Environmental Law 2020

Last Updated November 13, 2020

Brazil

Law and Practice

Authors



Milaré Advogados is a boutique law firm located in São Paulo and dedicated solely to environmental advocacy, due to the high expertise of its 18 professionals. It has four departments that deal with environmental law related to specific activities and sectors: (i) agribusiness, forestry and paper, ports and airports infrastructure, real estate and natural resources; (ii) energy and mining; (iii) solid waste; and (iv) criminal environmental law. The team provides preventative and litigation advice, makes normative instruments for state authorities and offers opinions that lead to important decisions. Milaré Advogados directs business negotiations by participating in auctions (eg, solar power), deciding what practices should be adopted in environmental licensing (eg, UHE Belo Monte) and advising on the application of environmental rules to projects. It has extensive experience in obtaining environmental licences for infrastructure and forestry projects, and authorisation to access genetic resources as well as administrative and court processes related to environmental law.

In addition to the Federal Constitution, which designates a specific chapter for the protection of the environment (Article 225), the main national policies and environmental laws are:

  • the National Environmental Policy (PNMA), instituted by Federal Law No 6,398/1981;
  • the Environmental Crimes Law, established by Federal Law 9.605/1998, which also provide for administrative infractions resulting from conduct and activities that are harmful to the environment; and
  • Complementary Law 140/2011, which establishes norms for co-operation between the federal government, the states, the federal district and municipalities in the administrative actions arising from the exercise of their competence in environmental matters.

There are other relevant policies regulated by laws that have been established for specific topics. These are:

  • the National Policy on Water Resources – PNRH (Federal Law 9.433/1997);
  • the National Environmental Education Policy – PNEA (Federal Law 9.795/1999);
  • the National Urban Policy (Federal Law 12.587/2012);
  • the National Biodiversity Policy (Federal Law 13.123/2015);
  • the National Policy on Basic Sanitation – PNSB (Federal Law 11.445/2007);
  • the National Policy on Sustainable Development and Traditional People and Communities (Federal Decree 6.040/2007);
  • the National Policy on Climate Change (Federal Law 12.187/2009);
  • the National Policy on Solid Waste – PNRS (Federal Law 12.305/2010); and
  • the Policy for Territorial and Environmental Protection of Indigenous Lands – PNGATI (Federal Decree 7.747/2012).

The main principles are those already recognised internationally: polluter-pays, prevention and precaution.

Notable Developments, Regulatory Changes, Government/Regulatory Investigations

The biggest discussions regarding environmental law in Brazil in the last two to three years have taken place in the courts. The highlights have been the implementation of environmental legislation and discussion regarding the conformity of actions and developments with the law. The jurisprudence follow-up has revealed a lack of unity in the decisions.

On the other hand, it is important to clarify that, during this period, in the administrative area, Brazilian environmental legislation underwent significant change, such as the updating of the Legal Framework for Basic Sanitation with the enactment of Federal Law 14.026/2020, which aims to revolutionise the sector by setting bold goals for the universalisation of basic sanitation, including coverage of 99% of the population for drinking water and 90% for collection and treatment of sewage. Also of note was the decision of the National Council of Environmental Affairs (CONAMA), rendered on 28 September 2020, revoking:

  • Resolution 284/01, which provides for the environmental licensing of irrigation projects;
  • Resolution 302/2002, which provides for the Permanent Preservation Areas (APPs) of artificial reservoirs and the surrounding use regime; and
  • Resolution 303/2002, which provides for APP parameters, definitions and limits.

Developments in Environmental Policy and Law

At the present moment, attention is being drawn to the proposal to establish the General Environmental Licensing Law, which is being discussed by the National Congress. It intends to establish a new national regulation for the licensing of enterprises and activities that may potentially cause an environmental impact. The factors that have led to this development arise from the need to improve the existing mechanism and give greater agility to the licensing processes, responding to the needs of the productive sector, as well as of the government, which intends, with the revision of the legal framework, to rekindle the economy.

Environmental NGOs or Other Environmental Organisations/Groups

Federal Law 7.347/1985 gives standing to NGOs and other institutions to file environmental class actions. In addition to the ordinary roles they play around the world, such as advocacy, in Brazil these organisations often propose class actions. Some of the most significant infrastructure projects installed (or being installed) in Brazil in the last few years were and are subject to class actions filed by NGGOs.

Federal Law 6.938/1981, which established the National Environment Policy (PNMA), also establishes the organs and entities of the federal government, the states, the federal district and the municipalities, as well as the public foundations, responsible for the protection and improvement of the environment, forming the National Environmental System (SISNAMA). Thus, each member of the federation, within its territory of jurisdiction, is responsible for environmental policy and enforcement. Complementary Law 140/2011 and the Federal Constitution set out the hypotheses of action of each of the entities and bodies that are members of SISNAMA, to avoid competence conflicts and overlapping.

In order to determine environmental incidents, the environmental agencies open administrative processes, in which the acts performed by the environmental agency and by the interested party are registered. This occurs both in preventive protection (ie, environmental licensing processes) and in repressive enforcement of actions that are not in line with environmental legislation (ie, fines, warnings, suspensions). The environmental agencies rely on inspections, technical reports and other technical information produced during the process, by the body or entity itself and by the interested party, always observing the substantive due process of law.

Approach to Enforcement

In preventive guardianship, the approach is usually conciliatory. The environmental agencies allow the interested party to submit all the information necessary for the analysis of their requirement by the environmental body.

