International Environmental and

Resources Law Committee Newsletter

Vol. 17, No. 4

July 2015

Emerging Issues in
Latin America and the Caribbean
Photo Credit: Andrew Schatz, Colombia (20??)
Photo Credit: Andrew Schatz (Sierra Nevada de Santa Marta, Colombia, 2014)

International Environmental and Resources Law Committee, July 2015

International Environmental and

Resources Law
Committee Newsletter
Vol. 17, No. 4, July 2015
Patrick Brosnan,
Jonathan Nwagbaraocha, and
Shannon Martin Dilley, Editors

AMERICAN BAR ASSOCIATION

SECTION OF ENVIRONMENT,
ENERGY, AND RESOURCES
CALENDAR OF SECTION EVENTS

Theme: Emerging Issues in Latin America

and the Caribbean
In this issue:
Chair Message
Andrew Schatz, R. Juge Gregg.............3
All Eyes on Ecuador: Broad Implications
for Citizen Suits, Freedom of Speech, and
Access to Justice in Latin America
Joshua Ash...............................................5
The Need for an International Policy Signal
for REDD+
Marisa Martin ..........................................8
ArgentinaBills and Legislation Passed on
Electrical and Electronic Equipment Waste
Angeles Murgier and Guillermo Malm
Greem....................................................12
Implementation Around the Corner:
Puerto Ricos E-Waste Regulation
Jonathan Nwagbaraocha..................15
Mexican Federal Law of Environmental
Responsibility
Sergio Bustamante................................17

July 14, 2015

How Green is Your Gasoline? An Examination
of Recent Developments in EPAs RFS Program
Primary Sponsor: The District of Columbia Bar
July 31-August 2, 2015
ABA Annual Meeting
Chicago
August 5-7, 2015
27th Annual Texas Environmental
Superconference - The Greatest Thing Since
Sliced Bread Cliches - Avoid Them Like the
Plague
Primary Sponsor: State Bar of Texas,
Environmental and Natural Resources Law
Section
September 15, 2015
Counseling Farmers & Ranchers, AgriBusinesses and Food Entrepreneurs on
Insurance
Primary Sponsor: Solo, Small Firm, & General
Practice Division
October 1-2, 2015
36th Public Land Law Conference.
Transcending Boundaries: Achieving Success
in Cooperative Management of Natural
Resources
Primary Sponsor: Public Land & Resources
Law Review, Univ. of Montana School of Law

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International Environmental and Resources Law Committee, July 2015

CHAIR MESSAGE
Andrew Schatz and R. Juge Gregg
Home to both abundant natural resources and
incredibly rich biodiversity, Latin America
and the Caribbean stand out as two of the most
incredible and impactful regions in the planets
biosphere. As national governments seek to achieve
their development goals while protecting the
environment from both traditional and emerging
environmental threats, new environmental
regulations are being enacted with varied
structures, scopes, and degrees of success. It is
in light of these developments that the Section
of Environment, Energy, and Resources (SEER),
International Environmental and Resources Law
Committee (IERLC) presents this newsletter:
Emerging Issues in Latin America and the
Caribbean.

This issue presents five articles. It begins with
Joshua Ashs analysis of the long-standing dispute
between Chevron Corp. and several Ecuadorian
groups concerning oil extraction and associated
environmental damage. Starting from its inception
over a decade ago, Mr. Ash chronicles the legal
battle that has occurred and assesses the influence
it may have on future enforcement of foreign
environmental damages in U.S. courts.
In the second article, Marisa Martin looks
prospectively toward the conference of the parties
(COP) in Paris, France, and provides analysis and
insight into reducing emissions from deforestation
and forest degradation (REDD) and the emergence
of REDD+ in the international dialogue for
carbon reduction. Ms. Martin highlights the
potential of REDD+ to be an effective element of
the international framework concerning climate
change, the challenges its inclusion and success
face, and what is required of interested parties to
overcome such challenges. Next, Angeles Murgier
and Guillermo Malm Greem provide insight
into the development, struggles, and standing of
electric waste management in Argentina. They
begin with their examination of efforts made to

establish a national framework for electronic waste

management. The authors then evaluate provincial
regulations in Buenos Aires that were successfully
enacted but are now facing key political and legal
hurdles.
In the fourth article, Jonathan Nwagbaraocha
describes Puerto Ricos multi-stakeholder
approach in its development of E-waste in the
commonwealth. After articulating the framework
under which the E-waste law operates, Mr.
Nwagbaraocha details how Puerto Rico is trying
to effectively implement its E-waste law. Finally,
Sergio Bustamente delves into the intricacies
of Mexicos recently enacted Federal Law of
Environmental Responsibility (LFRA). Mr.
Bustamente shepherds the reader through the key
components of this groundbreaking legislation,
identifying the environmental harm the law
seeks to address, as well as the responsibility
and potential liability of private actors. Mr.
Bustamente completes his analysis by identifying
the procedural and administrative elements of this
new legal regime.
SEER IERLC is proud to present such an
informative and intriguing collection of articles
from across Latin America detailing the successes,
difficulties, and future challenges of countries in
their regulation and protection of the environment,
both domestically and internationally. We are also
pleased to report that SEER held another successful
Spring Meeting in San Francisco, California. We
encourage members to attend and enjoy interesting
CLE content and networking with colleagues.
SEER continues to provide timely information and
assistance to our members to aid them in becoming
better lawyers. Please take note that the next 23rd
Section Fall Conference will be held in Chicago,
Illinois, October 2831, 2015.
Our committee enjoys active participation by
members, with quality programs arising from
member involvement. If you want to get more
involved in any of our committee activities, please
contact our committee co-chairs, Andrew Schatz
at andrew.schatz@gmail.com or R. Juge Gregg at

International Environmental and Resources Law Committee, July 2015

jugegregg@gmail.com. Additional information is

available on the committee websites.
The newsletter editors are always ready to entertain
article ideas and we also welcome periodic guest
editors to help put together these newsletters. If
you wish to propose an article, please contact
our committee newsletter vice chairs, Jonathan
Nwagbaraocha at jonathan.nwagbaraocha@gmail.
com or Shannon Martin Dilley at dilleyshannon@
gmail.com.
R. Juge Gregg and Andrew Schatz are co-chairs of
the International Environmental Law and Resources
Committee.

Registration is now open!

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ALL EYES ON ECUADOR: BROAD

IMPLICATIONS FOR CITIZEN SUITS, FREEDOM
OF SPEECH, AND ACCESS TO JUSTICE IN
LATIN AMERICA
Joshua Ash
Latin America boasts some of the most biologically
diverse and pristine ecosystems in the world,
but few trump the rainforests and river basins of
Ecuador. This relatively small country of 283,561
square kilometers encompasses portions of both the
Andes Mountains and the Amazon basin. Within
these two dynamic landscapes lie some of the
worlds most pristine rainforests and tribal culture.
Like most of Latin America, Ecuador is facing
severe challenges with deforestation and water
pollution. Perhaps even more important, Ecuador
is at the forefront of a legal battle that threatens
to set the stage for environmental issues across
the Southern Hemispheremaking or breaking
the ability of indigenous populations to confront
transnational corporations reaping the benefits of
natural resources in the developing world.
The Legal Battle Begins
This fight started over two decades ago when
Texaco devastated the Oriente region of the
Ecuadorian rainforest through poorly managed
oil extraction. This progressed into a class action
in 1993, when a group of Ecuadorians filed
a complaint in the U.S. District Court for the
Southern District of New York against Texaco,
seeking billions of dollars for damages done during
oil exploration and extraction. The case was later
dismissed on forum non conveniens grounds.
Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir.
2002). In 2003, the plaintiffs refiled the complaint
in Lago Agrio, Ecuador. Alexandra Malatesta,
Ecuador Court Upholds Multi-billion Dollar
Fine Against Chevron, The Jurist, Jan. 4, 2012,
http://jurist.org/paperchase/2012/01/ ecuadorcourt-upholds-multi-billion-dollar-fine-againstchevron.php (last visited Apr. 5, 2015). By this
point, Texaco left Ecuador and was purchased by

