Environmental Law: Concepts, Principles, and Legal Aspects
I. Environment (Relevant Concepts and Considerations)
The concepts of biological and ecological environments consider the environment where living beings live, comprising essential conditions for life’s existence or that which surrounds a body or object.
In law and legal doctrine, environment is a set of physical, chemical, and biological conditions, laws, influences, changes, and interactions that support and govern life in all its forms (Law 6938/81, art. 3, I). This legal concept is not entirely satisfactory; it does not broadly cover all protected legal interests, as it restricts the natural environment.
José Afonso da Silva, addressing this legislative deficiency, conceptualizes it as the interaction of natural and artificial elements conducive to the balanced development of life in all its forms. This includes work, cultural, and artificial environments.
1) Environmental Classification:
Natural Environment:
The natural or physical environment is constituted by the atmosphere, elements of the biosphere, water (including the territorial sea), soil, land (including mineral resources), fauna, and flora.
Section 225, and § 1, I, III, and VII. CRFB/88
Artificial Environment:
This includes built areas, buildings, or urban open spaces: buildings, homes, interiors, and equipment or public urban open spaces: parks, streets, etc.
Art. 225, 182, and 5, and XXIII CRFB/88; Law 10.257/2001—City Statute
Cultural Environment:
This encompasses historical, artistic, archaeological, tourist, and landscape features, directly derived from human transformation, as well as a modus vivendi related to a people’s cultural and historical reality.
Work Environment: The set of physical, climatic, and other factors present in a workplace, including real estate, furniture, instruments, and material and immaterial resources, ensuring a healthy and safe environment for work activities.
2) Concept of Environmental Law:
Environmental Law is the legal science that studies, analyzes, and discusses environmental issues and problems and their relationship with humans, aiming to protect the environment and improve life on the planet.
(Luis Paulo Sirviskas)
Concepts: anthropocentric and ecocentric.
Law and fuzzy metaindividual transindividual
3) Principles of Environmental Law
1)Principle of Human Right:
Derived from Principle 1 of the Stockholm Declaration (1972):
Human beings are central to sustainable development. They are entitled to a healthy and productive life in harmony with the environment.
Articles 5, 6, and 225 of CF/88 and art. 2 of Law 6938/81.
2) Democratic Principle:
Citizens have the opportunity to participate in environmental public policies in three spheres: Legislative, Administrative, and Judicial.
Legal Basis:
Legislative:
Article 14, I CF—Referendum;
Article 14, II of the Constitution—Referendum;
Article 14, III of the Constitution—People’s Initiative;
Administrative
Article 5, XXXIII of the Constitution—Right to Information;
Article 5, XXXIV of the Constitution—Right of Petition;
Article 225, IV CF—EPIA (Preliminary Environmental Impact Study);
Judicial
Article 129, III of the Constitution—Public Civil Action;
Article 5, LXXIII CF—Popular Action;
Article 5, LXX CF—Mandamus;
Article 5, LXXI CF—Injunctive Writ;
Article 37, § 4 of the CF—Civil Liability Action for administrative misconduct;
Article 103 of the Constitution—Direct Action of Unconstitutionality.
3) Precautionary Principle:
This stems from Principle 15 of the Rio Declaration (1992):
To protect the environment, the precautionary principle should be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Considerations relevant to the precautionary principle:
This principle addresses fundamental aspects of direct environmental and public health, linked to environmental awareness and environmental education, providing a preventive mechanism for future activities that may cause environmental damage.
Law 6938 also highlights mitigation measures such as Environmental Impact Assessment and Environmental Impact Reports and their procedures.
Health education is crucial for surveillance and the pedagogy of administrative acts.
Based on dialogue and dissemination of law through social work and public health agents, environmental education is an important tool for defense against numerous risks and harmful practices.
4) Principle of Balance:
This principle requires weighing all the effects of environmental interventions to find the best cost-benefit solution.
