The new Environmental Law for the State of Nuevo Leon (hereinafter, the "Law") was issued by decree number 252 dated July 15, 2005 published in the Official Gazette of the State of Nuevo León, It is important to emphasize that the publication of the Regulations of the Law and additional regulations related to the Environmental Protection State Agency Law are still pending, among other laws, for the comprehensive application of the Law.
The Law will come in to force on September 13, 2005 and will repeal the Ecological Balance State Law, in force since 1988. The law was published to provide for the preservation and restoration of the ecological balance, the protection of the environment and the sustainable development of the State. Likewise, the Law updates in most part the statues of the State of Nuevo León , applicable to environmental matters and looks to strengthen the attributions of the State Environmental Protection State Agency (the "Agency"). Also, the Law introduces new aspects such as environmental policy, the concept of sustainable development and updates the penalties to its transgressors, showing clear enforcement intent by the Agency.
The Law in its "General Provisions" determines the attributions and competences, and the form to coordinate between the several state and municipal authorities in regard to environmental matters. In this sense, the Law establishes that the State authorities in environmental matters are in first term the Head of the Executive Branch and the Agency. At the municipal level the Law states that the authorities shall be: (i) the Municipality; (ii) the Mayor; and (iii) the Administrative Branches or Units. From said allocation of authority, the Law defines the authority and competence that each of such authorities shall have, situation that under the current law has caused confusion in multiple occasions.
In the State, the Agency is constituted as the top environmental authority and within its most relevant attributions are: (i) to apply the environmental policy foreseen in the Law and other dispositions; (ii) to regulate the activities which risk level is not considered to be of "high environment risk"; (iii) to regulate the collection, transportation, storage, handling, treatment and final disposal of waste systems that fall within the authority of the State; (iv) prevent, measure and control pollution generated by the emissions whether of noise, vibrations, thermal and luminous energy, electromagnetic radiations and dangerous odors, that might damage the ecological balance or the environment in the State, originated from fixed or mobile sources, within the scope granted by the Law; (v) execute agreements with the Municipalities of the State for the establishment of vehicle emission verification programs and atmosphere pollution controls, when more than one Municipalities are involved; (vi) to apply the corrective safety measures and administrative penalties that may proceed, by infractions to the Law and its Regulations, or to the dispositions that such instruments derive; (vii) to promote the use of alternative energy sources, as well as the systems and equipment to avoid or reduce polluting emissions of local public transportation and freight vehicles, as well as to apply to other types of motor vehicles; (viii) formulation of the listings of the risk activities, as well as the works or activities that generate a remarkable environmental impact: (ix) to create a registry of service providers for environmental matters in the State; and (x) coordinate, draft, prepare, administer, evaluate, review and amend the Sectorial Environment and Natural Resources Program of the State of Nuevo León in the terms of the Law of the Public Administration for the State of Nuevo León, the Planning State Law and other applicable legal provisions.
Within the section of coordination of authorities, the Law calls for the possibility of establishing covenants or agreements in coordination with the Municipalities of the State of Nuevo León, with the purpose of having said authorities assume the administration and surveillance of the federal government protected natural areas, according to the established management programs for such areas and other applicable legal statues.
The Law itself establishes the principles, criteria and instruments available for the development of the environmental policy of the State. It shall be instrumented through Regional Programs that may include two or more Municipalities and of Local Programs that will cover the entire territory or a portion of a Municipality and the economic instruments, trough which regulations and administrative mechanisms of a tax, financial or market character, through which the individuals and corporations will be able to assume the environmental benefits and costs generated by their economic activity.
It is important to highlight that the Law introduces for the first time, the possibility of carrying out the transfer of the prerogatives derived of licenses, concessions, permits and authorizations to legally carry out emission or release pollutants to the atmosphere, water, ground or establish limits for the utilization of the natural resources, establishing the foundation for the development of a market of environmental bonds, such as carbon bonds.