Chevron, the third largest corporation in the United

States. Patrick Radden Keefe, Reversal of Fortune:
A Crusading Lawyer Helped Ecuadorans Secure a
Huge Environmental Judgment Against Chevron.
But Did He Go Too Far?, NY Times, Jan. 9, 2012,
at 3. The next eight years consisted of high-profile,
high-tension litigation, massive public relation
campaigns on both sides, the creation of a popular
documentary, and alleged corruption.
In 2011, the Provincial Court of Justice of
Sucumbios in Lago Agrio, Ecuador granted an $8.6
billion dollar judgment in favor of the plaintiffs. Id.
This judgment was then raised to over $18 billion
with Chevrons refusal to make a public apology
and was eventually lowered to $9.51 billion. Id.
Even with the substantially lower judgment, this
was one of the largest environmental penalties in
Latin American history. In 2011, one might have
said this was a giant victory for environmental
protection in Ecuador. While Chevron did not
commit the environmental crimes in the Oriente
region, Chevron did knowingly purchase a
company that had made billions of dollars cutting
corners during its part in drilling operations in the
Ecuadorian rainforestpoisoning rivers, forests,
and communities along the way. However, the
story does not stop here.
The Plot ThickensGlobal AntiEnforcement Injunctions, RICO Suits, and
More
Perhaps the most important development of this
saga has nothing to do with the environmental
damage in Ecuador. Rather, it turns on Chevrons
relentless legal strategizingthreatening to set
dangerous precedent at every turn. Chevron does
not own significant assets in Ecuador. Thus,
the multibillion-dollar judgment rests upon
enforcement actions in foreign courts. Sticking true
to its publicly declared determination to fight this
until Hell freezes over, Chevron moved the legal
battle back to the Southern District of New York.
See Keefe, supra, at 3.
Even before an enforcement action was brought
in the United States, Chevron filed a complaint to

International Environmental and Resources Law Committee, July 2015

sue lead plaintiffs attorney, Steven Donzinger,

and his clients under alleged violations of the New
York Uniform Foreign Country Money-Judgments
Recognition Act, N.Y. C.P.L.R. 53015309,
which allows judgment-creditors to enforce foreign
judgments in New York courts, subject to several
exceptions. See Chevron Corp. v. Donziger, 768 F.
Supp. 2d 581 (S.D.N.Y. 2011), vacated sub nom.;
Chevron Corp. v. Naranjo, 11-1150-CV L, 2011
WL 4375022 (2d Cir. Sept. 19, 2011), revd and
remanded sub nom.; and Chevron Corp. v. Naranjo,
667 F.3d 232 (2d Cir. 2012). As a potential
judgment-debtor, Chevron argued for a global
anti-enforcement injunction prohibiting the
enforcement of an allegedly fraudulent judgment
entered by an Ecuadorian court against Chevron.
Id. In March of 2011, Judge Kaplan granted
a global injunction, thus barring the plaintiffs
from any recoveryat least within the realm of
international authority assumed by the U.S. District
Court for the Southern District of New York.
Id. On appeal the U.S. Circuit Court of Appeals
unanimously overturned the decision. Chevron
Corp. v. Naranjo, 667 F.3d 232 (2d Cir. 2012), cert.
denied, 133 S. Ct. 423 (U.S. 2012).
The Road Back to the Second Circuit
Chevron then moved to the next tool in its arsenal
of legal strategiesthe RICO suit. Id. In March
of 2014, Chevron filed another complaint in the
U.S. District Court for the Southern District of
New York alleging that the Ecuadorean judgment
was acquired using fraud and related crimes in
violation of the Racketeer Influenced and Corrupt
Organization Act (RICO). Id.
This statute was originally enacted to combat
organized crime, giving federal prosecutors broad
authority to combat a variety of roughly affiliated
criminal acts. William L. Anderson & Candice E.
Jackson, How RICO Subverts Liberty and the True
Purpose of Law, Independent Review 2 (2004). In
many ways, it has functioned as a penalty enhancer
and prosecutorial bargaining tool. However, critics
have warned of the unharnessed authority behind
this statute. A 1989 Los Angeles Times editorial
commented, A good law has several essential at6

tributes: [i]t is clear; it addresses itself to a specific and clearly defined form of illicit conduct; it
prescribes a remedy or punishment proportionate to
the damage done by the offense. Statutes that fail
to meet these tests are enacted not in the cause of
justice, but for the convenience of the state. RICO,
in fact, is one of the latter. Id. at 95. This statute
becomes even more dangerous when used as a
private cause of actionwhich is not actually an
expressed provision of the statute.
Rather, the statute is ambiguous as to whether
equitable relief is available in private civil RICO
suits. Rachel Snyder, Chevron v. Donzinger: An
Enforcement Action Drama, The Enforcer: Developments in the law on enforcing judgments in

U.S., Apr. 10, 2014, tohttp://www.lexology.

com/library/detail.aspx?g=a65cd402-c53f-4a1ba8ed-dc862f771126 (Last visited July 8, 2015) The
statute also leaves some uncertainty with respect
to extraterritoriality. The U.S. Court of Appeals for
the Second Circuit has held that RICO suits do not
apply extraterritorially. Id. However, there is little
to no guidance concerning the application of this
standard when a case has both domestic and international components. Id. Judge Kaplan ultimately
ruled that the case was sufficiently domestic to
apply. Id. Furthermore, he gave the go-ahead for
some of the most extensive discovery in history.
Donzinger was ordered to hand over 600 hours of
footage created for the documentary made during
the trial in Ecuador, as well as any and all documents relating to the caseover 200,000 documents at this point. Keefe, supra, at 3. In March of
2014, Judge Kaplan issued a nearly 500-page opinion stating that U.S. courts could not be used to
collect the $9.51 billion judgment. Chevron Corp.
v. Donziger, 11 CIV. 0691 LAK, 2013 WL 1975439
(S.D.N.Y. May 14, 2013). As expected, Donzinger
filed an appeal to the U.S. Court of Appeals for the
Second Circuit, for which oral arguments were held
this April. The appeal focused on issues with international comity, lack of jurisdiction, and misapplication of RICO.
the

Whats Next
During oral argument, presiding Judge Richard
Wesleys questions focused mostly on two main

International Environmental and Resources Law Committee, July 2015

concerns; uncertainty regarding his courts

authority to order that the case be retried, and the
potential likelihood that the ongoing international
arbitration between Chevron and Ecuador will
reach a different outcome than this case. Roger
Parloff, Judge Asks Puzzling Questions at Chevron
v. DonzingerAppeal, Fortune, Apr. 20, 2015, at 2.
So where does that leave the future of this multidecade legal battle? Steven Donzinger and his
Ecuadorean clients have already gone through
nearly two decades of litigation on two different
continents. Meanwhile, streambeds and springs
continue to seep toxic hydrocarbons into the
water used to support ecosystems and vulnerable
tribal communities. Given the breadth of legal
issues in this case, it is difficult to predict how
the Second Circuit will rule. There are many
questionable aspects of the case, including, but not
limited to injunctions in private civil RICO suits,
potential disregard for foreign judicial systems,
and judgment-debtors ability to proactively limit
enforcement actions. Moreover, there are still
active enforcement cases and an international
arbitration ongoing. If any further environmental
remediation is to be done, it seems very unlikely to
be soon.

corporations is an intensely complex, multimilliondollar endeavor. Plaintiffs can and will be

exhausted, even after a potential victory in their
own court system.
Protecting the environmental resources of the
developing world requires a fragile mixture of
public awareness, legal ethics, international comity,
and corporate responsibilitya mixture that has
yet to coalesce for the rainforests of Ecuador.
Joshua Ash is a JD/MS student at West Virginia
University College of Law, where he serves as the
president of the Environmental Law Society, as well
as working as a graduate research assistant at the
National Research Center for Coal and Energy.
He has also served as a student editor for the
International Law Student Association Quarterly.

