Sargassum and Legal Framework: Responsibility, Opportunities and Private Participation

Sargassum and Legal Framework: Liability, Opportunities and Private Participation

The massive proliferation of Sargassum fluitans and S. natans in the Mexican Caribbean has ceased to be a seasonal phenomenon to become a structural crisis with first-order economic, environmental and legal consequences. The Quintana Roo coastline concentrates the greatest operational pressure, but the regulatory framework governing the collection, transportation and use of sargassum remains fragmented among multiple levels of government and legal regimes that do not always converge coherently. Understanding that architecture is a necessary condition for the private sector to participate with legal certainty.

Applicable Legal Regime

Sargassum deposited on federal beaches is subject, in the first instance, to the General Law on Ecological Balance and Environmental Protection (LGEEPA), published in the DOF on January 28, 1988, and whose most recent reform relevant to the coastal sector dates from 2022. Its articles 5 and 6 distribute competencies among the Federation, the states and the municipalities in matters of preservation and restoration of ecological balance.

The federal nature of maritime beaches and the maritime-terrestrial federal zone does not derive from article 19 bis of the LGEEPA, whose content regulates ecological criteria for the ecological planning of territory, but rather from article 27, fifth paragraph, of the Political Constitution of the United Mexican States, which incorporates beaches into the nation’s domain, and from article 9 of the General Law on National Assets (LGBN), which expressly classifies the maritime-terrestrial federal zone (ZOFEMAT) and the beach zone as property of the public domain of the Federation. This constitutional and legal basis conditions any private intervention to prior authorization from the Ministry of Environment and Natural Resources (SEMARNAT). Article 19 bis of the LGEEPA retains relevance in the planning stage of coastal projects only when the applicable ecological planning instrument establishes sectoral criteria that affect collection or utilization activities.

In parallel, the General Law on National Assets (LGBN), as reformed and published in the DOF on May 3, 2018, regulates the use and utilization of ZOFEMAT and the beach zone. Its articles 119 and 120 establish that use of these assets by private parties requires a concession or permit granted by SEMARNAT or, as applicable, by municipalities when the Federation delegates that competency. The absence of a valid concession exposes the private operator to administrative liability: the nullity of acts carried out without enabling title is founded on articles 12 and 18 of the LGBN, which prohibit the use or utilization of public domain assets without the corresponding enabling instrument, as well as on the general principle of nullity of administrative acts without legal basis, set forth in article 4 of the Federal Administrative Procedure Law. Additionally, the procedure for recovery of national assets provided for in article 158 of the LGBN constitutes a subsequent procedural consequence in the face of unauthorized occupations, but is not the foundation of nullity in itself.

The General Law for the Prevention and Comprehensive Management of Waste (LGPGIR), as reformed in 2020, classifies collected sargassum as solid waste subject to special handling when its volume exceeds the limits established in article 19, section VIII, or when it is subjected to industrial transformation processes. This classification activates handling, transportation and final disposal obligations regulated in the LGPGIR Regulations and in the applicable Mexican Official Standards, particularly NOM-161-SEMARNAT-2011 on the listing of waste subject to special handling. However, as analyzed in greater detail in the corresponding section, such classification is not automatic and requires a prior administrative determination.

Concessions and Permits: The Window for Private Participation

The concession mechanism is the central legal instrument for private companies, hotel operators, real estate developers and blue economy investment funds to formally participate in sargassum collection and utilization. Article 121 of the LGBN establishes that concessions over assets of the Federation’s public domain are granted through public bidding or, exceptionally, through direct award when justified by duly accredited reasons of public interest.

Any project intended to operate on ZOFEMAT or the beach zone requires two concurrent and legally distinct enabling instruments: first, the concession or permit over national assets granted by SEMARNAT in accordance with articles 119 to 121 of the LGBN; second, the authorization in matters of environmental impact provided for in the article 28 of the LGEEPA and its Regulation on Environmental Impact Assessment, when the work or activity is located in the federal jurisdiction assumptions enumerated therein. Both instruments operate cumulatively: the obtaining of one does not substitute for or replace the other, and the omission of either of them exposes the operator to the consequences of nullity and administrative responsibility described in the previous section. In practice, SEMARNAT has processed these proceedings through its Federal Delegation in Quintana Roo, with deadlines and conditions that must be integrated from the project structuring stage.

