Environmental Law in Brazil

Larissa Metne Lindenbojm
Amaral Gurgel Barristers & Solicitors
São Paolo, Brazil

Introduction
Brazil's environmental law has been gradually developed as a consequence of the necessity of creating a system of rules whose scope is the protection of the integration of natural, artificial and cultural elements as well as the assurance of a balanced and sustainable development of human life. Such protection is made essential especially by virtue of accelerated technical and scientific advances which, on the one hand, are extremely important in terms of development for mankind as a whole, and, on the other hand, may significantly and negatively affect the environment for present and future generations and, for many times, in an irreversible and irreparable manner. This article outlines some of the basic features of the environmental law system in Brazil.

Environmental Principles
Environmental principles constitute essential guidelines used in the process of creation and interpretation of environmental system, in a logical and harmonic way. The following principles constitute fundamental cornerstones of Brazilian environmental law.

Principle of Sustainable Development
The principle of sustainable development means that it is necessary to reach a point of equilibrium between social development, economic growth and use of natural resources, since such resources are not inexhaustable. Consequently, a sustainable plan shall be elaborated by the competent authorities, in order to permit coexistence of human progress and environmental protection. This principle finds confirmation in the Brazilian Federal Constitution, which states that "Everyone is entitled to an ecologically balanced environment..."

Principle of Cooperation
The principle of cooperation is based on the concept that, as stated in the constitution, in order to solve environmental problems and defend and preserve environment for current and future generations, a joint effort from both the state and society is needed in terms of selecting priorities in the decision process. Such cooperation may be obtained through participation of different social groups on the creation and execution of the environmental policy. In practical terms, the Brazilian Federal Constitution foresees this legitimacy of society in participation of the environmental policies in federal, state and local spheres, through several measures, such as the possibility, granted to any citizen, to bring a class action to invalidate acts that may damage environment. In order to assure such joint action it is essential to provide ample information, education and possibility of participation to community, environmental organizations, syndicates, industry, commerce, and agriculture. For this purpose, Law 9.795/99 established the National Environment Education Policy providing for, among other mechanisms, environmental education as a part of the basic and obligatory curriculum at all public and private levels of education.

Principle of Prevention
The principle of prevention is the basis of all environmental doctrine in Brazil. It states that actions which may immediately or later on provoke reflexes in the environment shall be taken in advance, in order to previously reduce or eliminate such causes, instead of correcting the effects of activities which may irreversibly alter the good quality of environment. In other words, it is essential to give priority to measures that avoid the adverse environmental impacts. The Brazilian Federal Constitution expressly states such a principle through Article 225, which indicates that Public Authority and community shall preserve and protect the environment. The principle of prevention shall be concretely granted to community through environmental education policies for ecological conscience. This may be verified in Brazil through several means, e.g., through the above-referenced Law 9.795/99.

Principle of the Polluter as the Payer
According to the polluter pays principle, clearly adopted by the Brazilian legal system, whoever causes any damage to the environmental or to third parties, shall be obliged to indemnify society, or third parties, in order to diminish, eliminate or neutralize damages eventually caused. The principle has two meanings. The first emphasizes the prevention or avoidance of environmental damage, since obligation for indemnification may be imposed. The second meaning stresses enforcement, and creates an obligation for repair, once damage is already verified. Significantly, the Brazilian legal system adopts civil strict liability of the polluter in cases of damages to the environment, which means the obligation of repairing or indemnifying exists, no matter if the polluter presented a malicious or culpable action or omission. Therefore, the agent may only avoid such liability through very limited exceptions.

Overview of Environmental Protection Laws

Brazilian Federal Constitution - Title VIII
Although the Constituent Assembly had dedicated a chapter exclusively for environmental protection, there are several other provisions, whether implicit or explicit, established in various articles of the Brazilian Constitution, that evidence constituent's concern regarding environmental issues. Consider, for example, Article 225, which states: "Everyone has the right to an ecologically balanced environment, a possession of common use of the people, essential to a healthy quality of life, demanding that those in Public Office and the community in general comply with their duty to defend it for the present and future generations." Several conclusions can be drawn from Article 225. First, it is clear that the right to an ecologically balanced environment belongs to all, including current and future generations, whether Brazilian or not, and that the duty for its defense is imposed on both the government and the community. Further, the environment is something that does not belong to the government or to individuals, but to people in general and is essential for a good quality of life. In this sense, it is very important to recognize an ecologically relevant area which shall be protected and whose use shall be subject to limitations imposed by law. Several mechanisms were created by the Brazilian legal system in order to ensure environmental protection, as described below.

