ASIAN REGIONAL SYMPOSIUM

ENVIRONMENTAL LAW AND

ENFORCEMENT IN BRAZIL
Manila, Phillipines, 27-28, July, 2010

Vladimir Passos de Freitas

Former Chief Judge of Federal Court of Appeal 4th. District;
Professor PhD of Environmental Law
BRAZIL: FEDERAL STATE = 26 STATES
8,511,965 KM2 - 190,000,000 INHABITANTS
VPF1

BRAZIL
EN ENVIRONMENTAL PROTECTION
LEGISLATION

Administrative penalties are ruled by federal and

state laws (sometimes by municipal laws). E.g.: if
someone pollutes a river, he must pay between
US$ 2,500 and US$ 25,000,000 (depending on the
effects).
Civil penalties. The responsibility is objective. The
convicted person has to repair the damage and
pay damages to a Fund of Environmental
Protection. We have thousands of precedents.
Criminal penalties. Law 9.605, 1998. More serious
crimes, such as pollution (prison between 1 and 5
years), can result in prison. Corporations are
convicted by environmental crimes.
Slide 3

VPF1 vladimir, 23/11/2008

 Brazil –
Judiciary Power

Brazil doesn´t have Administrative Justice as in

France, so all the environmental problems go to
the Judiciary Power.
The Judiciary Power has administrative and
financial autonomy (Constitution, clause 99). We
have around 15,000 judges. They receive good
salaries and have guarantees, such as lifelong
function and can’t be removed from their local of
work.
Brazil is a Federal State and has federal and
state judges (like US, Australia, Argentina, etc.)
 Some examples of
Important Judicial
decisions
First environmental decision in
Brazil
2003
 In 1973, in a popular action, Judge Rabello
decided a case about a building, constructed
without sanitary treatment, that discharged
sewage into the sea. Judge Rabello prohibited
the building to be handed to the owners. But
later, the Court of Appeal reversed this pioneer
decision.
 (Itanhaém, SP, State District Court, suit nº
1.700/73, in 15/4/1974)
PET BOTTLES – FEDERAL JUSTICE, MARÍLIA, SP
PROC. 20-02.61.11.001467-2, 31.1.2003
JUDGE ALEXANDRE SORMANI
 INJUNCTION IN CLASS
ACTION PROPOSED BY
PROSECUTORS,
ORDERING THE MINISTRY
OF AGRICULTURE TO
SUBMIT THE REGISTER OF
BEER IN POLYETHYLENE
TEREPHTHALAT (PET)
BOTTLES TO
Environmental Study
Impact.
 BRAZIL 4th CONSUMER OF
BEER IN THE WORLD: 8.45
BILLIONS OF BOTTLES A
YEAR. THE JUDICIAL
DECISION AVOIDED THAT
BILLIONS OF PET BOTTLES
PER YEAR WENT TO THE
SANITARY LANDFILL
 PUBLIC POLICIES
SEWAGE SYSTEM
 ADMINISTRATIVE AND CONSTITUTIONAL.
PUBLIC POLICIES ON ENVIRONMENT AND
HEALTH . SEWAGE TREATMENT.
OMISSION.
 Being proved the unjustifiable omission of the
public powers in the implementation of public
policies to grant a clean environment and
public health, it is mandatory a specific
performance conviction, consisting in the
implantation of appropriate sewage treatment
system.
 (TRF4, Ap. Cível 2004.72.00.017675-8/SC,
4th. Panel, Judge Marga Tessler, j. 26.8.2009)
 INEXISTENCE OF
PRESCRIPTION OF THE
ENVIRONMENTAL DAMAGE
 Civil appeal. Public civil action. Environmental law. Non
prescriptible. Appeal granted.
 1. Prescription is the temporal institution that limits the
creditor’s right to perform his intention, so that the
debtor won’t be ad aeternum subject to charge. 2.
However, environmental rights, due to their
transcendental importance for the future
generations, aren’t prescriptible. 3. Appeal received
and sustained to revoke the prescription indictment.
 (Minas Gerais State Court, Apel. Cível
1.0188.07.063974-8/001, 2nd. Civil Panel, Judge
Caetano Levi Lopes, j. 22/09/2009)
First criminal judgement of
a corporation in Latin
America
 CRIMINAL APPEAL 2001.72.04.002225-0/SC, FEDERAL
REGIONAL COURT 4th CIRCUIT, JUDGE PINHEIRO DE
CASTRO, J. 06.08.2003 (www.trf4.gov.br)