Buried under this disarray of legalities though

is a much larger issuea growing difficulty in
holding transnational corporations accountable for
environmental damage inflicted on foreign soil.
Chevron has every right to defend itself in both
the American and the Ecuadorean court system.
Moreover, both sides seem to have at least dabbled
in fraudulent misconduct that far exceeds American
judicial norms. However, that does not negate
the effects of this borderline SLAPP, or Strategic
Lawsuit Against Public Participation, suit litigation
series.

July 30 - August 4, 2015

Chicago
www.americanbar.org/
calendar/annual.html

Environmental law hinges upon understanding

environmental externalities and identifying
how to fix them. International environmental
litigation, however, is taking a different path.
This prolonged legal drama is showing the world
that environmental litigation against international
International Environmental and Resources Law Committee, July 2015

THE NEED FOR AN INTERNATIONAL POLICY

SIGNAL FOR REDD+
Marisa Martin
Without a policy setting a price on standing forests,
tropical forests are worth more dead than alive. In
losing forests, we lose biological diversity, habitat,
carbon sequestration opportunities, and affect
local communities. Pollution from the burning of
forests constitutes a significant portion of global
greenhouse gas emissions, on par with global
transportation emissions. Since 2005, the policy
of avoiding deforestation and forest degradation
along with sustainable management of forests
(REDD+) by creating incentives for standing
forests has emerged on the international level.
REDD+ is a climate change mitigation solution
that many initiatives, including the UN-REDD
Programme, are developing and supporting. Since
2005, progress has been made on REDD+ through
the United Nations process, including setting forth
monitoring, reporting, verification, and safeguards
requirements for a future REDD+ mechanism.
Despite this progress, the precise means by which
REDD+ will be financed and the scale of the
mechanism remain unclear.
While the international negotiation process slowly
proceeds, private and public finance has mobilized
to support host country REDD+ readiness and
investment in early REDD+ projects. National
level policies promoting sustainable tropical
forestry practices are developing. Companies
have also taken on voluntary commitments for
a deforestation-free supply chain. While these
measures as a whole represent progress to reduce
deforestation, without a clear policy signal on the
international level, achieving the necessary scale
of REDD+ to address the problem may not be
possible. Unfortunately, the last United Nations
Framework Convention on Climate Change
(UNFCCC) Conference of Parties (COP) held in
Lima, Peru failed to further elucidate a REDD+
mechanism and did not result in any significant
decisions on REDD+. Parties are currently
negotiating the new climate agreement to be signed
in Paris in December of this year but may have
8

little bandwidth to address REDD+ in any detail.

Nonetheless, the express adoption of a marketbased mechanism for REDD+ credits on the
international level, whether or in Paris or beyond,
remains vital to ensure this complex and critical
issue is adequately addressed.
REDD+ Negotiations to Date Focused on
Readiness
For nearly 10 years, policy, technical, and political
aspects of REDD+ have been discussed at the
COP meetings and associated advisory boards,
and memorialized in various COP decisions.
COP decisions have thus far focused on host
country readiness and technical issues related
to monitoring, reporting, and verification of
REDD+ projects. A REDD+ mechanism has
been authorized in theory but the nature of the
mechanism remains uncertain. Parties could
choose a different direction, but most expect that
any discussion of REDD+ in the new climate
change agreement to be negotiated in Paris, or in
subsequent COP decisions, will build off the work
of the COP to date on REDD+.
Nine years ago, Costa Rica and Papua New Guinea
introduced the concept of reducing emissions from
avoiding deforestation at COP 11 in Montreal,
Canada. UNFCCC, Conference of the Parties
of the Eleventh Session: Reducing Emissions
from Deforestation in Developing Countries:
Approaches to Stimulate Action, FCCC/CP/2005/
MISC.1, 4 (Nov. 11, 2005), available at http://
unfccc.int/resource/docs/2005/cop11/eng/misc01.
pdf. It was placed on the agenda of the COPs
technical advisory boardthe Subsidiary Body
for Scientific and Technological Advice (SBSTA)
where discussions continued. As part of the Bali
Action Plan decided at COP 13 in Bali, Indonesia,
the parties identified key issues to be addressed
by the new negotiations, including the promotion
of policy approaches and positive incentives for
REDD+. See UNFCCC, Addendum Report of
the Conference of the Parties on Its Thirteenth
Session, FCCC/CP/2007/6/Add.1*, 1(b)(iii)
(Mar. 14, 2008), available at http://unfccc.int/

International Environmental and Resources Law Committee, July 2015

resource/docs/2007/cop13/eng/06a01.pdf. At COP
15, the Copenhagen Accord included an explicit
reference to REDD+, stating that we recognize
the crucial role of reducing emission from
deforestation and forest degradation and the need
to enhance removals of greenhouse gas emission
by forests and agree on the need to provide positive
incentives to such actions through the immediate
establishment of a mechanism including REDD+,
to enable the mobilization of financial resources
from developed countries. UNFCCC, Report
of the Conference of the Parties on Its Fifteenth
Session, FCCC/CP/2009/11/Add.1, 6 (2009),
available at http://unfccc.int/resource/docs/2009/
cop15/eng/11a01.pdf.
The Cancun Agreements at COP 16 outlined
the types of eligible REDD+ activities and
safeguards for REDD+ activities. In addition,
the Cancun Agreements set forth the framework
for negotiations on REDD+ moving forward,
requesting that developing countries interested
in REDD+ develop a national strategy or action
plan, national or subnational forest reference levels
as an interim measure, a robust national forest
monitoring system, and a system for addressing
safeguards. UNFCCC, Addendum Report of
the Conference of the Parties on Its Sixteenth
Session, Held in Cancun, FCCC/CP/2010/7/
Add.1 (Mar. 15, 2011), available at http://
unfccc.int/resource/docs/2010/cop16/eng/07a01.
pdf. At COP 17 in Durban, parties progressed
on safeguards, emission levels, and financing
for REDD+. Also, the first explicit reference to
REDD+ markets occurred at Durban. UNFCCC,
Addendum Report of the Conference of the
Parties on Its Seventeenth Session, Held in
Durban, FCCC/CP/2011/9/Add.1.C, 66 (Mar.
15, 2012), available at http://unfccc.int/resource/
docs/2011/cop17/eng/09a01.pdf. Most recently, in
Warsaw, arguably the most significant decisions of
the COP 19 were focused on REDD+, including
five decisions on technical methodological issues
and two on finance and coordination of REDD+.
UNFCCC, Addendum Report of the Conference
of the Parties on Its Nineteenth Session, Held
in Warsaw, FCCC/CP/2013/10/Add.1 (Jan. 31,

2014), available at http://unfccc.int/resource/

docs/2013/cop19/eng/10a01.pdf. Post-Warsaw, the
technical framework for REDD+ has been largely
agreed upon but the regulatory and legal structures
for an operational REDD+ mechanism are still
lacking.
The Lima COP 20, held in December 2014, did
not further develop details around the REDD+
mechanism or financing. Forward progress stalled
as the REDD+ negotiators largely deferred to the
broader Advancing the Durban Platform (ADP)
discussions. References to REDD+ remain in the
current working text to be negotiated in Paris,
but it is unclear whether they will survive or the
degree to which the COP will establish a clear
REDD+ mechanism that will attract private sector
investment to close the substantial gap in financing
left from what the public sector has been able to
mobilize to date.
Parties are in the process of submitting Intended
Nationally Determined Contributions (INDCs) in
advance of the December 2015 COP 21 meeting in
Paris, France. So far, 10 countries have submitted
INDCs, including the United States, Canada, and
the European Union. Of the INDCs submitted
to date, none specifically reference REDD+. For
REDD+ to be successful as a mechanism to attract
private sector investment at scale, the COP, a
critical mass of INDCs, or both, should expressly
incorporate REDD+ as part of the solution.
The optimal outcome would be a combination
of express recognition for a REDD+ crediting
mechanism at the COP level with individual parties
including participation in such a mechanism as part
of their INDCs.
Voluntary REDD+ Market Ongoing but Not
to Scale
While the process to flesh out the details of an
international REDD+ mechanism continues,
development of voluntary REDD+ projects and
host country preparations are proceeding in
parallel. Voluntary REDD+ projects have provided
an important role in familiarizing host countries

