular chemical's use.²³⁷ Mexico has adopted the prior informed consent procedures of the United Nations International Register of Potentially Toxic Chemicals.

Under the General Health Law of June 1991, the SSA publishes a list of toxic substances that are subject to control in the workplace. The SSA, in coordination with other appropriate federal agencies, is also charged with the development of the conditions that must be met for the production, formulation, packaging, labelling, storage, transportation, sale, and use of toxic substances in Mexico, in coordination with other appropriate federal agencies.²³⁸ The SSA publishes in the Sanitation Gazette (Gaceta Sanitaria) a list of those toxic substances or toxic products that require authorization for introduction into national territory.²³⁹ In addition, new chemical production facilities are required to submit an environmental impact evaluation before they may obtain a license to operate in Mexico.²⁴⁰

Community Right-to-Know and Emergency Planning and Response

To date, Mexico has no legislation or regulation comparableto the U.S. Emergency Planning and Community Right-to-Know Act.²⁴¹

[] Community Right to Know. Mexico has neither a substantive community right-to-know program nor a comprehensive toxic chemicals inventory and reporting program, but the country [24 ELR 10447] is moving to fill these voids. There are indications that the country may be developing a comprehensive toxic chemicals inventory and reporting program. It has formally subscribed to the United Nations Awareness and Preparedness for Emergencies at the Local Level program,²⁴² which is similar to the U.S. community right-to-know program.²⁴³ Mexico has endorsed the concept of community right-to-know as embodied in declarations of the United Nations Conference on Environment and Development held in Rio de Janeiro in 1992. In addition, the North American Agreement on Environmental Cooperation,²⁴⁴ effective as of January 1, 1994, requires the establishment of a Council on Environmental Cooperation, which among its other responsibilities is to develop recommendations, as appropriate, concerning public access to information held by the Mexican, Canadian, and U.S. governments regarding hazardous materials and activities in their respective communities.²⁴⁵

Mexico also has made progress toward the establishment of a domestic community right-to-know program. Under Article 147 of the General Ecology Law, SEDESOL must publish, with the prior approval of other appropriate federal agencies, such as the SECOFI, the SARH, and the SSA, a list of ultra-hazardous activities.²⁴⁶ The list will serve to alert those who are engaged in such activities to submit accident prevention plans that are meant to avert serious ecological accidents.²⁴⁷

In accordance with this provision SEDESOL has published two lists. The first list sets forth the criteria for defining an activity as ultrahazardous. It also sets forth the minimum quantity of certain explosive, flammable, toxic, reactive, radioactive, or biological materials sufficient, in the event of a release, to affect adversely the environment, the population, or property.²⁴⁸ Apparently, these minimum quantities are to form the basis for industry reporting requirements. The second list sets forth those activities that handle flammable and explosive substances in an amount necessary to trigger the preparation of accident prevention plans required under the General Ecology Law.²⁴⁹ Similar lists are to be developed in the future for activities associated with reactive, corrosive, and biological substances.

[] Emergency Planning and Response. Mexico has a well-established program for emergency planning and response. The program was established by Mexican presidential decree in 1986,²⁵⁰ which provided for the creation of the National System of Civil Protection within the Secretariat of the Interior. The Secretariat of the Interior's General Directorate for Civil Protection coordinates the emergency planning and contingency response activities of the federal government.²⁵¹

The National Center for Prevention of Disasters, which is authorized to conduct investigations and training sessions, and to disseminate contingency planning and emergency response information, was established by a separate presidential decree in 1988.²⁵² The National Council for Civil Protection was established in May 1990, and as a consultative organ is to coordinate action in the event of an actual emergency.²⁵³ The President of the Republic is the head of the Council, which has a permanent membership of officials drawn from nine federal secretariats and from state and municipal government agencies. Its nonpermanent membership is drawn from the private and academic sectors and other nongovernmental organizations.²⁵⁴

Although the legal framework for the emergency response program's organization can address environmental chemical emergencies, it was designed to respond to natural disasters.²⁵⁵ The need for a separate program to respond to "man-made" environmental emergencies was underscored by the 1992 explosions in Guadalajara, which occurred when petroleum refining industry chemicals entered the local sewer system and ignited, killing numerous sleeping residents in the Guadalajara area. Some environmental contingency planning in Mexico has occurred since 1988 through the risk analysis process associated with environmental impact evaluation.

Local contingency planning for environmental emergencies in Mexico is important to U.S. interests along the U.S.-Mexico border. Cross-border collaboration is often of critical importance. Several sets of sister cities have established joint contingency plans for responding to chemical and other emergencies on either side of the border.²⁵⁶ At the national level, joint U.S.-Mexico contingency planning along the border is authorized under Annex II of the 1983 Agreement of Cooperation for the Protection and Improvement of the Environment in the Border Area.²⁵⁷ Under Annex II, the United States and Mexico have developed a Joint Contingency Plan and a Joint U.S.-Mexico Emergency Response Team.

Mexico's Environmental Law in Perspective

Despite significant distinctions, Mexico's legal system of environmental protection is roughly comparable to the requirements [24 ELR 10448] of U.S. environmental law.²⁵⁸ Certainly the older and more mature U.S. environmental legal regime is more comprehensive than the fledgling Mexican system, but on balance it appears that in only six years Mexico has established the foundation of a credible legal framework to control environmental contamination. This is a significant accomplishment considering the Mexican government's resource constraints. If fully implemented and enforced, the Mexican system should result in relatively high levels of environmental protection.

Moreover, the framework of Mexico's environmental protection law is the subject of a dynamic process of legal development in Mexico that will continue to evolve.²⁵⁹ Developments in Mexican environmental law have the potential to affect profoundly a wide range of future U.S. foreign policy options. For example, Mexico's environmental legal standards will continue to play an important role in the development and implementation of NAFTA and NAFTA-related institutions. Any disputes that arise for resolution under the North American Agreement on Environmental Cooperation involving allegations of a persistent pattern of failure to enforce effectively domestic environmental law, will of course require an analysis and interpretation of the standards embodied in that domestic body of law. Furthermore, certification of environmental infrastructure projects by the Border Environment Cooperation Commission²⁶⁰ will require application of Mexican or U.S. environmental standards in the area of environmental impact assessment, wastewater treatment and pretreatment, groundwater protection, solid waste disposal, and other areas, so that those projects can be properly evaluated and implemented. Finally, the Mexican General Ecology Law, as a comprehensive umbrella for environmental regulation, may have already exerted much influence on legal developments in South American nations and other nations that may one day become partners in liberalized trade with the United States.²⁶¹

More directly, the area near the U.S.-Mexico border -- the longest border in the world between a developed and a developing country -- will continue to be a watershed for evaluating the success or failure of binational cooperative efforts to improve standards of living while concurrently controlling transboundary pollution and other forms of environmental degradation. The ability of the United States and Mexico to raise their respective environmental standards to promote comparable levels of environmental protection, while increasing prosperity through trade and other economic measures, will be a challenge and key component of that effort. For each of these reasons, new developments in Mexico's environmental law deserve continued close attention in the future.

1. North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex., H.R. DOC. NO. 103-159, 103d Cong., 1st Sess. 713 (1993). NAFTA is an executive agreement that required the approval of Congress, and not a treaty requiring ratification by a two-thirds affirmative vote of the U.S. Senate. See 19 U.S.C. §§ 2191-2194, 2902-2903 (1988 & 1992 Supp.) (delegating authority to the President to negotiate free trade agreements; U.S. trade law provides that Congress will give "fast track" consideration to certain trade agreements submitted by the President, such that if the President adheres to specified notice and consultation procedures, Congress is obligated to take a timely vote on the agreement as transmitted by the President, without amendment).

