BRAZIL Law and Practice Contributed by: Thaís Vasconcellos de Sá and Ana Julia Grein Moniz de Aragão, Bermudes Advogados
1. Regulatory Framework and Law 1.1 Environmental Protection Policies, Principles and Laws Environmental Protection in the Brazilian Federal Constitution Environmental protection is a fundamental premise of the Brazilian legal system. It derives from the Fed- eral Constitution (BFC), which lists the defence of the environment as a principle of both the economic order (Article 171, VI) and the tax system (Article 145, §3º). It also grants everyone the right to an ecologically balanced environment (Article 225), obliging public authorities and society to defend and preserve it for present and future generations. Under the Brazilian legal framework, these constitu- tional principles must be detailed by infra-constitu- tional norms imposing specific obligations on private parties. As Brazil follows a civil law system, such obli- gations must be prescribed by law, in line with the legality principle (BFC, Article 5, II). Brazilian Legislation The Constitution grants the federal, state and munici- pal governments concurrent powers to legislate on: • environmental assets; • environmental protection (Article 24, VI); and • environmental liability (Article 24, VIII). Complementary Law 140/2011 sets co-operation guidelines among these entities for the exercise of such powers. Each level of government acts accord- ing to its sphere of interest: • municipalities on local matters; • states on inter-municipal matters; and • the federal government on national issues or fed- eral environmental assets (rivers, forests, etc). In practice, these boundaries are often blurred, gen- erating overlaps and disputes, particularly in environ- mental licensing processes.
Cross-Cutting National Policies and Brazilian Environmental Architecture Federal laws form the backbone of Brazil’s environ- mental framework. The most relevant are as follows. • National Environmental Policy (Law No 6,938/1981, or NEPA) – establishes guidelines for environmental protection (notably environmental licensing and corresponding studies – EIA/RIMA), and creates the National Environmental System (SISNAMA), co-ordinated by the Ministry of the Environment and Climate Change (MMA), with regulatory sup- port from the National Council for the Environment (CONAMA) and enforcement by the Brazilian Insti- tute of the Environment and Renewable Natural Resources (IBAMA) and state/municipal agencies. Decree 99,274/1990 details SISNAMA’s structure. • Environmental Crimes Law (Law No 9,605/1998) – defines environmental crimes and penalties appli- cable to individuals and legal entities. • Decree No 6,514/2008 – regulates administrative infractions and sanctions (with analogous state rules). For civil liability, NEPA’s provisions prevail, supplemented by the Civil Code when compatible. Key Environmental Principles In Brazil’s civil law system, written law prevails, but courts and scholars have consolidated guiding envi- ronmental principles for interpretation and policy- making. • Prevention – activities must prioritise alternatives that avoid environmental risks (NEPA, Article 2 II– IV; Article 4 I, VI). • Precaution – in case of scientific uncertainty, choose the option that best protects the environ- ment (NEPA, Article 2 VI; Article 4 IV). The in dubio pro natura principle supports precautionary injunc- tions before Brazilian courts. • User-pays – users of environmental resources must bear the costs of recovery or compensation for permitted impacts, as defined in environmental licences (NEPA, Article 4 VII, 2nd part). • Polluter-pays – polluters must repair or compen- sate for damages, internalising environmental costs in their operations (NEPA, Article 4 VII, 1st part; Article 14 §1).
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