Greenpeace Mexico v. Ministry of Energy and Others (on the National Electric System policies)

Mexico

Jurisdiction: First Circuit Collegiate Tribunal, District Court in Administrative Matters

Principle law(s): General Law on Climate Change,Decree issuing the Electricity Industry Law, the Geothermal Energy Law and amending the Law on National Waters

Side A: Greenpeace Mexico (Ngo)

Side B: Ministry of Energy of Mexico (Government)

Core objectives: Whether National Electric System policies are unconstitutional for discriminating against renewables.

Summary

On May 25, 2020, Greenpeace Mexico filed a lawsuit against the Mexican government contesting the constitutionality of two electricity sector policies that would limit renewables. Greenpeace Mexico asked the Administrative Court to declare the policies unconstitutional for violating the rights to a healthy environment and sustainable development and for obstructing Mexico's compliance with its international commitments to tackle climate change. The two policies challenged were the National Centre of Energy Control (CENACE) Agreement "to ensure the efficiency, quality, reliability, continuity and safety of the National Electric System, on the occasion of the COVID-19 epidemic" and the Ministry of Energy policy of "Reliability, Security, Continuity and Quality in the National Electrical System." The former ordered the suspension of certain wind and photovoltaic power plants in operation or on the approval stage prior to commercial operation. The latter supported the CENACE Agreement's suspension of renewable energy power plant operation and the promotion of oil-based power generation. Greenpeace filed the case in the Mexico City's Second District Administrative Court Specialized in Economic Competition, Broadcasting, and Telecommunications.

On June 23, 2020, the district court issued a preliminary injunction to suspend the effects of the contested acts. On November 17, 2020, the district court held its main hearing. The Court then issued its judgment that the public policies were unlawfully modifying the rules of the energy market, and were violating the right to a healthy environment of Mexicans. The government appealed the decision to the First Circuit Collegiate Tribunal.

The Court decided the contested acts were unconstitutional. First, authorities were not competent to issue the policies. Furthermore, the policies violate the human right to a healthy environment, as well as (i) the United Nations Framework Convention on Climate Change, (ii) the Kyoto Protocol, and (iii) the Paris Agreement (all ratified by Mexico), by imposing a policy that displaces renewable energies, which prevents Mexico from meeting the greenhouse gas (GHG) emission reductions targets to which it committed. The Court considered that the production and consumption of fossil fuels affect the environment to a greater extent, due to the amount of GHG and compounds they produce. The implementation of its provisions undoubtedly implies a risk of damage to the right to a healthy environment, since it encourages the operation of conventional power plants that generate a greater amount of emissions that pollute the environment. The risk of environmental damage is projected in both dimensions (individual and collective), since, on the one hand, it can affect individual health of people and, on the other hand, it does not contribute to mitigate the effects of climate change, which impacts on the universal interest owed to present and future generations to preserve and protect natural resources. Finally, the policies also imply the implementation of regressive measures in relation to the right to a healthy environment, because instead of contributing to increase the goals of minimum participation of clean energies in the generation of electric energy, they reduce or inhibit their progress. The principles upon which the judge based his decision are: (i) in dubio pro natura, (ii) civic participation, (iii) non-regression principle and, (iv) the inclusion of future generations in the notion of progress (any unjustified and significant decrease in the level of environmental protection achieved will affect the heritage to be passed on to the next generation).

Case documents

Related laws and policies

This law implements Mexico legislation

General Law on Climate Change

Passed in 2012 Legislative

The approval of the GLCC gives certainty and continuity to climate policy in Mexico and sets the country on a path to a low carbon economy. It establishes the basis for the creation of institutions, legal frameworks and financing to move towards a low carbon economy. As a General Law, it specifie...
This law implements Mexico legislation

Decree issuing the Electricity Industry Law, the Geothermal Energy Law and amending the Law on National Waters

Passed in 2014 Legislative

The present decree approves the Electricity Industry Law (LIE) and the Geothermal Energy Law. The LIE regulates part of the changes arising from the Constitutional Reform in energy matters of 2013. It modifies the regime of the electricity sector to move to a new model based on the free competit...