During the NAFTA negotiations and the debate that preceded its adoption by the U.S. Congress in November 1993, see 139 CONG. REC. H9875-H10048 (daily ed. Nov. 17, 1993) (U.S. House of Representatives debate on and passage of implementing legislation for NAFTA); 139 CONG. REC. S16602-22, S16701-05, S16709, and S16712-13 (daily ed. Nov. 20, 1993) (U.S. Senate debate on and passage of implementing legislation for NAFTA, clearing the measure for action by the President), many NGOs and individuals expressed apprehension over the environmental implications of free trade among the United States, Canada, and Mexico. In particular, the debate focused on the existence and stringency of Mexico's environmental laws, regulations, standards, and enforcement mechanisms. Some believed this focus on Mexico's role in NAFTA, the first free trade agreement to be negotiated between developed countries and a developing country, to be reasonable. They also assumed that as the developing-country party to NAFTA, Mexico would have less stringent environmental standards and environmental enforcement mechanisms than the developed-country parties.

This expectation was apparent in at least four overarching concerns expressed by NGOs and other critics of NAFTA. NGOs and others argued that liberalized trade with a developing country would increase industrialization in the developing country and thereby generate greater transboundary environmental contamination than that which already exists along the U.S.-Mexico border. Some of the existing pollution along the border is directly related to trade incentives associated with the Mexican maquiladora program. See infra note 189 (describing maquiladora program).

A second concern was that Mexico's allegedly lax environmental standards would give it an economic advantage by fostering lower environmental compliance costs that in turn could lure foreign investment. To remain economically competitive, the developed countries party to NAFTA would have to relax their respective environmental standards, thereby leading to increased environmental harm among all parties to NAFTA.

Critics also argued that greater economic integration resulting from free trade would compel the United States to harmonize downward its environmental standards. Consequently, the United States would feel pressure from other NAFTA parties to adopt international environmental standards less stringent than U.S. environmental standards in order to attain trilateral baseline standards that all three countries could meet. The result would be increased environmental harm.

A fourth concern centered on public health and imported products. NGOs warned that under NAFTA, agricultural commodities bearing residues from pesticides banned or severely restricted in the United States (or with higher pesticides residue levels than those allowed under U.S. law) could be imported to the United States from another NAFTA party in larger quantities than before NAFTA's adoption. NGOs asserted that this would occur because free trade under NAFTA would encourage greater overall production of agricultural commodities and therefore encourage an increase in the use and misuse of pesticides, as well as a corresponding increase in the number of pesticides tolerance violations.

2. U.S. EPA, OFFICE OF GENERAL COUNSEL, EVALUATION OF MEXICO'S ENVIRONMENTAL LAWS, REGULATIONS AND STANDARDS: PRELIMINARY VERSION OF FINAL REPORT (1993) [hereinafter EPA EVALUATION]. The evaluation was made available to the public in preliminary draft form in November 1993. It discusses the general structure of Mexican environmental law and also examines key environmental standards in six areas: air pollution control, water pollution control, waste management, pesticides and toxic substances regulation, environmental impact assessment, and contingency planning and emergency response. The evaluation also contains a separate section describing Mexico's mechanisms for enforcement of its environmental laws, regulations, and standards. The preliminary draft evaluation is subject to further revision by EPA and to review by the Mexican government for technical accuracy before becoming finalized.

3. RUDOLPH B. SCHLESSINGER ET AL., COMPARATIVE LAW: CASES-TEXT-MATERIALS 597-99 (5th ed. 1988).

4. Id. at 301.

5. CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS [Constitution] tit. I, ch. I, art. 25 (Mexico).

6. Id. art. 27.

7. Id.

8. Rodolfo Ogarrio, Environment, Society, and the State: The Mexican Experience, in 1993 PROCEEDINGS OF THE FIRST NORTH AMERICAN CONFERENCE ON ENVIRONMENTAL LAW 57, 65.

9. CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS [Constitution] tit. III, ch. II, sec. III, art. 73 (XVI).

10. Id. Article 73 delineates the authority of the Mexican Congress. Section 16 of Article 73 addresses the ability of Congress to enact laws on colonization and health and sets forth the basis for the creation of the General Health Council, which is part of the executive power. Measures imposed by the General Health Council in terms of control and prevention of environmental pollution are subject to the approval of the Mexican Congress. Section XXIX-G gives Mexican state governments the power to protect the environment, and section VI gives the government of the Federal District of Mexico City that authority as well.

11. General Law of Environmental Protection and Ecological Balance, in Diario Oficial de la Federacion, Jan. 28, 1988, at 24-57 [hereinafter General Ecology Law].

12. The General Ecology Law's broad reach differs from U.S. environmental statutes, which are media-specific and generally were developed individually and usually in response to various environmental crises.

13. See General Ecology Law, tit. I, ch. I, art. I(8), iat 24; see also Ogarrio, supra note 11, at 66.

14. See The Organic Law on Federal Public Administration, Diario Oficial de la Federacion, Dec. 29, 1976, tit. II, ch. I, art. 12, 13, in Secretariat of Social Development, Office of the Federal Attorney for Environmental Protection, Legal Division, LEGISLACION AMBIENTAL, vol. 1, no. 1, ch. 3, at 3 (Feb. 1993).

15. For instance, a particular norm regulates emissions to air from petroleum-fired power plants. Another governs discharges to water from the pressed glass industry.

16. Secretariat of Social Development, National Ecology Institute, in Gerald Parkinson, EPA Finds Mexican and U.S. Environmental Regulation Are "On Par," CHEM. ENG'G MAG., Feb. 1994, at 46.

17. Federal Law on Measurement and Standardization, in Diario Oficial de la Federacion, July 1, 1992, at 48-66.

18. Id. tit. III, ch. II, art. 45, at 55.

19. See id., Third Transitory Provision, in Diario Oficial de la Federacion, July 1, 1992, at 66 (requiring that all existing norms of certain type will no longer be valid 15 months after Federal Law on Measurement and Standardization enters into force).

20. Id. tit. III, ch. II, art. 45(III), at 55.

21. It is difficult to calculate accurately the present value of natural resources to future generations because it requires certain assumptions (for example, assumptions about future demand and technology) and the application of discount rates and other complex accounting procedures.

22. Id. tit. III, ch. II, art. 45(V), at 55.

23. See Exec. Order No. 12291, sec. 2, 46 Fed. Reg. 13193 (Feb. 19, 1981). This executive order requires that in promulgating new regulations and reviewing existing regulations, all U.S. federal agencies, to the extent permitted by law, take no regulatory action unless "potential benefits to society for the regulation outweigh the potential costs to society," choose the regulatory alternative "involving the least cost to society, …" and choose regulatory objectives that will "maximize net benefits to society."

24. The norms promulgated or repromulgated pursuant to the cost-benefit analysis procedure required by the Law on Measurement and Standardization are referred to as Official Mexican Norms (NOMs). The NOMs in the environmental area began to appear in preliminary form in 1993. EPA has only begun to analyze these NOMs and compare them to the existing Ecological Technical Norms. Each NOM contains a section discussing the degree to which it is comparable to international standards.

25. Patti Jacobs, Dazed and Confused Over Normas Oficiales Mexicanos (aka the Norms)?, Mar. 1994, at 6. Altogether SEDESOL repromulgated 57 Norms in 1992 and 1993. Id.

26. See Internal Regulation of the Secretariat of Social Development, Second Transitory Provision, in Diario Oficial de la Federacion, June 4, 1992, at 55 [hereinafter SEDESOL Internal Regulation].

