By: Santiago Suárez Sevilla, Carlos Suárez de Miguel and Alejandro Preciat Campos.

Since its publication in the Official Gazette of the Federation on May 8, 2023, the decree by which the Mining Law, the National Water Law, the General Law of Ecological Balance and Environmental Protection, as well as the Law General for the Prevention and Comprehensive Management of Waste (hereinafter, the 2023 Reform) has accumulated more than 500 indirect protections presented before different jurisdictional bodies in the country. 

A considerable number of these protections sought, among other objectives, to obtain the provisional suspension of certain particularly controversial points of the aforementioned reform as a precautionary measure. However, while some Collegiate Circuit Courts granted the suspension, others denied it. In order to unify these discrepancies in a single interpretation, the Regional Plenary Session on Administrative Matters of the Central-North Region, with residence in Mexico City, issued the amendment related to the contradiction of criteria 234/2023.

Given that the conclusions of the Plenary were divided into a series of interrelated Theses, in the following table we will explain the effects of each one, mentioning the Articles addressed in them and whether the plenary determined whether or not the provisional suspension is appropriate, that is, if it decided or not temporarily interrupt the effects of the amended Articles. Additionally, we provide a brief summary of the arguments given by the Plenary to make said decision.

Thesis	Precepts affected and synthesis of each one	Suspensión provisional	Criterio y alcance
PR.A.CN. J/83 A (11a.)	Article 3, section LVII BIS of the National Water LawFraction added by the 2023 reform. Defines the term “Industrial use in mining” as: “The exploitation, exploitation or use of national waters, including working waters, in the exploration, exploitation or benefit of minerals and substances reserved for the Federation in the terms of the Mining Law. Article 37, second paragraph of the National Water LawParagraph added by the 2023 reform. Prohibits the transfer of rights to explore, use or exploit waters for industrial use in mining when they have originally been intended for another use.  Articles 81 BIS, 81 BIS 1, 81 BIS 2, 81 BIS 3 y 81 BIS 4 of the National Water LawArticles added by the 2023 reform. They are jointly responsible for regulating the industrial use of mining, delimiting the requirements for applying for the concession, the obligations and prohibitions of the concessionaires, and the validity of the concessions. It should be noted that the paragraph first of Article 81 BIS 3 was excluded from this criterion, since this will be analyzed on its own in a later Thesis. Article 88 BIS, section V BIS of the National Water LawFraction added by the 2023 reform. Obliges people who discharge wastewater to present a monthly report of quality indicators of the water in which the discharges are carried out. Article 92, section VI of the National Water LawFraction added by the 2023 reform. Grants the authority the power to suspend any activity that gives rise to wastewater discharges when the monthly report mentioned above is not submitted. Article 119, section XXII of the National Water LawIt considers failure to present the records dictated by law as a cause for sanctioning the concessionaire. The 2023 reform added the specific mention to the monthly report present in Article 88 BIS section V BIS. Thirteenth transitional article of the Reform Decree published in the Official Gazette of the Federation on May 8, 2023Grants a period of ninety days from the entry into force of the same decree for national water concessionaires who carry out work in mining matters to request the authority to change from industrial use to industrial use in mining.	Yes applicable	The Plenary Session determined that there were sufficient merits in the concessionaires' appeal to the principles of public order and social interest to grant the provisional suspension. This is because the creation of a new type of water use (the “industrial use in mining”) could cause the people who hold concessions to no longer be able to carry out activities that were already authorized in titles that they previously obtained because they were unable to meet the requirements of this new modality.
PR.A.CN. J/84 A (11a.)	Article 10, of the Mining LawIt establishes the bases for the exploitation of minerals, substances and salines formed directly by marine waters by individuals. As of the 2023 reform, it recognizes that this activity can only be carried out through concessions granted by the Ministry of Economy. Said reform also removed from the Article all references to mining exploration activity. Article 10 Bis, of the Mining LawArticle added by the 2023 reform. It follows that an individual can inform the Ministry of Economy that in a lot not yet assigned there are non-strategic minerals or substances, and that, if the individual meets certain requirements, he or she may obtain the aforementioned Secretariat the concession.  Article 11, Section I, of the Mining LawGrants companies whose corporate purpose refers to the exploitation of minerals or applicable substances the capacity to hold mining concessions. As in Article 10, the 2023 reform eliminated all references to mineral exploration from this provision. Artículo 19, Fracciones I y V de la Ley de MineríaDetails the rights of individual concession holders. The 2023 reform also eliminated all mention of exploration from this Article. Article 27, Section XVI of the Mining LawFraction added by the 2023 reform. Obliges private concession holders to immediately notify the Ministry of Economy if the presence of minerals or substances not authorized by their concession is noticed during the development of their activities.	