5) Principle of Limits:
Public administration must set parameters for particulate emissions, noise, and the presence of foreign bodies in the environment, considering the protection of life and the environment.
Article 225, § 1 of the CF.
Profa. Simone Carneiro
6)Principle of Responsibility:
Polluters should, to the greatest extent possible, be held accountable for actions or omissions that harm the environment, promoting the recovery of degraded areas independently of administrative and criminal sanctions.
§ 3 of Article 225 CF/88
7) Polluter Pays Principle:
This stems from Principle 16 of the Rio Declaration (1992):
National authorities should ensure the internalization of environmental costs and the use of economic instruments, considering that the polluter should, in principle, bear the cost of pollution, taking into account the public interest and without distorting international trade and investment.
The polluter should bear the environmental damage. Our system uses strict liability; proof of environmental damage, authorship, and the relationship suffices, regardless of guilt.
Arts. 225, § 3, of the CF and 14 § 1 of Law 6938/81.
Considerations relevant to the principle of responsibility and the polluter pays principle:
The Federal Constitution protects the environment through administrative, civil, and criminal proceedings (art. 225 § 3 CF), for both natural and legal persons. These responsibilities relate to the concept of anti-juridicality, considering the responsible entity and its punishment.
In administrative penalties, the object is subordinate to societal interests; in civil penalties, it is the object of interest and heritage; in criminal penalties, it is the limitation of freedom.
Environmental Guardianship:
According to José Afonso da Silva, administrative liability results from a breach of administrative rules, subjecting the violator to administrative penalties. (Brazilian Environmental Law, 2nd ed. Magazine, Malheiros Ed 1995, p. 209) Main provisions include fines, prohibition of activity, closure of establishments, demolition, embargoes, destruction of objects, destruction of goods, bans on manufacturing or trade in goods, and sealing of industrial or commercial locations in certain areas.
Among the powers is the power of police administration, defined as the power available to the government to condition and restrict the use and enjoyment of property, rights, and individual activities for the benefit of the community or the state.
Administrative violations and penalties should be provided by law. In some cases, they may be specified in regulations.
See Law 6,938/1 and 9605/98 arts. 70 to 76.
Civil Environmental Guardianship:
Liability for Environmental Damage:
Any person or entity, public or private, whose conduct or activities cause environmental damage will be held accountable.
Regarding civil liability, the offender has an obligation to compensate or repair the damage caused.
Two theories exist: subjective and objective.
Subjective responsibility requires the victim to prove the link between the damage and the harmful activity, and especially guilt.
Strict liability requires only the existence of damage and its connection with the pollution source.
Environmental Law adopts a fully objective theory, given the difficulty in proving guilt and the importance of environmental protection. The agent’s will is not discussed, only the relationship between damage and causation, regardless of fault.
This is provided for in art. 14 of Law 6938/81 and approved in CF in art. 225, § 3, which is also based on principles 13 and 16 of the Rio Declaration on Environment. The Integral Risk Theory also applies, making the polluter responsible for the risk, even if the incident is not their fault.
Force Majeure, Unforeseen Circumstances, and Third-Party Acts:
Public legal entities are liable for environmental damage caused by their failure to review or irregularly grant environmental licenses. This does not absolve the real causes of environmental damage. Strict liability and full risk apply.
The same applies in cases of force majeure, unforeseen circumstances, and third-party acts.
Passive Responsibility in Damage Repair:
Given the difficulties in identifying the cause of environmental damage, joint and several liability is adopted in environmental law, as in civil law. This rule applies in environmental law based on art. 942 CC 2002; if there is more than one cause of damage, all are jointly and severally liable. If only one author responds, they may recover from the others proportionally to the damage attributed to each.
This is joint responsibility, with the possibility of voluntary joinder (CPC, art. 46, I) and non-joinder of necessary parties (CPC, art. 47).