27. Id. ch. VII, art. 36, at 42-44.

28. The INE is responsible for drafting national management plans for protected natural areas. The INE shares responsibility for other forestry issues related to the environment with SARH. Mexico also has a National Commission on Biodiversity (la Comision Nacional para el Conocimiento y Uso de Biodiversidad), which is part of SEDESOL.

29. SEDESOL Internal Regulation, at 43-44.

30. Id. art. 38(I), at 44. PROFEPA has enforcement authority when such authority is not already vested in other Mexican federal, state, or local government agencies.

31. See id. art. 38, at 44-46; see also EPA EVALUATION, supra note 2, at 90.

32. Id., ch. VII, art. 38(XIII), at 45.

33. General Ecology Law, tit. V, ch. VII, art. 189-94, at 56-57.

34. Raul Branes, Citizen Participation in the Enforcement of Environmental Legislation: Alternatives Available in Mexico, at 5 n.3 (June 1993) (on file with author).

35. See Damaso Luna, Participation of Citizens Within the Framework of the Treaty on the Utilization of the Waters of the Colorado and Tijuana Rivers and the Rio Grande River of 1944 and the La Paz Accord of 1983, 12 (June 1993) (on file with author). The document developed at this meeting is called Common Purposes: A Basis for Dialogue Between Civic Organizations and the Government, for Defense of the Environment. Id.

36. CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS [Constitution] tit. I, ch. I, art. 6.

37. Id. art. 27.

38. Alberto Szekely, Public Participation in Law Making and Decisionmaking 3 (June 1993) (on file with author).

39. See, e.g., General Ecology Law, tit. I, ch. I, art. 1, Jan. 28, 1988, at 24. Among the most important of these legal provisions are the following: article 18 of the General Ecology Law, id. tit. I, ch. V, sec. I, at 31 (requiring SEDESOL to promote the participation of social groups and organizations in all environmental planning); article 33 of the General Ecology Law, id. tit. I, ch. V, sec. V, at 33-34 and article 39 of the 1988 Regulation Implementing the General Law on Environmental Protection and Ecological Balance as It Relates to Environmental Impact Evaluation, June 7, 1988 [hereinafter Environmental Impact Regulation] (requiring SEDESOL to allow any person to consult the files of any mandatory environmental impact study); and article 41 of the Environmental Impact Regulation, ch. V, at 36, 77 (allowing any person to request SEDESOL to compel anyone undertaking an activity with the potential to affect negatively the environment to submit an environmental impact statement). In addition, the 1992 Federal Law on Measurement and Standardization mandates that all proposed norms be published, in the Diario Oficial de la Federacion (a publication of the Mexican federal government that is Mexico's equivalent of the U.S. Federal Register), and requires that all such norms be subjected to a 90-day public review and comment period. Federal Law on Measurement and Standardization, tit. III, ch. II, art. 47(I), in Diario Oficial de la Federacion, July 1, 1992, at 56.

40. Environmental Impact Regulation, ch. V, art. 39, at 36.

41. Szekely, supra note 38, at 5. Publication of the Ecological Gazette by the INE resumed in October 1993. All back issues that should have been published were published retroactively. The Ecological Gazette is roughly the equivalent of the Diario Oficial de la Federacion, but is limited to environmental matters.

42. See supra note 39 (discussing the requirement of Article 33 of the General Ecology Law that any member of the public be allowed access to the files of any mandatory environmental impact study).

43. Ley de Amparo Reglamentario de Articulos 103 y 107 de la Constitucion Politica de los Estados Unidos Mexicanos, in LEGISLACION DE AMPARO REFORMADO 49-235 (Alberto Trueba Urbina & Jorge Trueba Barrera eds., 1988). The origin of the amparo suit in Mexico dates back to the Mexican Constitution of 1857. The first amparo law was enacted in 1861. See, e.g., RICHARD D. BAKER, JUDICIAL REVIEW IN MEXICO: A STUDY OF THE AMPARO SUIT 34-42 (1971). The current amparo legislation was enacted in 1987.

44. Article 103 of the Mexican Constitution gives Mexican federal courts jurisdiction to decide all controversies that arise "[f]rom laws or acts of authorities that violate individual guarantees" under the Constitution. CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS [Constitution] tit. II, ch. IV, art. 103(I). Article 107 states that the controversies referred to in Article 103 shall be subject to the forms and procedures prescribed by law, that the amparo suit shall always beprosecuted at the instance of the injured party, and that the judgement rendered in an amparo suit shall only affect the right of the individual or individuals who brought the suit, without making any declaration with respect to the validity of the law or act upon which the complaint in an amparo suit is based. Id. art. 107 & 107(I)-(II).

45. For example, it may be possible for a person, including a judicial person, such as a corporation, to bring an amparo proceeding before the courts through the Office of the Federal Attorney General of the Republic on the basis that the government's failure to comply with or enforce a particular law, regulation, or norm has violated Article 27 of the Constitution. Corporations that file an amparo must exhaust the administrative remedies available. The amparo procedure enables any person alleging violation of a constitutional right to obtain an audience before a Mexican tribunal, whether or not they are represented by legal counsel. But see Greg M. Block, One Step Away From Environmental Citizens Suits in Mexico, 23 ELR 10347, 10348 (1993) (discussing the general unavailability of the amparo suit to environmental litigants due to costs, delay, and legal technicalities such as narrowly construed standing requirements).

46. 5 U.S.C. § 702, ELR STAT. ADMIN. PROC. § 702. It is possible that a statutory provision may only serve as the basis for an amparo suit if the statute is unconstitutional. See BAKER, supra note 43, at 164. It is also possible that the failure of government authorities to act to uphold a constitutional right, as opposed to government action violating a constitutional right, may not be actionable under the amparo provisions of Article 103 of the Mexican Constitution.

47. These include the amparo proceedings initiated against the nuclear plant of Laguna Verde in the state of Veracruz, the amparo proceeding that the residents of Tepoztlan filed against the construction of a railway across their town, and the amparo cases in the region near Cuernavaca concerning the destruction of small green areas. See Panel Discussion, Judicial Review, Implementation and Enforcement of Environmental Law, in PROCEEDINGS OF THE FIRST NORTH AMERICAN CONFERENCE ON ENVIRONMENTAL LAW 71, 72-73 (1993); see also Block, supra note 45, at 10348 (discussing standing as an obstacle to amparo suits).

48. Nonetheless, if injury can be demonstrated for purposes of standing, Mexican law does authorize the filing of a claim for individual injury resulting from the violation of environmental law. See Block, supra note 45, at 10348 & n.11. This standing requirement may apply to amparo suits as it does to civil responsibility suits for personal injury under § 1932 of the Mexican Civil Code, thereby foreclosing litigant access to courts in Mexico for cases of generalized environmental harm and limiting citizens suits for environmental damage to suits in which the complainant has suffered injury. Id.

49. See Daniel Basurto-Gonzales, Environmental Law of Mexico, in INTERNATIONAL LAW & REGULATION 1, 19 (J. Andrew Schlickman, Thomas M. McMahon, & Nicoline van Riel (Law Firm of Sidley & Austin) eds., 1991).

50. General Ecology Law, tit. V, ch. VII, art. 193, at 56-57.

51. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2, 101-209, 4361-4370d.

52. Id. § 4332(2)(C), ELR STAT. NEPA § 102(2)(C).

53. The legal basis for Mexico's environmental review procedures is title I, chapter V, section V, articles 28-35 of the General Ecology Law and the associated implementing regulation and technical norms.

54. General Ecology Law, tit. I, ch. V, art. 28, at 33.

55. See id. art. 32, at 33.

56. Environmental Impact Regulation, ch. II, art. 9, at 31-32.

57. General Ecology Law, tit. I, ch. V, art. 32, at 33.

58. See id.

59. See 40 C.F.R. §§ 1508.25(a), 1508.3(b) (1993); see also id. § 1508.7 (defining the term "cumulative impact" as used in U.S. regulations implementing NEPA).

