BRAZIL Law and Practice Contributed by: Thaís Vasconcellos de Sá and Ana Julia Grein Moniz de Aragão, Bermudes Advogados
civil and criminal), as explained in 5.1 Key Types of Liability , also apply for corporate entities. In case of criminal liability, the necessary adjustments on potential sanctions are made when the acting party is a corporate entity: imprisonment will not apply but (as per Article 24 of the Federal Law No 9,605/98) the corporation can be subject to the following: • suspension of activities; • embargoes on its establishments; • prohibition to contract with public authorities; and even • forced liquidation if it is proved that the company was created or used preponderantly to make viable, facilitate or conceal environmental crimes. 6.2 Environmental Taxes Activities subject to federal environmental licences will have to pay the Environmental Control and Inspection Fee (TCFA), a tax charged by IBAMA to compensate for the oversight costs of the activity. State and munic- ipal environmental agencies also charge correspond- ing taxes from the activities that fall within their areas of competence. Although not strictly taxes, licensing fees are also paid as part of the respective licensing proceedings. Another relevant tax for environmental preserva- tion is the Environmental Preservation Tax ( taxa de preservação ambiental , or TPA), charged on tour- ists/visitors for access to certain specially preserved areas, usually by the respective municipality where it is located (for the well-known Fernando de Noronha island, the preservation tax is charged by the Pernam- buco State, as per State Law No 10,403/1989). These taxes are used to finance costs related to conserva- tion, cleaning and maintenance of the preserved area. Similar conservation fees are also charged for access to National Parks maintained by ICMBio. Although not strictly a tax (as a tax presupposes a corresponding service to be provided by the respec- tive governmental authority), the use of some natu- ral resources is also subject to specific charges – as a “compensation” for the consumption of such resource. This is the case for water consumption, for
cation and indemnities contractually; however, such private arrangements do not bind authorities or third parties. 5.3 Key Defences Civil environmental liability in Brazil is strict and focused on full reparation of environmental damage. Under the Integral Risk Theory, those who perform an activity assume all risks of environmental harm result- ing from it. Consequently, traditional defences such as exclusive victim fault, third-party acts or force majeure do not apply. The main defence available concerns the absence of causal link between the activity and the damage, as liability still requires direct and immedi- ate causation (NEPA, Article 14, combined with Civil Code, Article 403). As to administrative liability, the prevailing under- standing is that it is subjective, requiring proof of: • conduct with fault or wilful misconduct; • correspondence between the facts and the legal infraction; and • direct and immediate causality between them. Typical defences challenge one of these elements or raise procedural objections, such as due process violations, lack of jurisdiction, or improper sanction- ing authority. Parties may also argue disproportional- ity between the infraction and the penalty, or present evidence of compliance and mitigation efforts to seek sanction reduction. The existence of environmental compliance pro- grammes, use of best available techniques, and prompt remediation or mitigation of damages can reduce penalties, particularly when formalised through Conduct Adjustment Terms (TACs) with public authori- ties. 6. Corporate Liability 6.1 Liability for Environmental Damage or Breaches of Environmental Law The rules and requisites for the triple simultaneous and independent system of liability (administrative,
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