(1) Introduction The origin of environmental law in Brazil goes back to the 1930s, but its consolidation took place only when the Federal Constitution of 1988 recognized its guiding principles as constitutional ones. In Brazil’s federal system of government, the Union, the states, and the municipalities have legislative and administrative competence over environmental protection. State tribunals usually analyse state and municipal environmental law violations, while the Superior Tribunal of Justice (STJ) has competence to judge violations of federal laws, and the Supreme Federal Court is essentially responsible for safeguarding the Constitution. Public prosecutors are responsible for the majority of environmental lawsuits. Since 1988, environmental law in Brazil has been alternating between periods of great legislative and judicial production and periods of stagnation or even setbacks. This report seeks to inform and analyse some of the most relevant legislative and judicial developments related to environment protection in Brazil during the year 2016. The most important and controversial trials as well as some regulatory developments will be highlighted. Despite the weakening of certain environmental legislation, it will be seen that environmental protection in Brazil has advanced. The report will first present some positive advances, and afterwards some regressions will be discussed. (2) Positive Advances in Brazilian Environmental Law Some of the positive advances that are worth mentioning relate to administrative and criminal environmental liability, animal rights, and the ratification of the Paris Agreement. (A) Subjective Intent in Administrative Environmental Liability The legal nature of intent in administrative environmental liability remained controversial until 2016. Some had maintained that it is a kind of strict liability, and others had argued that it has a subjective intent nature. For a long time, legal uncertainty prevailed. However, in 2016, different panels of the STJ recognized that administrative environmental liability entails subjective intent (Case AgRg AREsp 62584/RJ and Case REsp no. 1401500/PR). The party that is subject to administrative environmental liability has to purposely, knowingly, or negligently cause environmental damage. Therefore, it can now be affirmed that administrative environmental liability in Brazil does not follow the same logic as civil environmental liability, which is based on strict liability; on the contrary, it requires a subjective intent just like environmental criminal liability. (B) New Trends in Environmental Crime Liability Some interesting legal issues concerning environmental crime liability have been raised by the Brazilian courts. One question frequently raised relates to the obligation to apply double imputation when judging corporate environmental criminal liability. In 2015, under the appeal in Case no. 39.173/BA, the Federal Public Prosecutor’s Office accused the Brazilian oil company Petrobrás and its manager for environmental pollution under Article 54 of Law no. 9.605/1998. Both defendants were initially held liable for the destruction of the environment, but the charges against the manager were dismissed by the second chamber of the Bahia Criminal Court. However, the criminal lawsuit continued in relation to Petrobrás (Case no. 2009.33.00.012950-6). In two appeals, Petrobrás insisted that the charges against it should also be suspended because criminal proceedings could not be brought exclusively against a legal entity. Nevertheless, the STJ considered that the need for a physical person to be guilty in order to hold a legal entity liable for environmental crime no longer prevailed. The difficulties in identifying the responsible individual for a company’s environmental damages has already been pointed out by the STJ, as it had been nearly impossible to impose punishment for environmental crimes. Now, there is no longer a need to identify a physical person who co-authored the crime. Another trend in environmental crime liability that is worth mentioning is a decision adopted in 2016 that recognizes its preventive role. It has been affirmed that criminal causation may occur in a previous moment, before the effective crime. In other words, the actuation of an environmental crime may be connected to the configuration of prior dangerous actions. In this sense, the probability of the damage caused by those actions is sufficient to prove the environmental crime. The STJ affirmed in Case no. 956780/AM that the crime of pollution is classified as ‘perigo abstrato,’ which means that the possibility of causing damage to the environment or to human health may be seen as a crime. Moreover, a decision adopted in Criminal Prosecution no. 618 at the end of December, also by the STJ, helped to redefine public authorities’ environmental crime liability. In this case, a federal deputy of the state of Rio de Janeiro was condemned for environmental damages caused after authorizing construction near a protected area. This case has reverberated on social media, in support for environmental protection. These developments between 2015 and 2016 demonstrate that environmental crime jurisprudence is enriching Brazilian environmental law, highlighting the importance of corporate liability, preventive action and showing that all sorts of actors may be held liable for environmental harm. (C) Increasing Regulation of Animal Rights: The Unconstitutionality of the Vaquejada The vaquejada is a common sport and cultural activity that generally takes place in the northeastern region of Brazil. It consists of two cowboys on horses who must catch a bull in an arena and move it over into a specified area by pulling its tail. On the one hand, animal rights associations claim that the bulls and horses involved in the vaquejada are abused and treated with cruelty. On the other hand, those supporting the vaquejada claim that it creates employment opportunities. Together with other Brazilian cultural practices involving animals, such as the festival of the ox and cock fighting, the vaquejada was considered unconstitutional by the STJ on 6 October 2016. The STJ assessed the constitutionality of Law no. 15.299/2013 of the state of Ceará (Doc. 4983). Even though this law includes safety