60. 42 U.S.C. § 4332(c), ELR STAT. NEPA § 102(c).

61. 40 C.F.R. § 1503.1(4).

62. See General Ecology Law, tit. I, ch. V, art. 33, at 33-34.

63. See Environmental Impact Regulation, art. 39. See also text accompanying notes 40-41 (referring to the same requirement).

64. See General Ecology Law, tit. I, ch. V, art. 33, at 33-34.

65. Environmental Impact Regulation, art. 39, at 36.

66. General Ecology Law, art. 34, at 34.

67. Id.

68. See id.

69. See id. tit. IV, ch. I, at 44-45.

70. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

71. See id. § 7409(b)(1), ELR STAT. CAA § 109(b)(1).

72. See, e.g., Regulation Implementing the General Law on Environmental Protection and Ecological Balance as It Relates to the Prevention and Control of Air Pollution, ch. II, art. 16, in Diario Oficial de la Federacion, Nov. 25, 1988, at 52-61 [hereinafter National Air Regulation].

73. See 42 U.S.C. § 7409(b)(2), ELR STAT. CAA § 109(b)(2). References to the term "welfare" in the CAA, including references to the development of secondary NAAQS, encompass, but are not limited to, the following: Effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate. These effects can therefore be distinguished from direct effects on human health that are the basis for the development of primary NAAQS under the CAA. See id. § 7602(h), ELR STAT. CAA § 302(h).

74. SEDESOL, in Parkinson, supra note 16, at 200; EPA, Office of Air and Radiation Programs, Office of Policy Analysis and Review, in EPA EVALUATION, supra note 2, at 26.

75. The time period listed indicates the averaging time for the standard.

76. The United States also has an annual ambient SO₂ standard, for which there is no equivalent standard in Mexico.

77. The United States also has a short-term (1-hour) CO standard, for which there is no equivalent standard in Mexico.

78. Mexico's PM standard is for total suspended particulate matter (TSP), whereas the U.S. PM standard is for particles with diameters of 10 microns or less (PM-10). When the U.S. standard for PM was expressed in terms of TSP, it was set at a level identical to the current Mexican PM standard.

79. The United States also has an annual PM standard, for which there is no equivalent standard in Mexico.

80. This is an international standard, applied in Mexico in the absence of a national ambient air quality standard for lead.

81. National Air Regulation, at 52-61.

82. Regulation Implementing the General Law on Environmental Protection and Ecological Balance as It Relates to Prevention and Control of Pollution Generated by Automotive Vehicles Circulating Within the Federal District and Municipalities of Its Suburban Area, in Diario Oficial de la Federacion, Nov. 25, 1988, at 80-89. With approximately 90 million inhabitants, Mexico City is one of the most populous cities in the world and is the site of nearly 50 percent of Mexico's industrial facilities. Gerald Parkinson, Mexico's Cleanup Program: Mission Impossible?, CHEM. ENG'G MAG., Oct. 1993, at 33.

83. The following are a few examples of the approximately 18 stationary source and mobile source air emissions norms that Mexico has promulgated since 1988 and each is published in Diario Oficial de la Federacion: Ecological Technical Norm CCAT-007/88, Establishing the Maximum Permissible Levels of Particle, Carbon Monoxide, Sulphur Dioxide and Nitrous Oxide Emissions to Air From the Combustion Processes of Stationary Sources, at 13-15; Ecological Technical Norm CCAT-009/88, Establishing the Maximum Permissible Levels of Solid Particle Emissions to Air From Stationary Sources, at 15-16; Ecological Technical Norm CCAT-003/88, Establishing the Maximum Permissible Levels of Emissions of Hydrocarbons and Carbon Monoxide From Automotive Vehicles in Circulation That Use Gasoline as Fuel, at 31-32; Ecological Technical Norm CCAT-013/89, Establishing the Characteristics for Equipment and Measurement Methods for the Verification of Contaminant Levels From Automotive Vehicles in Circulation That Use Gasoline as Fuel and for Which the Maximum Permissible Emissions Levels Are Established by Corresponding Ecological Technical Norm, at 9-14.

84. See National Air Regulation, ch. II, art. 18, at 57.

85. EPA EVALUATION, supra note 2, at 28.

86. See National Air Regulation, ch. II, art. 20, at 57.

87. See 42 U.S.C. § 7411(b), ELR STAT. CAA § 111(b) (requiring the EPA Administrator to establish federal performance standards for new stationary sources of air pollution in the United States).

88. Ecological Technical Norm CCAT-006/88, Establishing the Maximum Permissible Levels for Emissions to the Atmosphere of Particles, Carbon Monoxide, Sulphur Dioxide, and Nitrous Oxides From the Combustion Processes of Coal-Fired Plants That Generate Electrical Power, in Diario Oficial de la Federacion, Dec. 14, 1988, at 8-9.

89. Id., at 9.

90. See EPA EVALUATION, supra note 2, at 29.

91. Id. at 29 & n.21. These estimates are based on examination of Mexico's norms for air pollutant emissions from coal-fired electrical power plants and from petroleum-fired electrical power plants. Additional study of other stationary source standards is needed to evaluate the overall level of stringency of the Mexican legal system of stationary source air pollution control.

92. This discrepancy between the U.S. and the Mexican SO₂ emissions standards for coal-fired power plants is central to the concerns of officials at the U.S. Park Service and at EPA regarding the deterioration of visibility at Big Bend National Park, Texas. See Tod Robberson, Cloud Over Trade Pact -- Texas Too: Mexican Pollution Fuels U.S. Criticism, WASH. POST, June 22, 1993, at A1, A16. The park is located approximately 130 miles northwest of a planned coal-fired power plant, Carboelectrica II, near Piedras Negras. U.S. officials fear that emissions from the plant, even if it were in full compliance with Mexico's SO₂ emissions standards for coal-fired power plants, would further impair visibility at the park, which is already impaired by SO₂ emissions from other U.S. and Mexican sources, including Carboelectrica II's "sister" coal-fired power plant, Carboelectrica I. The officials are concerned that emissions from Carboelectrica II could place the portion of Texas in and around the park outside the limitations of the "Class I" potential for significant deterioration increment applicable to the park under the U.S. CAA. See NAFTA: Jobs and the Environment: Hearings Before the Subcomm. on Commerce, Consumer Protection, and Competitiveness, House Comm. on Energy and Commerce, 103d Cong., 1st Sess. (1993) (statement of Michael H. Shapiro, Acting Assistant Administrator, Office of Air and Radiation Programs, U.S. EPA). Mexico does not have visibility standards relating to air pollutant emissions. The discrepancy between the U.S. and Mexican standards and the problems it creates became more apparent when a U.S. energy company's subsidiary appeared ready to begin a joint venture with Mexico's Federal Energy Commission to construct and operate the planned Carboelectrica II facility. See Andy Pasztor, Power Plants in Mexico Cast Pall Over NAFTA, WALL ST. J., Sept. 8, 1993, at B1. This move raised suspicions among some individuals and groups in the U.S. that the U.S. company was trying to take advantage of cost savings from Mexico's apparently less stringent standards. See id. U.S. anxieties were allayed when the subsidiary withdrew from the project in October 1993. Nonetheless, because the Mexican Federal Energy Commission appears ready to continue its construction and testing of the Carboelectrica II facility for eventual operation, very real concerns remain regarding the potential air pollutant emissions from the facility.