In repressive guardianship, the regulation provides the interested person with a possible correction of conduct and, in the case of sanctions, allows him or her to take measures for reparation or compensation that may result in the reduction of the fine.

Requirement for an Environmental Permit

Federal Law 6.938/1981 defines environmental licensing as an instrument of the National Environmental Policy. The general rule establishes that activities or undertakings that use environmental resources, are effectively or potentially polluting, or capable in any way of causing environmental degradation, will require previous licensing (Article 2, item I, of Complementary Law 140/2011).

Environmental licensing is a three-step administrative procedure.

  • Preliminary Licence (LP) – this must be requested in the planning phase of a project’s implementation, alteration or expansion; this licence only addresses environmental feasibility and establishes the technical requirements (conditions) for the development of a project, but does not authorise its installation.
  • Installation Licence (LI) – this licence authorises commencing a project's implementation; it is granted after the conditions of the Prior Licence are met.
  • Operational Licence (LO) – this authorises the operational start-up of a project/works, or of the productive activities; it is granted after inspection to verify compliance with all requirements.

Requirement for an Environmental Impact Assessment

The Environmental Impact Assessment, the most complete environmental impact measurement method foreseen in regulation (CONAMA Resolution 01/1986), is required for the environmental licensing of works or activities potentially causing significant environmental degradation. Ventures or activities that do not have significant potential may be licensed by presenting simpler assessment modalities, depending on the expected impact of the installation and operation of the enterprise or activity. Among others, the following assessments should be highlighted:

  • environmental report;
  • environmental control plan and project;
  • preliminary environmental report;
  • environmental diagnosis;
  • management plan;
  • degraded area recovery plan; and
  • preliminary risk analysis (Article 1, item II, of CONAMA Resolution 237/1997).

The event of exception of environmental assessment is possible and must be verified in the concrete and specific case, and it must also be registered and justified in an express statement of the environmental agency.

Obtaining Permits and Rights to Appeal

Since 1981, according to Federal Law 6.938/1981, environmental licensing has been mandatory throughout the national territory and activities that are effectively or potentially polluting cannot take place without proper licensing. Environmental licences are obtained in the course of the applicable administrative processes. They can be issued separately or successively, depending on the type of activity to be licensed.

In the event of refusal, the law and the Federal Constitution assure the relevant party the right to appeal to the refusing authority’s hierarchical superior (Article 5, item LV, of the Federal Constitution and Article 56 of Federal Law 9.784/1999).

Integrated Permitting Regimes

In accordance with Article 13 of Complementary Law 140/2011, environmental licensing must take place at a single level of jurisdiction, which means that the interested party must apply for environmental licensing before a single environmental agency, as designated by the legislation. The notion of integrated licensing or multiple licences does not correspond to the Brazilian licensing system.

Transferring Environmental Permits

According to the law, a licence is linked to the respective activity or project, so that if there is a change regarding the party responsible for the activity, the transfer is not only possible, but required. A licence is not tied to its holder, for which reason it can be transferred pursuant to the formal administrative procedures established by the issuing environmental agency.

Time Limits and Onerous Conditions

Environmental licences are linked to the impacts of the installation and operation of a project or activity. Therefore, they are limited to their characteristics, and conditions not related to the impacts of such a project or activity may not be imposed. The interested party may appeal the imposition of onerous and unusual conditions. The imposition of onerous or unusual conditions is contradictory to the notion of sustainability that must substantiate the act of issuing a licence. A project or activity is only feasible from the environmental point of view if the conditions for its installation and operation are reasonable. If, for the issuance of the licence, costly and unusual conditions must be met, then the underlying assumption of environmental, social and economic viability will not be fulfilled. That is, the project or activity is not feasible and application must therefore be refused.

Penalties/Sanctions for Breach

Since 1981, under Federal Law 6.938/1981, companies that operate without the required environmental licence are subject to the sanctions provided for by law, including those listed in the Environmental Crimes Law, enacted in 1998.

The penalties and sanctions, under Article 72 of Federal Law 9.605/1998, include:

  • warnings;
  • simple fines;
  • daily fines;
  • seizure of animals, products and by-products of fauna and flora, instruments, equipment, or vehicles of any nature associated with the breach;
  • destruction or disabling of products;
  • suspension of product sales and manufacture;
  • embargo of work or activity;
  • demolition of buildings;
  • partial or total suspension of activities; and
  • rights restriction.

Environmental liability is triple under the Brazilian law. This means that those who break the law or cause environmental damage can be held accountable at the administrative, civil and criminal levels, independently.

Due to the regime of objective civil liability in Brazilian law, if environmental damage occurs or has occurred, then the beneficiary of an activity causing it (or the owner of the property where it happened) accepts any harmful consequences inherent thereto simply by engaging in such an activity. This means that the agent of an activity can be held liable at the civil level for all damages arising from their activity, even if unaware of any fault, as long as the damaging event and its link with the activity can be demonstrated. Thus, even if an activity is regular, its agent will be held responsible for any damages it may cause. The acquirer of a property that has experienced environmental damage is deemed equal to the agent, so that they (the owner or acquirer) may also be responsible for repairs.

At the administrative level, according to Article 70 of Federal Law 9.605/1998, any party engaging in unlawful acts may be held liable, even if such an act does not cause environmental damages. Thus, the agent or property owner may be held liable at the administrative level if they have acted unlawfully.

