BRAZIL Law and Practice Contributed by: Thaís Vasconcellos de Sá and Ana Julia Grein Moniz de Aragão, Bermudes Advogados
11. Contractual Agreements 11.1 Transferring or Apportioning Liability Indemnities and other contractual arrangements may be used to allocate or apportion environmental risks among private parties, as Brazilian law recognises contractual autonomy in risk allocation. However, such agreements are effective only between the con- tracting parties and do not limit or exclude the liability of polluters before regulators or third parties. Under Brazil’s strict and joint-and-several environmental lia- bility regime, each polluter remains fully liable for the environmental damage. Depending on the contractual allocation of risks and obligations, a party that is not the operator of the envi- ronmentally relevant activity may incur liability as an indirect polluter if, by virtue of the contract, it assumes and fails to comply with a contractual or legal duty of safety related to that activity. 12. Contaminated Land 12.1 Key Laws Governing Contaminated Land The main federal laws governing environmental con- tamination in Brazil are the National Environmental Policy (Law No 6,938/1981), which imposes on pol- luters and degraders the obligation to recover or com- pensate for environmental damage, and the National Solid Waste Policy (Law No 12,305/2010), which sets criteria for the management and licensing of hazard- ous waste operators. At the regulatory level, the National Environmental Council (CONAMA), a federal advisory and normative body that co-ordinates environmental policy imple- mentation, has issued key rules on the subject. The most relevant is CONAMA Resolution No 420/2009, which establishes: • soil quality standards; • guiding values for chemical substances; and • procedures for managing contaminated sites resulting from human activities.
On indirect polluter liability, in Jacupiranga (REsp 1,071,741/SP, 2009), the STJ held the state liable as an indirect polluter for failing to fulfil its legal duty to supervise and protect the environment, establishing that the state acts as a subsidiary debtor, jointly liable but with preference order. The Vicuña cases (REsp 1,596,081/PR and 1,602,106/PR, 2017) became the leading precedent on private indirect polluter liabil- ity, holding that such liability arises when an entity breaches a statutory or contractual duty of safety, directly and immediately causing environmental harm. The Supreme Federal Court (STF), in Theme 999 (RE 654,833/AC, 2020), ruled that environmental claims for restoration or compensation involving diffuse and intergenerational rights are not subject to any statute of limitations. The STJ has also issued key binding precedents ( súmulas ) that guide environmental litigation: • Súmula 613 – the fait accompli theory does not apply to environmental matters; • Súmula 623 – environmental obligations are prop- ter rem and joint, allowing liability for current and former owners or possessors; and • Súmula 629 – environmental harm gives rise to concurrent obligations to repair or abstain (do or not do) and to pay compensation. More recently, large-scale environmental disasters – the Mariana dam collapse (2015), Brumadinho dam collapse (2019) and Maceió geological subsidence (2023) – have influenced judicial practice. Though mostly resolved through settlement agreements rather than rulings, they have become benchmarks for judi- cial management and mass environmental redress, shaping procedural approaches. The individual claims arising from these cases continue to raise key debates before the STJ, particularly on reversal of the burden of proof in mining accidents and limitation periods for individual environmental claims.
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