This form of liability creates an alternative for repairing environmental damage: Environmental Insurance. This is an insurance contract held by businesses with potentially degrading activities to mitigate the risk of environmental damage.
Law Enforcement:
Criminal oversight is essential in protecting the environment, aiming to prevent and punish conduct against the environment. Modern doctrine argues for replacing custodial sentences with alternatives (community service, ignoring legal personality).
Penal protection is significant because environmental crimes can impact multiple countries; the environment has no country, so the protected legal interest is broader than in other crimes.
For modern environmental law, penal protection should be a last resort, after exhausting other mechanisms (civil and administrative).
4) Environmental Jurisdiction: Regarding jurisdiction in environmental matters:
1) Exclusive material: CF, art. 21, IX, XIX, XX, XXIII, a, b, c, XXV;
2) Exclusive legislative: CF, art. 21, IV, XII, XIV, XXVI and single paragraph;
3) Common material: CF, art. 23, II, IV, VI, VII, IX, and XI;
4) Concurrent legislative: CF, ART 24, I, VI, VII, and VIII, § 1, 2, 3; CF, art. 30, I, II, VIII, and IX;
D) Guarantee rules: CF, art. 5, LXX, LXXI, LXXIII, art. 129, III, art. 37, § 4; art. 103.
Concurrent environmental competence means that the Union/States relationship should establish general rules. Three different laws may relate to the same subject: federal, state, and municipal. The most stringent standard prevails.
Public power has primary responsibility for taking the steps indicated in paragraph 1 of art. 225 of CF/88. Public power refers to all regional public entities.
Article 23 of the Constitution provides for the substantive jurisdiction of the Union, States, Federal District, and municipalities. This competence concerns the provision of services and arrangements for their implementation.
Legislative powers are concurrent (art. 24 of the Constitution). The Union, states, and DF legislate on forests, hunting, fishing, wildlife, nature conservation, soil protection, and natural resources. The Union’s competence is limited to establishing general rules.
States have additional legislative power to supplement federal rules (art. 24, VI, VII, and VIII and its paragraph 2 of the CF). They have joint competence with the Union and municipalities (art. 23, IV, VI, and VII of the Constitution).
Municipalities have competence (art. 23, II, IV, VI, and VII), commonly with the Union and States, more in implementing protective laws than legislating. Article 30, II, allows them to supplement federal and state legislation to protect the natural and cultural environment and legislate on matters of local interest.
5) Environmental Licensing:
This is the administrative procedure for granting environmental licenses.
Established by CONAMA Resolution 237/97
Stages of Environmental Licensing:
1) Preliminary License: art. 8, I of Resolution 237/97;
2) Installation License, art. 8, II of Resolution 237/97;
3) Operating License: art. 8, III of Resolution 237/97.
6) Environmental Laws
Specific Constitutional Rules: CF, art. 225 (standard rule) § 1 inc. I, II, III, IV, V, VI, and VII. (standard instruments, §§ 2, 3, 4, 5, 6 (set of private determinations)—Chapter VI—The Environment);
General Constitutional Rules: CF, art. 21, II, III, IV, V, VI, VII, VIII, IX, X, XI, ART 26, art. 43, §§ 2, IV, and 3; art. 49, XIV and XVI, art. 91, § 1, III; arts. 170, VI, 174, § 3, 176, §§ 1 to 4, 177, § 3, art 182, §§ 1 to 4; art. 186, II, art. 200 VII and VIII, art. 7, XXII; arts. 215 and 216, V; art. 220, § 3, II, art. 231, § 1;
National Environmental Policy Law: 6938/1981
Article 6—SISNAMA
Art. 10 § 3;
Environmental Crimes Law: 9605
National Environmental Fund Law: 7797/1989
Profa. Simone Carneiro
I – Ministry of Environment Actions:
1) Investigative Inquiry (Law 7347/1985):
Concept: This is a tool available to prosecutors to investigate potential damage to collective and individual homogeneous interests and gather information for legal action.