At the criminal level, liability only affects the party that effectively causes environmental damages, and any penalties are levied on the agent that caused the damages. Also, according to Law 9.605/1998, a legal entity may be held accountable, without prejudice to the liability of a culprit, co-culprit or accessory participating in the same fact.

Accountability takes place independently at three different levels: administrative, civil and criminal.

Administrative Liability

At the administrative level, liability is subjective. An infringement is not characterised by the occurrence of damage, but by the non-observance of legal regimes that may or may not have consequences. In other words, accountability for an environmental infraction at the administrative level happens if there is conduct (commissive or omissive) that can be characterised as in violation of a law. There is no need for concrete damage, but only irregular behaviour.

The conduct may be attributed to an individual or a legal person, public or private, who has participated, by action or omission, in the infraction.

Criminal Liability

At the criminal level, responsibility is also subjective, and only affects the one causing environmental damage. Because it is a very personal sanction, the agent causing the damage must fulfil the penalty.

According to Law 9.605/1998, a legal entity may be held accountable, without prejudice to the liability of a culprit, co-culprit or accessory participating in the same fact.

Civil Liability

Regarding civil liability, an individual or legal person, whether public or private, who is directly or indirectly responsible for an activity that causes environmental degradation, is deemed a polluter, with objective liability being defined as imposing an obligation on the polluter to recover and/or indemnify the damages caused to the environment, regardless of the existence of fault.

Therefore, the legal or natural person who, directly or indirectly, causes or aggravates the damage will be held civilly liable. Whatever the level of participation in the damage caused, there is a duty to indemnify, and a consequent reparatory solidarity.

Landmark/Significant Cases

In November 2016, a serious accident occurred in Mariana, Minas Gerais. As widely reported by the world's press, the mining company's dams broke causing a torrent of mud and debris that not only devastated the immediate region but travelled hundreds of miles. The incident resulted in multiple fatalities and seriously affected large areas of land (with and without buildings), dozens of watercourses and even the sea.

Consequently, to date, the mining company has already been fined by the federal environmental agency more than 10 times, with fines totalling more than BRL300 million.

At the judicial level, the company, 22 individuals, and three other legal entities have been named in a lawsuit pertaining to the practice of environmental crime.

In addition, at the judicial level, they are subject to a series of actions aimed at condemning the company, and its parent companies, to repair the damage caused and to indemnify the damages that are not being repaired.

All persons, individuals or legal entities, can be held accountable at the three levels – civil, administrative and criminal – in the same way. When individuals and legal entities act as co-authors or as participants, all individuals and legal entities may be held liable.

The rule is that only the company responsible for the activity, conduct or environmental damage is liable for the damage or environmental infraction. However, the liability of shareholders or a parent company is authorised in certain situations. In this event, the legislature has embraced the objectivist conception of the disregard of legal personality, saying that it is enough that legal personality constitutes “an obstacle to the compensation of damages caused to the quality of the environment” (Article 4 of Law 9.605/1998). What is required is the simple proof of the impossibility of the legal person honouring the payment of their obligations.

In principle, whenever the company is found to be criminally responsible, the fault of the administrator who has given the command for the conduct considered unlawful will also be present. Likewise, any employee who has somehow collaborated in the outcome or obeyed the illegal order, will be responsible for the crime. In certain cases, however, the courts have lately been admitting the liability of legal entities alone.

At the administrative level, liability will remain with the company, unless the conduct of the individual is not confused with that of the company itself; that is, in the event that the director or employee acts for his or her own benefit, unrelated to the activity and interests of the company.

At the civil level, responsibility as a rule remains with the legal person, unless there is an event of disregarding the legal personality, or, as stated above, if the individual acts for his or her own benefit, unrelated to the activity and interests of the company, in which case it may be sued directly.

There are some types of environmental liability insurance for legal entities in the market, but it is not possible to assert definitively that they are sufficient to insure all liabilities or penalties.

It is possible for financial institutions to be liable for environmental damage resulting from activities that they support. The arguments derive from Law 6.938/1981, which instituted the National Environmental Policy and which was seen as quite broad in its definition of "polluter", making it responsible – regardless of its characterisation as an individual or legal entity – provided that it has directly or indirectly carried out the activity that caused the environmental degradation. In addition, the arguments are based on the fact that environmental civil liability is objective (see Article 14, Section 1 of Law 6.938/1981) and imply joint liability.

The best way for creditors and funders to protect themselves is through implementing measures to monitor the activities financed by them, requiring the submission of documents proving the regularity of their works or projects, as well as audits and the like. In addition, mechanisms such as environmental insurance and environmental damage repair funds may be used.

Whenever conduct or activity causes environmental damage, the causer may be required to:

  • repair the damage caused;
  • restore the environment to its state of affairs beforehand; or
  • provide compensation for any environmental damage that cannot be repaired.

Brazilian law does not recognise exemplary or punitive damages. However, the Superior Tribunal de Justiça (STJ) (Brazil's highest appellate court for non-constitutional questions of federal law) has stated that, in setting the value of the conviction, the judge must take into account the theory of discouragement (which has a punitive character).

The reparative action of environmental damages can be collective or individual, and collective actions are quite common. Class actions such as these are mainly governed by Federal Laws 7.347/1985 and 4.717/1965.

Actions aimed at environmental accountability are already a common reality. For example, there are claims:

  • to repair damage allegedly caused to vegetation when it is suppressed without authorisation;
  • to repair contaminated areas;
  • to protect wildlife species; or even
  • to protect indigenous rights.