International Environmental and Resources Law Committee, July 2015

with the concept and implementation of REDD+

activities, however, the relative contribution of
REDD+ activities developed in the voluntary
market is a tiny fraction of what is needed to stem
global deforestation and its contribution to overall
global greenhouse gas emissions. In 2014, 25
million tonnes (MtCO2e) of REDD+ credits were
purchased. Forest Trends Ecosystem Marketplace,
Ahead of the Curve: State of the Voluntary
Carbon Market 2015, 12 (June 2015), available
at http://forest-trends.org/releases/uploads/
SOVCM2015_FullReport.pdf. Of this important
but limited pool of buyers, offset buyers seeking
purely voluntary offsets constituted the majority
of all market activity of forest offsets, though
some demand was likely driven by the potential
inclusion of REDD+ in the California compliance
market. Most REDD+ projects are verified against
the Verified Carbon Standard (VCS) and Climate,
Community and Biodiversity (CCB) Standards
that verify additional co-benefits. Voluntary market
demand for REDD+ credits has been steady over
the years but constitutes only a small portion of the
reductions needed to address tropical deforestation.
Forest Trends Ecosystem Marketplace, Covering
New Ground: State of the Forest Carbon Markets,
ix (Nov. 6, 2013), available at http://www.foresttrends.org/documents/files/SOFCM-full-report.pdf.
Financing REDD+ projects that are not yet
supported by an international policy regime
in countries with unclear carbon tenure and
forestland rights is risky. To encourage early
private financing of REDD+, Secretary of State
John Kerry, a long-standing supporter of climate
change policy, recently announced a deal to support
$133.8 million in commercial lending for forest
conservation and sustainable land use by the U.S.
Agency for International Development (USAID).
Press Release, USAID, U.S. Government, Althelia
Climate Fund Mobilize $133.8 Million for Forest
Conservation and Alternative Livelihoods (May
28, 2014), http://www.usaid.gov/news-information/
press-releases/may-28-2014-us-governmentalthelia-climate-fund-mobilize-1338-millionforest-conservation (last visited Apr. 5, 2015).
Loans are to be overseen by Althelia Climate
10

Fund. The USAID Development Credit Authority

will partially guarantee the funds with 50 percent
repayment on default. REDD+ projects supported
by this program are expected to generate REDD+
credits that may be used to repay each loan offered
to project sponsors.
While private financing of REDD+ projects
through the purchase of REDD+ credits was
originally the primary source of funding, over the
last several years direct donor country government funding has outstripped private financing of
REDD+ projects. While some of the funding is
results based and payable upon performance, much
of the donor government funding has been to support capacity building in tropical forest countries
and to further develop monitoring and verifying
processes to support future REDD+ projects and
policies within those countries.
With donor countries focused on REDD+
preparedness and private finance focused on
REDD+ projects, attention has been paid on how
to merge the two efforts so as not to lose significant
private sector interest in REDD+. Jurisdictional
REDD+ frameworks that are run by national
governments but recognize and credit private
nested projects are the focus of several REDD+
countries. See Rane Cortez et al., A Nested
Approach to REDD+: Structuring Effective and
Transparent Incentive Mechanisms for REDD+
Implementation at Multiple Scales, Nature
Conservancy & Baker & McKenzie (2010) (for
more information on crediting nested REDD+
projects). Voluntary standards with jurisdictional
REDD+ guidelines like VCS have been developed
and may be the path forward to encourage
continued private financing of REDD+ projects but
within a broader landscape level national program.
More recently, proponents of REDD+ are thinking
of ways to leverage the Green Climate Fund (GCF)
to scale up REDD+ financing, with indications
from board decisions of the GCF that it intends to
devote a meaningful proportion of its contributed
funds toward REDD+.

International Environmental and Resources Law Committee, July 2015

"Bottom-Up" Approaches Attempt to Fill a

Gap
In the absence of actionable REDD+ policies at
the international level and alongside voluntary
measures, national policies have begun to address
the drivers of deforestation. These efforts have
been informed by and in turn will inform the
REDD+ policies under negotiation at the UNFCCC
level.
While no cap-and-trade program currently allows
for the use of REDD+ credits for compliance
purposes, interest exists in the future inclusion
of REDD+, and the UNFCCC process is being
closely observed. The state of Californias capand-trade program allows the use of offsets
including domestic avoided conversion forestry
projects, and also recognizes a potential future
role for sector-based offsets, including specifically
international REDD+ projects. California is a
party to a memorandum of understanding to
develop harmonized REDD+ programs with the
governors of Chiapas, Mexico, and Acre, Brazil. A
number of additional national-level cap-and-trade
programs or climate-offset programs are emerging,
including in China, South Korea, Mexico, Japan,
and other countries participating in the World
Banks Partnership for Market Readiness that may
have an interest in REDD+ credits. In addition,
the International Civil Aviation Organization is
considering adopting market-based mechanisms
to mitigate greenhouse gases from aircraft, which
could present another opportunity for REDD+
credit demand.
On the non-market side, forested and non-forested
countries have implemented policies to decrease
deforestation and increase sustainable forest
management. On June 5, 2014, the Peruvian
Congress passed the Payment for Ecosystem
Services Law, which aims to promote, regulate, and
supervise ecosystem services schemes, including
policies to promote REDD+ and other ecosystem
benefits. See Forest Trends, The Katoomba Group
& UNEP, Payments for Ecosystems Services,
Getting Started: A Primer (May 2008), available

at http://www.katoombagroup.org/documents/
publications/GettingStarted.pdf. Through a
new mechanism in its Forest Code, Brazil is
attempting to track its land use more accurately
going forward (albeit with the controversial
decision to provide amnesty for small farms that
have contributed to deforestation in the past).
The United States and Europe are implementing
laws regulating sustainable forestry in supply
chains, including liability for third-party actions
like illegal deforestation. Lacey Act, 16 U.S.C.
33713378; European Union Timber Regulation,
Regulation (EU) No 995/2010. In addition, during
Climate Week in September 2014, 150 companies,
governments, and civil organizations signed the
New York Declaration on Forests and pledged to
halve forest loss by 2020 and end it by 2030. In
support of the declaration, more than 20 global
companies also pledged to eradicate deforestation
from their respective supply chains, including three
of the worlds largest palm oil companies, Wilmar,
Golden Agri-Resources, and Cargill. It is too early
to tell if these policies will be successful but it does
illustrate the depth of public and political interest
in reducing deforestation and the recognition
that REDD+ involves addressing not only forest
protection but also the sustainable development of
agricultural and other commodities.
International Policy Signal Needed
Despite progress in the voluntary market and the
development of REDD+ policies at national levels,
an overarching UNFCCC international policy
recognizing REDD+ credits, whether administered
directly by the United Nations or enabled through
nationally determined contributions feeding into
the UN system, is needed to create a scale of
demand for REDD+ and ensure consistency around
the world to safeguard environmental integrity.
The Lima COP 20, held in December 2014, did
not further develop details around the REDD+
mechanism or financing. The current focus is
on the development of nationally determined
contributions in advance of the December 2015
COP 21 meeting in Paris, France. It is expected
that REDD+ may take second stage, but a clear,

International Environmental and Resources Law Committee, July 2015

11

positive signal on REDD+ in Paris or near-term

COP decisions remains an elusive, yet critical
component of a robust REDD+ mechanism.
Conclusion
As home to over half of transacted REDD+
credits to date, Latin America is the leader in
REDD+. But without a clear policy signal, and
faced with an oversupply of credits on the market,
existing REDD+ projects are at risk. As many
of the technical issues related to monitoring and
verification that have hindered the inclusion of
REDD+ in compliance carbon pricing initiatives
to date have been addressed, the opportunity
to include REDD+ in the next climate change
agreement is promising. Voluntary efforts and
national policies have been leading the way, but
the express adoption of a market-based mechanism
for REDD+ credits would ensure greater demand
and consistency across policy regimes. The world
will be watching how governments, the private
sector, and civil society converge in Paris to forge
a new climate agreement to endure for years to
come. Ideally, the Paris outcomes will include
express recognition of the role of a REDD+ market
mechanism to support halting deforestation and its
contribution to global climate change.
Marisa Martin is a senior associate at Baker &
McKenzie LLP in its North America Climate Change
and Environmental Markets Practice. Based in
Chicago, she advises multinational companies on
federal and state climate change law and policy
initiatives in the United States and internationally
and has worked with numerous investors,
project developers, international conservation
organizations, and governments on REDD+ matters.