Economic development concerns are also central to the Carboelectrica II debate. Mexico arguably has as much right as the United States to develop its industry. Mexico might also be able to justify its lower per capita emissions standards for coal-fired power plants and other industrial facilities, such as petroleum-fired power plants, by pointing to the disparity between the number of such industrial facilities operating in the United States and the number of similar Mexico-based facilities. Mexico's annual national SO₂ emissions of roughly 700 thousand tons are approximately 25 times smaller than the annual U.S. SO₂ emissions of approximately 20 million tons. See EPA EVALUATION, supra note 2, at 29 n.21. These arguments, however, do not consider the potential severity of local environmental impacts due to legally permissible high emissions levels from even a single stationary source of air pollutants. In response to these concerns about potential exceedance of U.S. prevention of significant deterioration standards, the Mexican Secretary of Social Development and U.S. EPA Administrator formally agreed, in an October 1993 joint statement, to the formation of a binational technical work group to address existing situations of substantial air quality degradation in the U.S.-Mexico border area, including visibility problems at Big Bend National Park. See Joint Statement of Luis Donaldo Colosio Murieta, Mexican Secretary of Social Development, and Carol M. Browner, U.S. EPA Administrator, Ensenada, Mexico (Oct. 26, 1993).

93. The U.S. standards in Table 2 are the NSPS for air pollutant emissions from coal-fired electrical power plants.

94. EPA, Office of Air and Radiation Programs, Office of Policy Analysis and Review.

95. Mexico also has a standard for CO emissions from coal-fired power plants, for which there is no equivalent U.S. standard.

96. See 42 U.S.C. § 7412, ELR STAT. CAA § 112.

97. EPA EVALUATION, supra note 2, at 30. See General Ecology Law, tit. IV, ch. I, art. 113, at 45.

98. E. L. Martinez et al., Emission Inventory Development in Mexico: Accomplishments and Needs (unpublished manuscript prepared for International Conference on Emission Inventory: Perception and Reality, Pasadena, Cal., Oct. 18-20, 1993, on file with the U.S. EPA, Office of General Counsel, International Activities Division).

99. For example, transportation controls have rarely been used in the United States to control mobile source emissions, whereas they have been a part of everyday residential life in greater metropolitan Mexico City since 1989. Automobile users in this area of Mexico must observe a "no drive day" on one of five days during the work week. The last number and the color of a vehicle's license plate is used to determine which day the vehicle is not to be driven. EPA EVALUATION, supra note 2, at 32. See Agreements Establishing the Criteria for Limiting Automobile Traffic in the Federal District of Mexico City, in Diario Oficial de la Federacion, Nov. 8, 1989, at 37-38, and at 38-40. Recent indications are, however, that some residents of Mexico City have been able to drive their own cars in Mexico City every day of the work week, avoiding the intent of the transportation controls, by owning more than one automobile, each of which is registered for different "no drive" days.

100. See General Ecology Law, tit. IV, ch. I, art. 111(V), at 44 (authorizing SEDESOL to establish norms to be observed by the automobile industry to reduce vehicle emissions); id. art. 112(V) and (VII), at 45 (authorizing Mexican state and municipal governments to establish and operate automotive vehicle emissions verification systems for vehicles in circulation, and authorizing state and local regulation of nonfederal public transportation systems including suspension of public transport vehicle circulation during periods of severe pollution).

101. See Ecological Technical Norm CCAT-004/88, Establishing the Maximum Permissible Levels of Hydrocarbons, Carbon Monoxide, and Nitrogen Oxides Emissions From New Automotive Vehicles at the Plant That Use Gasoline as Fuel, in Diario Oficial de la Federacion, Oct. 19, 1988, at 20-23 [hereinafter Ecological Technical Norm CCAT-004/88].

102. Parkinson, supra note 82, at 33.

103. EPA EVALUATION, supra note 2, at 31.

104. Ecological Technical Norm CCAT-004/88, art. 4, in Diario Oficial de la Federacion, Oct. 19, 1988, at Table 1; WORLD BANK, WORLD DEVELOPMENT REPORT 1992: DEVELOPMENT AND THE ENVIRONMENT 124, Table 6.1 (1992).

105. EPA EVALUATION, supra note 2, at 32.

106. SEDESOL, NATIONAL ECOLOGY INSTITUTE, CHEMICALS REGULATION AND MANAGEMENT IN MEXICO: AN INTERNATIONAL PERSPECTIVE 17 (1993) [hereinafter SEDESOL, CHEMICALS REGULATION IN MEXICO].

107. EPA EVALUATION, supra note 2, at 31. Mexico has reportedly tripled its production of unleaded gasoline since 1990. See Parkinson, supra note 82, at 33.

108. EPA EVALUATION, supra note 2, at 31.

109. SEDESOL, CHEMICALS REGULATION IN MEXICO, supra note 106, at 17-18.

110. Id. at 18.

111. PEMEX's 1992 production of low-sulphur diesel fuel reportedly increased by 41 percent over 1991 levels. Parkinson, supra note 82, at 33.

112. It is presently unclear if Mexico intends to adopt emissions standards that apply during the useful life of vehicles, which would be similar to the U.S. program that uses such standards.

113. General Ecology Law, tit. IV, ch. I, art. 112(V), at 45.

114. See EPA EVALUATION, supra note 2, at 31.

115. See Agreement Establishing the Semiannual Inspection of Emissions From Vehicles Used for Public Transport and Freight Traveling on Roads Under Federal Jurisdiction, in Diario Oficial de la Federacion, May 3, 1990, at 18-19.

116. General Ecology Law, tit. IV, ch. II, art. 117-33, at 45-48.

117. National Water Law.

118. Regulation for the Control of Contamination of the Sea by the Spillage of Wastes and Other Materials, in Diario Oficial de la Federacion, Jan. 23, 1979 (implementing for Mexico the London Ocean Dumping Convention). This regulation is effective to the extent it is not superseded by subsequent Mexican law, including the 1988 General Ecology Law.

119. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

120. EPA EVALUATION, supra note 2, at 57.

121. Id. at 58.

122. General Ecology Law, tit. IV, ch. II, art. 121, at 47.

123. EPA EVALUATION, supra note 2, at 35.

124. See 33 U.S.C. § 1342, ELR STAT. § 402.

125. See General Ecology Law, tit. IV, ch. II, art. 118(II), at 46; id. art. 123, at 47.

126. EPA EVALUATION, supra note 2, at 35.

127. National Water Law, tit. III, ch. I, art. 86(III), (Article 86(III) can be found in the version of the National Water Law of 1992 published by the Mexican National Water Commission in Dec. 1992, at 51).

128. An environmental impact evaluation must be conducted for all significant public- and private-sector projects. See discussion supra accompanying notes 53-55.

129. See EPA EVALUATION, supra note 2, at 35.

130. Id.

131. The five industries for which direct discharge requirements were examined are the metal finishing industry, the petroleum refining industry, the iron and steel production industry, the copper production industry, and the wood preserving industry.

132. Id. at 36-56. The exception is the direct discharge standards for the wood preserving industry, for which in the United States a zero discharge standard applies to most direct discharges to water from that industry. Hence, the Mexican direct discharge standards for wood preserving are not as stringent as the U.S. direct discharge standards for that industry. Id. at 36, 55-56.

135. U.S. EPA, Office of Water Programs, Office of Science and Technology, Engineering and Analysis Division, in EPA EVALUATION, supra note 2, at 41-42.

136. In addition to the parameters listed in the table above, the following may be included in the United States as special conditions of discharge: Temperature, dissolved solids, chlorides, sulfates, mercaptan, arsenic, cobalt, copper, iron, lead, mercury, nickel, cadmium, zinc, aluminum, and vanadium.