Environmental civil liability has a solidarity and objective nature. Nevertheless, contracts may be used to transfer the liability for any environmental damage to third parties through specific clauses. However, this does not mean to say that those co-responsible for the environmental damage will not be responsible if the contracting party does not bear their obligations.

In terms of civil law, insurance is the contract by which the insurer undertakes, through the payment of a premium, to guarantee the legitimate interest of the insured, relative to the person or thing, against predetermined risks. Objectively, environmental insurance does not differ in its structure and characteristics from any other type of insurance. The distinction lies solely and exclusively in the object to be insured, or in the wording of the Civil Code, in the "person or thing" to be insured.

Environmental insurance, like indemnity funds, is an important instrument for implementing the principle of full compensation for environmental damage. This is because it guarantees the availability of financial funds required to fully repair the damage caused to the environment, even in the event of the insolvency of the polluter.

Even for solvent companies, in the event of a major accident – which is not uncommon in certain production sectors – environmental insurance ensures that the economic impact caused by the heavy investment that will need to be made, not only in the remediation of damage but also in the adoption of more efficient pollution control equipment, does not undermine the financial stability of the business, and therefore, ensures, along with the repair of the damage, the permanence of jobs and the normal continuity of activities.

The Brazilian legal system, when establishing the National Policy on Solid Waste, Law 12.305/2010, has determined in its Article 40 that “in the environmental licensing of enterprises or activities that operate with hazardous waste, the SISNAMA licensing agency may require the contracting of civil liability insurance for damages caused to the environment or to public health, subject to the rules on coverage and maximum limits of fixed hiring in regulation”.

In practice, environmental insurance typically appears as an appendix to general civil liability insurance and covers only those damages resulting from “sudden or unexpected pollution”. It is of lower cost and has more modest requirements than specific insurance for “continuous pollution” of greater value, and always lacks a rigorous environmental diagnosis so few are effectively prepared.

In any case, when environmental insurance is instituted, it must be relevant to the size, nature, location and characteristics of the enterprise in question, which are reflected in the damage potentiality.

The most recent Brazilian legislation establishes preventative procedures related to contaminated areas, establishing some criteria and values related to soil quality regarding which chemical substances are present and providing guidelines for the environmental management of these areas.

Soil protection must be carried out in a preventative way or, when already contaminated, in a corrective way, always with the purpose of safeguarding its quality and socio-environmental function.

The management of contaminated areas occurs through procedures ranging from the identification of areas suspected of contamination to intervention with possible environmental remediation and control actions.

The areas in which contamination outbreaks are found must be reported by the environmental agencies. Providing this information to the public is necessary to ensure the restriction of the use of these areas and to seek the recovery of their environmental quality. In addition, access to this information is an important tool so that, those who have effectively contributed to the contamination of these areas are held responsible for repairing the environmental damage. Without such publicity, and without preventative studies, the contaminated areas will be perpetuated and the responsibility for their remediation will simply be transferred to their new purchasers.

At the federal level, this matter is addressed by CONAMA Resolution 420/2009.

At the state level, it is worth mentioning Decree 47.400/2002, which regulates the provisions of Law 9.509/1997 (State Environmental Policy of São Paulo). This decree determines that undertakings subject to environmental licensing shall notify the environmental authority of the suspension or closure of their activities, such notification is to be accompanied by a deactivation plan that contemplates the existing environmental situation and, as the case may be, provides information on the restoration of, or quality recovery measures for, areas that will be deactivated or released (Article 5). This measure seeks to identify areas with environmental problems and to avoid the simple transfer of environmental liabilities to acquirers of contaminated areas (as discussed in 5.1 Liability for Historical Environmental Incidents or Damage). Also noteworthy are São Paulo State Law 13.577/2009, regulated by Decree 59.263/2013, which provides guidelines and procedures for the protection of soil quality and the management of contaminated areas, and Collegiate Resolution 038/2017/C.

Definition of Contaminated Land

According to CONAMA Resolution 420/2009, which regulates the matter at the federal level, contamination is the presence of chemical substance(s) in the air, water or soil, resulting from anthropic activities, in concentrations that restrict the use of this environmental resource to current or intended uses, based on human health risk assessments, as well as the assets to be protected, in a standardised or specific exposure scenario.

Legal Requirements for Remediation

In the proven occurrence of natural concentrations of chemicals that may pose a risk to human health, competent agencies shall develop specific actions to protect the exposed population. In this way, Article 7 of CONAMA Resolution 420/2009 determines that the evaluation of soil quality, regarding the presence of chemical substances, shall be carried out based on the guiding reference values of quality, prevention and research. Soil quality reference values (VRQs) for naturally occurring chemicals will be established by the competent environmental agencies of the states and the federal district.

Liability for Remediating Contaminated Land

As mentioned in 4.1 Key Types of Liability, the occurrence of environmental damage can trigger the imputation of responsibility at the three different levels.

Civil liability

The STJ understands that the environmental obligations associated with real estate are of a propter rem nature. Moreover, the right of return action is traditionally guaranteed in Brazilian legislation.

Therefore, if contamination in a property is confirmed, even if it is carried out by a third party, the current owner of this property is jointly responsible for the contamination and, consequently, for the adoption of measures to manage such liability, including the measures of remediation and/or control, until the conditions acceptable under the current legislation are reached.

Simultaneously, if it is proved that the contamination in the property was due to activities carried out by parties other than the current owner, and the owner of this asset is responsible for the remediation of the liabilities, the polluter may suffer a return action because it was the cause of this pollution.