ARGENTINABILLS AND LEGISLATION

PASSED ON ELECTRICAL AND ELECTRONIC
EQUIPMENT WASTE (WEEE)
Angeles Murgier and
Guillermo Malm Green
Introduction
While the federal government continues to
deliberate the safe handling, recycling, and
disposal of waste electrical and electronic
equipment (WEEE), several provinces and
cities are exploring, and in some instances,
implementing WEEE regulations. Argentina is
a federal republic composed of 23 provinces and
one autonomous city, the city of Buenos Aires.
Provinces retain all powers that have not been
delegated to the federal government pursuant
to the constitution. The Argentine Constitution,
as amended in 1994, recognizes the right to a
healthy balanced environment, the purpose of
sustainable development, the polluter pays
principle whereby environmental damage
generates the obligation to restore, the right to
information on hazardous material, and a ban on
the entry of hazardous waste. See section 41 of the
Constitucin Nacional.
The power to protect the environment largely falls
within the overall concept of police prevention and
control. According to the federal structure of the
constitution, such power was originally vested in
the provinces and only by delegation in the federal
government. Nevertheless, the federal government
is vested with the power to legislate the minimum
standards to be met throughout the country. See
section 121 of the Constitucin Nacional. As a
result of the federal structure of the constitution,
local laws enacted by the provinces and applicable
in their own jurisdiction coexist with federal laws
that apply to the whole country.
Federal Legislation
Regarding WEEE legislation at a federal level,
several bills were proposed during the last years

12

International Environmental and Resources Law Committee, July 2015

but none were enacted. Currently, several bills

are pending debate in Congress, but they do not
seem to be a priority for national legislators. See
Bill No. 2048-D-14, Comprehensive Management
of Electric and Electronic Waste: Minimum
Standards for Environmental Protection, drafted
by Alicia Ciciliani; Bill No. 6040-D-2014, Law on
Management of Electric and Electronic Devices
Waste, drafted by Mara Virginia Linares and Omar
Duclos; Bill No. 9042-D-2014, Management of
Electric and Electronic Devices Waste, drafted by
Juan Francisco Casaas; and Bill No. 3519/2013,
Bill on Management of Electric and Electronic
Devices Waste, drafted by Daniel Filmus.
The WEEE bill that historically received more
attention on this topic was the Filmus bill
introduced by Senator Daniel Filmus and was
passed by the Senate in May 2011. See Bill on
Management of Electric and Electronic Devices
Waste, drafted by Daniel Filmus. In 2012, the
Filmus bill gained a lot of media attention
generated by Greenpeace campaigns. Electronic
Waste: Manufacturers, More Accountable,
newspaper Clarn, May 5, 2011; Electronic Waste
with No Use, newspaper La Nacin, Sept. 18,
2012; No Industry Knows What to Do with Their
Electronic Waste, newspaper La voz del Interior,
Nov. 25, 2012. Basically, in late November 2012
(the bill was supposed to lose its parliamentary
status on November 30), Greenpeace published
a spread in the newspapers with pictures of the
Minister of Industry, calling her Uncle Sam,
accusing her of blocking the Filmus bill and
of benefiting American Interests Fostering
Pollution instead of Worrying About Argentines
Health. Greenpeace Against Dbora Giorgi on the
Obstacles to the Electronic Waste Law, newspaper
Clarn, Nov. 7, 2012; Greenpeace Accuses the
Industry Minister of Blocking a Law to Benefit
American Interests, newspaper La Nacin, Nov. 12,
2012. Ultimately, it was not approved by the House
of Representatives and lost its parliamentary status.
Filmus submitted his bill again with minor changes
in September 2013. This version lost parliamentary
status in April 2015.

WEEE Regulations in the Province of

Buenos Aires
At the provincial level, Buenos Aires was the
first province to issue regulations on WEEE.
On February 4, 2011, the Provincial Sustainable
Development Agency (Organismo Provincial
para el Desarrollo Sostenible) (OPDS) issued
Resolution No. 389/10. This was the first resolution
that established guidelines for WEEE management
in the province of Buenos Aires, providing, among
other aspects, that WEEE are deemed to be special
waste, that they may not be disposed of as nonselected urban waste or used for sanitary landfill,
that WEEE producers must submit business plans
on WEEE management, the obligation to mark
electrical and electronic equipment (EEE) with
the waste container symbol crossed out, etc. In
April 2011, the OPDS suspended by means of
such resolution the effects of OPDS Resolution
No. 389/10 until the challenges filed by Emerson
Argentina S.A., Procter & Gamble S.A., and
Energizer Argentina S.A. have been resolved.
On June 21, 2011, the OPDS issued Resolution
No. 101/11, the Voluntary Sustainable WEEE
Management Certification Program, creating
the EEE Manufacturers Registry and approving
the Sample Sustainable WEEE Management
Certificate. This resolution expressly repealed
OPDS Resolution No. 389/10.
Finally, in December 2011, Law No. 14,321 was
published, establishing guidelines, obligations, and
responsibilities for the sustainable management of
WEEE. See Law 14,321 (Dec. 15, 2012). Below
follows a summary of the main provisions of the
WEEE law:
(i) prohibits the disposal of WEEE as
undifferentiated solid waste;
(ii) establishes, among others, the following
obligations to be performed by
manufacturers, distributors, and sellers of
EEE:

International Environmental and Resources Law Committee, July 2015

13

 marking WEEE (including containers,

instructions of use, and warranty) with
the waste container symbol crossed out
(which indicates that WEEE may not
be disposed of as undifferentiated solid
waste);
establishing systems for receiving
WEEE and their transportation to
authorized treatment facilities;
receiving WEEE delivered by
generators upon acquiring an equivalent
EEE;
having facilities available to receive
WEEE at sale stores covering areas
larger than 500 square meters;
adopting measures for selective
collection of WEEE; and
providing information to users and filing
information with a provincial register to
be created by the enforcement authority;
(iii) establishes guidelines referring to the
design of EEE for the purposes of
facilitating disassembly and upgrading,
reuse, and recycling (which include
limitations to the use of certain substances);
(iv) provides that WEEE-containing hazardous
materials and components must be
decontaminated and it also contains specific
guidelines for their treatment;
(v) provides that the enforcement authority and
municipalities will guarantee that producers
(either directly or indirectly) organize
valorization systems for WEEE, either
individually or jointly, and establishes
differentiated valorization objectives
according to WEEE categories;
(vi) provides a penalty system which imposes
certain penalties, such as warnings, fines,
suspension of activities, closure of facilities,
and discontinuance of activities, stricter
penalties in case of repeated infringements
and joint and several liability of directors,
administrators, and/or managers in case
infringements are committed by legal
entities; and
14