Yes applicable	The Plenary took into account the intention and possible justification of the legislators to limit the use of mineral resources by individuals and extend the control of the State by eliminating all mention of the exploration activity of the aforementioned precepts while extending the powers of the Secretariat of Economy. However, this court took into account the rights to legal certainty, legality, the non-retroactivity of the law and the legitimate confidence of the complainants, which is why it decided to grant the provisional suspension. It is important to emphasize that the provisional suspension of Article 11, Section I of the Mining Law specifically only benefits concession holders who have formulated their concession request prior to the entry into force of the claimed decree.
PR.A.CN. J/85 A (11a.)	Article 19, section VII of the Mining LawEstablishes the right of the holders of a mining concession to transfer their ownership. The 2023 reform limited its scope by eliminating the transfer of other rights derived from the concession independently.  Article 4, third paragraph of the National Water LawParagraph added by the 2023 reform. It indicates that if there is a risk of lacking sufficient water for human consumption, the authority may reduce or cancel the concessions for this resource. In this criterion, the Plenary spoke specifically about the power to cancel. Article 29 BIS 4, section XIX of the National Water LawFraction added by the 2023 reform. Establishes as grounds for revocation of the water concession any fact or act that causes economic, social, environmental or any other imbalance. Article 107 BIS of the General Law of Ecological Balance and Environmental Protection.Article added by the 2023 reform. It dictates that the holders of mining concessions and assignments must present to the authority a closure and post-closure Restoration Program. This criterion is only interested in the section that refers to the obligation of the winners of a tender to present said program.	Yes applicable	By eliminating the transfer of rights derived from concession titles and expanding the authority's power to revoke concessions, legislators sought to strengthen the State's control over the use of mining resources, as well as certain collective rights. However, the Plenary once again emphasized that the intentions of maintaining public order and social interest in this specific case cannot take precedence over the violated rights of concession holders.  Furthermore, the court determined that the public interest was already protected by the previous legislation, and that, in this regard, the current reform only introduces greater ambiguity to the concession revocation process.
PR.A.CN. J/86 A (11a.)	Article 20, second and third paragraphs, of the Mining LawIt details the actions of those who carry out coal exploration and exploitation works and works. Through the 2023 reform, the paragraphs mentioned here establish that exploration and exploitation in towns, dams, canals, general communication routes and other public works can only be carried out with permission from the competent authority, and that such activities are completely prohibited. in protected natural areas, channels or vessels of national waters and their federal zones, in the underwater bases of islands, keys and reefs, the seabed, the subsoil of the exclusive economic zone, in the federal maritime terrestrial zone and in the reclaimed lands Sea. Article 46, last paragraph of the General Law of Ecological Balance and Environmental ProtectionParagraph added by the 2023 reform. It emphasizes that in protected natural areas, as defined by the same law, exploration and exploitation works and works cannot be carried out.	Yes applicable	The Plenary recognizes once again that, although the consideration given by legislators to the issues of public order and social interest in environmental matters is important, the principles of non-retroactivity of the law, legal certainty, legality and of legitimate trust to which the individuals affected by the reform appealed.
PR.A.CN. J/87 A (11a.)	Article 27, section XIX of the Mining LawFraction added by the 2023 reform. Prohibits the holders of mining concessions from building deposits or final disposal sites for earth, tailings, slag, pits from mines and mineral processing establishments in protected natural areas, wetlands, basins, channels , federal zones, protection zones and other national assets Article 17 of the General Law for the Prevention and Comprehensive Management of WasteRegulates the disposal of waste from mining. The 2023 reform added mentions of the prohibition of disposing of said waste in protected natural areas.	Yes applicable	The Plenary took into account the possibility that in mining concessions granted prior to the entry into force of the 2023 reform there could be clauses on the deposit of waste that were in contrast to current regulations. In these cases, it was determined that the concessionaires enjoy their right to non-retroactivity of the law, justifying the imposition of the provisional suspension in order to allow the concessionaires to continue to be governed by the titles in which they were granted in matters of waste disposal. Es importante añadir que esta medida suspensoria solo puede ser invocada en el caso específico de contar con un título de concesión previo a la reforma, y que en ningún otro supuesto esta puede servir de justificación para realizar acciones en contraposición al texto actual de los Artículos aludidos.