Activities that are considered by the Law as priority and, therefore shall have benefits by means of tax incentives include the following:
- The investigation, incorporation or use of ecoefficient mechanisms, equipments and technologies that avoid, reduce or control pollution or environmental wear as well as the efficient use of natural resources and energy:
- The investigation and incorporation of energy saving systems and the use of alternative less polluting energy sources;
- The saving, sustainable use and prevention of the water pollution;
- The location and relocation of the industrial, commercial and service settlements in adequate environmental areas, pursuant the programs and plans of ecological order and urban development;
- The establishment, management and surveillance of protected natural areas. The Law requires that the competent authorities guarantee the grant of tax incentives to the owners or title holders of rights over land, water and forests included within the protected natural areas:
- The programs of self regulation for the compliance of the environmental law;
- In general, those activities related to the preservation, conservation and restoration of the ecological balance and environmental protection; as well as the design and application of technologies based in the ecoefficieny.
The Law introduces new attributions to the Agency, which include the issuance of the State Environmental Norms, with the purpose of:
- Establishing requirements, specifications, conditions, proceedings, goals, parameters and permissible limits, that shall be observed in regions, zones, basins or ecosystems, for the use of natural resources, in the development of economic activities and use and destination of goods, supplies and processes;
- Determine the conditions for preservation or restore of the natural resources and environment protection in the benefit of general population;
- Stimulate and induce economic agents to redirect their processes and technologies to the protection of the environment and its sustainable development;
- Grant long term certainty for investment and induce economic agents to assume the costs of the environmental implications that may occur;
- Promote productive activities in a platform of efficiency and sustainability.
The Agency will promote the performance of voluntary environmental audits and will supervise its execution in accordance with the regulations issued therefore.
Regarding the protection of the environment, the Law states three types of preventive measures: 1) in the atmosphere, 2) water, and 3) land. Regarding prevention of pollutants in the atmosphere, two generation sources are determined, the fixed and the movable. As for the movable, the Law establishes that the motor vehicles that exceed the maximum permitted levels of atmospheric pollutants set forth in the Mexican official norms (NOM) and in the State environmental norms will not be allowed to transit in the State.
Likewise, the Agency in coordination with the State Municipalities, are authorized to: (i) issue technical guidelines for the establishment and operation of the motor vehicle emissions verification systems for private transportation; and (ii) establish and operate such systems of vehicle verification directly. The introduction of measures tending to control vehicle pollution in the State is without a doubt novel and creates new challenges for freight companies, opening opportunities for business in the area.
It is outstanding that the Agency, jointly with Municipal authorities, may limit the circulation of motor vehicles in the State, including those licensed by the Ministry of Communications and Transport, by other States or by a foreign country, in cases of apparent contamination, or to prevent and reduce the emissions issuance in the terms of the applicable regulations. Said measures might restrain subject to night schedules of operation.
Service providers of environmental matters are obligated to register within a registry created by the State for such purpose.
Regarding the section of inspection and surveillance, safety measures, penalties and appeal of the Law, the Agency is authorized, to carry out inspection visits to verify compliance with the Law and its regulations, the state environmental norms or any other applicable regulations in environmental related matters. Such visits of inspection can be ordinary and extraordinary depending the schedule and date of practice of the same.
The Law establishes the following administrative penalties upon infringement of the Law
- Legal warning;
- Fine from twenty to thirty thousand daily minimum wages based on that which is in force in the State;
- Temporary, definitive, partial or total closing, if one or more of the cases foreseen by Article 237 of the Law arise, for example:
- Proceed with a construction without proper authorizations and studies of environmental impact, if required
- The handling and disposal of hazardous waste without written authorization by the authority.
- If multiple violations or repeated infractions exist, causing negative effects to the environment.
- Confiscation or preventive forfeit of species of plants and animals, including its parts, products, sub products, objects, materials or pollutant substances;
- Suspend or revoke all authorizations, concessions, permissions or licenses granted.
Finally the Law establishes a statute of limitations of 5 from the date of the violation of that in which the violation ceased.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.