THE FEDERAL COURT DECIDED THE FIRST APPEAL IN

BRAZIL CONVICTING A LEGAL ENTITY - ENGINEERING
COMPANY THAT EXTRACTED SAND FROM A RIVER
WITHOUT THE LICENSE OF THE COMPETENT ORGAN,
DESTROYING THE LOCAL VEGETATION. THE COMPANY
DIDN’T STOP ITS ACTIVITIES EVEN AFTER BEING
NOTIFIED. AT LAST IT WAS SENTENCED TO PAY AROUND
US$ 5.000 AS MONETARY PENALTY, WHICH WAS MEANT TO
REPAIR THE DAMAGE.
THE DIRECTOR OF THE COMPANY WAS ALSO CONVICTED.
HIS PENALTY WAS 1 YEAR IN PRISON, CONVERTED TO
COMUNITARY WORK
 EVIDENCES:

The evidences will be more and more

technologic.

A) Filming pollution and handing a CD to the judge

is a great way of demonstrating the
environmental damage

B) Wire tapping, with judicial authorization, is an

efficient way to find out environmental crimes. It
has been used in cases of gangs of endangered
species.

C) Photos by satellite
 JUDICIAL ACTIVISM: FEDERAL ENVIRONMENTAL COURT
OF CURITIBA, PARANÁ STATE
 PROC. 2001.70.00.032368-3, VISIT TO SANITARY
LANDFILL, 19.7.2006
 NGO AMAR AND ASSOCIAÇÃO ATMOSFERA X
MUNICIPALITY OF CURITIBA AND FEDERAL ENVIRONMENT
AGENCY
AT PRESENT IN BRAZIL JUDGES TEND TO
CONCILIATION

 Articles 125, IV, 331

and 447 of
Procedimental Code
state that judges must
try conciliation.

 So, now conciliation is

mandatory .
 ECONOMIC IMPACTS
 In 1993 , the Federal prosecutor filed a kind of
class action before the Federal Justice of
Criciúma against 30 coal enterprises , their
directors and major
partners, the State of Santa Catarina
and the Federal Union, aiming the
recovery of the environmental
damages caused by the
exploitation of mineral coal in
the south region of the State
 In May 2007, the Superior Court of Justice
decided an appeal ( 647493/SC, 2nd.
Chamber, Justice João Otavio de Noronha),
and sentenced that the Union and the State of
Santa Catarina were responsible for the
recovery of the environmental liabilities, due to
their omission in their inspection duties.

 In the same decision the Court has also

convicted the coal enterprises and, in the
hypothesis of their insolvency, their
respective partners.
COMPLEXITY OF ENFORCEMENT

 RECUPERATION OF 6.191,59 hectares of

damaged areas; - 3 river basins (Araranguá, Tubarão
and Urussanga rivers); - 768 mines abandoned.

 FEDERAL JUDGE MARCELO CARDOSO DA

SILVA:
1) MEETINGS WITH EVERYBODY INVOLVED, WITH LECTURES,
DISCUSSIONS AND VISITS TO PLACES TO BE RECOVERED.
2) IDENTIFICATION OF EACH DAMAGED AREA , that is, places
that, due to antropic action, have lost some of their physical,
chemical and biotic characteristics , enough to impair the
balance of the ecosystem and negatively affect its social and
economic potential.
3) Presentation of a recovery project for each damaged area by
the person(s) in charge: to be presented to the environmental
organ for approval.
Site: www.jfsc.jus.br/acpdocarvao.

 Public hearings and creation of monitoring.

 Creation of a technical assessment group to the

district court. The discussion becomes technical,
not judicial.

 This is a successful case in the enforcement of a

complex environmental judgement.
SUPERIOR COURT OF JUSTICE, RESP 403.190/SP,
SEC. 2ND CHAMBER, JUSTICE JOÃO NORONHA, J.
27.6.2006
(SOCIAL X ENVIRONMENT)

 In 2004, a civil action filed by the Prosecutor’s

Office requested the removal of 250 families who
were living in a permanent preservation area, at
the margins of the Billings Reservoir, that supplies
water to the city of São Paulo. The families had
bought areas irregularly sold and were polluting
the water.

