|ALL SECTIONS | ABOUT MEDIATION | Civil | Commercial | Community | Elder | Family | ODR | Public Policy | Workplace|
Subscribe to the Mediate.com NewsletterSign Up Now
What types of projects have been socially rejected?
The size, location or specific enterprise is unimportant in determining the level of resistance when a project is seen as negatively impacting the environment. Social dissatisfaction has been demonstrated in almost every state of the Republic regarding a gamut of projects: bikeways, golf courses, shopping centers, factories, hydroelectric power plants, water systems, elevated trains, and the list goes on.
Perhaps the most widely known case of social pressure impeding a major project is the New Mexico City airport. The project had an initial investment of 2 billion dollars and the expectation of thousands of jobs for this rural area. After months of protest by a group of machete wielding peasants the project was suspended. Can we say that the peasants won? What did they win thinking in the community as a whole rather than a handful of protesters?
This year alone an example of projects that have been deterred or canceled include:
In the past years, neighborly protests have prevented million to multimillion dollar investments in developmental projects such as:
In summary, the political and legal uncertainty caused by the cancellation of small and large ventures with environmental impact scare away new investors and projects in Mexico. Worse yet is the opposition to enterprises of infrastructure leads to set backs in the economy. Who wins when work is detained in a society that doesn’t want to be left behind?
Why these new social environmental conflicts?
One explanation is the combination of new environmental rights with people accustomed to a traditional authoritarian system. As a matter of fact, the Constitution, laws and treaties have given people several environmental rights, without a parallel change in attitudes of both government and people. Rejection of environmental permits due to principles and/or political opportunism unrelated to scientific studies is an old habit.
The system of environmental rights and obligations is recent. In 1999, the Mexican Constitution incorporated (4th Article) that every person has a right to an adequate environment for their development and well being. The 25th constitutional article conceives sustainable development when it establishes that social equity and productivity will be subject to the modalities dictated by public interest, and to the use of production resources in the benefit of the general public, caring for their conservation as well as the environment.
The 1988 General Law for Ecological Equilibrium and Environmental Protection (LGEEPA) was preceded by the 1982 Federal Environmental Protection Law and the 1971 Federal Law to Control and Prevent Environmental Contamination.
The LGEEPA aims for sustainable development and guaranties the right of every person to live in an adequate environment for their development, health and well being. Every person, social group, non governmental organizations, associations and societies can denounce facts, acts or omissions that cause or may cause ecological imbalance or damages to the environment or to natural resources, and those acts that contravene the applicable laws. The same law declares that ecosystems are a common patrimony of society; that ecosystems and their elements must be used in a way that ensures their optimal and sustainable productivity, compatible with their equilibrium and integrity; and that the authorities as well as the rest of society must assume the responsibility of protecting environmental equilibrium. It also establishes that those projects that could cause environmental imbalance will require an environmental impact evaluation. To ensure the sustainable development of economical activities, the environmental authorities have the obligation to decree environmental Official Mexican Norms, for the sustainable use of natural resources.
The Constitution establishes, and the LGEEPA reiterates that the Federation, the States, the Federal District and Municipalities have authority to preserve and restore environmental equilibrium. That is, all levels of authority in the country have certain faculties in environmental matters.
In the international forum, the Agreement of Environmental Cooperation in the North America Free Trade Agreement also grants Mexicans the right to denounce the environmental authorities that don’t comply with the execution of environmental laws.
Furthermore, other rights related to environmental matters are those regarding access to information in possession of the authorities.
What is new is the concept of sustainable development. This means that the development of new projects must guarantee the preservation of the ecological equilibrium. In other words, new infrastructure projects and the preservation of the environment do not have to be mutually exclusive. The challenge is to successfully incorporate measures that maintain the environmental integrity while there is access to advanced levels of modern development. However this modernization may not occur with the social obstacles arising based on environmental issues that both large and small projects confront. We are confronting a situation that demands new solutions for society to communicate with the authorities. Traditionally the conflict was between the environmental common well being and particular interests. On closer examination social environmental conflicts can take innumerable shapes and represent a plethora of disagreements:
With a practical approach each case must be examined according to its characteristics.
