BRAZIL Law and Practice Contributed by: Thaís Vasconcellos de Sá and Ana Julia Grein Moniz de Aragão, Bermudes Advogados
• court-ordered performance; • daily coercive fines; and • recovery/compensatory measures for the damages caused, including to third parties. Recurrent or serious breaches may result in criminal charges against the company and responsible indi- viduals, as well as harder administrative sanctions such as ineligibility for public financing or incentives.
• imprisonment for individuals. Administrative Liability
Administrative liability for environmental infractions is regulated by NEPA (Articles 70–76) and Decree No 6,514/2008, complemented by state and municipal rules. The prevailing interpretation in doctrine and case law (notably the Superior Court of Justice – STJ) is that it is also subjective, as sanctions are punitive in nature. A minority view argues that administrative liability should be strict, except in cases expressly requiring fault (Decree No 6,514/2008, and Law No 9,605/98, Article 72, §3, I–II), such as failure to correct irregulari- ties or obstructing inspections. For liability to apply, there must be: (i) an infraction expressly defined by law (legality principle), and (ii) a direct and immediate causal link between conduct and violation. Sanctions, applied by SISNAMA agencies (feder- al, state or municipal) and certain port authorities, include: • warnings; • fines; • licence suspension; • loss of government benefits; • equipment seizure or destruction; and • partial or total embargoes on the activity. 5.2 Liability for Historical Environmental Incidents or Damage Liability for historical contamination and damage can be imposed on current landowners based on strict, joint and several civil liability and the propter rem nature of these obligations (eg, that they transmit along with the respective title). Successor liability extends to acquirers by merger, acquisition of the company or the establishment/ industrial plant where the activity is operated, or oth- er types of corporate succession, particularly where environmental liabilities are inherent to the asset or activity. Due diligence on these operations does not eliminate environmental liability but informs risk allo -
5. Environmental Liability 5.1 Key Types of Liability Triple and Simultaneous Liability System
Brazilian environmental law establishes three inde - pendent and concurrent forms of liability: civil, admin- istrative, and criminal (Federal Constitution, Article 225, §3). Civil Environmental Liability Civil liability is set by Law No 6,938/1981 (NEPA), complemented by the Civil Code where consistent. It is strict, joint and several, and based on direct and immediate causation between the act or omission and the damage. Under the Integral Risk Theory, tra- ditional exemptions (such as victim fault or third-party acts) do not apply, as polluters are deemed to have accepted environmental risks inherent to their activity. Civil liability requires full redress, prioritising recovery of environmental damage or, when impossible, com- pensation. It is often enforced through public civil actions under Law No 7,347/1985. Regarding the cir- cumstances in which a civil claim for compensation can be brought, see 10.1 Civil Claims . Criminal Liability Criminal liability is governed by the Environmental Crimes Law (Law No 9,605/1998) and applies to both individuals and legal entities. As in general criminal law, it is subjective, requiring proof of fault or intent. Penalties include: • fines; • restrictions of rights; • partial suspension of activities; • temporary debarment from public contracts; and
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