Landmark decision by Mexican Court clarifies that the State must not restrict renewable energy, and that energy policies must be in accordance with the right to a healthy environment
State energy policies play a crucial role in shaping and directing how governments tackle domestic energy demands and meet their climate commitments. This is crucial as energy generation is a significant contributor to climate change. In 2020, Greenpeace Mexico filed a constitutional protection lawsuit, known as an amparo, challenging two of the Mexican government’s energy sector policies. The organization argued that these policies not only endorsed fossil fuels but also imposed restrictions on renewable energy, contravening Mexico’s international climate pledges and infringing upon the right to a healthy environment (R2HE) and sustainable development.
The case was heard at Mexico City’s Second District Administrative Court Specialized in Economic Competition, Broadcasting, and Telecommunications. After issuing a preliminary injunction suspending the two acts, the Court declared the policies to breach energy market regulations and the R2HE of Mexicans. This landmark decision rested on the state’s constitutional protections, international commitments, considerations of both individual and collective harm, the rights of current and future generations, and a prohibition on regressive environmental policies. Notably, the Court invoked in dubio pro natura, a modern legal principle that prioritizes nature in legal deliberations: “When in doubt, in favor of nature.” At its core, the case underscored the state’s obligation to refrain from actions that impair human rights, particularly the right to a healthy environment.
On May 25th 2020, Greenpeace Mexico challenged two Mexican government policies that restricted renewable energy. The National Centre of Energy Control’s (CENACE) Agreement, prompted by the Covid-19 pandemic, sought “to ensure the efficiency, quality, reliability, continuity, and safety of the National Electric System” by suspending wind and solar power plants or at the approval stage or in operation. They also challenged the Ministry of Energy’s “Reliability, Security, Continuity and Quality in the National Electrical System” policy.
The government argued that reduced electricity demand during the pandemic necessitated the curtailment of renewable energy, as intermittent generation negatively affected the National Electric System. However, Greenpeace argued that these policies violated certain constitutional rights, Mexico’s environmental commitments, and access to electricity and sustainable development. They highlighted principles of legality and legal certainty, which require all governmental powers be authorized, and administrative decisions must be transparent, accessible, and understandable. Greenpeace contended that the government lacked the authority to enact the policies and failed to follow proper procedures.
In seeking legal remedy, Greenpeace (1) demanded the policies be declared unconstitutional and sought guarantees against future violations; (2) urged the elimination of design flaws hindering energy transition and environmental protection; and (3) called for the restoration of pre-violation conditions, particularly concerning the CENACE Agreement and Ministry of Energy Policy.
In a pivotal ruling in November 2020, the Court declared both policies unconstitutional, citing a lack of legal competence and violations of human rights and international agreements. The policies impeded Mexico’s greenhouse gas emission reduction goals by discouraging renewable energy. The Court emphasized the undeniable risk these policies posed to the Right to a Healthy Environment (R2HE) by favoring high-emission conventional power generation. It reaffirmed the constitutional obligation to protect nature’s intrinsic value, extending beyond human utility. The ruling underscored the right to a dignified environment for all beings, including current and future generations. Addressing procedural deficiencies and environmental obligations, the Court declared the policies unconstitutional and ordered their immediate termination by CENACE and the Ministry of Energy.
The Plaintiff brought multiple legal arguments, contending that the policies were void based on administrative, procedural, and civil rights grounds. The Court’s decision centered on the administrative arguments, concurring that both CENACE and the Ministry of Energy lacked the authority to issue the policies. Public institutions are bound to enact policies only within the limits explicitly set by the law. The Plaintiff argued that the policies, by influencing Mexico’s energy mix and renewable energy’s potential, amounted to regulations that require specific procedures. Those procedures, which include public notice, participation, and consultation, were not followed.
Employing a multifaceted approach, the Plaintiff successfully demonstrated that the policies breached Mexico’s constitutional R2HE and its international commitments to combat climate change. While the Court acknowledged the Plaintiff’s R2HE arguments, the ruling primarily centered on delineating administrative powers and emphasizing that citizens’ meaningful participation required access to environmental information held by authorities.
Greenpeace referenced Mexico’s international obligations and commitments that affirm R2HE, citing the San Salvador Protocol, the 1972 UN Conference on the Human Environment, and the Rio Declaration on the Environment and Development, among other international instruments. These agreements impose positive obligations on a state’s legislative, administrative, and judicial bodies to safeguard a healthy environment that supports development and well-being. Aligning these international commitments with constitutional obligations, the Plaintiff bolstered domestic law and precedent with international backing. For instance, the Plaintiff, and then Court, asserted that the Rio Declaration mandates the adoption of all necessary measures to prevent or mitigate potential harm, creating special obligations for the government (see Precautionary Principle below).
