The Supreme Court of Mexico rejects a corporate plaintiff’s challenge to a state plastic bag ban, emphasizing the paramount importance of environmental preservation over individual business interests.
A plastic bag manufacturer took the Oaxaca state government to court for prohibiting businesses from distributing non-recycled plastic bags. The Court’s decision upheld the plastic bag ban but did not grant protection to the plaintiff, emphasizing the paramount importance of environmental preservation over individual business interests.
In 2019, the State Legislature of Oaxaca amended the state’s Solid Waste Prevention and Management Law (Solid Waste Law). As part of the amendments, businesses were prohibited from distributing non-recycled plastic bags. A plastic bag manufacturer (plaintiff) responded by taking the Legislative Congress, Governor and Head of Newspaper of Oaxaca (defendants) to court. The plaintiff claimed that the amendments to the Solid Waste Law (1) did not follow legislative procedure, violating its constitutional due process rights; (2) infringed on its freedom of commerce and equality compared to other manufacturers, thus hindering the proper application of the polluter pays principle under R2HE; (3) violated the right to freedom of trade and equality since they were arbitrary. The law would only impact specific producers and likely result in adverse environmental effects. The plaintiff also claimed the amendments were disproportional since they (4) violated the principle of legality; as well as (5) legal certainty since they were textually unclear. Therefore, the plaintiff asked the Court to issue an amparo (or protection) in its favor to prevent the challenged amendments from applying to the plaintiff.
The case was escalated to the Supreme Court by the Court of Appeals after overturning a district court decision. In October 2023, the Supreme Court determined that the prohibition of non-recycled plastic bags did not infringe upon any rights asserted by the plaintiff. The Court accounted for the environmental consequences of plastic pollution, drawing connections between plastic production, climate change and the adverse impact on marine ecosystems. The Court’s ruling affirmed the ban on plastic bags and did not provide legal protection to the plaintiff. The decision underscored the paramount importance of environmental preservation over individual business interests. Throughout the opinion, the Court invoked the content and significance of R2HE to tilt the balance in favor of the defendants.
The Court utilized a well-established proportionality test to evaluate whether the amendments infringed upon the right to freedom of trade and equality. According to the Court’s analysis, as long as the test is satisfied, a right may be legitimately restricted to promote another constitutional purpose, right or principle.
The Court applied the test to each right raised by the plaintiff, incorporating the constitutional R2HE to tip the scale in favor of the defendants. Specifically, the Court relied on domestic and international precedent to establish the dual nature of R2HE. It recognized that the right has an individual and collective dimension. The former guarantees each person its enjoyment and the latter mandates the protection of the environment and societal interests, irrespective of the impact on specific individuals. The Court clarified that R2HE, being a “right-duty,” imposes an obligation on all states and private entities to respect and actively protect it. That duty includes implementing measures to counter actions that endanger the environment.
Hence, while evaluating whether the amendments served a constitutionally valid purpose as part of the proportionality test, the Court affirmed that reducing plastic waste to protect R2HE constituted a legitimate objective of the local legislature. Moreover, as the amendments bolstered R2HE protection more than they limited the rights in question, the Court deemed them proportional.
Furthermore, the Court relied on established principles of environmental law, including the precautionary principle and the polluter pays principle, to reject the plaintiff’s arguments regarding infringing upon equality and the availability of more suitable alternatives.
The Court acknowledged the recognition of R2HE and its associated principles in various international instruments like the Protocol of San Salvador and UN declarations. The inclusion of R2HE in both domestic legislation and international agreements highlighted its significance, prompting the Court to assign greater weight to its violation during the proportionality test. Drawing on established international law also enabled the Court to elaborate more confidently on the content and extent of R2HE. Specifically, the global significance attributed to R2HE strengthened the Court’s argument that safeguarding R2HE was an obligation on all States, compelling them to adopt requisite measures for protecting, preserving and enhancing the environment. Therefore, the constitutional validity of the Oaxaca legislature’s measure, which aimed at protecting R2HE by reducing plastic waste, was considered suitable, necessary and proportionate.
Moreover, the Court drew upon the interpretation of international bodies, including the Inter-American Court on Human Rights, to support its understanding of R2HE possessing two dimensions, as explained above.
In elucidating the dual nature of R2HE, the Court explained that R2HE “goes beyond the prerogative of every person to live in a healthy and dignified environment, as it also implies the protection of nature for the value it has in itself.” While the individual or “subjective and anthropogenic” dimension guarantees each person the enjoyment of the right, the collective or “objective and ecological” protects nature’s intrinsic value. The collective dimension places the environment at its center, “focusing on avoiding ecological damage as a mediate or immediate consequence of the intervention of man in the administration of natural resources, causing an affectation to the diffuse and collective interests whose reparation belongs […] to society in general.”
The plaintiff contended that the amendments to the Solid Waste Law violated the polluter pays principle stemming from R2HE, which holds that polluters should bear the full cost of the environmental damage they caused. According to the plaintiff, the amendments unfairly burdened plastic bag producers. They argued that the product’s consumers and government regulators should bear the burden. The burden allocation was unfair as the ultimate responsibility for contamination rested with the consumer from inadequate bag disposal, facilitated by a lack of government education. It was consumers and governments, according to the plaintiff, who threatened R2HE.
The defendants agreed that the public sector was obligated to guarantee R2HE. They claimed that duty was why the Oaxaca government enacted the amendments. The Court agreed. It explained that R2HE bound “all State authorities to adopt, within the framework of their competencies, all necessary measures for the protection of the environment, recognizing in turn a co-responsibility between the State and individuals.” The State assumed “an essential role in regulating and arbitrating conduct that unduly affects the environment.” Additionally, the Court determined that the amendments aligned with fundamental principles of R2HE, such as the polluter pays principle. The principle was satisfied by imposing regulatory control on a primary polluter while allocating responsibilities for plastic waste to the government and the public through other legal frameworks.
When evaluating the appropriateness of the amendments, the Court underscored that alternative measures would not be as suitable, as they could constrain and impede state regulation.
The Court clarified that R2HE and other fundamental rights like the right to water, health, personal integrity and life are deeply intertwined. However, it emphasized that a violation of R2HE can occur simply by infringing upon its individual or collective dimensions. In other words, proving a violation of R2HE did not always require demonstrating an impact on another fundamental right.
As explained above, the defendants and the Court emphasized R2HE’s dual nature. The Court explained that this dual nature transformed R2HE into a “right-duty,” binding an expansive set of legal persons—governments, individuals and companies—to respect and actively protect R2HE.
This case exemplifies how courts can utilize R2HE to assist governmental entities in establishing and enforcing environmentally responsible laws and policies. It demonstrates that R2HE can justify such policies, even when there are potential impacts on corporate profits.