Projects that include ocean capture, that is, the collection of sargassum before it reaches the beach, further incorporate the competence of the Secretariat of the Navy (SEMAR) under the Federal Law of the Sea. For the regulation of activities in the territorial sea, the provisions of articles 24 to 38 of said law are applicable; activities conducted in the exclusive economic zone are governed by articles 51 to 67, with article 55 being particularly relevant, which establishes the sovereign rights of the Mexican State over the living and non-living natural resources of that zone. It should be noted that the Federal Law of the Sea has not been subject to substantive reform since its publication in 1986, so its application to novel activities such as ocean capture of sargassum requires an interpretive exercise that must be read together with Mexico’s international obligations derived from the United Nations Convention on the Law of the Sea (UNCLOS), ratified by decree published in the DOF on March 1, 1983, and with SEMAR’s administrative criteria.

Additionally, when collection projects involve maritime infrastructure, including temporary loading docks, barges, dredges or collection vessels operating from or toward areas under port jurisdiction, a dual authorization requirement arises that merits specific attention. The Integral Port Authority (ASIPONA) of Puerto Morelos exercises jurisdiction over certain adjacent coastal strips relevant for large-scale collection operations. Consequently, projects that contemplate this type of infrastructure require, in addition to the enabling instruments before SEMARNAT, an authorization or formal coordination with ASIPONA in accordance with articles 2, 9 and 45 of the Ports Law (DOF July 19, 1993). The omission of this requirement constitutes an independent nullity risk from the national assets regime and may generate jurisdictional conflicts between authorities that significantly delay project execution.

The municipality of Solidaridad and the municipality of Benito Juárez have issued internal regulations for waste management in coastal zones that, while they cannot contravene federal regulations, establish additional operational requirements for concessionaired companies, including transfer routes, operating hours and authorized temporary disposal sites.

Regarding the classification of collected sargassum as special handling waste under NOM-161-SEMARNAT-2011, the operator must not assume that such classification operates automatically. Sargassum does not appear nominally in the official list of special handling waste, and its inclusion depends on an administrative determination by SEMARNAT or a formal technical criterion that confirms its classification within the established categories. This determination has not been applied uniformly among different projects nor in all federal delegations, which generates a risk of regulatory uncertainty for operators that structure their waste management component assuming such classification without documentary support. It is strongly recommended that clients obtain a written classification opinion from SEMARNAT before designing the scheme for handling, transport and disposal of collected sargassum, in order to avoid subsequent contingencies arising from a reclassification or the application of a more stringent regime.

Responsibility: Distribution among the Actors

Environmental responsibility regarding sargassum operates on three concurrent levels. The first is administrative responsibility, which falls on whoever operates without an enabling title or fails to comply with the conditions of their authorization, punishable under articles 171 to 176 of the LGEEPA with fines, closure, or revocation of the permit. The second is environmental civil liability, regulated by the Federal Environmental Liability Law (LFRA) in force since 2013, whose article 6 establishes that any damage caused to the environment, including the degradation of coastal ecosystems due to inadequate sargassum management, generates the obligation to repair in kind or, subsidiarily, economic compensation. The third is criminal liability, activable under articles 420 and 421 of the Federal Criminal Code when the conduct implies damage to ecosystems considered to be of special relevance, such as coral reefs adjacent to collection zones.

In relation to the judicial criteria of the XXVII Circuit, the Collegiate Courts based in Cancún have developed emerging interpretive trends regarding the accreditation of environmental damage in coastal ecosystems of Quintana Roo. In particular, argumentative lines under construction are identified according to which the burden of proof in civil environmental liability actions shifts toward the defendant when this party operates under a regulated regime and has failed to comply with the conditions of their authorization, in alignment with the precautionary principle set forth in article 3, section XXXIV, of the LGEEPA. Nevertheless, these trends are not consolidated in jurisprudential theses with a registration number published in the Federal Judicial Gazette and its Gazette as of the date of preparation of this article, and should therefore be considered interpretive criteria in formation and not binding legal doctrine. Equally, the First Chamber of the Supreme Court of Justice of the Nation has developed relevant jurisprudence on the human right to a healthy environment enshrined in article 4 of the Constitution as a parameter of validity of administrative acts concerning public domain assets; for its application in specific cases