Administrative liability

Infringement, at the administrative level, is characterised not by the occurrence of damage, but by unlawful conduct, from which environmental damage may or may not have resulted. The unlawful conduct of the agent is subjective, and cannot be imputed to another person.

This way, if the owner of a contaminated property has not committed the illegal conduct or contributed to the act of contamination itself, it is not necessary to speak about the imputation of administrative infraction.

However, it is worth bringing to light Article 13 of São Paulo Law 13.577/2009, which deals with the management of contaminated areas in the State of São Paulo, which considers the owner of the area as legally and jointly responsible for the prevention, identification and remediation of the contaminated area contaminated. This means that if the pertinent measures for remediation of the area and risk reduction are not adopted to the acceptable levels set forth in current legislation, it is possible to frame an omissive conduct, under Articles 41 and 42 of State Law 13.577/2009, of Articles 82, 84, 85, 87 and 88 of State Decree 59.263/2013 and of Article 62, item VII, of Federal Decree 6.514/2008.

Criminal liability

Only if an unlawful act of pollution is found to have occurred can criminal responsibility under the terms of Article 54 of Law 9605/1998 be attributed.

Therefore, if contamination is confirmed and the pertinent measures for remediation of the area and risk reduction are not adopted to the acceptable levels set forth in the current legislation, due to the provisions of the legislation of the State of São Paulo, it is possible to frame an omissive conduct, under the terms of Section 3 of Article 54 of Law 9.605/1998 , and in Article 68 of the same norm.

Ability to Transfer Liability to a Purchaser

As stated above, the STJ understands that the environmental obligations associated with real estate are of a propter rem nature.

In this way, the purchaser of a contaminated property, as he or she becomes the sole current owner, takes on the propter rem nature responsibility for the conservation of the property, with a view to achieving its social role.

In this jurisdiction, Federal Law 12.187, of 29 December 2009, states the National Policy on Climate Change (PNMC), regulated by the Federal Decree of 15 September 2010. This law created the National Policy on Climate Change, as well as its principles, objectives, guidelines and instruments.

Brazil is a signatory to the Kyoto Protocol. This far-reaching commitment has resulted in the effective search for "mechanisms of clean development", so-called because they aim at the reduction of greenhouse gases.

The Brazilian Ministry of the Environment has established a special commission regarding asbestos and attendant issues. (CONAMA – National Council of Environmental Affairs. Resolution No 5, 4 January 1986). It also has established several resolutions regarding the asbestos issue.

  • CONAMA No 7, 1987
  • CONAMA No 19, 24 October 1996
  • CONAMA No 307, 5 July 2002
  • CONAMA No 348, 16 August 2004

Brazil has also signed two conventions regarding labour law and the asbestos issue:

  • International Labor Organization – Convention No 162 – Geneva, 1986
  • International Labor Organization – Recommendation No 172 – Geneva, 1986

A statement specifying responsible use of this product is present in Law No 9.976, 3 July 2000.

Responsibility of the Landowner or Occupier

The rights and duties regarding a property are inherent to it (propter rem). In other words, the landowner has all the rights regarding his or her property, but he or she also has all the duties, such as the managing of asbestos and other harmful products.

Asbestos Litigation

Asbestos litigation is not unusual. The courts tend to first verify if there is a causal link between the harm to the employee and the company policy. If so, they will try to find which was the action or omission of the company that resulted in the employee harm. If the mentioned link is found, the court will compel the company to paying physical and/or moral damages to the employee. The company can also be compelled to change its policy.

Establishing a Claim for Damages

In order for a claim in damages to be brought, actual physical harm does not have to be established: the imminent risk of harm is sufficient to give the employee the right to complain about his or her situation. As seen in Brazilian labour law (Consolidation of Labor Laws/1943), the employer is responsible for the employee environment inside the company. The employer is also responsible for any liability regarding the conditions of work to which his or her employees are subject.

Federal Law No 12.305, of 2 August 2010, instituted the National Policy of Solid Waste (NPSW) in Brazil, regulated by Federal Decree No 7.404, of 23 December 2010. The law applies to either individuals or legal entities, from private-law or public-law, responsible, directly or indirectly, for the production of solid waste. The law also applies to those who develop actions related to the integrated management or solid waste management. In order to regulate this law, the Federal Government created the Interministerial Committee for the NPSW. The mission of this committee is to support the structuring and implementation of the NPSW as it applies to government entities and private intuitions.

The Brazilian Environmental Law adopts strict liability, which means that, combined with the shared responsibility for the lifecycle of the product provided by Article 30 of the NPSW, the producer will always be responsible for the post-consumer products, even if the environmental damage comes from a third party.

According to Article 33 of the NPSW, every producer, distributor, merchant and importer ("business sector") has the obligation to implement a reverse logistics system, consisting of the returning of the post-consumer product to the business sector in order to provide the adequate environmental destination of those post-consumer products; those who infringe this obligation are liable to administrative penalties such as warnings and fines. For now, the only products that are obliged to adopt the reverse logistics system are:

  • batteries;
  • lamps;
  • tyres;
  • electronic products and their components and general packaging;
  • pesticides, their waste and containers; and
  • lubricating oils, their waste and containers.

Pursuant to the contents of the regulations, or of sectoral pledges, and to the commitments executed by and between the authorities and the business sector, the systems provided for in Article 33 shall extend to all products sold in plastic, metal or glass containers, and to all other products and containers, prioritising the public health and environmental impact of the waste generated.