137. The above levels of BPT control are daily maximum limits expressed in terms of concentration based on existing flow for current regulatory basis. The U.S. regulation for direct discharges to water from the petroleum refining source category has five subcategories, uses production-based effluent limitations, and relies on size factors as well as process factors that depend on process configuration. See Petroleum Refining Point Source Category, 40 C.F.R. pt. 419 (1993).

138. The BAT control levels are daily maximum limits expressed in terms of concentration, based on reduced flows per production unit below 1979 basis. Actual regulation is in mass per unit of production.

139. The NSPS control levels are daily maximum limits expressed in terms of concentration, based on reduced flows per production unit below 1979 basis. Actual regulation is in mass per unit of production.

140. In the United States, the five conventional pollutants (biological oxygen demand, total suspended solids, pH, fecal coliform, and oil and grease) are not regulated under BAT controls by definition. Only nonconventional pollutants and toxic pollutants are regulated under BAT controls in the United States. BPT and NSPS controls are used to regulate conventional, nonconventional, and toxic pollutants.

133. Id. at 36.

134. Id.

141. EPA EVALUATION, supra note 2, at 36.

142. Ecological Technical Norm CCA-031/91, Establishing the Maximum Permissible Levels of Wastewater Discharges to Drainage and Urban and Municipal Sewage Systems From Industry, or From Automobile and Maintenance Services, Gas Stations, Dying Shops, Film Processing Shops, and for Wastewater Treatment, Diario Oficial de la Federacion, Sept. 20, 1991, in SEDESOL, Office of the Federal Attorney for Environmental Protection, Legal Division, LEGISLACION AMBIENTAL, vol. 1, no. 3, ch. 14, at 172-89 (Feb. 1993). With the exception of Mexico's single industrial pretreatment norm for indirect discharges to water, the rest of Mexico's 33 water pollution control norms that existed as of March 1993 govern direct discharges to water, the rest of Mexico's 33 water pollution control norms that existed as of March 1993 govern direct discharges to water.

143. EPA EVALUATION, supra note 2, at 37.

144. Id.

145. Id. at 57.

146. See id.; 40 C.F.R. § 144.12(a). In Mexico, however, the requirement extends to all aquifers, whereas in the United States, the SDWA only protects aquifers containing potential drinking water.

147. See STEPHEN P. MUMME, APPORTIONING GROUNDWATER BELOW THE U.S.-MEXICO BORDER 10 (1988). Article 27 of the Mexican Constitution vests all subsoil and mineral rights ultimately in the federal government of Mexico.

148. See Jan Galbraith Rich, Bordering on Trouble, ENVT'L. F., May/June 1991, at 32.

149. See, e.g., United States Steel Corp. v. Train, 556 F.2d 822, 851-53 (7th Cir. 1977) (EPA has authority under the FWPCA to regulate discharges into deep wells where undertaken in connection with permittee's discharges into surface waters); McClellan v. Ecological Seepage Situation, 707 F. Supp. 1182, 1196, 19 ELR 20124, 20129 (E.D. Cal. 1988) (plaintiff permitted to engage in additional discovery to "establish that groundwater is naturally connected to surface waters that constitute 'navigable waters' under the [FWPCA]" as opposed to isolated groundwater); Kentucky ex. rel. Hancock v. Train, 9 ERC 1280, 1282, 6 ELR 20689, 20690 (E.D. Ky. 1976) (upholding EPA's authority under FWPCA § 303 to require state promulgation of groundwater quality standards where groundwater has "clear hydrological nexus" with surface waters). But see Exxon Corp. v. Train, 554 F.2d 1310, 1312 & n.1, 7 ELR 20594, 20594 & n.1 (5th Cir. 1977) (discharges into groundwater are exempt from federal regulation even if discharges into nearby surface water may be regulated by the federal government); Kelley v. United States, 618 F. Supp. 1103, 1107, 16 ELR 20080, 20081 (W.D. Mich. 1985) ("… Congress did not intend the [FWPCA] to extend federal regulatory and enforcement authority over groundwater contamination"); United States v. GAF Corp., 389 F. Supp. 1379, 1383, 5 ELR 20581, 20583 (S.D. Tex. 1975) (legislative history of the FWPCA does not support its extension to subsurface wells because Congress had contemplated federal groundwater quality standards, but declined to adopt them in light of complex issues involved in regulation of groundwater contamination).

150. 42 U.S.C. §§ 300f-300j-26, ELR STAT. SDWA §§ 1401-1465.

151. EPA also has authority to require groundwater cleanups under § 106 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9606, ELR STAT. CERCLA § 106, and § 3008(h) and § 3004(u)-(v) of the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(h), § 6924(u)-(v), ELR STAT. RCRA § 3008(h), § 3004(u)-(v).

152. In New Mexico, groundwater is considered to be part of the public heritage and is therefore subject to fairly extensive regulation by the state government. In Texas, the rights of individual landholders to extract or otherwise affect the groundwater beneath their individual parcels of land are less restricted. Law suits over groundwater use between the states of Texas and New Mexico have already erupted. See, e.g., City of El Paso v. Reynolds (El Paso II), 597 F. Supp. 694, 15 ELR 20259 (D.N.M. 1984); City of El Paso v. Reynolds (El Paso I), 563 F. Supp. 379, 13 ELR 20755 (D.N.M. 1983).

153. See EPA EVALUATION, supra note 2, at 58. See also notes 141-42 and accompanying text (discussing Mexico's industrial pretreatment/indirect discharge standard for water).

154. See Secondary Treatment Regulation, 40 C.F.R. pt. 133 (1993). In the United States, municipal treatment systems are required to employ secondary wastewater treatment unless certain exceptions apply. See id.

155. General Ecology Law, tit. IV, ch. II, art. 117(IV) Jan. 28, 1988, at 45.

156. Marianne Lavelle, Poisoned Waters Provide Early Test for NAFTA, NAT'L L.J., Mar. 21, 1994, at A22.

157. Ecological Technical Norm CCA-032/91, Establishing the Maximum Permissible Levels of Contaminants in Wastewater of Urban or Municipal Origin Used for Agricultural Irrigation, Sept. 24, 1991, supra note 14, at 180-85; Ecological Technical Norm CCA-033/91, Establishing Conditions on the Use of Wastewater of Urban or Municipal Origin, or a Mixture of Such Wastewater With Receiving Water Bodies, for Use in Agricultural Irrigation, in Diario Oficial de la Federacion, Oct. 24, 1991, at 6-9 [hereinafter Ecological Technical Norm CCA-033/91].

158. See Ecological Technical Norm CCA-032/91, supra note 157, at art. 4, in SEDESOL, Office of the Federal Attorney for Environmental Protection, Legal Division, LEGISLACION AMBIENTAL, supra note 14, at 183.

159. Id. art. 5, at 184.

160. Id. art. 6-7, at 184.

161. Ecological Technical Norm CCA-033/91, art. 6, 10, at 9.

162. Id. art. 12, at 9.

163. 42 U.S.C. §§ 6901-6992K, ELR STAT. RCRA §§ 1001-11012K.

164. EPA EVALUATION, supra note 2, at 62.

165. That the U.S. system is more comprehensive is not surprising given the longer period of time over which the U.S. system has developed.

166. Id.

167. EPA considers its "reactivity" characteristic to encompass "explosiveness." Id. at 62 n.66.

168. Id. at 62.

169. Id.

170. Compare Ecological Technical Norm CRP-001/88, Establishing the Criteria for Determining and Testing Hazardous Waste, in Diario Oficial de la Federacion, Dec. 14, 1988 at 9-12 with Identification and Listing of Hazardous Waste -- Toxicity Characteristics, 40 C.F.R. § 261.24 (1993).

