Nuestros Derechos al Futuro y Medio Ambiente Sano et. al., v. Mexico (Unconstitutionality of the reform to the Electric Industry Law)
Jurisdiction: First Circuit Collegiate Tribunal; District Court in Administrative Matters
Principle law(s): Energy Transition Law,Decree issuing the Electricity Industry Law, the Geothermal Energy Law and amending the Law on National Waters,General Law on Climate Change
Side A: Nuestros Derechos al Futuro y Medio Ambiente Sano et. al
Side B: Mexico
Core objectives: Whether the amendment of Mexico’s Electric Industry Law violates the constitutional right to a healthy environment by giving preference to electricity generated by coal and fuel oil-fired power plants over renewables.
On March 24, 2021, five civil associations (Nuestros Derechos al Futuro y Medio Ambiente Sano A.C.; Alianza Juvenil por la Sostenibilidad, A.C.; Naj Hub, A.C.; Consejo Interuniversitario Nacional de Estudiantes de Derecho, A.C.; and Ágora Ciudadanos Cambiando México, A.C.), with the support of the #JóvenesPorNuestroFuturo collective, made up of more than 20 youth groups, filed a lawsuit against the Mexican Congress and the President of Mexico challenging the 2021 amendments of the Electric Industry Law.
The amendments, in general: (i) eliminate the obligation to dispatch the cheapest energy first and give priority in the process to the Federal Electricity Commission’s (CFE) coal and fuel oil-fired power plants, and (ii) eliminate the purchase of basic electricity by the CFE through long-term auctions. Before the amendments, the energy purchased in the auctions and the energy dispatched first was primarily renewable energy.
The plaintiffs argue that the Mexican State is constitutionally obligated to mitigate and adapt to climate change, which necessarily implies designing and implementing an energy policy that favors the gradual substitution of fossil fuels for renewable energy. The obligation to transition from fossil fuels to renewable energy in the generation of electricity is based on Article 25 of the Constitution, in connection with the 17th and 18th transitory articles of the Decree of Constitutional Energy Reforms of 2013.
The plaintiffs argue that the challenged amendments violate the constitutional right to a healthy environment found in Article 4. Specifically, the plaintiffs claim that the transition to renewables in the electricity sector guarantees the exercise of the right to a healthy environment and is a necessary condition for Mexico to comply with its international commitments under the Paris Agreement. In its Nationally Determined Contribution (NDC), Mexico committed to a 22% reduction of GHG emissions by 2030, and the transition to renewables formed a critical piece of this commitment. The plaintiffs requested the judge to declare the amendments unconstitutional and to force the responsible authorities to comply with their constitutional obligations regarding energy transition and climate change mitigation policies. After the 2013 Constitutional Energy Reform, the Energy Transition Law set generation targets: 25% clean energy generation by 2018, 30% by 2021, and 35% by 2024, with the objective of significant reduction of CO2 emissions to mitigate climate change.
On April 7, 2021, the District Court issued an injunction to suspend the effects of the contested amendments until the court reaches a final decision on the merits of the case. The judge reasoned that the amendments could undermine the Mexican government’s duty to transition towards renewable energy. This duty is mainly established in the 18th Transitory Article of the Decree of Constitutional Energy Reforms of 2013. The judge also noted that, in the Energy Reform of 2013, the legislators agreed that the use of clean energies will enable the Mexican State to work towards its international climate and environmental commitments (specifically, the Paris Agreement and the 2030 Sustainable Development Goals). The Court reasoned that compliance with the international commitments could be hindered by the amendments, because of the limits they place on the generation of clean energies.
On April 7, 2021, the Mexican government and congress appealed the decision of the District Judge to admit the claim. On April 22, 2021, the Mexican congress appealed the injunction granted by the District Court. Both appeals are pending resolution by the appellate Collegiate Court.
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