 In 2006, the Superior Court of Justice decided that

the families should leave the area,
because in the conflict between the
interests of the families and the possible
lack of water in the future for the
population, the protection to the millions
of inhabitants of São Paulo should prevail.
 But: a) there are 250 families in the area and
it´s very difficult to move them out; b) the
legal decision hasn’t been complied with up to
the moment.
 ENVIRONMENTAL
COURTS

SWEDEN

Environmental
Court of Appeal,
Stockholm

(more 5
Enviromental
District Courts)
 BRAZIL - 1997
FIRST ENVIRONMENTAL DISTRICT COURT
 CUIABÁ, MATO GROSSO STATE, PANTANAL
REGION

 THE COURT OF APPEALS OF MATO GROSSO STATE

SPECIALIZED A DISTRICT COURT IN ENVIRONMENTAL CASES,
IN 26.8.1996.
CIVIL AND CRIMINAL COMPETENCE INCLUDES THE CAPITAL
CITY AND SOME CITIES NEARBY.
 THE DISTRICT COURT HAS A BOAT AND EVERY MONTH THE
JUDGE, 15 OFFICIALS, THE PROSECUTOR, THE
ENVIRONMENTAL ORGAN STAFF AND THE JUDICIAL POWER
STAFF, EXPERTS, AND POLICE GO AROUND THE REGION.
 STATE COURTS OF APPEAL

 SÃO PAULO, SÃO PAULO STATE

THE COURT OF APPEALS OF SP (PERHAPS THE

BIGGEST IN THE WORLD, WITH 360 JUDGES)
CREATED IN 2005 A SPECIALIZED ENVIRONMENTAL
BOARD.
IT DECIDES ONLY CIVIL DAMAGES CASES.
THE DECISIONS ARE TAKEN IN A SHORT TIME,
WITH A GOOD TECHNICAL QUALITY.
FEDERAL JUSTICE (SOUTH OF
BRAZIL)

 DISTRICT ENVIRONMENTAL COURTS WERE

CREATED IN 2005 IN THE CAPITAL CITIES
OF THE 3 SOUTHERN STATES: CURITIBA,
FLORIANÓPOLIS AND PORTO ALEGRE

 COMPETENCE: ENVIRONMENTAL, RURAL

AND REMAINING CASES

 ADMINISTRATIVE, CIVIL AND CRIMINAL

COMPETENCE
 EXCELLENT RESULTS
 Federal Environmental
Courts - 2010
This year 4 Federal Environmental
District Courts were created by the
Federal Council of Justice in the Amazon
Region, in different States.

 This is a real change of mentality.

But, ...
 The population don't like the inspections,
because it means less money in the city

 Satellite monitoring is increasing, but they cut

smaller trees hidden below the taller ones, so
that the satellites can´t capture the images of
the damage

 State judges have big problems in distant cities

 Buried timber to avoid
inspection – Rondonia State
ITINERANT JUSTICE, AMAPÁ STATE
OTHER MEASURES TO IMPROVE
ENVIRONMENTAL LAW

 1) To include Environmental Law in the

program of public exams for judges and
organize capacity building courses for
them.

 Besides the judges, also for the servants

of the Judicial Power, because (in Brazil)
they help the judges in their decisions.
 2) To reconstruct the story of the
Environmental Law, by interviewing
judges who gave the first decisions and
paying tribute to them. The initiative
could be taken by environmental
agencies, UNEP, NGOs and
environmental foundations, universities
or corporations.
 3) To organize essay contests for
judges on Environmental Law. It is a
wonderful way to motivate judges to
study Environmental Law. The prizes
may be the participation in international
congresses
 4) To invite the stakeholders of the
Judiciary Power and the leadership of
judges to participate in some activities
(e.g. to be examiners in essays contests
or to chair panels in congresses), so that
they would be introduced into
Environmental Law and would be able to
evaluate its importance.
 5) To encourage the extensive application
of International Agreements for crimes of
“money laundry”, namely “Palermo
Convention”, to environmental crimes
whose effects, directly or indirectly, cross
the borders and affect people of other
countries. It means responsibility of
corporations, confiscation of assets,
extradition and mutual judicial assistance
and simplified gathering of evidence.


 6) To be an example, the Judiciary, as a
public power, should adopt the practice
of environmental management. Thus, in
their administrative action, Tribunals
should encourage the economy of
electricity, water and paper, e.g. by
introducing the use, even partial, of non-
chlorinated paper.
 CONCLUSION

“ In the Phillipines, land of the leading case

about environmental protection for the future
generations (A. Oposa x Factoran, 1993) I
wish I had left the hope in the power of the
Law to change the devastation.”
Many thanks to the ADB, UNEP
and to the organization for
inviting me.

Vladimir Passos de Freitas

(vladimir.freitas@terra.com.br)