171. Id. The RCRA "K" list is a list of wastes from "nonspecific sources." See 40 C.F.R. § 261.24.

172. EPA EVALUATION, supra note 2, at 63. The RCRA "F list" is a list of wastes from "specific sources." See 40 C.F.R. § 261.32.

173. EPA EVALUATION, supra note 2, at 63. The RCRA "U" list is a list of discarded chemical commercial product wastes that are considered to be toxic wastes. See 40 C.F.R. § 261.33.

174. EPA EVALUATION, supra note 2, at 63. The RCRA "P" list is a list of discarded commercial product wastes that are considered to be "acute" wastes. See 40 C.F.R. § 261.33.

175. EPA EVALUATION, supra note 2, at 63.

176. Regulation of the General Law on Environmental Protection and Ecological Balance as It Relates to Hazardous Waste, ch. II, art. 7, in Diario Oficial de la Federacion, Nov. 25, 1988, at 63-64 [hereinafter Hazardous Waste Regulation].

177. See 40 C.F.R. § 262.34(a).

178. See 40 C.F.R. pt. 262.

179. Compare Hazardous Waste Regulation, ch. III, arts. 23 and 42, Nov. 25, 1988, at 65, 66-67 with Standards Applicable to Transporters of Hazardous Waste, 40 C.F.R. pt. 263.

180. Regulation Governing the Land Transport of Hazardous Materials and Hazardous Waste, in Diario Oficial de la Federacion, Apr. 7, 1993, at 17-32.

181. SEDESOL, CHEMICALS REGULATION IN MEXICO, supra note 106, at 14.

182. Id.

183. General Ecology Law, tit. IV, ch. III, art. 142, at 49. The importation of nonhazardous solid waste for destruction or final disposition is also prohibited by article 142.

184. Id. art. 153(II), at 50.

185. Hazardous Waste Regulation, ch. IV, art. 43, at 67.

186. Statistics on the annual importation to and exportation from the United States of Hazardous Waste (on file with U.S. EPA, National Environmental Information Center in Denver, Colorado).

187. EPA EVALUATION, supra note 2, at 69.

188. Among the most egregious examples of illegal hazardous waste dumping is the Alco Pacific site in northern Mexico, near Tijuana. Although the site ostensibly operated as a lead waste recycling facility, 80,000 tons of highly toxic lead sulfate related to the receipt of car batteries, mainly from the United States, were dumped at the site, and so much battery acid leached into the soil that an underground fire raged continuously at the site. Joel Simon, Dirty Work, CAL. LAW., 40-42 (Feb. 1993). Alco Pacific, which owned the site for over five years, is a Los Angeles-based company. Id. at 40. The site is now closed. Id. at 42. Another incident involved barrels that had originally housed hazardous waste generated in the United States. These barrels turned up in the shop of a Tijuana, Mexico, pottery maker, empty, and were being sold to individuals, some of whom were using them to be used as containers to store drinking water and water for other household purposes. It was later discovered that what appeared to be the original contents of these barrels had been dumped into canyons near Tijuana.

The U.S. EPA and Mexico's SEDUE, now SEDESOL, conducted lab analyses of the wastes. According to the analyses, the wastes involved in the Tijuana drum incident appeared to be solvents, heavy metal, and off-specification paints. EPA and the FBI have pursued criminal enforcement actions against the U.S. company that was the source of these materials. A civil enforcement action was also initiated against the U.S. company whose lax reporting prevented earlier discovery of the illegal shipment of the hazardous wastes. The wastes were packed and returned to the United States for disposal. Integrated Environmental Plan for the Mexican-U.S. Border Area (First Stage, 1992-1994), joint publication of the U.S. EPA and Mexican SEDUE, p. III-22.

189. The term maquiladora refers to processing and assembly plants located predominantly in the northern portion of the U.S.-Mexico border area that make use of imported materials and inputs to assemble finished products for export. The Mexican maquiladora program allows the temporary importation of equipment, components and inputs on a duty-free basis. See Decree for the Development of the In-Bond Export Industry, Diario Oficial de la Federacion, Aug. 15, 1983 (current authority for the maquiladora program, which dates back to 1965). In many instances, U.S. materials and inputs are used to make finished products at these facilities, and are exported to the United States while U.S. customs duties are paid on only the "value-added" to the product in Mexico.

The maquiladora plants are incorporated in Mexico and are, thus, Mexican companies that are required to comply with all pertinent Mexican environmental laws, regulations, and standards. See, e.g., Decree for the Promotion and Operation of the Maquiladora Export Industry, Diario Oficial de la Federacion, Dec. 22, 1989, art. 18. Depending on the severity of a violation, noncompliance by a maquiladora plant can result in temporary suspension of the plant's export program, or final cancellation of its registration to participate in the maquiladora program, in addition to other sanctions that could be brought against the plant for the violation in question under applicable law. Id. art. 32. Despite these strict noncompliance penalties there are fairly persistent problems of transboundary pollution from maquiladora facilities, including the dumping of hazardous waste at such facilities, some of which are later abandoned. See, e.g., Bruce Selcraig, Border Patrol, SIERRA MAGAZINE, May/June 1994, at 58, 61-63.

190. SEDESOL, CHEMICALS REGULATION IN MEXICO, supra note 106, at 28.

191. Id.

192. See id.

193. General Ecology Law, tit. IV, ch. V, art. 153(VI), at 50-51.

194. Agreement of Cooperation Between the United States of America and the United Mexican States Regarding the Transboundary Shipments of Hazardous Wastes and Hazardous Substances, art. XI, Nov. 12, 1986, 26 I.L.M. 25, 30 (1987).

195. Aug. 14, 1983, T.I.A.S. 1027.

196. See Ecological Technical Norm CRP-011/89, Establishing Requirements for the Operation of a Controlled Confinement Cell for Hazardous Waste, in Diario Oficial de la Federacion, Dec. 13, 1989, at 23-28; Ecological Technical Norm CRP-009/89, Establishing Requirements for Design and Construction of Works Associated With Controlled Confinement of Hazardous Waste, in Diario Oficial de la Federacion, Sept. 8, 1989, at 12-21; Ecological Technical Norm CRP-010/88, Establishing Requirements for the Design, Construction and Operation of "Confinement Cells," in Diario Oficial de la Federacion, Dec. 14, 1988, at 9-12 [hereinafter Ecological Technical Norm CRP-010/88]; Ecological Technical Norm CRP-008/88, Establishing Siting Requirements for Controlled Confinement of Hazardous Waste, With the Exception of Radioactive Waste, in Diario Oficial de la Federacion, June 6, 1988, at 102-104.

197. See Ecological Technical Norm CRP-010/88, art. 5(VI), at 11.

198. EPA EVALUATION, supra note 2, at 66. See 42 U.S.C. § 6924(m), ELR STAT. RCRA § 3004m (land disposal after treatment allowed for certain toxic wastes that would otherwise be banned for land disposal).

199. See Hazardous Waste Regulation, art. 35, at 66.

200. 42 U.S.C. § 6924(o), ELR STAT. RCRA § 3004(o).

201. See Hazardous Waste Regulation, ch. 3, art. 30, at 66.

202. See Ecological Technical Norm CRP-010/88, art. 5(VI), at 11.

203. EPA EVALUATION, supra note 2, at 69.

204. Id.

205. 42 U.S.C. § 6924(u)-(v), ELR STAT. RCRA § 3004(u)-(v); see 55 Fed. Reg. 30798 (July 27, 1990) (EPA proposed regulations on corrective action for hazardous waste releases, including financial responsibility); 40 C.F.R. § 264.101(b). RCRA also addresses financial responsibility in more general terms. See 40 C.F.R. pt. 264, sbpt. H, and pt. 265, sbpt. H.

