| Montreal, 1/09/2004 – On 23 August 2004, the Secretariat of the Commission for Environmental Cooperation (CEC) recommended to the CEC Council that a factual record be developed for the Alca-Iztapalapa II submission (SEM-03-004).
The submission was filed on 17 June 2003, by Ángel Lara García (the "Submitter"), who asserts that his health and that of his family have been affected by pollution generated by Alca, S.A. de C.V. ("Alca"), which operates a footwear materials factory in the Santa Isabel Industrial neighborhood in the Iztapalapa Delegation of Mexico City, where the Submitter lives. According to the Submitter, Alca is failing to comply with Article 150 of the General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente—LGEEPA) in managing its hazardous waste. The submission asserts that notwithstanding a denuncia popular (citizen complaint) filed by the Submitter in 1995, environmental authorities are failing to enforce Articles 414, first paragraph, and 415 of the Federal Penal Code (Código Penal Federal—CPF), which prescribe fines and prison terms for hazardous substances mismanagement that causes environmental harm.
With respect to the 1995 denuncia popular, in which the Submitter asserted that Alca was violating Article 150 of the LGEEPA, the Party (Mexico) states in its response to the submission that the Office of the Federal Attorney for Environmental Protection (Procuraduría Federal de Protección al Ambiente—Profepa) had processed the file as required by law. It also reports that the official record was lost in a flood at the Profepa archive for closed files, but notes that the complaint did not lead to any criminal investigation. With respect to another denuncia popular, filed by the Submitter in 2000, the Party states that the case was closed with the issuance of an administrative ruling levying a fine of $2,421 pesos against Alca.
As regards Alca's alleged violations of Article 415, first paragraph of the Federal Penal Code, the Party asserts that pursuant to a technical report issued by agents of the Public Prosecutor (Ministerio Público), neither the commission of the crime nor the likely liability of the suspects was clearly evidenced, "as we deduce from the acts that although the alleged facts may constitute a crime, it is impossible to determine whether the crime exists due to irreparable material hindrance, because the proof provided is insufficient to evidence the crime." With respect to proceedings filed by the Submitter against officials of Profepa, Mexico states that they were concluded without the issuance of any penalty for want of evidence regarding the alleged responsibility of the public servants involved. The Party states that it cannot release more information regarding these proceedings because that information has been classified as reserved by the Internal Control Agency of the Secretariat of the Environment and Natural Resources (Secretaría de Medio Ambiente y Recursos Naturales—Semarnat).
After reviewing the submission in light of Mexico's response, the Secretariat notified the Council that pursuant to Article 15(1) of the North American Agreement on Environmental Cooperation (NAAEC), it considered the submission to warrant the development of a factual record. The Secretariat determined that the submission, in light of the response, raises central issues regarding Mexico's enforcement of environmental law in connection with ALCA. The proceedings mentioned by Mexico in its response were all concluded before the Submitter's previous submission on these matters was filed in November 2002. In both the first and second submissions, the Submitter asserted that ALCA's alleged violations were continuing, despite the actions initiated by Mexico. Mexico did not provide information regarding any actions it has taken with respect to possible environmental violations since the submission was filed. A factual record would provide information regarding the allegations of ongoing non-compliance and Mexico's past and current efforts in connection with them.
The CEC Secretariat informed the Council of its determination on 23 August 2004, and now, five business days later, is able to provide public notification of the determination and to present its reasons in the public registry. The full text of the submission, Mexico's response, and the Secretariat's factual record recommendation are all available on the CEC web site.
Article 14 of the North American Agreement on Environmental Cooperation (NAAEC) provides that the Secretariat may consider a submission from any person or nongovernmental organization asserting that a party to the NAAEC is failing to effectively enforce an environmental law. Where the Secretariat determines that the NAAEC Article 14(1) criteria are met, it may then proceed with a process that can lead to the development of a factual record on the matter.
The CEC was established under the NAAEC to address environmental issues in North America from a continental perspective, with a particular focus on those arising in the context of liberalized trade. The CEC Council, the organization's governing body, is composed of the top environment officials of Canada, Mexico and the United States.
Please visit the Citizen Submission on Enforcement Matters page for more information.
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