PR.A.CN. J/88 A (11a.)	Article 27 sections XXI, XXII, and XXIII of the Mining Law Fractions added by the 2023 reform. They establish that concessionaires are obliged to comply with certain provisions of social impact and indigenous consultation; to report to the Ministry of Economy the data that ensures compliance with local and national regulations; and to achieve at least sixty percent wastewater recycling through the implementation of water reuse measures. Article 29 BIS 4 section XVIII of the National Water LawArticle added by the 2023 reform. It also establishes obligations for concessionaires. Among them is to adhere to the Official Mexican Standards on water quality and to assume responsibility and costs for the pollution caused by wastewater discharges. Article 42 first and fourth paragraph of the General Law for the Prevention and Comprehensive Management of WasteThe fourth paragraph of this Article was added by the 2023 reform, and places the responsibility for the management and disposal of all mining waste on the person who generates it, who must also present evidence that they operate in compliance with the law.	No applicable	The Plenary Session found it of great urgency to carry out affirmative actions regarding the protection of the environment, health, water and integrity of indigenous and Afro-Mexican people. To this end, I consider appropriate the attribution to the State of collecting information on mining activity and regularizing its practice, so that irregular acts become non-existent.
PR.A.CN. J/89 A (11a.)	Article 4 second and third paragraphs of the National Water LawParagraphs added by the 2023 reform. Although in the PR.A.CN Thesis. J/85 A (11a.) The Plenary also took a position on the third paragraph, here it focused on the power given to the authority to reduce concessions, not to eliminate them. Article 24 first paragraph of the National Water LawSpecifies the duration of the concession or assignment for the use of national waters, as well as the factors to determine this temporality. The 2023 reform added the quantity and quality of the water supply as aspects to be considered by the authority in this regard. Article 81 BIS 3 first paragraph of the National Water LawArticle added by the 2023 reform. Prohibits the use of national waters in the transportation of materials from the mining operation.	No applicable	In this criterion, the Plenary determined that the complainants' appeal to the possible violation of their individual rights was not sufficient to override the social interest that the legislators sought by privileging the availability of water for human and domestic use.
PR.A.CN. J/90 A (11a.)	Article 14, section IX of the Mining LawFraction added by the 2023 reform. Establishes that areas in protected natural areas cannot be granted concessions for mining activities. Article 118, fourth paragraph of the National Water LawParagraph added by the 2023 reform. Prohibits the competent authority from granting concessions on channels or vessels and their federal zones for the disposal of waste from mining activity. Seventh transitory article of the Reform Decree published in the Official Gazette of the Federation on May 8, 2023It dictates that no extensions will be granted to concessions in Protected Natural Areas.	No applicable	The Plenary found that greater consideration should be given to the importance of preserving protected natural areas in favor of the principle of prevention in environmental matters than to the rights to legal certainty, legality, non-retroactivity of the law and legitimate trust. postulated by the affected concessionaires.
PR.A.CN. J/91 A (11a.)	Article 23 of the Mining LawPresents the regulations for the transfer of ownership of mining concessions. The 2023 reform expanded the State's control over said operation in order to ensure the responsibility of those who assign it and those who acquire ownership. Article 27, sections XV and XX of the Mining LawFractions added by the 2023 reform. They require the holders of mining concessions to present a financial vehicle (whether insurance, a letter of credit or a deposit) to the State to guarantee any prevention, mitigation and compensation measures derived from their activity. . Article 107 BIS of the General Law of Ecological Balance and Environmental ProtectionArticle added by the 2023 reform. This criterion covers the entire Article except the portion that was previously referred to in the PR.A.CN Thesis. J/85 A (11th). As previously mentioned, Article 107 BIS covers matters related to the closure and post-closure Restoration Program. Article 29 BIS 4, section XX of the National Water LawFraction added by the 2023 reform. Establishes failure to comply with the closure and post-closure Restoration Program as grounds for revoking a concession. Tenth transitional article of the Reform Decree published in the Official Gazette of the Federation on May 8, 2023Obliges concessionaires to comply with their new obligations to present the Mine Restoration, Closure and Post-Closure Program, as well as the financial vehicle mentioned above within a maximum period of 365 days from the entry into force of the same Decree. .	No applicable	The Plenary determined that the provisions mentioned here demonstrate attention to public order and social interest that prevails over the affected rights of the private concession holders. The above was justified by the Plenary Session through the principle of prevention in environmental matters.