(vii) The Enactment Decree objected to different

sections of the WEEE law, mainly those
related to the management of WEEE (return
by users, reception points to be established
by the authorities, requirements to be met
by WEEE final disposal facilities, etc.),
the funding of such management activities
through the payment of a special fee, and
the creation of a monitoring and follow-up
committee.
The law provided for a 90-day term to be regulated.
As of today, it has not been implemented by the
OPDS and has not been regulated. This is not
expected to happen. In fact, on August 24, 2012,
another WEEE bill was introduced in the Congress
of the province of Buenos Aires. This bill expressly
provided for the repeal of Provincial Law No.
14,321. This bill was introduced by Senators Costa
and de Fazio and had the support of the OPDS.
However, this bill lost parliamentary status.
Since the publication of Law No. 14,321, other
jurisdictions that have regulated WEEE over
the last years including the city of Buenos Aires
(applicable exclusively to the city executive
branch and when regulating the comprehensive
management program for large disused items)
and the provinces of Chubut, La Rioja, San Juan,
Chaco, and San Luis. See Law 14,321, Law 2807;
APRA Resolution No. 240/2014, and APRA
Resolution No. 3/2014; Chubut (Law No. XI-56);
La Rioja (Law No. 9373); San Juan (Law No.
8362); Chaco, (Law No. 7345) and San Luis (Law
IX-0873/2013 and Law IX-0881/2014). While the
federal government continues to explore potential
WEEE regulations, it is clear that provinces and
cities will continue to take the lead when it comes
to WEEE regulation.
Angeles Murgier is a senior associate at Brons &
Salas Law Firm in Buenos Aires, Argentina, with
practice focused on Environmental and Corporate
Law. Guillermo Malm Green is a partner at Brons &
Salas Law Firm. Guillermo heads the Environmental
Law Group and runs the Corporate Law Practice
together with other partners of the law firm.

International Environmental and Resources Law Committee, July 2015

IMPLEMENTATION AROUND THE CORNER:

PUERTO RICOS E-WASTE REGULATION
Jonathan Nwagbaraocha
Introduction
Sometimes there can be a gap between a law
entering into force and actual implementation.
A great example of this is Puerto Ricos law
establishing take-back and recycling requirements
for manufacturers of certain electronic equipment.
Puerto Ricos electronic waste law, the Electronic
Equipment Recycling and Disposal Law of
Puerto Rico (Ley de Reciclaje y Disposicin de
Equipos Electrnicos de Puerto Rico) (Electronic
Recycling Law), has legally been in force since
May 16, 2012. See Ley Nm. 18 de 17 de enero de
(2012), http://www.lexjuris.com/lexlex/Leyes2012/
lexl2012018.htm (last visited Apr. 5, 2015).
However, for the last few years the Commonwealth
has been exploring options on how it can
effectively implement its electrical equipment
recycling/take-back program. Recent efforts by
Puerto Rican government officials to engage
affected public and private stakeholders, including
electronic manufacturers and electronic waste
collection/recycling companies, demonstrate that
the Commonwealth may be close to implementing
its program.
Summary of the Law
Section 3.01 of Puerto Ricos Electronic Recycling
Law prohibits disposal of certain electrical
equipment into sanitary landfills. Id. Specifically,
section 2.01(i) provides that the Electronic
Recycling Law applies to any electricity-powered
equipment or device, controlled by electronic
components including integrated circuits, resistors,
and capacitors. Specific examples of covered
electrical equipment includes:
cellular telephone equipment including their
removable component parts necessary for
their operation, such as batteries and SIM
chips (section 2.01(i)(1));

television sets and video monitors, without

it being limited to those that use cathoderay tubes, as well as liquid crystal display
(LCD) or plasma flat screens, projection
systems, or light emitting diode (LED)
(section 2.01(i)(2));
desktop or laptop computers and their
peripheral equipment such as keyboards,
mice, speakers, docking stations, and cables
(section 2.01(i)(3)); and
copiers, printers, fax machines and ink
cartridges or toners, and scanners (section
2.01(i)(9)).
Under section 6.01 of Puerto Ricos Electronic
Recycling Law, electronic and cellular telephone
equipment manufacturers, importers, and
distributors in Puerto Rico are responsible for
the destination of the electronic equipment
once it reaches the end of its useful life or the
consumer decides to return or dispose of it. Id.
Manufacturers, importers, and distributors are
required to work with retailers to ensure the
effective collection of any equipment once a
consumer decides to dispose of the equipment. Id.
In order to demonstrate compliance under
section 6.01(1) and (2), an electronic or cellular
telephone equipment manufacturer, importer, and/
or distributor in Puerto Rico is required to register
with the Environmental Quality Board (EQB) by
submitting:
a letter of intent to engage in the sale of
electronic equipment; and
proof of adoption of a recycling and
disposal plan.
Under section 7.01, the recycling and disposal plan
must provide the following information:
recovery and collection methods and sites,
as well as the business or persons that
perform such functions;
projected volume of the equipment to be
processed during the following year;
specific description of the processes to

International Environmental and Resources Law Committee, July 2015

15

be employed for the recycling, reuse,

collection, and proper disposal of waste;
and
a report on the units collected and
processed during the previous year and the
final destination.
Notably, under section 4.01, a private sector entity
that employs 11 or more persons is required to:
establish a recycling, reuse, or refurbishing
program for any electronic or cellular
telephone equipment used to carry out its
operations in Puerto Rico; and
electronically file an annual report with the
authority, pursuant to regulations, attesting
to the mechanisms used for electronic and
telephone equipment recycling, reuse, and
refurbishing.
Recent Update
Despite the Electronic Recycling Law being
adopted in 2012, government officials are still
trying to determine how to implement it effectively
and have yet to adopt the necessary regulations.
In 2014, amendments to the Electronic Recycling
Law were adopted. See Ley Nm 155-2014 (Sept.
11, 2014), available at http://www.oslpr.org/20132016/leyes/pdf/ley-155-11-Sep-2014.pdf. The
amendments removed e-Steward certification
requirements for transporters, collection centers,
recyclers, and refurbishers of electronic equipment
and cathode-ray tubes with the recent version of the
guidelines for the safe environmental management
of electronic devices contained in the e-Steward
developed by Basel Action Network. Id. The
amendments now require the EQB to create its own
recycling certification program. Id.

Newsroom/Press-Releases/Puerto-Rico (last visited

Apr. 5, 2015). Stakeholders included:
government agencies such as the EQB and
the Solid Waste Authority (SWA), original
equipment manufacturers (OEMs);
electronic manufacturers such as HP and
Dell; and
electronic recyclers such as Sims Recycling
Solutions and Terra Nove, Inc.
Conclusion
While there is no clear timeline when Puerto
Rico will implement the law, it is clear that the
region has determined that a critical component
to implementation is involving public and private
stakeholders in the planning process. Stakeholders
are providing information to the region such as
standards for companies that handle and recycle
electronic equipment, the importance of securing
data submitted by regulated entities, and key
components of implementing a corporate e-waste
program. The EQB stated that it will continue
to involve public and private stakeholders as
it evaluates and finalizes regulations and the
infrastructure needed to implement the Electronic
Recycling Law.
Jonathan Nwagbaraocha is the environmental
affairs manager for Xerox Corporation. He holds
aB.A. in environmental science and policy from
Duke University, an M.P.P from the University of
Maryland School of Public Policy, and a J.D. from
the University of Maryland School of Law.

