LEGAL FRAMEWORK FOR PROTECTION OF THE ATMOSPHERE *

By: Dr. Rogelio Martínez Vera. **

According to eminently scientific criteria issued in this area, what is called the atmosphere is that space which surrounds the earth which has a material that usually remains expanded throughout atmospheric space, which is called air. This means that the atmosphere should be understood to only be that space within which there is gaseous, liquid and solid matter, which moves from place to place due to winds produced in those atmospheric spaces. Of course, the composition of air is not constant nor the same in the many atmospheric regions of the planet. For different causes, either natural or artificial, polluting elements that are found in the atmosphere and mix with air, cause its components to become altered.

According to scientists, air is a gas that is made up of different elements including the most important one which is oxygen, because it is so necessary and vital to life. The air in the atmosphere is liable to become polluted, as mentioned above, by either natural or artificial causes. Included among natural causes of pollution are volcanic eruptions and forest fires. Because they are sporadic, these causes of air pollution do not overly concern scientists involved in studying the environment.

Artificial causes for pollution in atmospheric space are found in activities developed by mankind, such as industry. Pollution of air and gases beneficial for life located in the atmosphere is becoming a serious problem, especially after the technological advances of the last 50 years. This pollution has worsened in alarming proportions, especially in large cities where concentrations of toxic gases in the air we breathe have gone up in an almost vertical fashion. Industries, use of internal combustion vehicles, the civilizing habits of mankind such as pesticide, fungicide and insecticide use in both farming and in the home, have caused high levels of pollution in the above mentioned atmospheric spaces.

To prevent and/or control air pollution, in Chapter II of Title IV of the General Law of Environmental Balance and Protection of the Environment, the government has created a complete legal framework with which it has been establishing regulatory measures for both control and prevention of the pollution of the air we breathe which as already mentioned, is located in atmospheric space.

By law, environmental authorities are vested with significant powers in this area, among which the following may be mentioned as the most important ones:

a. Issuance of Official Mexican Standards for establishing air quality in the different locations, areas or regions of the country, considering of course, maximum permissible values of pollutants for health. These values will be determined by authorities responsible for protecting the health of human beings. These official standards will cover not only gases, but solid or liquid particulates that are projected into atmospheric spaces, coming from both fixed and mobile sources.

b. Establishment of Official Mexican Standards for monitoring air quality in every state of the country, as well as in every city having large urban concentrations, by which state and municipal governments have an obligation to keep sources of air pollution under control, comply with prevention measures issued by federal authorities and they shall also establish and operate emissions testing systems for motor vehicles on the road.

c. To promote and encourage use of new technologies to reduce emissions of hazardous substances to the air among those responsible for air pollutant sources. State and municipal governments, in coordination with the federal government, must establish air pollution and pollution source control systems, especially for industrial, commercial and service sources, provided that they may not regulate companies covered under article 111 bis of the law in this area which are exclusively under federal jurisdiction, such as the chemical, petroleum and petrochemical industry, paints and dyes, automotive, cellulose and paper, metallurgy, glass, electric power generation, asbestos material manufacture, cement and lime industries, as well as hazardous waste treatment.

d. The Federal Government also has exclusive jurisdiction for setting up overall environmental criteria having to do with the atmosphere; to regulate activities that because of their technical, political, economic or administrative complexity may require Federal involvement; all prevention and monitoring activities in areas exclusively under Federal jurisdiction (ports, airports, etc.); to intervene in atmospheric problems originating in foreign countries that affect our country as well as areas over which the country exercises sovereign control and jurisdiction, and also where the atmospheric environmental problem affects other countries. Handling air pollution problems when two or more states are being affected is also under Federal jurisdiction.

Government authorities, whether Federal or state or even municipal, shall encourage the setup of industries using technology and fuels causing the least amount of air pollution in any areas they might decide are proper for establishing industrial areas in close proximity to residential areas within the scope of their respective purview.

Federal authorities having jurisdiction must insure that topographic, climatic and meteorological conditions are taken into consideration to enable proper dispersal of air pollutants, in all cases where determination of land uses as defined under applicable urban development programs is made.

Any persons and companies which may be entitled to receive tax incentives under such determinations, and any authorities granting such incentives must take into account: all persons and companies manufacturing, purchasing, installing or operating anti-pollution equipment, performing scientific or technological research for prevention and control of air pollutants, and in general who are constructing anything for the purpose of dispersing pollutants toward urban areas.

Concerning mechanisms contained in the Law covering this subject and regulations therefor, these define different situations and actions directly related to air pollution problems.

Thus, for example, the following definitions are set forth:

  • Emission
    Direct or indirect discharge of any substance in any state, or of energy, into the atmosphere.
  • Ambient Air Quality
    The presence of air pollutants located at ground level.
  • Platform and Sampling Bridges
    Facilities for doing sampling of gases or particulates in air.
  • Vehicle Emissions Testing
    Measurement of gas, liquid or solid emissions in the air coming from motor vehicles.
  • Critical Area
    Areas having problems in dispersal or high concentrations of airborne toxic substances because of their topographical and meteorological conditions.

Controls imposed by authorities for preventing excessive air pollution and when appropriate to insure that such situations are avoided, are classified as authorizations and licenses.

The first of these are of a provisional, temporary and discretional nature, while licenses are permanent and mandatory by the government, after the private party has fulfilled legal and regulatory issuance requirements.

In conclusion, air pollution may refer equally to gaseous substances, solid particles, liquids and even odors, which may be hazardous to the health of persons, animals or plants. Federal, state and even municipal authorities are under an obligation to combine their efforts in conserving and protecting air quality in their respective jurisdictions. There is no doubt that federal environmental authorities are the ones having the most powers and responsibilities in the area of air pollution.

Further and more precise information on the relevant issues that have been dealt with in this article for our magazine may be found by consulting: Chapter II of Title IV of the General Law of Environmental Balance and Protection of the Environment, as well as the Regulations for the Law for Prevention and Control of Atmospheric Pollution.
 

* Article first published by Calidad Ambiental, Vol. V, N. 2, Mar-Apr 2000, p.12.

** Rogelio Martínez Vera has a master and a doctorate degree on Law by the National Autonomous University of Mexico. He has worked as Professor in several higher education institutions in the Mexican Republic, as well as for the Federal Government’s Secretary of Treasury and Public Credit. In addition, he has been appointed for several public positions such as Director of the Judicial Department of the Public Credit General Administration; Sub-director of the General Administration of the Federal Fiscal Audit; Federal Fiscal Inspection’s General Director; Regional Fiscal Attorney of the Northeast; Fiscal Attorney of Investigations; and Internal Controller of the Secretary of Treasury and Public Credit. In 1974, he won the National Prize of Judicial Research, granted by the President of Mexico. As of 1989, he has been working as a Professor at the Monterrey Institute of Technology.