BRAZIL Law and Practice Contributed by: Thaís Vasconcellos de Sá and Ana Julia Grein Moniz de Aragão, Bermudes Advogados
• Full reparation of environmental damage – polluters must fully restore the environment to its prior con- dition; when impossible, compensatory measures (preferably in kind) must ensure equivalent environ- mental benefits. 2. Enforcement Authorities and Mechanisms 2.1 Regulatory Authorities Key Regulatory Authorities for Environmental Policy Brazil’s environmental governance is organised under the National Environmental System (SISNAMA), cre- ated by Law No 6,938/1981 (National Environmental Policy, or PNMA). At the federal level: • the Ministry of the Environment and Climate Change (MMA) defines policies; • the National Council for the Environment (CONA- MA) issues technical norms; • the Brazilian Institute of the Environment and Renewable Natural Resources (IBAMA) handles federal licensing, inspection and enforcement; • the Chico Mendes Institute for Biodiversity Con- servation (ICMBio) manages federal conservation units and applies penalties within them; and • the National Water and Sanitation Agency (ANA) regulates and grants water use rights over federal water resources. At the state level, State Environmental Secretariats and Agencies (eg, CETESB in São Paulo, INEA in Rio de Janeiro, FEAM/SEMAD in Minas Gerais) are responsible for licensing and enforcement within their territories, alongside State Water Resources Agencies and river basin committees. At the municipal level, Municipal Environmental Secre- tariats may license and supervise local-impact activi- ties, when authorised by complementary law. Sector regulators – such as ANP (oil and gas), ANTAQ (ports), ANTT (transport) and ANEEL (electricity) – also set environment-related standards in their areas.
Licensing and enforcement powers are distributed among federative entities according to impact and location, under Complementary Law No 140/2011. Additional clarification on the participation of other agencies (eg, ICMBio, FUNAI for Indigenous peoples, FCP for Quilombola communities) may be necessary. The Role of Public Prosecutors The Federal and State Public Prosecutors’ Offices play a key role in enforcing environmental obliga- tions and liabilities – civil and criminal – through civil inquiries, public civil actions, and conduct adjustment agreements (TACs). The Federal Police and State Mili- tary Environmental Police assist prosecutors in out-of- court investigations and enforcement. 2.2 Co-Operation Co-Operation Mechanisms With Regulatory Authorities Co-operation between private parties and regulatory authorities occurs mainly through: • administrative licensing procedures, which may involve public participation via hearings and envi- ronmental impact studies (EIA/RIMA); • formal information requests and inspections by environmental agencies and public prosecutors; • conduct Adjustment Terms (TACs) negotiated with public prosecutors to remedy environmental harm or ensure compliance with environmental licences and mitigation requirements; • participation in River Basin Committees for water allocation; and • adherence to due diligence and disclosure pro- grammes. Companies typically do the following: • maintain environmental compliance programmes; • submit periodic monitoring reports required by their licences; and • use self-reporting channels in case of operational incidents. Inter-Agency and Inter-Federative Co-Operation Co-operation among IBAMA, ICMBio, state agencies and police forces occurs through specific protocols or joint operations aimed at addressing environmental
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