Legitimacy: This is an exclusive power of prosecutors (Art. 129, III, CF/88). Concurrent legitimacy exists if a Public Civil Action is filed (Article 1, paragraph 1). The filing is submitted to the Public Prosecution Council (Article 9 LACP).
Legal Nature: It is a power given to prosecutors, not subject to scrutiny of the Public Civil Action.
Applicable Constitutional Principle: Subject to the Principle of Publicity, with exceptions provided by law. It is purely inquisitorial and does not undergo the adversarial principle or the principle of legal defense.
Expertise: In accordance with Art. 109 CF/88. If the matter involves Union interests, the Federal Prosecutor’s Office investigates. If it involves State interests, the State Public Ministry may act jointly.
2) Conduct Adjustment Agreement:
Concept: This is an administrative negotiation regarding legal obligations, including mandatory and discretionary behaviors.
Legitimacy: This lies with the Public Ministry (LACP, ART. 5, paragraph 6). In environmental matters, constituent bodies (Art. 79-A, Law 9605/98), added by Provisional Measure 2163/2001, are legitimate: The Public Ministry, Public Defender, Federal, State, Federal District, municipalities, and SISNAMA agencies.
NOTE: A conduct adjustment agreement is not a transaction, as it is linked to public law, not private law, and is not contractual.
Background: Section 840 and 841 of CC/2002
II – Environmental Law Guardianship Procedures
1) Public Civil Action: The public civil action addresses transindividual interests related to the environment, consumer goods, artistic, aesthetic, historical, tourist, and landscape rights, the economic order, the urban order, and other diffuse or collective interests.
This action aims to condemn monetary compensation for damage or prejudice caused or the fulfillment of obligations, including specific performance (Art. 11 of LACP with Art. 461 of the CPC).
Regarding the deadline for filing an action to repair environmental damage, the principle of reprobation applies. For property rights, although indemnity is possible, prescription does not apply.
It is a procedural tool for defending collectively enjoyed goods, hence its public and unavailable nature.
Legitimacy: Article 5 of Law 7.347/1985. Legitimacy is concurrent; the Attorney General’s jurisdiction does not exclude others (art. 129, paragraph 1).
For associations aiming at environmental protection, legislation requires subject matter and pre-constitution relevance. Relevance is linked to institutional purposes; pre-constitution imposes a delay in the association’s formation according to civil laws.
Establishment of Competence: The forum where the damage occurred is proposed; the court has functional responsibility (Article 2 LACP). If the Federal Court’s jurisdiction is not in the place of the fact, the state court of first instance will proceed. If the environmental impact affects more than one county, jurisdiction is according to Art. 2 of LACP—Prevention Criterion.
Withdrawal: If a legitimate party withdraws, prosecutors or other legitimate parties may take over the lawsuit (Article 5, paragraph 3). This is an option, not a requirement.
Sentence and Res Judicata: The sentence will be res judicata omnes within the court’s territorial jurisdiction, unless dismissed for lack of evidence. In that case, another legitimate party may act with new evidence (art. 16 LACP).
Resources: Appeals are available. The magistrate may grant a suspensive effect to prevent irreparable damage.
2) Popular Environmental Action (Law 4717/1965): This action is linked to art. 5, LXXIII of the Federal Constitution, addressing illegality and harm.
Object and Legal Discipline: As this action defends property of various natures, it is analyzed in various legal disciplines, including Environmental Law. Here, it is used to defend public property.
Popular action is twofold:
1) Protection of the public treasury;
2) Protection of the environment in all its aspects.
In the second case:
– Jurisdiction is determined by the place where the damage occurred; art. 5 of the LAP does not apply.
– Equitable tolling does not apply; art. 21 of the LAP applies, with a five-year prescription.
– The judge may grant a suspension to avoid irreparable damage.
Active Legitimacy: Any citizen; citizenship is not linked to political connotation, but to all Brazilians and resident foreigners.