Five Aspects to Consider When Preparing an Environmental Impact Statement
Human activities generate environmental impacts, and to assess those caused by companies and project developers, the law provides for a technical-legal instrument known as the Environmental Impact Statement (Manifestación de Impacto Ambiental, MIA).
Under Article 3 of the General Law of Ecological Balance and Environmental Protection (LGEEPA), this is defined as "the document through which, based on studies, the significant and potential environmental impact that a project or activity would generate is disclosed, along with the means to avoid or mitigate it if it is negative."
An Environmental Impact Statement (MIA) is a mandatory technical-legal instrument, so any company wishing to carry out a project or activity contemplated by the law and its regulations must prepare one (including all studies relevant to the proposed activity or project) and submit it to the Ministry of Environment and Natural Resources (SEMARNAT) and/or to the environmental ministry of each state, depending on whether the activity falls under federal or local jurisdiction.
Article 28 of the LGEEPA lists the cases in which environmental impact authorization of federal jurisdiction is required prior to carrying out a project, including: hydraulic works and general communication routes; the oil, petrochemical, chemical, steel, paper, sugar, cement, and electrical industries; mineral exploration and extraction; hazardous waste treatment or confinement facilities; forestry use in tropical jungles; land-use changes in forest areas; industrial parks for high-risk activities; real estate developments in coastal ecosystems; projects in wetlands and protected natural areas; and fishing, aquaculture, or agricultural activities that could put species or ecosystems at risk.
For its part, the LGEEPA's Regulation on Environmental Impact Assessment details the listed projects and activities, as well as — importantly — their exceptions.
Because it is mandatory, preparing an MIA allows companies to (i) analyze the environmental feasibility of their project before it is developed, and (ii) avoid having their operations interrupted, which can carry extremely costly consequences for any organization. In addition, a properly developed MIA, along with its appropriate follow-up and compliance, helps maintain a company's good reputation and reinforces consistency with its values — which, over time, contributes to building value with consumers and investors.
Below are recommendations for preparing and filing an Environmental Impact Statement, as well as for its proper implementation, in order to help companies avoid violations or administrative shortcomings that could complicate the MIA's evaluation and the eventual execution of the project.
1. Retain Legal Counsel
The environmental impact assessment instrument involves the application of various laws and regulatory standards, which are not compiled into a single body of law. For this reason, before developing an MIA, and in addition to any technical guidance they may have, companies should seek advice from an environmental law specialist to avoid non-compliance that could delay or entirely prevent the execution of their project.
Among the responsibilities of private parties in environmental matters set out in the Regulation: anyone intending to carry out a covered project or activity must first obtain the Ministry's environmental impact authorization (Art. 5); developers must submit an environmental impact statement to the Ministry in the applicable format (Art. 9); modifications to the project during or after the evaluation procedure must be disclosed to the Ministry or submitted for its consideration (Arts. 27 and 28); and when preventive actions are taken to address an emergency, a report on the mitigation and compensation actions and measures must be submitted (Arts. 7 and 8).
2. An Environmental Feasibility Analysis of the Project Is Necessary
This is not a legally regulated instrument, but a consultant should carry out an environmental feasibility analysis before preparing an MIA, in order to assess the materials, machinery, equipment, technology, and personnel qualifications required to execute and operate the project. This is usually carried out by the company's or developer's technical consultant, together with legal counsel.
This study allows the company to determine whether the activity or project will be favorable, and it is also a precursor to a successful Environmental Impact Statement.
3. Interpreting the Law Is Required
The Regulation details the information required to prepare an MIA, whether particular or regional, based on Articles 12 and 13 of the Regulation. Some projects involve the application of numerous regulations and provisions that, taken together, may present contradictions that could, on paper, limit the execution of various projects. A comprehensive analysis of the applicable regulations is necessary to avoid "antinomies" and ensure the regulations function as intended.
| Particular | Regional |
|---|---|
| I. General information on the project, the developer, and the party responsible for the study | I. General information on the project, the developer, and the party responsible for the study |
| II. Project description | II. Description of the works or activities and partial programs or plans |
| III. Connection to legal provisions and land-use regulations | III. Connection to planning instruments and legal provisions |
| IV. Description of the environmental system and identified issues | IV. Description of the regional environmental system and deterioration trends |
| V. Identification, description, and assessment of environmental impacts | V. Cumulative and residual environmental impacts of the regional system |
| VI. Preventive and mitigation measures | VI. Regional prevention and mitigation strategies |
| VII. Environmental forecasts and evaluation of alternatives | VII. Regional environmental forecasts and evaluation of alternatives |
| VIII. Methodological instruments and technical elements | VIII. Methodological instruments supporting the statement |
4. Nearly All MIAs Are Approved With Conditions
Article 28 of the LGEEPA states that environmental impact assessment is the procedure through which the Ministry sets the conditions under which projects and activities that could cause ecological imbalance may be carried out, in order to avoid or minimize their negative effects on the environment.
Practically all MIAs approved by SEMARNAT are conditioned: the authority imposes additional obligations on developers, such as financial guarantees or environmental monitoring and supervision programs (waste, air quality, wastewater), wildlife crossings, or emissions monitoring, depending on the nature of the project.
Failing to comply with the imposed conditions can carry a high risk of a shutdown or closure of operations. To ensure ongoing compliance, it is advisable to have specialized advisory support, whether internal or external, to prevent violations, complaints, or environmental harm.
5. Notify the Authorities of Any Changes
One of the most common mistakes is modifying the project during its development without informing the environmental authorities, as required under Articles 27 and 28 of the Regulation. It is worth distinguishing between an exemption, an exception, or a notice that authorization is not required, based on Article 6 of the Regulation, which requires that the works already have prior authorization, that the actions be unrelated to the process that generated that authorization, and that they not involve an increase in the level of environmental impact or risk.
There has been debate in the industry over how to interpret these requirements; the most reasonable position holds that the exemption should apply when the proposed actions remain within previously authorized parameters. Larger-scale changes fall under the authorization modification process set out in Article 28 of the Regulation.