BRAZIL Law and Practice Contributed by: Thaís Vasconcellos de Sá and Ana Julia Grein Moniz de Aragão, Bermudes Advogados
• Law No 6,803/1980, Article 12, combined with NEPA, Article 12 – requiring government enti- ties that grant industrial incentives or financing to demand proof of environmental licences and compliance before approval; • Law No 11,105/2005 (GMOs), Article 2, §4, com- bined with NEPA, Article 14, §1 – requiring financi- ers or sponsors of GMO projects to verify posses- sion of a Biosecurity Certificate issued by CTNBio; and • Forest Code (Law No 12,651/2012), Article 36, §3 – requiring buyers of native forest products to retain a Document of Forest Origin (DOF) to ensure lawful sourcing. To establish civil liability, claimants must prove: • an act or omission by the alleged polluter; • environmental damage; and • a direct and immediate causal link between them. For indirect polluters, liability arises from breach of a specific duty of safety designed to prevent environ- mental harm. Landowner Liability Civil liability also extends to landowners, based on the propter rem nature of environmental obligations. According to Precedent 623 of the Superior Court of Justice (STJ), landowners are jointly and severally lia- ble for remediation, even if the damage was caused by third parties before acquisition. The duty to restore the environment transfers with the property. 10.2 Exemplary or Punitive Damages Brazilian law does not provide for exemplary or puni- tive damages. Compensation under civil law is limited to the actual extent of the damage and may (BCC, Article 944), in some cases, be reduced (eg, BCC, Articles 944, sole paragraph, and 945). For moral (non-pecuniary) damages, courts have rec- ognised that compensation, while remaining propor- tionate, also has a pedagogical purpose. Awards take into account factors such as: • the seriousness and consequences of the act; • the degree of fault;
• any contributory fault by the victim; and • the parties’ economic conditions.
A bill pending before Congress would amend the Civil Code to allow courts to impose an additional peda- gogical monetary sanction in cases of special gravity involving intent, gross negligence or repeated miscon- duct, which could affect environmental civil claims. 10.3 Class or Group Actions Collective actions are available for environmental civil claims in Brazil, primarily through the civil public action ( ação civil pública ), governed by Law No 7,347/1985. Such actions may be filed by the federal, state or municipal governments, the public prosecutor’s office, the public defender’s office or duly qualified associa- tions, and are intended to protect collective or diffuse interests, including the environment. Citizens may also bring a citizen action ( ação popular ) under Law No 4,717/1965 to annul or seek compensation for acts harmful to public property, including environmental assets. Collective actions that protect the same rights and interests arising from the same factual context are generally consolidated for joint adjudication, and the resulting decision extends to all related proceedings, ensuring uniformity and efficiency in the resolution of collective environmental claims. In addition, civil associations may file ordinary law- suits to recover damages affecting specific groups (eg, workers or local communities impacted by pollu- tion). Individuals, however, have no standing to claim compensation through ordinary lawsuits for collective environmental damages. 10.4 Landmark Cases Several landmark decisions have shaped Brazil’s framework for environmental civil liability. The Petrobras case (REsp 1.114.398/PR, 2012) and the Cataguases case (REsp 1,374,284/MG, 2014) of the Superior Court of Justice (STJ) consolidated the full risk theory, confirming that environmental civil liability is strict and excludes exculpatory defences such as third-party fault or force majeure.
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