requirements to protect the animals during the competition, it was considered contrary to Article 225, paragraph 1 clause VII, of the Constitution. With this decision, the STJ Court reopened a complex debate about conflicting fundamental rights, as, although practices in which animals are exposed to cruelty are prohibited (art 225, para. 1, cl. VII), rights to cultural manifestations are allowed (art 215, para. 1). Those supporting the vaquejada managed to overcome this ruling by demanding that the National Congress adopt federal legislation to authorize the vaquejada throughout Brazil. Recently, Federal Law no. 13.364/2016 was adopted and recognized the vaquejada as an intangible cultural heritage. This new legislation represents an obvious rebuke to the STJ. There is also a proposal to amend the Brazilian Constitution on this issue (Doc. 50/2016), which, if adopted, will rewrite Article 225 to allow cultural manifestations that do not threaten animal welfare. (D) The Ratification of the Paris Agreement on Climate Change The Paris Agreement was adopted in 2015 during the twenty-first Conference of the Parties to the United Nations Framework Convention on Climate Change. The process of internal ratification of the agreement in Brazil was very rapid since the Brazilian Congress approved Legislative Decree no. 140 on 12 September 2016. Brazil is committed to reducing its greenhouse emissions by 37 percent by 2025 and by 43 percent by 2030, from a 2005 emissions baseline. The country’s nationally determined contribution has specific commitments for the following sectors: energy, forests and land use change, agriculture, industry, and transportation. For instance, Brazil seeks to increase the share of sustainable bioenergy by 18 percent and the overall share of renewable energy to 45 percent by 2030. Furthermore, the country is engaged in restoring and reforesting 12 million hectares of forests by 2030. Brazil also aims to strengthen a Low Carbon Emission Agriculture Program. With these new commitments, Brazil will need to rethink its previously adopted climate legislation. In other words, the National Climate Change Policy (Law no. 12.187/2009) as well as the Forest Code (Law no. 12.651/2012) and the Law on the National System of Conservation Units (Law no. 9.985/2000) will need to be reviewed. There are discussions on this issue in the Brazilian Senate (Law no. 750/2015) and in the Chamber of Deputies (Law nos. 3.280/2015 and 3.308/2015). It will be difficult to find the right balance between these new climate change policies and other investment projects already approved under the Plan for Growth Acceleration. Therefore, despite the ratification of the Paris Agreement being a positive advance, it is still too early to tell whether it will be effectively implemented. (2) Regressions in Brazilian Environmental Law There have been various negative developments in the field of the precautionary principle, in the implementation of the National Forest Code, in new law proposals that seek to regulate the environmental licensing procedures, and in the reform of the Mining Code. (A) Restrictive Interpretation of the Precautionary Principle in Electromagnetic Fields In Brazil, the precautionary principle can be found in regulations and in case law. Since the year 2000, courts have regularly been asked to address how this principle must be analysed in various situations, such as for genetically modified organisms, pesticides, electromagnetic fields, dam construction, and oil spills. In 2016, electromagnetic fields were the most important topic in regard to precautionary principle interpretation. The main legal concern submitted to courts was to determine which standard should be applied to determine the amount of electromagnetic waves to which the public can be safely exposed. Federal Law no. 11.934/2009 and Normative Resolution no. 398/2010 of the National Electric Energy Agency (ANEEL) provide the limits to the exposure to electrical, magnetic, and electromagnetic fields. The Brazilian parameters are based on the international standards of the World Health Organization. In 2015, when analysing this issue in Case no. 627189/SP, the STJ affirmed a decision from an appeal court stating that, for specific cases, technical surveys should be provided in order to establish the specific amount of electromagnetic waves humans and the environment can be exposed to, instead of applying the general standards provided by the ANEEL (STJ, Recurso Especial no. 1.437.979–CE (10 November 2015)). However, in July 2016, the STJ reversed its position and affirmed that the limits adopted in the Brazilian legislation were sufficient and that it was not necessary to rely on technical surveys for specific cases. It opined that the Brazilian legal regime is based on internationally recognized safety parameters, and, therefore, it would not be correct to maintain the decision previously adopted by the STJ. This decision, although a restrictive interpretation of the precautionary principle, provides more criteria for the interpretation of the precautionary principle. (B) Lack of Decision about the Constitutionality of, and Delay in, Implementation of the National Forest Code The New Brazilian Forest Code (Law no. 12.651/2012) continues to be one of the most problematic pieces of legislation in Brazil. The revised code is weaker in many aspects. States are now responsible for mapping and registering all rural properties, and amnesty is permitted for loggers who cleared land prior to 2008 (they now need to rehabilitate 50 percent of the cleared lands, while in the previous code they needed to rehabilitate 80 percent). The new code also allows for the reduction of areas previously protected as legal reserves or permanent reservations. Four years after its adoption, one of its main instruments, the Rural Environmental Registry (Cadastro Ambiental Rural) had its implementation deadline extended once again (under Law no. 13.295/2016). Furthermore, the STJ is still assessing the constitutionality of some the code’s articles. Several Direct Action on Unconstitutionality (ADI) question whether the articles on legal reserves and areas of permanent reservations do not violate Article 225, paragraph 1, item III (Docs. 4.901, 4.902, 4.903 and 4.937). According to these