By Héctor Beristain Souza
With the signing and ratification of the NORTH AMERICAN FREE TRADE AGREEMENT, the oil industry has evolved significantly in our country; reforming Mexican legislation in order to gain access to the necessary investment to promote production and development in the sector.
Prior to the FREE TRADE AGREEMENT, hydrocarbons, which also cover natural gas, were regulated by way of the Regulatory Law of Article 27 of the Constitution in the Area of Petroleum, dating back to 1958. On the 11th of May 1995, a Decree that amended and added diverse provisions to the Regulatory Law of Article 27 of the Constitution in the Area of Petroleum was published in the Federal Official Gazette. Among these changes were those that provided for the participation of the social and private sectors in the distribution, storage and transport of natural gas, and to those who could construct, operate and own pipelines, installations and equipment according to the terms of technical and regulatory provisions and the corresponding regulations.
We have seen that the government has indeed promoted the natural gas industry, however, a number of regulatory problems have arisen in the development of this policy of change. One of these is the construction of pipelines and their passage across public, social and private lands. In the face of these issues arise questions like: is express authorization necessary from the owners of lands where the pipeline it to be laid? May these people protect themselves legally? Would it be necessary to obtain a right-of-way?, etc.
Foreseeing this situation, Congress was careful when they drafted the November 1995 reforms to the Regulatory Law of Article 27 of the Constitution in the Area of Petroleum, as well as when they drafted the “Energy Regulatory Commission Law” and the “Natural Gas Regulations” in relation to the provisions on laying pipeline for the transportation and distribution of natural gas, which we will analyze in the following.
We will begin by mentioning that the laying of gas pipelines comes under the “Public Interest”.
Something that is of extreme importance with respect to the concept of public interest is that is must meet social interests by attending to a general need. We could say that public interest is the right of the State to satisfy a collective need, one that is of interest to the majority of individuals. Indeed, if we refer to the activities involved in the laying of pipelines to transport and distribute natural gas carried out by private individuals, then they too also meet these characteristics, and as such require verification by a competent authority in order to ensure that service is being provided optimally.
Consequently, the construction and laying of pipe carried out by private distributors would require a declaration of Public Interest according to the terms of paragraph six of article 10 of the “Regulatory Law of Article 27 of the Constitution in the Area of Petroleum”, article 107 of the “Natural Gas Regulations” and article 10 of the “Energy Regulatory Commission Law”. Effectively, these legal provisions clearly include the “Declaration of Public Interest” in that related to the laying of pipelines on public, social and even private land.
The legal analyst Argentino Rafael Bielsa, refers to the Public Interest in the following manner:
“Clarifying that this concept is relative, variable, subject to economic, political and social conditions, lacking in all definition; it must be left to the legislator to determine the Public Interest by way of examining a complex circumstantial question. “1. Resultantly, the legislator was quite clear when setting forth in the applicable provisions the declaration of public interest in reference t o the laying of natural gas pipelines.
The ENERGY REGULATORY COMMISSION, in accordance with the last paragraph of article 10 of their Law, must instigate the legal actions required for to lay pipelines, and therefore is empowered to assist concessionaires before the corresponding authorities, in order to obtain the necessary permits for the construction and laying of pipelines.
In the event that any individual does not agree with the necessity to lay pipeline within the boundaries of their property then they must exhaust any and all legal remedies available to then by law before moving to a Writ of Amparo against the issuance of the pipeline construction license in accordance with section XV of article 73 of the Writ of Amparo Law regulatory of article s 103 and 107 of the Constitution. This remedy must not be presented with any requirements other than those indicated in article 124 of the Writ of Amparo Law, therefore it must also be declared unlawful in accordance with that mentioned in section 11 of the same article given that suspending the construction work would harm the social interest for reasons we commented on regarding the Public Interest, in addition to the fact that they would contravene public interest provisions such as articles 10 paragraph six of the “Regulatory Law of Article 27 of the Constitution in the Area of Petroleum”, article 107 of the “NATURAL GAS REGULATIONS” and article 10 of the “Regulatory Commission Law”.
1 BIELSA, R., Derecho
Administrativo, t. IV, Buenos Aires, Argentina, 1956, en Enciclopedia
Jurídica Omeba, Tomo XXVI, página 598, Editorial Driskill S.A
TECNOGAS Y ELECTRICIDAD, Año 2 Vol. 1 No.11 Marzo-Abril del 2000 Mèxico D.F, Paginas 6-7