Opportunities in the Blue Economy

Industrial utilization of sargassum, whether for biogas production, fertilizers, construction materials, or cosmetics, requires a legal structure that integrates the collection concession, environmental impact authorization, registration as a generator of special handling waste before SEMARNAT, and, in projects with foreign financing, the review of sectoral restrictions provided for in the Foreign Investment Law and its regulations. Large-scale ocean collection projects, which involve operation in territorial seas or the exclusive economic zone, additionally require permits from the Secretariat of Infrastructure, Communications and Transportation for the vessels involved and coordination with SEMAR.

The Energy Transition Law and climate financing instruments available through the Climate Change Fund, created by the General Climate Change Law (LGCC) in its article 82, open public financing channels that can be articulated with public-private partnership structures for mitigation projects linked to sargassum utilization.

For investors evaluating bioenergy or biogas projects from sargassum, there is also a financial-legal dimension of increasing relevance related to carbon markets. The Emissions Trading System (SCE), whose pilot phase was established under article 94 of the LGCC and regulated through the regulatory provisions of SEMARNAT published in 2020, constitutes the reference normative framework for the forming Mexican carbon market. Biogas projects or energy utilization of sargassum that manage to accredit verifiable reductions in greenhouse gas emissions can, in principle, generate carbon assets susceptible to registration in the SCE or in international voluntary markets. The legal structuring of this component requires the development of an emissions baseline, the selection of a recognized quantification methodology, the contracting of an accredited verification body, and the registration of the project with the corresponding registry. This mechanism represents a concrete financial incentive that can substantially improve the economic viability of blue economy projects linked to sargassum, and its integration from the project design stage is advisable to maximize the value of the environmental assets generated.

Operational Conclusion

Private participation in sargassum management is legally viable and can be structured soundly, but it requires precise regulatory integration spanning federal environmental law, administrative law governing national assets, maritime law, and, when the project has industrial scale, foreign investment law. Regulatory fragmentation among SEMARNAT, SEMAR, port authorities, and coastal municipalities in Quintana Roo converts authorization management into a significant operational risk. To manage that risk rigorously from the structuring stage, the following concrete actions are recommended at minimum.

First, conduct a regulatory mapping prior to filing that identifies all authorities with concurrent jurisdiction over the project, including SEMARNAT, SEMAR, ASIPONA, and the municipalities involved, before entering into any investment commitment or exclusivity agreement. This exercise must produce a permit matrix with estimated timelines, cross-referenced prerequisites, and blocking risk points, and must be completed as a condition precedent to project financial close.

Second, incorporate into the project timeline a contingency of between ninety and one hundred eighty days for processing of the environmental impact assessment by SEMARNAT, considering that formal legal timelines frequently do not reflect actual resolution times in medium and large-scale coastal projects in Quintana Roo. Underestimating these timelines generates contractual breaches with consequences that may exceed the cost of conservative planning.

Third, in any merger, acquisition, or joint venture transaction involving sargassum collection assets, include explicit representations and warranties regarding ownership, validity, transferability, and compliance with all environmental authorizations, concessions over national assets, and sectoral permits that form part of the project. The absence of these representations in transaction documentation transfers to the acquirer a regulatory liability that may be unquantified and difficult to mitigate afterwards.

IBG Legal is a boutique firm specializing in litigation and transactional advisory in environmental law, concessions over national assets, and coastal maritime law, headquartered in Cancún with offices in Mexico City and Querétaro. Our practice combines defense in administrative proceedings and environmental litigation before federal courts with the structuring of blue economy projects and coastal concessions for national and international clients operating in Quintana Roo and the Riviera Maya. For specialized advice on this matter, please contact us.