It is important to mention that, in addition to the controversies over the provisional suspension of specific Articles, the Plenary also analyzed the PR.A.CN Thesis. J/92 A (11a.) whether as a jurisdictional body it even had the capacity to make said determination. This doubt arises because, in the midst of the judicial controversy raised by the reform, a Collegiate Circuit Court came to the conclusion that, based on Article 129 section XIII of the Amparo Law, the provisional suspension could not be granted. , since this would hinder the power of the State to take advantage of the assets over which it exercises direct control.

However, by applying a strict interpretation to the section invoked, the Plenary concluded that it does not apply to the present case and that, therefore, the possibility of applying the provisional suspension is appropriate. This criterion finds its justification in the fact that the State was not using the direct domain assets in question, but rather that these had already been granted through the State's own constitutional and legal powers.

What these criteria mean for dealers.

As we could see in the table, in five of the ten Theses related to the 2023 reform, the Plenary Decreed the provisional suspension was appropriate. Of these five, two (PR.A.CN. J/83 A (11a.) and PR.A.CN. J/85 A (11a.)) must be applied generally in all cases, while the three others (PR.A.CN. J/84 A (11th), PR.A.CN. J/86 A (11th), and PR.A.CN. J/87 A (11th)) impose certain restrictions on its interpretation and application. In the case of the first, these can be used by any affected individual to obtain legal assistance in the event that the authority requires compliance with any of the suspended Articles, while with the other three we are faced with a slightly more complicated situation.

In general terms, the three remaining Theses limit the scope of the suspension to concessionaires who have made their applications or obtained their titles before the entry into force of the reform, and in the case of the PR.A.CN Theses. J/86 A (11a.) and PR.A.CN. J/87 A (11a.), these only apply in the event that individuals were expressly authorized in their contracts to carry out the activities prohibited by the new regulations. However, even with these limitations, these criteria should not be ignored, since they continue to be very useful in the defense of a large number of concessionaires who find themselves in the circumstances described. 

In this sense, at Servicios Legales Mineros S.C. We are at your disposal to carry out a detailed analysis of the implications, possible impacts and to advise on the promotion of legal actions relevant to the specific case that may arise as a consequence of the aforementioned Theses. 

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