Moreover, Greenpeace contended that international commitments concerning climate change, such as the Paris Agreement and Nationally Determined Contributions, implicate R2HE. This link arises from the imperative to combat global warming, as it is crucial to shield the population from environmental degradation that jeopardizes R2HE and related rights. The Court underscored that the Mexican State had undertaken international commitments on climate change and environmental preservation, pledging to uphold principles of sustainability.
Mexico guarantees R2HE throughout its Constitution, and the enumerated right has been written and read into domestic legislation. Critically, Article 4 of the Constitution guarantees R2HE, while Article 25 emphasizes the need for enterprises to operate sustainably for the public good, preserving resources and the environment. Many principles and rights integral to R2HE, as interpreted by domestic courts, find affirmation in Mexico’s endorsement of international agreements.
The explicit inclusion of R2HE within the Constitution has empowered both the judiciary and legislature to elaborate on its facets and implementation. The Plaintiff’s Brief heavily referenced legal precedents, which the Court later echoed in its decision. Building upon these precedents, the Plaintiff argued that R2HE is an intrinsic human right and a right inherent in nature itself. Mexican jurisprudence has recognized R2HE as possessing both individual and collective dimensions. On one hand, its violation may impact individual rights like health, personal integrity, and life. On the other, R2HE is a universal interest shared collectively by present and future generations.
This argument draws upon two fundamental principles of R2HE. First, acknowledged in various jurisdictions such as Ecuador and Colombia, the intrinsic value of nature and the principle of intergenerational equity. Second, R2HE is not merely a human right but an inherent right that encompasses both humanity and nature.
Greenpeace argued that government policies constituted impermissible backsliding, contravening the principles of progressivity and non-regression safeguarded by the Mexican Constitution and international treaties. The evolution of human rights occurs gradually, with advancements made through short-, medium-, and long-term goals. However, the policies obstructed the advancement of renewable energy sources by favoring fossil fuels, impeding the shift toward a more sustainable energy mix. Upholding the non-regression principle, the Court prohibited public authorities from diminishing environmental protection levels unless absolutely necessary. Remarkably, the Court extended the concepts of progressive realization and non-regression to encompass the rights of future generations.
Greenpeace argued that the government had failed to adhere to the precautionary principle, relying on Mexico’s constitutional obligations and its ratification of the Rio Declaration. The energy policies’ immediate effects may not be apparent, but they will harm the environment in the long term by reinforcing reliance on polluting energy sources.
Greenpeace asserted that the government’s failure to adhere to the precautionary principle contradicted Mexico’s constitutional obligations and its signing of the Rio Declaration. While the immediate effects of the energy policies might not be readily evident, they have long-term detrimental impacts on the environment by perpetuating reliance on polluting energy sources.
In its ruling, the Court further emphasized the principle of in dubio pro natura to heighten the stringency of precautionary and preventive measures. Those principles mandate prioritizing environmental preservation when interests conflict. The agencies violated them by risking the environment for the temporary displacement of renewables in Mexico’s energy. In situations where a project’s interests conflict with environmental concerns, measures should prioritize environmental conservation, even in cases where potential risks or damages are uncertain. Hence, the temporary sidelining of renewable energy sources in Mexico’s energy strategy posed a direct threat to the environment and contradicted the principles that the agencies were mandated to uphold.
The principle of sustainable development demands that states pursue policies meeting present needs while safeguarding the ability of future generations to do the same. Greenpeace contended that sustainable development constitutes a critical facet of the broader R2HE, supported by both domestic and international legal precedents. Both the Rio Declaration and Brundtland Report underscored sustainability as an integral element of R2HE. Previous jurisprudence and discussions within Mexican Courts had highlighted the inseparable connection between sustainability, development, and R2HE, all enshrined in the Constitution.
The Court concurred that Article 25 of the Mexican Constitution mandated the integration of sustainability principles into the practices of the electricity industry. No provision allowed for impeding environmental progress, even when considering factors like reliability and security. Ensuring environmental sustainability isn’t merely about avoiding harm; it establishes an obligation for authorities to actively monitor, preserve, and protect the environment through their regulations and policies.
The case was an important ruling, leading to the complete nullification of CENACE’s and the Ministry of the Environment’s policies. Although the District Court primarily based its decisions on procedural and jurisdictional grounds, the Plaintiff’s argument highlighting violations of R2HE and international commitments resulted in a favorable opinion, safeguarding the environment and advancing climate justice efforts. The Court deemed the block on renewable energy sources unconstitutional, emphasizing the indispensability of such policies for upholding and fulfilling human rights.
The Plaintiff’s legal team hailed the decision as a catalyst for promoting renewable energy adoption during Mexico’s energy transition. They highlighted the ruling’s potential to bolster transparency, enhance public participation, and reinforce constitutional assurances of rights to “health, to a healthy environment, to sustainability, and to legality.”