Sources and References

Federal Legislation

• Political Constitution of the United Mexican States. Art. 4 (human right to a healthy environment); Art. 27, fifth paragraph (dominion of the Nation over beaches and federal maritime-terrestrial zone).
• General Law on Ecological Balance and Environmental Protection (LGEEPA), DOF January 28, 1988; latest amendment relevant to coastal zone: 2022. Arts. 3 frac. XXXIV, 5, 6, 19 bis (criteria for territorial ecological planning), 28, 171-176.
• General Law on National Assets (LGBN), DOF May 20, 2004; amendment DOF May 3, 2018. Arts. 9, 12, 18, 119, 120, 121, 158.
• General Law for the Prevention and Comprehensive Management of Waste (LGPGIR), DOF October 8, 2003; amendment 2020. Art. 19 frac. VIII.
• Regulation of the LGPGIR, DOF November 30, 2006.
• Federal Law on Environmental Liability (LFRA), DOF June 7, 2013. Art. 6.
• Federal Law of the Sea, DOF January 8, 1986 (no substantial amendment since original publication; its application to novel activities must be read in conjunction with obligations derived from UNCLOS, ratified DOF March 1, 1983, and SEMAR administrative criteria). Arts. 24-38 (territorial sea); Arts. 51-67, especially Art. 55 (exclusive economic zone and sovereign rights over natural resources).
• Federal Penal Code, DOF August 14, 1931; multiple amendments. Arts. 420 and 421.
• General Law on Climate Change (LGCC), DOF June 6, 2012; latest amendment 2022. Arts. 82 and 94 (Emissions Trading System).
• Law on Energy Transition, DOF December 24, 2015.
• Law on Foreign Investment, DOF December 27, 1993; amendment in force 2021.
• Law on Ports, DOF July 19, 1993. Arts. 2, 9, and 45 (jurisdiction of integral port administrations over coastal zones under port regime).
• Regulation on Environmental Impact Assessment, DOF May 30, 2000.
• Federal Law on Administrative Procedure, DOF August 4, 1994; multiple amendments. Art. 4 (nullity of administrative acts without legal basis or jurisdiction).

International Instruments

• United Nations Convention on the Law of the Sea (UNCLOS), ratified by Mexico through a decree published in the DOF on March 1, 1983. Mandatory reference for the interpretation of the Federal Law of the Sea in maritime activities not expressly provided for in the 1986 text.

Technical Standards

• NOM-161-SEMARNAT-2011, which establishes the list of special management waste, DOF February 1, 2013. Note: sargassum does not appear nominally in the list; its classification as special management waste requires an administrative determination or technical criterion from SEMARNAT prior to the structuring of the waste management component of the project.

Judicial Criteria

• Collegiate Courts of the XXVII Circuit (Cancún, Quintana Roo): emerging interpretive trends regarding the proof of coastal environmental damage, shifting of the burden of proof in environmental civil liability actions when the defendant operates under a regulated regime and fails to comply with authorization conditions, and application of the precautionary principle in reef ecosystems. These trends are not consolidated in jurisprudential rulings with registration numbers published in the Federal Judicial Gazette and its Bulletin as of the date of this article; it is recommended to verify the current status of the registry before invoking them as binding criteria.
• First Chamber of the Supreme Court of Justice of the Nation: jurisprudence on the human right to a healthy environment (Art. 4 of the Constitution) as a validity parameter for administrative acts regarding public domain assets. For specific citations, consult the updated records of the Federal Judicial Gazette and its Bulletin, IUS Digital, available at supremacorte.gob.mx.

Official Sources

• Federal Official Gazette (DOF): publications cited in the aforementioned standards.
• Official Gazette of the State of Quintana Roo: municipal regulations of Solidaridad and Benito Juárez regarding waste management in coastal areas.
• SEMARNAT, Federal Delegation in Quintana Roo: operational criteria for coastal cleanup permits and authorization regarding environmental impact.
• SEMARNAT: regulatory provisions of the Emissions Trading System (ETS), published in 2020 pursuant to Art. 94 of the LGCC.

Legal Scholarship

• Brañes, Raúl. Manual of Mexican Environmental Law. Fondo de Cultura Económica / Mexican Foundation for Environmental Education, 2nd ed.
• Carmona Lara, María del Carmen. Rights of the Environment. Institute of Legal Research, UNAM.
• González Márquez, José Juan. Environmental Liability in Mexico. Metropolitan Autonomous University.