On September 16, 2014, Puerto Rican government

officials met a variety of stakeholders to discuss the
status of implementing the Electronic Recycling
Law to discuss how to implement regulations of the
laws amendment. See Puerto Rico Stakeholders
Collaborate on E-Waste Solution for the First
Time, available at http://www.simsrecycling.com/
16

International Environmental and Resources Law Committee, July 2015

MEXICAN FEDERAL LAW OF

ENVIRONMENTAL RESPONSIBILITY
Sergio Bustamante
Introduction
Mexico has incorporated several international
commitments concerning the establishment of
domestic legislation that assigns liability arising
from damage to the environment. For example,
Principle 13 of the Rio Declaration establishes
that States shall develop national law regarding
liability and compensation for the victims of
pollution and other environmental damage. States
shall also cooperate in an expeditious and more
determined manner to develop further international
law regarding liability and compensation for
adverse effects of environmental damage caused
by activities within their jurisdiction or control
to areas beyond their jurisdiction. UN Doc.
A/CONF.151/26 (vol. I); 31 ILM 874 (1992),
available at http://www.unep.org/Documents.
Multilingual/Default.asp?DocumentID=78&Artic
leID=1163. Article 4, paragraph 5 of the Mexican
Constitution establishes that every person has the
right to a healthy environment for its development
and well-being, that the state will guarantee
protection to such right, and that damage and
environmental deterioration will generate liability
to whoever causes same through corresponding
legislation. See Artculo 4 Constitucin Poltica de
los
Estados Unidos Mexicanos (Mex.), available
at http://info4.juridicas.unam.mx/ijure/fed/9/5.
htm?s=.
It is on this foundation that the Mexican
government has enacted the Federal Law of
Environmental Responsibility (LFRA), which
provides the legal framework to regulate
environmental liability along with mechanisms
to repair, compensate, and restore environmental
damage. See generally Ley Federal Responsibilidad
de Ambiente [Federal Law of Environmental
Responsibility], available at http://info4.juridicas.
unam.mx/ijure/tcfed/149.htm?s=. The purpose

of the statute is to protect, preserve, and restore

the environment and the ecological equilibrium
in order to insure the human right to a healthy
environment for the development and well-being
of all individuals, as well as to impose liability
on those who cause environmental damage and
impairment. In doing so, it offers certainty to the
government and to society that whoever damages
the environment must repair the same. LFRA was
published in the Federal Official Gazette (DOF)
on June 7, 2013 and has been in effect as of July
7, 2013. As explained herein, LFRA constitutes
compliance with the International Principles of the
Rio Declaration on Environmental Development
and with Article 4 of the Mexican Constitution
regarding the right to a healthy environment.
What Does LFRA Regulate?

LFRA creates a legal framework to determine
environmental liability resulting from
environmental damage. This includes (1)
restoration and compensation of environmental
damage through federal judicial proceedings
and alternate dispute resolution mechanisms; (2)
administrative procedures; and (3) procedures
related to the perpetration of crimes against the
environment and environmental management.
See id. The regime of environmental liability
established under LFRA acknowledges that
damage caused to the environment is independent
from the individual damage suffered by the
owners of the natural elements and resources.
As a result, actions and procedures to enforce
environmental responsibility referred to in LFRA
may be exercised and sustained independent of
other applicable administrative law responsibilities
and procedures, or civil and criminal actions. Id. at
Artculo 4.
Under LFRA, environmental damage is defined
as the adverse and measurable loss, change,
deterioration, impairment, affectation, or alteration
of a habitat, ecosystem, and natural elements
and resources including their chemical, physical
or biological conditions, the interrelationships
within them, and the environmental functions

International Environmental and Resources Law Committee, July 2015

17

they provide. Id. at Artculo 2. It is not considered

environmental damage under LFRA when the
impairment, loss, affectation, modification, or
deterioration is (1) expressly disclosed, explicitly
identified and delimited as to scope, assessed,
mitigated, and offset by the responsible party
and authorized by Ministry of Environment and
Natural Resources (SEMARNAT) prior to the
execution of the act originating same by means of
an environmental impact evaluation or a preventive
report, the authorization to change the use of forest
soil, or any other comparable authorization issued
by SEMARNAT; or (2) under the appropriate
limits set forth by Mexican environmental laws
or Mexican Official Standards. Id. at Artculo 6.
Theses exceptions shall not shield a party from
liability in the event of non-compliance with
the terms or conditions of a permit issued by
SEMARNAT. Id.
Liability Under LFRA
Any individual or company, whose act or omission
causes damage to the environment, directly
or indirectly, shall be liable for the damage
and shall be required to repair the damage, or,
if repair is not possible, to provide or remit
environmental compensation as set forth in LFRA.
Id. at Artculo 10. In addition, the responsible
individual or company shall carry out such acts
as may be required to avoid further damage to the
environment.
Liability under LFRA may be either subjective
or objective. The liability for the damage caused
to the environment shall be subjective (i.e., civil
liability with fault, analogous to the American
concept of tort) and will arise from illicit acts or
omission, except for certain acts that are identified
and exempted within LFRA. Id. Whenever the
damage is caused by deceitful acts or omissions,
the responsible person shall be required to pay
an economic sanction. Id. at Artculo 11. A
person shall be deemed to commit an illicit act
whenever he is engaged in an act or omission in
contravention of legal and regulating provisions,
Mexican official standards, authorizations,
18

licenses, permits or concessions issued by the

Secretariat of Environment and Natural Resources
(SEMARNAT) or other authorities. Id.
Environmental liability will be objective
(analogous to the American concept of strict
liability) whenever the damages caused to the
environment are a direct or indirect result of (1) an
act or omission related to hazardous materials or
waste; (2) the use or operation of vessels in coral
reefs; (3) the engagement in activities considered
as highly hazardous; and (4) the use of substances,
machines, instruments, or devices dangerous in
themselves or due to the speed they develop, their
explosive or inflammable nature, the power of
electricity that they conduct, or to any other similar
cause. Id. at Artculo 12. See also Artculo 1913 of
Cdigo Civil Federal.
A corporate entity shall be liable for the damage
to the environment caused by its representatives,
administrators, managers, directors, employees,
or those persons who may exercise the functional
dominium of corporate operations when the
damage is the result of such individuals negligence
or actions when acting on behalf of, or for the
benefit of the corporation or when such individuals
order or give their consent to the execution of
harmful acts. Ley Federal Responsibilidad de
Ambiente at Artculo 24. The persons who shall
have used, assessed, or contracted a third party
to carry out the action that originated the damage
shall be jointly liable, except in cases of hazardous
waste confinement services provided by companies
authorized by SEMARNAT. Id.
Damages caused to the environment shall also be
attributable to the individual or corporate entity
that failed to prevent them, if such persons had a
legal obligation to prevent them. Id. at 25. Such
legal duty to act is based on any obligation to take
action under LFRA, its contractual obligations, its
capacity as warrantor, or its prior actions. Id. No
liability shall be attributed whenever the damage to
the environment was originated exclusively by acts
of God or force majeure. Id. at Artculo 24.

International Environmental and Resources Law Committee, July 2015

Repair and Compensation for

Environmental Damage
The repair of damage to the environment shall
consist of the restoration of the environment to its
base state. Id. at Artculo 13. The base state is
defined in LFRA as the condition prevailing in the
habitat, ecosystem, natural elements, resources,
and the interrelationships within them and the
environmental functions they provided at the time
immediately preceding the damage. Id.
Compensation is appropriate when the repair of the
environmental damage is materially or technically
impossible, or when several cases contained in
LFRA are met. Id. at Artculo 14. Environmental
compensation can be partial or total. Id. at Artculo
15. It shall consist of investment or actions by the
responsible party to generate some environmental
improvement so as to offset the adverse effects its
actions caused. Id. at Artculo 17.
Economic sanctions are in addition to the repair
or compensation established by a judge and will
be based on the current Federal District daily
minimum wage. Id. at Artculo 19. If the sanctions
are against an individual, the fine will range from
300 to 50,000 times the minimum wage. If the
sanctions are against a corporate entity, the fine will
range from 1000 to 600,000 times the minimum
wage. Id. The actual amount assessed is based on
the damage caused. Id.
An economic sanction will be reduced for a
corporation when at least three of the following
conditions are met:
1. The company has not been sentenced
previously under the provisions of
LFRA nor is it a recidivist pursuant to
environmental laws;
2. The employees and representatives of the
corporation have not been sentenced for
environmental crimes;
3. The company has insurance for high-risk
activities;
4. The company has an internal control