There is no requirement to self-report environmental damage to regulators in Brazil.

In Brazil, the right of access to information by all is guaranteed by Article 5, items XIV and XXXIII of the Federal Constitution. The National Policy of the Environment itself (Law 6.938/1981), in its Article 4, item V, had already listed the dissemination of environmental data and information as one of its purposes and, in Article 9, item VII, provided for a national system of information on the environment – regulated by Article 11, item II, of Decree 99.274/1990 – as one of its instruments.

Law 10.650, which regulates public access to the data and information existing in the agencies and entities that are part of the national environmental system, was amended in 2003. This law guarantees to any person, regardless of evidence of specific interest, access to information. This is through a written request in which he or she will undertake not to use the information collected for commercial purposes – under the penalties of civil law, criminal law, copyright law and industrial property rights – as well as to mention the source, if by any means, such data will be disclosed. The environmental agency response must be provided within 30 days from the date of request, according to Section 5 of Article 2. In the event of overturn, the decision must be reasoned and subject to appeal.

In 2011, Law 12.527 of 18 November 2011, known as the Law on Access to Information was amended. This rule provides that any citizen, without having to state the reasons for request, may – in person, by telephone or through the internet – request a copy of any public documents of the executive, legislative or judicial branches, whether in the federal government, states and municipalities, or in the direct administration and private entities subsidised by governments, except when they involve the privacy of others or constitutional secrets.

Corporates are not required to disclose environmental information in their annual reports. Some citizens as well as public authorities and bodies, seek, in their published financial statements, social information about the company through the "social balance sheet", which serves as an instrument for the disclosure of social information. This statement is not yet mandatory, but its publication may serve to facilitate the distinction between companies that are concerned with environmental, social and governance criteria and those that are not.

Nowadays, the environmental due diligence has been more typically conducted on these kind of transactions.

The seller is required to disclose environmental information to a purchaser in accordance with the principles of good faith governing contractual relations under the Brazilian Civil Code. However, it should be noted that many of the liabilities, or potential environmental liabilities, involving the asset under negotiation may not be known by the seller, which is why environmental due diligence becomes so important in this type of process.

The Brazilian legal system is very restrictive to the creation of new taxes, including green taxes, requiring changes in the federal constitution to do so.

Thus, it is often not a case of creating a new green tax per se, but of using existing taxes in an extra-fiscal way, to induce cleaner and more preservation-minded behaviour.

Federal Law No 6.938, of 31 August 1981, which mandates the Nationwide Policy for the Environment, has the objective of the preservation, improvement and recovery of the quality of the life-supporting environment. In Article 17-B, it gives – to the Brazilian Institute for the Environment and Renewable Natural Resources (IBAMA) and the Institution of the Environmental Supervision and Control Fee (TCFA) – the exercise of police power to control and oversee potential polluting activities that use natural resources. Annex VIII of this law contains the potential polluting activities that use natural resources subject to the Environmental Supervision and Control Fee.

Milaré Advogados

Rua Clodomiro Amazonas N° 1099, 12th floor
Rooms # 124 to 127
São Paulo, CEP – 04537 – 012
Brazil

+55 11 3046 7470

+55 11 3046 7405

milare@milare.adv.br www.milare.adv.br
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Milaré Advogados is a boutique law firm located in São Paulo and dedicated solely to environmental advocacy, due to the high expertise of its 18 professionals. It has four departments that deal with environmental law related to specific activities and sectors: (i) agribusiness, forestry and paper, ports and airports infrastructure, real estate and natural resources; (ii) energy and mining; (iii) solid waste; and (iv) criminal environmental law. The team provides preventative and litigation advice, makes normative instruments for state authorities and offers opinions that lead to important decisions. Milaré Advogados directs business negotiations by participating in auctions (eg, solar power), deciding what practices should be adopted in environmental licensing (eg, UHE Belo Monte) and advising on the application of environmental rules to projects. It has extensive experience in obtaining environmental licences for infrastructure and forestry projects, and authorisation to access genetic resources as well as administrative and court processes related to environmental law.

In the year 2021, it is certain that the right to health will be the centre of attention within Brazilian environmental law. The sewerage system, environmental sanitation and zoonoses control, will be of particular concern. The illegal trade in wild animals will be similarly scrutinised.

As regards legal precedents, the trial of a repetitive appeal related to the application of the Forest Code review, pending before the Superior Tribunal de Justiça (STJ), is eagerly awaited.

Sanitation

Law 14.026/2020

Concerning basic sanitation, it should be noted that Law 14.026/2020, which amended Law 11.445/2007, was changed, thus consolidating the National Policy on Basic Sanitation (PNSB). The legal writing facilitated the normative integration, avoiding future disputes and clarifying the construction, application guidelines and the normative integration.