Many entrepreneurs and lawyers still believe in the court system to solve conflicts. Therefore we will not be able to speak of modernization if the attitudes of referring to the administrative or judicial litigation instances persist as a method to resolve social-environmental conflicts. These commonly take the shape of legal conflicts without legal solutions.
Assuming environmental causes has its risks for the causes can be misused by deceiving leaders and lawyers. Or the cause can be turned into an instrument to cover up covert interests. The political advantage of leading protests with environmental postulates is a strong hook for opposition parties and community leaders. The magnetism of embracing environmental causes is huge and very seductive, almost irresistible to some.
What can be done in order to turn new social-environmental conflicts into opportunities?
The fulfillment of legal requirements, technical viability and financial resources are now only necessary but not sufficient conditions for any environmental project. All of the conditions for the execution of the project are fulfilled only when they include negotiations or mediation to reach settlements with the pertinent wills within social factors, including the authorities.
Due to diverse opinions about the same issue there is a legal framework which supports consultations and agreements between subjects with rights in environmental conflicts. For example, the LGEEPA enables any person to have access to an environmental impact statement; and upon the request of any member of the community the authority may conduct a public consultation. The environmental authority has the obligation to install consulting organs and to take into consideration the opinion of the people. If the opinion is not taken into account by the authority, this must express the reasons why it didn’t incorporated those opinions.
Given the legislation described and the oppositional attitudes, there is a demand for negotiators and conciliators rather than warriors. There should be persuasion towards dialogue between the leading players in a conflict.
Our vision is to develop and promote the art of conversation between subjects thus converting oppositional stances into an opportunity for collaboration.
We have a prevention and conflict management area for environmental and social disputes. According to each case, we act as negotiators or mediators. Upon the request of any part in a dispute, our firm will pave the way to facilitating communication in order to prevent social-environmental conflict or to manage the ones to mutual satisfaction. Thus these conflicts can serve as an opportunity for the parties to become mutual supporters in the acceptance of a project.
Leopoldo Burguete graduated from Universidad La Salle. He received a postgraduate degree in Economic and Corporate Law from Universidad Panamericana, a masters in International Law from the Southern Methodist University, a masters of Comparative Law from the University of Illinois, and an Environmental Law Certificate from the Instituto Tecnológico Autónomo de México (ITAM). He taught Environmental Law at Universidad Panamericana and ITAM in their respective Graduate Programs. He is member of the eighth generation of the Leadership for Environment and Development (LEAD) Program at El Colegio de Mexico, as well as a member of the Board of directors of the National Association of Corporate Lawyers (ANADE, for its acronym in Spanish). Before, he worked as Director of the Mexico City Office and Head of the Environmental Department of the Mexican Law Firm Bryan, González Vargas y González Baz, S.C.
Humberto Celis Aguilar Alvarez received his Law Degree at Universidad Nacional Autónoma de Mexico (UNAM). He later finished a master in International Economic Law at Houston University and received a postgraduate degree in Environmental Compliance from the National Center of Environmental Law at George Washington University.
He is a Ph.D. candidate on International Environmental Law at UNAM. He has been professor of Environmental Law, International Business Transactions and Environmental Contracts at ITAM, Universidad Anáhuac del Sur, Universidad Iberoamericana and Universidad Panamericana.
He has published several articles on environmental and energy legislation and lectured on the same matters. Some years ago he became recipient of the annual scholarship awarded by PEMEX. He worked as environmental associate at the Mexican Law Firm Santamarina y Steta, S.C. Before, he worked at PEMEX, International Environmental and Energy Counsel and at PEMEX-Houston, Legal Representative Office. Member of the Mexican Academy for Environmental Law and Treasurer and Head of the Environmental Commission at the Mexican Academy for Energy Law.
|Luis Miguel Diaz
Luis Miguel Díaz, unfortunately now deceased, fathered four children and distrusted language, theories and authority, including his own as a father. Admires artists and scientists and their lives. He received his Law Degree at UNAM, Mexico (1974); and LLM (1976) and SJD (1986) at Harvard University Law School. President of the Interdisciplinary Center for Conflict Management in Mexico City. Author of more than 100 articles and 15 books. We all miss Luis.
The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., Mediate.com or of reviewing editors.