body that supervises on a permanent

basis environmental compliance as well
as an internal system of environmental
management and training in permanent
operation (system at least three years old);
or
5. The company has a Clean Industry
Certificate. Id. at Artculo 20.
Environmental Liability Judicial Process
and Judgment
LFRA creates Environmental Judicial Courts
(Juzgados de Distrito), which are to begin
operating by July 7, 2015. The courts have
jurisdiction over environmental liability-related
matters. Id. at Artculo 30. A suit under LFRA can
be filed by inhabitants of the community on or
adjacent to the area whose environment has been
damaged, not-for-profit Mexican corporations who
represent inhabitants of the local community, the
federal government through the Environmental
Protection Agency (PROFEPA), and the
environmental protection agencies or institutions
engaged in the environmental protection for the
states and Federal Districts, within their territorial
jurisdiction jointly with PROFEPA. Id. at Artculo
28. A suit can be filed within 12 years from the date
on which the damage and its effects were caused.
Id. at Artculo 29.
LFRA contains specific substantive and judicial
procedures for civil claims on the matter of
environmental liability to supplement the
Federal Code of Civil Procedures. For instance,
provisional remedies are provided for permitting
a judge to instruct SEMARNAT and PROFEPA to
immediately implement preventive and corrective
measures contained in the act. Id. at Artculo 31.
Third-party owners or holders of property located
where damage has been found shall be required
to allow the precautionary measures ordered by
the court to proceed. Id. at Artculo 32. Such third
parties shall, however, have the right to legal
recourse against the person ultimately liable for
any resulting damages. Id.

International Environmental and Resources Law Committee, July 2015

19

In the judicial proceeding, the court may gather

any ex officio evidence deemed necessary. Id. at
Artculo 34. Additionally, the judge may require
SEMARNAT and PROFEPA to provide evidence
such as expert studies, testimonials, documents,
photographs, and, in general, all kinds of items
capable of production by available technology
and science. Id. at Artculo 35. The regions base
state shall be established on the best information
available at the time of the proceeding. Id. at
Artculo 36.
In addition to the requirements contained in the
Federal Code of Civil Procedures, a judgment
for the plaintiff must detail (1) the obligation to
environmentally repair the corresponding damage;
(2) any compensation through the actions that
proceed, totally or partially; (3) the measures and
actions necessary to avoid the damage caused to
the environment from increasing; (4) the amount
of the economic sanction as well as the reasoning
justifying the same; (5) the amount to pay before
the prevailing party (parties) who shall have
proven its claim for the expenses disbursed to
prove the liability; and (6) the deadline by which
the responsible party obligations must be complied
with. Id. at Artculo 37.
Once the judgment is to be executed, a judge will
serve notice to the parties so that within the term
of 30 days they shall declare (1) the form, terms,
and levels of environmental reparation; (2) any
inability for partial or total material repair; (3)
the procedure, location, and scope regarding the
repairs that will be performed; and (4) the proposed
deadlines for their compliance. In the event the
parties reach an agreement as to the reparations,
they may submit a joint proposal. Id. at Artculo 38.
In determining the appropriate amount of
environmental repair and compensation under
LFRA, several factors need to be taken into
consideration (e.g., economic, technical, health). Id.
at Artculo 39. After a judge receives the proposals
for the repair of the damage or appropriate
compensation, it will require SEMARNAT to
formulate its opinion on the proposed repairs
20

within the term of 10 days. Id. Once the repairs

have been ordered, the judge will set the time for
compliance with the repair and compensation
obligations. PROFEPA then verifies the compliance
with the aforementioned obligations and will
inform the judge on a bimonthly basis of an actors
compliance. Id. at Artculo 42. The judgments and
agreements derived from judicial procedure are
public. Id. at Artculo 44.
Alternative Dispute Resolution
Mechanisms
Under LFRA, every person shall be entitled to
resolve disputes arising from damages caused
to the environment through collaborative means
in which dialogue is a priority and alternative
solutions are provided to create greater social and
environmental improvements. Id. at Artculo 47.
Alternative mechanisms for dispute resolution,
such as mediation and conciliation are available
provided all those entitled to take legal action
under LFRA are included to resolve the issues
without requiring judicial intervention. The only
exception is to guarantee the legality and efficiency
of the agreement reached by the participants and
compliance therewith.
If there is an agreement between the parties before
a final judgment is pronounced, the judge hearing
the case shall acknowledge the agreement and
issue a judgment. In the event the agreement is
incorporated in the judgment, the responsible party
shall not be required to pay economic sanctions. Id.
at Artculo 49.
Criminal Liability in Environmental Matters
LFRA applies to criminal disputes and procedures
for crimes against the environment and the
environmental management as set out in the
provisions of the Federal Criminal Code and
the Federal Code of Criminal Procedures. Id.
at Artculo 52. A person who is aware of the
perpetration of a crime against the environment
must denounce it directly to the public prosecutor.
Id. at Artculo 54. Any and all public servants are

International Environmental and Resources Law Committee, July 2015

required to give immediate notice to the public

prosecutor of the probable existence of a fact
considered a crime against the environment. Id.
at Artculo 56. Every inhabitant of a community
that may be affected by an unlawful act shall
be deemed a victim of the crime against the
environment, provided a complaint is filed with
the public prosecutor. Id. The Federal Penal Code
contains a chapter specifically addressing crimes
against the environment and environmental
management. See Ttulo Vigsimo Quinto Delitos
Contra el Ambiente y la Gestin (Title 25 Crimes
against the Environment and Environmental
Management Ambiental), available at http://
www.profepa.gob.mx/innovaportal/file/1365/1/
CODPENFED414a416.pdf.
Miscellaneous
LFRA creates the Environmental Responsibility
Fund (FORA) to pay for the repair of the damages
caused to the environment in cases selected by the
Federal Public Administration for emergency or
priority reasons as well as to pay for the studies
and research that are required of SEMARNAT and
PROFEPA by a judge during the judicial process.
Id. at Artculo 45. Also, the National System of
Environmental Hazard Insurance created pursuant

to the General Law of Ecological Equilibrium and

Environmental Protection is integrated into LFRA.
Id. at Artculo 8.

Finally, LFRA amends, modifies, supplements,
and repeals several provisions contained in various
laws such as the General Law of Ecological
Equilibrium and Environmental Protection, General
Wild Life Law, General Law for Prevention and
Integral Management of Waste, General Law of
Sustainable Forest Development, National Water
Law, Federal Criminal Code, Navigation and
Maritime Commerce Law, and General Law of
National Patrimony. Id. at the Decreto. Issues
not specifically defined or sufficiently detailed
in LFRA are guided by the provisions of the
Federal Civil Code and the Federal Code of Civil
Procedures. Id. at Artculo 9.
The adoption of LFRA is a major step as Mexico
continues to improve its environmental legal
infrastructure.
Sergio B. Bustamanteis a partner of the Mexican
law firm Counselors International Abogados, S.C.,
in their Environmental/Corporate Practice. Based
in Ciudad Juarez, Mexico City, and Queretaro, he
advises domestic and foreign companies doing
business in Mexico.

Leadership Development Program

Application Deadline: Friday, August 7, 2015
The Section is accepting applications for its Leadership Development Program (LDP). Now in its sixth
year, the LDP is designed to support Section members interested in expanding a current leadership
role or growing their knowledge of the Section so that they can assume a leadership role in the future.
The Section is seeking to identify and enroll up to twelve Section members who exhibit an interest in
increased Section involvement or leadership responsibility and who can commit to the Leadership
Development Program over one year (September 2015- August 2016). We anticipate that these
individuals will reflect diversity and help the Section support ABA Goal III.

For more information, please visit

www.ambar.org/EnvironLDP

International Environmental and Resources Law Committee, July 2015

21

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International Environmental and Resources Law Committee, July 2015