BRAZIL Law and Practice Contributed by: Thaís Vasconcellos de Sá and Ana Julia Grein Moniz de Aragão, Bermudes Advogados
10. Civil Liability 10.1 Civil Claims
(Law No 6,938/1981 and Law No 6,803/1980). For private financial institutions, Article 2 of the Biosafety Law (Law No 11,105/2005) requires verification of compliance when financing activities involving geneti- cally modified organisms (GMOs). Public financial institutions, such as the Central Bank and BNDES, also operate specific agribusiness financ- ing programmes with strict environmental compliance standards. Financial intermediaries must check that borrowers meet licensing and performance require- ments before credit is granted. Non-compliance can lead to administrative sanctions, early termination of financing, or joint and several liability. In large infrastructure and project finance transac- tions, lenders face higher scrutiny and liability expo- sure depending on their level of involvement and the extent of environmental due diligence performed. Outside these situations, however, courts generally avoid imposing liability on financial institutions absent a clear duty of safety and causal link to the environ- mental damage. 9.2 Lender Protection To mitigate environmental liability risks, public and private financing institutions always require borrow- ers to demonstrate compliance with all valid environ- mental licences and applicable regulations before and throughout the financing relationship. In sectors with higher environmental exposure, such as infrastructure, energy, mining and agribusiness, lenders conduct enhanced environmental due dili- gence and background checks prior to financing. These projects also include more detailed contrac- tual provisions on representations, warranties and the allocation of environmental risks and responsibilities between the parties. Although such clauses are not enforceable against third parties or public authorities, they help to mitigate potential exposure and may sup- port recourse actions among the contracting parties in case of environmental damage.
Civil Claims for Compensation or Other Remedies Under the National Environmental Policy Act (Law No 6,938/1981), civil claims may be brought whenever a polluter’s activity causes environmental damage. Liability is strict, applying regardless of fault, and tra- ditional defences such as force majeure or third-party acts are not accepted. The direct polluter is the party that performs the activ- ity causing the damage, whether directly or through contractors. It remains responsible even if third parties execute parts or all of the activity. The direct polluter also includes the holder of the environmental licence or sector-specific authorisa- tion, such as mining rights (Federal Constitution, Arti- cle 176, §1; Mining Code, Decree-Law No 227/1967, Article 6-A). This party bears primary responsibility for remediation, independent of fault. Under NEPA, civil claims for compensation or oth- er remedies may be brought whenever a polluter’s activity causes environmental damage. Strict liabil- ity applies, meaning liability regardless of fault, and polluters cannot rely on traditional defences such as force majeure or third-party acts. Indirect Polluter Brazilian case law and doctrine developed the con- cept of the indirect polluter, interpreting Article 3 (IV) and Article 14 (§1) of NEPA. An indirect polluter is a party that, while not directly performing the activity or holding its licence, has a legal or contractual duty of safety related to that activity and, by breaching this duty, contributes – with direct and immediate causa- tion – to the environmental damage. Although the law allows such contractual duties of safety, case law examples are rare. The most frequent cases involve public authorities failing to comply with legal oversight duties regarding private activities. Examples of statutory duties of safety include:
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