ADIs, the Forest Code violates the principle of environmental non-regression. However, those that defend the constitutionality of the new code argue that the repealed code already stipulated similar flexibilities and means of reducing environmentally protected areas. Moreover, those that support the new code say that neither the legal reserve nor the areas of permanent reservation are included in the constitutional category of territorial spaces that require special protection (art. 225, para. 1, item III). The outcomes of the STJ’s decision will be important for the acceptance and effective implementation of the Forest Code. (C) Legislative Proposals to Change the Environmental Licensing Procedure Notwithstanding the importance of Brazil’s environmental licensing procedure, some of its rules have been criticized for being tiresome and bureaucratic, having gaps, and being ineffective. Although they suggest some improvements, the proposals currently under debate nevertheless represent a serious threat to environmental licensing. The Chamber of Deputies’ proposed Law no. 3726/2004 seeks to establish a General Law for Environmental Licensing to regulate Article 225, paragraph 1, item IV of the Constitution. It proposes a simplified form of licensing for strategic projects. According to this proposal, each federative entity would autonomously decide which projects would be subject to licensing. A self-declaration would automatically permit the entrepreneur to have his or her activity licensed. At the end of 2016, this proposal was still to be voted in the Commission of Finance and Taxation. Constitutional Amendment Proposal no. 65/2012 literally seeks to remove the environmental licensing procedure. The presentation of an environmental impact assessment would be sufficient to authorize the implementation and operation of an activity. This proposal aims to insert a new paragraph in Article 225 of the Federal Constitution on prior environmental impact assessments and to establish limits to suspension and cancellation of prior authorizations due to supervening facts. Senate Bill Proposal no. 654/2015 envisages a special ‘fast track’ procedure for the licensing of large infrastructure projects such as highways, hydroelectric plans, ports, and airports considered to be of strategic and national interest. No public hearings would be required, and eight months would be the time limit to authorize and conceive the environmental license. One of the most threatening parts of this project is that if a government agency involved in the licensing procedure fails to meet the eight-month deadline, the activity would automatically be considered to comply with the licensing procedure. No longer would the three-stage licensing procedure be required as it is today. In fact, there would be only the establishment and operating licenses. This bill integrates the so-called Agenda Brasil, a package that aims to diminish political crisis and stimulate economic growth. (D) Inclusion of Environmental Concerns in the Legislative Proposal for a New Mining Code after the Samarco Case The tension between environmental protection and mining has been a challenging issue in Brazil. Problems involving waste, water pollution, working conditions, and public participation are some of the issues that have been raised under Brazilian judicial and extra-judicial procedures. The Brazilian Mining Code has been under revision since 2009; however, gaps concerning environmental protection in this field have not been properly discussed. In 2013, Executive Law Proposal no. 5807 was sent to Congress along with Law Proposal no. 37/2011. By the end of 2016, these projects were still under consideration in Congress. It is important to highlight that only after the huge mining environmental disaster that occurred in the city of Mariana, Minas Gerais in 2015, known as the Samarco case, were environmental issues considered in the reform of the Mining Code. The mining company Samarco (a group formed by Vale S.A. and BHP Billiton) was responsible for the collapse of a tailing dam—Barragem do Fundão — in November 2015. There were nineteen deaths, and a vast amount of toxic waste (comprising mercury, arsenic, and iron) travelled 600 kilometres, reaching the coastal zone. People were displaced, and fishermen are still not able to resume their economic activities. Public prosecutors and other entities sued the company and demanded compensation of approximately 20 billion Brazilian real. This environmental disaster involved problems related to environmental licensing and authorization procedures; a lack of public participation and proper assistance to the affected population; illegalities concerning the contingency plan; environmental damage (Process no. 60017-58.2015.4.01.3800; Ação Popular no. 0060441-03.2015.04.01.3800, and Ação Civil Pública no. 0069758-61.2015.4.01.3400);lack of water supply (Ação Civil Pública no. 0069758-61.2014.4.01.3400); and procedural questions involving the competence to judge the case (STJ, Conflito de competência no. 144.922 – MG (2015/0327858-8) (22 June 2016). The validity of arbitration clauses is also at stake (STJ, REsp no. 1280066(2011/0188844-0) (4 February 2016). The criminal liability of the legal entity and of its directors was also alleged. All of these cases continue to be under judgment. The Samarco case shows that Brazil has an inefficient legal framework to deal with mining waste disasters, even if there are norms and procedures applicable to this issue. The current Brazilian Mining Code does not provide for a legal framework for environmental protection or for public participation. Although there are specific rules regarding administrative obligations, such as Law no. 12.334/2010, which requires a continuous revision of the dam’s security (plano de segurança da barragem), limits concerning monitoring and accountability can nevertheless be identified as evident difficulties. Measures such as the creation of mandatory insurance and a compensation fund for environmental damages are under analysis by Congress but the results remain uncertain. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org
Yearbook of International Environmental Law – Oxford University Press
Published: Dec 28, 2017
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