The fundamental rights regarding sanitation public services are:

  • universal access and effective provision of services;
  • integrality;
  • water supply, sanitary sewers, urban cleaning and the handling of solid waste to be properly performed for public health, the conservation of natural resources and environmental protection;
  • availability, in urban areas, of drain services and the handling of storm waters;
  • preventive inspection of the grids proper to public health, environmental protection and the safety of public and private property;
  • adoption of methods, techniques and processes that consider local and regional particularities;
  • urban and regional development, housing, anti-poverty measures, environmental protection, health promotion and other policies of relevant social interest, aimed at improving quality of life;
  • economic efficiency and sustainability;
  • incentive to research, the development and use of proper technologies, considering the users’ payment capacity, the adoption of gradual and progressive solutions and efficiency gains and cost decreases for users;
  • transparency of actions, based on information systems and institutionalised decision-making processes;
  • social control;
  • safety, quality, regularity and continuity;
  • integration of infrastructure and services with the effective management of water resources;
  • decrease and control of water losses, including the supply of treated water, incentives for rationalisation of its consumption by users and for power efficiency, the reuse of effluent sewer systems and exploitation of rain waters;
  • regionalised provision of services, aimed at creating scale gains and guaranteeing the universalisation and technical, economic and financial feasibility of the services;
  • competitive selection of the service providers; and
  • concurring provision of water supply and sanitary sewerage services.

The National Water Agency of Brazil

The National Water Agency of Brazil (ANA) is an autarchy of the federal government, operating under a special regime, with administrative and financial autonomy, which, together with the Ministry of Regional Development (MDR), makes up the Brazilian System for Management of Water Resources (SINGREH), which aims at implementing, within the limits of the respective bodies' competencies, Brazilian water resource policy, as well as instituting reference standards for regulating public sanitation services.

As already noted, the reform brought by Law 14.026/2020 conferred upon the ANA sole leadership of the system, indicating a clear movement towards management centralisation. As the ultimate regulator, the ANA will be responsible, through reference standards, for guiding governance and its similar sub-national agencies in relation to general commands that might be uniformly applied throughout the country, without ignoring the fact that local specificities are still being applied in the jurisdiction of states and cities.

Accordingly, when a different way of standardising the sanitation services is chosen, upon the nationalisation of rules or the federation of a regulation, the ANA is required to delimit and regulate the main elements of the provision of sanitation services in Brazil. Article 4-A of Law 9.984/2000 required the ANA to establish the regulation of public services of basic sanitation, through reference standards, such as:

  • quality and efficiency standards;
  • rates;
  • the standardisation of contract agreements;
  • universalisation targets;
  • regulation accountability;
  • the decrease and control of water losses;
  • investment indemnities;
  • the governance of regulating entities;
  • the reuse of effluents;
  • forfeiture parameters;
  • targets for replacing systems;
  • assessment systems; and
  • the minimum contents for universalised provisioning and economic and financial sustainability.

Regionalised provision of sanitation services

Law 11.445/2007, whose writing was determined by Law 14.026/2020, made regionalised provision of services one of the fundamental principles of the current PNSB (Article 2, XIV), defining it, in Article 3, item VI, as “a modality of integrated provision of one or more components of public services of basic sanitation in certain region whose territory covers more than one city”, which may be structured as follows.

Metropolitan area, urban agglomeration or microregion – units instituted by the states upon a complementary law, composed of grouping of bordering cities.

Regional unit of basic sanitation – instituted by the states upon an ordinary law, composed of a grouping of not necessarily bordering cities, to meet the hygiene and public health public requirements, or to give economic and technical viability to disadvantaged cities.

Reference block – a grouping of not necessarily bordering cities, established by the federal government, subsidiarily to the states, and formally created through a volunteer associated management body of the cities providing the services.

Concerning the regional units of basic sanitation, one needs to observe that the states have a term of one year, as of 16 July 2020, to establish them, after that term, the federal government is able to institute reference blocks to supplement their omission.

The provisions of the law provide that the purpose of regionalisation is obtaining scale gains and guaranteeing the economic and financial viability of the services, aimed at achieving their universalisation. It was argued that regionalised provision, because it includes cities of greater and lesser wealth and not necessarily contiguous in the same provision territory, removes, at least in part, the risk of any of them, however poor and small they might be, being left out of the universalisation process. Therefore, the legislature has sought to encourage adhesion to regionalised provision, instituting some benefits, such as:

  • a flexible term to achieve the universalisation goals;
  • the prioritisation of the allocation of non-onerous federal public resources; and
  • the receipt of technical and financial support from the federal government for adapting the services to the provisions of the applicable law.

Environmental Licensing

Concerning environmental licensing, because of its importance, the urgency of work that has such pronounced social impact and, in order not to delay the universalisation targets, the regulation of (i) simplified procedures for licensing activities related to the treatment of effluents created in the water cure process, (ii) the units of sanitary wage treatment and (iii) the facilities integrating the public services for handling public waste has been delegated to the environmental authorities, always considering the effectiveness and efficiency requirements, and verifying the payment capacity of populations and users involved (Article 44, main section and paragraph 1 of Law 11.445/2007).

Notwithstanding this, the wording of Article 44 of Law 11.445/2007, when it emphasises the attention required to be paid to the efficiency principle – which requirement includes those that shall govern the activities of direct and indirect public administration of any federal government powers, according to Article 37 of the Brazilian Constitution – shows the intention of the legislature to give speed and effectiveness to the licensing process, in order to accelerate the development of a sector that doesn’t have time to lose.

However, it is hard to anticipate the difficulties that the environmental authorities will face when regulating and attempting to comply with this delegation authority, since no criteria regarding what the law considers as a “simplified licensing procedure” has been outlined.

Zoonoses Control

Concerning zoonoses control, it is certain that the performance of the so-called formulating international agencies, such as the World Organisation for Animal Health (OIE) and the Codex Alimentarius Commission, both composed of specialists from several countries participating in the creation of standards in accordance with scientific and technological best practices, will be considered essential for guiding best practice in international trade, aimed at minimising sanitary and phytosanitary risk.

