By ALEJANDRO ENVILA FISHER
On Sunday, June 5, World Environment Day, Mexico — once again — will have nothing to celebrate.
The fact that the administration of Andrés Manuel López Obrador (AMLO) has decided to complete ignore and override a definitive suspension granted by a federal court’s legal injunction 884/2022 against the works of Section Five of the Tren Maya tourist train is just one more example of the president’s total disregard for the law, as well as his indifference and contempt for respect for biodiversity, sustainability and ecology in general.
No sooner had the measure granted by the Yucatan First District Court been announced on Monday, May 30, based on the known absence of an Environmental Impact Statement (MIA), which is a legal requirement that must be presented before any work can begin on a construction project, then the National Fund for the Promotion of Tourism (Fonatur) was already stating that the work would continue because the MIA was about to be authorized (retroactively, it seems, since the construction was already well underway) by Mexico’s Secretariat of the Environment and Natural Resources (Semarnat). Fonatur also stated that it intended to challenge the injunction in a legal tribunal.
Whatever the final resolution of the case may be (based on past experience with the current administration’s bulldozing political tactics, it is most probably going to be resolved in favor of Fonatur, after all, what AMLO wants, AMLO gets), the procedure has already tainted the train’s construction and put in doubt its legitimacy, both because of the illegal route that Fonatur has taken from the off-start and because of the way the government tried to first justify and now legalize (after the fact) its blatant violation of Mexican law.
The construction of the Tren Maya began in May 2020, without the necessary MIA from Fonatur and therefore was not endorsed by the corresponding authority, the Semarnat. By itself, that is already a serious irregularity, since no work should have begun without the MIA. Add to that the fact that we are talking about a federal mega infrastructure project of more than 1,500 kilometers of railroads that will cross various ecosystems in the Yucatan Peninsula — and one that has been absolutely questioned by practically every environmental NGOs and specialist dedicated to habitat conservation — and the government’s total disregard for the law and the environment is made even more apparent.
The AMLO administration was warned from Day One, over and over again, that the train would destroy the Yucatan Peninsula’s fragile underwater rivers and eradicate as much as 50 percent of the region’s indigenous flora and fauna. However, the ability to review and rectify is not characteristic of this administration. Moreover, it is a pet project of AMLO, so canceling it, stalling it or even rethinking it are not options.
With the intention of “correcting” the illegal onset of the construction, some “genius” of AMLO’s team of legal advisers (who have convinced López Obrador that the law is nothing more than a frivolous obstacle that can be trampled on whenever it gets in the way) recommended a new way out: Decree that all strategic works in various fields, including telecommunications and railways, are a matter of “national security “and, therefore, are exempt from compliance with current regulations.
For anyone with a basic knowledge of Mexican constitutional law, it is evident that this strategy is not only legally weak, but also politically risky and costly, since it showcases the president, once again, as an authoritarian ruler with a dictatorial inclination. Under nonexceptional conditions, a decree, however presidential it may be, cannot repeal the laws voted into existence by the Congress, and much less go against the constitution.
Eager for a way out in the face of the incessant criticism for the evident irregularities that surround one of his flagship works, López Obrador took the dubious advise of his legal consultants, and, on Nov.22, 2021, issued his infamous “decree” that freed his government from administrative procedures, permits, tenders, environmental impact statements and all transparency obligations, for reasons of “national security.” And to add salt to the wounds of an already hemorrhaging constitutional law, the decree left it up to the president to decide which projects constitute strategic endeavors and would thus be protected under the concept of national security.
Not surprisingly, the presidential decree was legally challenged, and, at the end of February 2022, the 17th District Court in Administrative Matters of Mexico City granted a definitive suspension against the paper carte blanche that López Obrador had manufactured for his works. That resolution expressly stated that none of the projects protected by the decree meets the conditions to be considered national security — so categorical and also so embarrassing.
Now that a federal judge has ordered that the Tren Maya’s construction be halted, the folks at Fonatur are scrambling to get the MIA they were supposed to have two years ago when the work began. This circus of let’s-make-the-permit-retroactive-or-simply-change-the-law-to-suit-our-objectives approach to governance is made all the more absurd by the administration’s suspicious change in the route of Section 5, which runs from Cancun to Tulum. The eminent devastation of the jungle and the cenote underground rivers can be seen in any number videos and environmental reports that flood the internet. But AMLO will hear none of it.
And so, belatedly, Fonatur has started the paperwork to get the necessary MIA.
Preparing a document of this type is no easy matter, and having it evaluated by the corresponding authority is even more complex. The study can take months, depending on the dimensions of the evaluated work and the potential damage to the habitat that it may cause.
Semarnat’s approval of the MIA could take even longer, that is, if all the proper investigative procedures are conducted.
Meanwhile, the construction of the Tren Maya railway just keeps chugging along, and a considerable part of the Yucatan ecosystem has already been affected. But, who cares, as long as the will of López Obrador be done.
It is highly unlikely that Semarnat would reject Fonatur’s extemporaneous MIA. After all, the president wants it fast-tracked.
Even from an investment point of view, the future of AMLO’s Tren Maya is dubious. The cost of the project continues to spiral higher and higher, and there seems to be no end in sight.
AMLO’s callous response to his environmental critics is that he is planting trees across Mexico, not necessarily where they are being demolished and certainly not necessarily the same types of trees that he and his administration are bulldozing down, but trees, just the same.
Mexico’s current political reality prevents us from harboring much hope that reason will triumph and the president will renounce his predatory flagship work for the benefit of conservation and the world in the medium term.
Rigged procedures and indifference for the environment will no doubt ensure that the train’s construction will not be halted.
It is clear that, for today’s authorities, the law is just an obstacle and not a guarantee, an obstacle that can be overcome through decrees, simulations, authoritarian orders and threats.
And, of course, the consequences of the systematic violation of the rule of law will continue to be noted by potential investors, nationals and foreigners, who will naturally endorse their decision to take their capital and their projects to countries where legal certainty guarantees economic stability and ownership of assets, as well as peace of mind about the future of their investments.
Today, definitely, that destination is not Mexico, no matter how much the president boasts.