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The EIA process is aimed at protecting the environment, as well as preserving and restoring the ecosystems for the purpose of avoiding or minimizing the adverse effects on the environment of works and activities undertaken by mankind. In carrying out the EIA process, SEMARNAT shall take into account the whole of the ecosystems, not only those resources that are exploited or affected. To this end, depending upon the impact that an undertaking may produce on the ecosystems, the ecological balance and public health and depending also on the likelihood that the limits and conditions set forth under the Ecology Law be exceeded, three types of documents may be requested: (1) a Preventive Report; (2) an Environmental Impact Statement; and (3) a Risk Study, where highly hazardous undertakings are intended.
Upon assessing the Environmental Impact Statements SEMARNAT may:
Likewise, when the works or undertakings might seriously damage the ecosystems, SEMARNAT may request that the compliance of the conditions imposed under the authorization be supported by an insurance policy or other guarantees
Overview of the EIA Process
The Ecology Law and the EIA Regulation provide for three different kinds of environmental studies: (1) the preventive report; (2) either of the two types of EIA (regional and particular); and (3) a risk study where highly hazardous activities are at issue.
In the cases contemplated under Article 31 of the Ecology Law, the EIA process starts with the presentation to SEMARNAT of a Preventive Report. Under Article 30 of the Regulation, such Preventive Report must include:
The preventive report must be filed on diskette, accompanied by three printed copies. SEMARNAT will provide filers with the report filing guidelines.
Upon a Preventive Report being submitted and analyzed, SEMARNAT shall determine, within twenty days, whether an Environmental Impact Statement is to be submitted or whether the Preventive Report is sufficient. SEMARNAT shall publish all submitted Preventive Reports in the Ecological Gazette (Gaceta Ecológica) and make them available to the public. In the case of Preventive Reports in which the works or undertakings are fully regulated by NOMs, if 20 days pass without the Secretariat issuing a ruling, it shall be understood that the work or undertaking may be carried on as projected.
When SEMARNAT so rules, and pursuant to Article 30 of the Ecology Law, interested parties shall submit to SEMARNAT an Environmental Impact Statement (EIS) which shall contain, at least, a description of the effects that the intended work or undertaking might bring upon the ecosystems. The Environmental Impact Statement shall take into account the ecosystems as a whole. Pursuant to Article 10 of the EIA Regulation, it may be regional or particular.
Article 11 of the EIA Regulation states that regional EISs are to be filed in the case of:
Regional EISs should contain the following information:
For all cases not provided in Article 11, a particular EIS must be submitted. This form of EIS must contain the particulars of the project, the person who presents it, and the person responsible for the environmental impact study, as well as a detailed project description, linkage to the applicable environmental provisions, and as needed to the land use regulations. It should also include a description of the environmental system and an indication of the environmental problems found in the project area. Furthermore, the environmental impacts should be identified, described and assessed, while identifying the prevention and mitigation measures thereof, in addition to providing environmental forecasts and the identification of any alternatives. Lastly, the particular EIS should identify the methodological instruments and technical elements that support the information provided.
Where highly hazardous activities are involved, the EIS shall include a Risk Study. Article 18 of the EIS Regulation states that the Risk Study includes in the EIS the preventive scenarios and measures that arise from the analysis of environmental risks involved in the project, the description of the facilities' protected zones, and an indication of the environmental safety measures.
In assessing the EIS, SEMARNAT must consider the possible effects of the work or undertaking to be carried on in the respective ecosystems, taking account of all elements therein and not only the resources that may be used or affected. It must also consider the use of natural resources in respect of the functional integrity and load capacities of the ecosystems forming part of the resources for undefined periods, as well as any prevention, mitigation or other measures proposed voluntarily by the filer to avoid or minimize the negative effects on the environment.
SEMARNAT shall issue the corresponding ruling within sixty days following the receipt of the EIS. Exceptionally, the period may be extended for up to sixty additional days.
Whenever SEMARNAT issues an authorization pertaining to an environmental impact statement, there are several mechanisms dealing with the oversight of compliance with the conditions under which the contemplated work or undertaking must be carried out. The Federal Attorney General for Environmental Protection (Procuraduría Federal de Protección al Ambiente (PROFEPA)) will perform and inspections and compliance oversight of the environmental impact statements and may, where warranted, impose the safety measures or sanctions that may apply. SEMARNAT may require that the corresponding persons file the information and documentation regarding compliance with such authorization.
There are three ways in which PROFEPA oversees compliance with the environmental impact statements: through citizen complaints during public consultation processes, through notification from SEMARNAT of possible infringements to the environmental impact statement and through its own audits and inspections.
SEMARNAT may undertake inspection and oversight actions for the purpose of ensuring that the resolutions and technical opinions issued in connection with the environmental impact are complied with. As far as forestry exploitation is concerned, whenever the limitations imposed by SEMARNAT are not abided by, the sanctions contemplated under the Forestry Law (Ley Forestal) shall be imposed.
Citizen Oversight and SEMARNAT's Review
In accordance with Article 37 of the Regulation, SEMARNAT shall publish weekly in the Ecological Gazette a list of authorization requests, preventive reports and EISs received. The EIS evaluation files shall be available to any person who consults them, once they are complete.
Both the Ecology Law and the EIA Regulation provide for public participation in the environmental impact assessment process. Preventive reports shall be published in the Ecological Gazette upon their being submitted to SEMARNAT.
A single request made by any person from the community in question is deemed sufficient for the purpose of initiating a public consultation with respect to the projects submitted for SEMARNAT's consideration in an EIS. This request must be filed in writing within ten days following the publication of the EIS listing. Article 41 of the Regulation states that SEMARNAT shall notify the interested party as to whether the public consultation will be initiated or not, within five days following the filing of the request. When the public consultation is made, it shall be done as follows:
On the day after the decision is made to hold a public consultation, the filer shall be notified. In a period not exceeding five days, the filer must publish an excerpt of the work or undertaking in a newspaper of wide circulation in the state where the project is to be undertaken, including the following information: Name of the individual or entity responsible for the project; a brief description of the work or undertaking in question, indicating its elements; and the location where the work or undertaking is to take place. Within ten days following such publication, any citizen from the community may request that SEMARNAT make the EIS publicly available in the corresponding state. Within 20 days following such public availability, any interested party may propose in writing additional prevention and mitigation measures, as well as other observations. SEMARNAT shall add the public's observations and proposals, and the results thereof, to the file.
During the public consultation process, SEMARNAT in coordination with the local authorities may organize a public information meeting in the case of works or undertakings that may lead to serious ecological imbalances or harm to public health or the ecosystems.
Not all information, however, is automatically available to the public. The Ecology Law and the EIA Regulation allow the persons proposing the work to withhold that information which, it were made public, could jeopardize industrial property rights and confidential commercial information. SEMARNAT may require that interested parties justify such an allegation and prove their legal right to withhold the information.
Although this Regulation has enabled the mitigation of environmental effects for many works or undertakings that previously had no effective control, the current law does have some shortcomings, most notably the federal government centralization of a broad range of decision-making, ambiguity as to the types of works or undertakings to which it applies, and the lack of clear administrative procedures and citizen participation mechanisms to provide transparency and certainty in the decision-making process.