BRAZIL Law and Practice Contributed by: Thaís Vasconcellos de Sá and Ana Julia Grein Moniz de Aragão, Bermudes Advogados
Based on these federal parameters, federative states develop their own frameworks, the most advanced being São Paulo’s State Law No 13,577/2009, often used as a model by other jurisdictions. Regulatory authorities adopt a pragmatic approach to remediation. Under Resolution No 420/2009, reme- diation aims to eliminate or reduce risks to human health and the environment, restoring soil quality to levels compatible with its intended use, rather than requiring full restoration to pre-impact conditions. The process typically involves identification, investigation, intervention and monitoring stages, which determine whether a site is declared suspected, under investiga- tion, under intervention, under monitoring, or rehabili- tated for declared use. Contamination of soil triggers civil, administrative and criminal liabilities. Administrative penalties may include fines of up to BRL50 million for first-time offences, while criminal sanctions range from one year’s to four years’ imprisonment. Both may apply cumulatively with civil obligations to remediate or Environmental authorities may require remediation from any person or entity directly connected to the contaminated site, including the polluter, the owner, the tenant and the possessor of the area, all of whom may be held jointly and severally liable. In practice, the landowner is typically the primary party targeted by enforcement actions, given the propter rem nature of environmental obligations and the ease of identifica- tion. Liability may be contractually allocated among responsible parties, but such arrangements do not restrict the authorities’ power to demand remediation from any of them. The party that bears the costs may later seek recourse from others who contributed to the contamination. compensate for environmental damage. 12.2 Clearing Contaminated Land When a contaminated property is sold, the buyer assumes joint and several liability for existing contam- ination, even if not responsible for causing it. This prin- ciple is consolidated by the Superior Court of Justice’s Súmula No 623 , which classifies environmental obli- gations as propter rem (attached to the property). In this context, under CONAMA Resolution No 420/2009
and State Law No 13,577/2009 of São Paulo, once contamination is identified, the landowner must sub- mit a remediation and recovery plan for approval by the environmental authority. Remediation activities may be carried out by third parties engaged by the liable party, but ultimate responsibility before public authorities remains with the polluter(s) or other jointly liable persons, who must ensure that all recovery measures are properly executed. 12.3 Determining Liability When more than one party contributes to contami- nation, environmental liability in Brazil is determined under a strict, joint and several liability regime. Envi- ronmental authorities may claim damages and other remedies from any or all responsible parties, regard- less of their individual degree of contribution. Although liable parties may contractually allocate responsibility among themselves, typically based on the volume or nature of contaminants released, such agreements have no effect vis-à-vis public authorities. The party that bears the remediation costs may later seek judicial recourse against others who also contrib- uted to the contamination. Consequently, contribution disputes are generally resolved through civil actions between polluters. In real estate transactions, buyers often conduct pre- liminary and confirmatory site investigations, and pur- chase agreements commonly address the allocation of potential environmental liabilities and post-closing remediation duties. If previously unknown or undis- closed contamination is discovered, the owner or possessor may seek indemnification for remediation costs, provided responsibility for the contamination can be attributed to another party. Private agreements that fail to ensure compliance with regulatory orders to investigate or remediate contami- nated sites are generally disregarded by environmen- tal authorities for liability purposes. 12.4 Proceedings Against Polluters Under Brazilian law, locus standi to bring proceedings against polluters, landowners or occupiers is broadly
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