Mexico's supreme court grants first injunction against 2023 mining law reform

Mexico's supreme court (SCJN) has granted the first injunction against the 2023 reform to the mining law, a reform championed by former president Andrés Manuel López Obrador and approved through a fast-track process despite widespread criticism from the industry and opposition lawmakers.

The court’s second chamber voted by three to two to declare unconstitutional the fifth transitory article of the reform, which instructed the economy ministry to dismiss new exploration and production concession requests without further processing, reported newspaper Reforma.

Justices Javier Láynez, Luis María Aguilar and Alberto Pérez Dayán ruled that the article is retroactive and thus unconstitutional.

"The plaintiff, Emiliano Ruiz Hernández, has the right to have his request processed in accordance with the regulations in place when it was submitted in October 2019. However, the contested transitory article unjustifiably orders that these requests be dismissed without further processing, violating the principle of non-retroactivity of the law," the ruling reads.

Following the ruling, expert in mining law Alberto Vázquez said on LinkedIn that "the injunction declares the corresponding decree [the reform to the mining law] unconstitutional and could set a precedent for similar cases."

"In this and other injunctions resolved in a similar manner, it will be necessary to monitor the proper resolution by the DGM [mining department]," Vázquez added, advising companies with pending injunctions not to submit new expert reports or revisions to requests that have been previously required by the authorities.

Background

Since the reform was published in the official gazette in May last year, hundreds of mining companies have filed legal challenges against various aspects of the new law. While some courts issued preliminary rulings, this year the supreme court ordered a temporary halt on judicial proceedings against the May 2023 reform to prevent conflicting decisions.

As the highest court in Mexico, the SCJN is the final authority capable of establishing legal precedent and ruling on the so-called injunctions (known locally as amparos) filed against the reformed legislation on mining, national waters, ecological balance and environmental protection, and the prevention and comprehensive management of waste.

Meanwhile, two additional constitutional challenges against the mining reform remain unresolved.

Justice Lenia Batres, who voted against granting the injunction along with Yasmín Esquivel, criticized those who approved it, reminding them that the court’s plenary session still has a pending constitutional challenge that could invalidate the entire reform, Reforma reported.

Justice Luis María Aguilar’s term on the supreme court ends on November 30, raising concerns that the court may not have the required eight (out of 11) votes to declare the mining reform unconstitutional after that date.