Kia México v. Procuraduría Federal de Protección al Ambiente (PROFEPA)

On January 18, 2022, Kia Motors México, S.A. de C.V. filed a lawsuit against the Procuraduría Federal de Protección al Ambiente (PROFEPA) before the Federal Tribunal of Administrative Justice, contesting a fine PROFEPA imposed on them for non-compliance with the NOM-163-SEMARNAT-ENER-SCFI-2013. In general terms, the NOM-163-SEMARNAT-ENER-SCFI-2013 establishes that, for certain car models, they must obtain a certificate of environmental compliance, and certify that their cars comply with certain carbon dioxide emissions parameters. One of the purposes of this Mexican Official Standard is to prevent atmospheric pollution and thus combat climate change. Kia Motors was sanctioned with two different fines, for: 1) not having obtained the NOM Certificate of Environmental Compliance and, 2) not having accredited compliance with the criteria for the acceptance of carbon dioxide emissions, because the corporation failed to meet its environmental obligations to reduce CO2 emissions from their 2016 model year vehicles. However, PROFEPA imposed, for both sanctions, 7 fines, one for each car model. On August 11, 2022, regarding the first sanction, the Federal Tribunal of Administrative Justice decided that the fine, in relation to the Certificate of Environmental compliance was illegal. The Tribunal also decided that Kia could not be sanctioned for the same conduct 7 times. Considering that it was a single infringing conduct, only one fine could be applied, not 7. PROFEPA filed an appeal on November 17, 2022, arguing that Kia should be fined for the 7 models of cars marketed, because each automotive line and model must comply with the carbon dioxide reduction, as each line and model has different specifications. By not complying with the NOM, none of the 7 models complied with the CO2 emission limits. PROFEPA made the example in its appeal that sanctioning the company with a single fine would be equivalent to a person who deprives a hundred people of their lives, being sanctioned only once for the crime of deprivation of life. The Collegiate Court that heard the appeal, on September 22, 2023, decided that (1) the two sanctions were legal and that (2) based on Article 4 of the Constitution, which protects the right to a healthy environment, the "polluter pays" principle, the principle of prevention and the principle of in dubio pro natura, the company had to be fined for each model of automobiles. The above, first, because environmental administrative law must function as an effective instrument in the prevention of environmental damage and, with it, dissuade potential offenders from committing damage to the environment. Second, because this interpretation of the NOM allows the protection of the right to a healthy environment and the fight against climate change. In accordance with the decision of the Collegiate Court, the Federal Tribunal of Administrative Justice must issue a new decision with the new considerations issued by the Collegiate Court. This new decision is pending.