206. EPA EVALUATION, supra note 2, at 69. The program is called "Basis for Collaboration."

207. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

208. EPA EVALUATION, supra note 2, at 69.

209. Id. at 71. Pesticide registration is required in Mexico under the 1974 Law on Plant and Animal Health of the United Mexican States, ch. 5, art. 41-50.

210. See Internal Regulation of the Inter-Secretarial Commission for the Control of Pesticides, Fertilizers and Toxic Substances, in Diario Oficial de la Federacion, Oct. 27, 1988, at 21-25. EPA received information in April 1994, from the Mexican government concerning possible recent changes in Mexican law that place the SSA in control of the pesticides registration process in Mexico, although CICO-PLAFEST would retain authority to act in an advisory capacity with regard to pesticide registration.

211. EPA EVALUATION, supra note 2, at 71.

212. U.S. GENERAL ACCOUNTING OFFICE, GAO/RCED-92-140, COMPARISON OF U.S. AND MEXICAN PESTICIDE STANDARDS AND ENFORCEMENT, REPORT TO THE CHAIRMAN OF THE COMMITTEE ON AGRICULTURE, U.S. HOUSE OF REPRESENTATIVES 22 (June 1992) [hereinafter GAO REPORT].

213. EPA EVALUATION, supra note 2, at 71.

214. Id. Mexican scientists review the foreign data in pesticides registration applications for scientific soundness.

215. Id.

216. GAO REPORT, supra note 212, at 23.

217. Id. at 20.

218. EPA EVALUATION, supra note 2, at 71.

219. Id.

220. Letter from Linda Fisher, EPA Assistant Administrator, to J. W. Huismans, Director of International Registry of Potentially Toxic Chemicals (attachment) (Apr. 27, 1992) (on file with author).

221. EPA EVALUATION, supra note 2, at 72.

222. CICOPLAFEST, OFFICIAL PESTICIDES CATALOGUE 42 (1993).

223. As a legal matter, restricted pesticides can only be purchased in Mexico upon presentation of a written recommendation by a government or private technician who has been authorized by the federal government to provide such a recommendation. Application of the restricted pesticide to crops must be supervised by the authorized technician who recommended its use. Id. Use of DDT is more restricted. It can only be used in the sanitation programs of Mexican government agencies because of its "high risk for human health, long persistence, and properties of bioaccumulation." Id.

224. Id. at 75. See List of Pesticides Prohibited for Importation to Mexico and for Which the Manufacture, Formulation, Sale or Use in Mexico Is Prohibited, Diario Oficial de la Federacion, Jan. 3, 1991, in SEDESOL, National Ecology Institute, REGULACION Y GESTION DE PRODUCTOS QUIMICOS EN MEXICO ENMARCADOS EN EL CONTEXTO INTERNACIONAL 228 (1992). See also supra Table 5, second column, at 10445.

225. 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA §§ 2-31.

226. Id. § 136o, ELR STAT. FIFRA § 17.

227. Advocates of stricter pesticides control point to the export of a pesticide banned for use in the home country as the appropriate point of control.

228. Advocates of stricter control argued that agricultural commodities would be imported into the United States from Mexico in greater quantities under NAFTA than prior to NAFTA, that there would be more pressure in Mexico to use pesticides to increase crop yields, and that the pressure might extend to greater use of pesticides registered in Mexico for which there is no corresponding tolerance in the United States.

229. GAO REPORT, supra note 212, at 24.

230. According to the GAO, however, only six of these pesticides have tolerances for food commodities that are exported from Mexico to the United States. Id. at 28.

231. Id. at 24.

232. EPA EVALUATION, supra note 2, at 76.

233. Id.

234. See GAO REPORT, supra note 212, at 24-27.

235. 15 U.S.C. §§ 2601-2692, ELR STAT. TSCA §§ 2-412.

236. EPA EVALUATION, supra note 2, at 80.

237. Id.

238. SEDESOL, CHEMICALS REGULATION IN MEXICO, supra note 106, at 10, 11.

239. See Gaceta Sanitaria, Dec. 1987 in SEDESOL, REGULACION DE PRODUCTOS QUIMICOS EN MEXICO, supra note 224, at 226-27.

240. General Ecology Law, tit. I, ch. V, Sec. V, art. 29(III), at 33.

241. 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

242. EPA EVALUATION, supra note 2, at 84.

243. Id.

244. North American Agreement on Environmental Cooperation, Sept. 14, 1993, U.S.-Can.-Mex., in THE NAFTA SUPPLEMENTAL AGREEMENTS, U.S. Govt. Printing Office, ISBN 0-16-041969-7 (1993).

245. Id. art. 10(5)(a).

246. General Ecology Law, tit. IV, ch. IV, at 49-50.

247. Id. art. 147, at 50.

248. See Agreement by Which the Secretariats of the Interior and of Urban Development and Ecology, Under the Authority of Articles 5(X) and 146 of the General Law on Ecological Balance and Environmental Protection, and Articles 27(XXXII) and 37(XVI and XVII) of the Organic Law on Federal Public Administration, Issue the First List of Ultrahazardous Activities, in Diario Oficial de la Federacion, Mar. 28, 1990, at 2-6.

249. See Agreement by Which the Secretariats of the Interior and of Urban Development and Ecology, Under the Authority of Articles 5(X) and 146 of the General Law on Ecological Balance and Environmental Protection, and Articles 27(XXXII) and 37 (XVI and XVII) of the Organic Law on Federal Public Administration, Issue the Second List of Ultrahazardous Activities, in Diario Oficial de la Federacion, May 4, 1992, at 3-6.

250. Diario Oficial de la Federacion, May 6, 1986.

251. EPA EVALUATION, supra note 2, at 85.

252. Id.

253. See National Program for Civil Protection, 1990-1994, in Diario Oficial de la Federacion, May 29, 1991, at 55.

254. Id.

255. The earthquake that struck Mexico City in 1985 has driven development of the current emergency response program. Id. at 54.

256. For example, the city of Mexicali, Mexico, and the county of Imperial, California, have a long-standing joint response relationship, and the cities of Nogales, Arizona, and Nogales, Sonora, Mexico, recently inaugurated their joint contingency plan. EPA EVALUATION, supra note 2, at 85.

257. Agreement of Cooperation Between the United States of America and the United Mexican States Regarding Pollution of the Environment Along the Inland International Boundary by Discharges of Hazardous Substances, Nov. 12, 1986, U.S.-Mex., 26 I.L.M. 19 (1987).

258. Certainly U.S. law involving pollutant emissions to air from some stationary sources is stricter than Mexican environmental law governing air pollutant emissions from those sources, but so too are aspects of Mexican environmental law stricter than U.S. environmental law, such as certain of Mexico's environmental impact assessment requirements.

259. For example, a host of new environmental norms have recently undergone, or are currently undergoing, peer review in Mexico and are scheduled for promulgation in the near future.

260. See November 1993 Agreement Between the United States of America and the United Mexican States Concerning the Establishment of a Border Environment Cooperation Commission and a North American Development Bank (on file with U.S. EPA, Office of General Counsel, International Activities Division). This agreement was submitted to Congress as part of the "NAFTA package" of agreements and is addressed in NAFTA's implementing legislation.

261. See Lawrence J. Jensen, Environmental Regulation in Latin America: A Rapidly Changing Legal Framework, 8 NAT. RESOURCES & ENV'T 23, 24 (1993) (discussing the trend toward framework environmental laws in Latin American countries, including Peru, Bolivia, and Chile, and citing the Mexican General Ecology Law as an early example of such a law).

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