The National Environment Policy Law 6938 of August 31, 1981
All guidelines, general contents, authorities, purposes, mechanisms and instruments of Brazil's environment policy are foreseen in the National Environment Policy, which was established through Law 6938 of August 31, 1981. Article 2 of the that law states the purpose of the country's environmental policy is to ensure "the preservation, improvement and recovering of environmental quality of life, aiming to assure, in the country, conditions for the economic-social development, for the national safety interests and to the protection of the dignity of human life, observed the following principles: .…" It bears emphasizing for purposes of this article that the instruments available in Brazil to accomplish the country's environmental policy are many. Some of the primary examples are listed below.

• Establishment of environmental quality standards, through issuance of general rules determined by the Federal Government and by the State and Municipalities, in supplementary feature
• Establishment of environmental zoning with the purposes of distributing and regulating the use of soil and constructions in certain areas in a manner to assure the well-being of community. See, e.g., Law 6803/80 (Law of Industrial Zones), stating that in critically polluted areas, the locality destined for the installation of industries shall obey an urban zone plan approved by law, and further, that the compatibility of such industrial activities with environment protection shall be considered.
• Evaluation of environmental impacts, such that before the installation of certain construction or activity which presents a risk of negatively affecting the environment, an analysis of environmental impact shall be effected and the conclusion of such work shall be publicized. Based on a report referrencing this analysis, a competent authority will determine whether or not to issue a license for the activity.
• Creation of special spaces protected by the Federal, State and Local Public Powers, such as environmental protection or ecological interest areas and extraction reserves, which shall be subject to special conditions of modification and use. See, e.g., Amazonia, Mata Atlântica, and Serra do Mar.
• Environmental education and information, through several measures, from public authorities. See, e.g., Law 9795/1999, establishing the National Environment Education Policy, and more recently, Law 10.172/01, providing for a National Education Plan.
• Licenses, authorizations, permits and inspections of constructions or activities in order to verify their adequacy with environmental policy. Environmental licenses will define the place, installation, amplification and operation of businesses and activities which may use environmental resources in a potentially or effectively polluting or degrading manner.
• Establishment of penalties or disciplinary action for non-compliance with the measures of preservation or correction of environment degradation

Environmental Crimes - Law 9.605/98
A measure covering environmental criminal activity, Law 9.605/98, calls for the application of criminal and administrative penalties in cases of actions or activities that may damage the environment. This law was intended to complement provisions previously established by the Brazilian Federal Constitution and to substitute criminal penalties imposed by multiple legislation, such as Hunting Code, Fishing Code, and Forest Code, among others. The law provides for the imposition of criminal liability on the person, individual or legal entity that pollutes or degrades the environment, according to their culpability. Significantly, such liability is extended to manager, director, auditor, representative, member of board and others from the legal entity, whenever they do not prevent company's criminal actions, once aware of them. Penalties for individuals and legal entities range from detention or confinement to restriction of rights, fees, total or partial interdiction or suspension of the activities, rendering of obligatory social services, and temporary interdiction of the establishment to the prohibition of contracts with public administration. The corporate form may be disregarded in specific cases, e.g., where the payment of indemnification of damages caused to the environment quality is difficult or impossible for the organization, partners may be obliged to indemnify for environmental damages with their own property.

National Environment System - SISNAMA
Brazil's National Environment System, or SISNAMA, includes CONAMA (the National Environment Council), the highest ranking body responsible for ruling, consulting and taking decisions on environmental issues. It is composed of the Secretary of the Environment, the President of the Brazilian Institute of Environment and Renewable Resources ("IBAMA"), representatives of each ministry, state and Federal District, as well as several companies, NGOs and environmental groups.

Civil and Class Actions
Public civil actions offer a vehicle by which environmental damage may be restrained or stopped. Environmentally damaging conduct or activities can be submitted to a civil investigation conducted by the Government Attorney's Office, which can prevent and deter environmental harm. Once the Government Attorney is convinced of the existence of damages or risks to environment, a public civil action may be proposed. According to Brazilian law, not only the Government Attorney, but also state owned corporations, independent governmental agencies, organizations or consumers engaged with environmental protection have standing to sue. Moreover, under the Brazilian Federal Constitution, any citizen is entitled to propose a class action against any person responsible for the damaging act to the environment, whether it be the government or a private person.

Conclusion
Brazil's environmental law continues to evolve. But as this article has sought to explain, a sound foundation has been laid down. The country is well-positioned to pursue a course of balanced, sustainable development.