The OIE develops standards and guidelines designed to limit the risks of the international trade in animals and animal products, while the Codex Alimentarius Commission develops a series of standards, practice codes and recommendations for nutrition regulation, in order to protect the health of consumers and assure good faith in international trade.

The creation of such standards relies on the collaboration of experts, which increases the quality of the regulating basis. Such standards are part of "new international law", classified in this way because it does not come from sources consolidated in Article 38 of the Statute of the International Court of Justice. The joint work of both organisations is very relevant to risk management and of human, animal and nutritional health. This is so evident that it is recognised and consecrated by the WTO.

The tradition of the trade in, and use of, wide animals in an entirely non-regulated way deserves special attention and reflection, often based on rooted certainties that have no place in modern societies. The sanitary and phytosanitary standards achieved and harmonised by international institutions, such as the OIE Codes, the Codex Alimentarius and the WTO Agreement on Sanitary and Phytosanitary Measures are therefore vital because they contain the most up-to-date knowledge in this area.

This is so evident that, upon the advent of COVID-19, the OIE is already tracing new guidelines for establishing deeper strategies of risk mitigation, including considering the cultural relevance of some high-risk practices, highlighting the necessity of adopting a multidisciplinary approach to the matter, including the input of veterinarians, economists, microbiologists, food engineers and social scientists.

The fortification of international institutions, and the guidelines created by them, will surely assist the greater awareness of certain practices that should be reviewed on behalf of the health of everyone, on a global scale.

Precedents

In the month of September 2020, the First Section of the STJ unanimously appropriated, according to the proposal of the rapporteur minister Regina Helena Costa, the process of the Special Appeal No 1.762.206/SP (2018/0040853-5) to the proceedings of repeated appeals, and suspended all pending processes in progress, whether individual or joint, in the Brazilian territory, providing the "possibility of acknowledging the retroactivity of standards not expressly retroactive of the Federal Law 12.651/2012 (the new Forest Code) for achieving situations consolidated according to the former law", to define the issue of controverted law.

The legal issue to be resolved can be summarised as whether the retroactive acknowledgement of standards not expressly provided as retroactive in the new Forest Code is possible, aiming at extending such understanding to legal cases already consolidated under the protection of the former law.

The matter was registered under number 1.062 of the STJ’s pages for repeated appeals and in the collective decision-making body, the First Section. It is to be tried according to the proceedings of repeated appeals, the two special appeals providing the possibility of applying the retroactive provisions of the new Forest Code, which are the special appeals No 1.762.206 and No 1.731.334.

The record of the process concerned herein, which was forwarded to the Superior Court on 26 February 2018, provides for a public-interest civil action, proposed by the Prosecution Office of the State of São Paulo, to make a plant responsible for several obligations of an environmental nature. These include instituting, measuring, demarcating and registering the legal forest reserve of 20% of the total area of a rural property, refraining from exploring that legal reserve area and adjusting the forest coverage of the area destined to be legal reserve.

The judgment entered in the judicial district of Sertãozinho required the plant to carry out the obligations raised by the regulator and, after appeal was denied, the same judge determined the satisfaction of judgment upon the submission, to the environmental authority, of proof of demarcation and reforesting in the legal reserve area, under penalty of paying a daily fine.

During the period of the effectiveness of the Forest Code of 1965, the reforestation project was presented, and the administrative authority expressed concern, however, that decision was suspended upon the effectiveness of the new Forest Code. Then, the judge of Sertãozinho decided on the immediate application of the new Code. It should be noted that the judge did this despite the first legal sentence being made during the effectiveness of the prior law.

Motions for clarification were submitted against the decision that determined the immediate application of the new law, which motions were denied in the decision that reinforced the full application of the new law. Other appeals were filed, and the satisfaction of judgment was ordered pursuant to the decisions of first degree.

Refusing to obey, the defendant, accompanied with documents, made a petition requiring the application of the new law, more specifically Article 68 of Law 12.651/2012 – which establishes that the owners or holders of rural property where native vegetation has been suppressed, with respect to the percentage of legal reserve provided by the current law at the time when that suppression occurred, are dismissed from the responsibility to promote the recomposition, compensation or regeneration to the percentage required by the new law. This petition was accepted by the same Civil Court of Sertãozinho, which, in addition to extinguishing the execution, acknowledged the inexistence of an obligation of legal reserve restitution.

Before that decision, the regulator submitted a motion for clarification, which appeal was held unanimously, because it understood that a new discussion about the existence or inexistence of the obligation to institute, measure, demarcate and register the legal reserve area was not necessary, since the obligation was already regularly imposed in legal judgments and measured at an appellate level.

Therefore, the judgment was reversed for removing the extinction of execution and determining the continuity of the phase for compliance with the judgment.

After appealing the decision reverse, the judge-rapporteur Marcelo Martins Berthe of the First Chamber with Focus on Environment and the Court of Justice of São Paulo denied the appeals, clarifying that if the appealer believes that the appealed decision attacked is mistaken, it should use the proper appeal for submitting its nonconformism, because there was nothing to add or change in the decision.

Before the denial of the appeals, the defendant filed simultaneously an Extraordinary Appeal and a Special Appeal, the latter aimed at analysing the discussion in light of the intervening law (the Forest Code of 2012), so that its application to the case is acknowledged and the impossibility of imposing the reforesting obligation is fixed in events where the deforestation occurred in accordance with the law current at the time of its occurrence, exactly pursuant to Article 68, as already discussed.

The appeal was denied and, in the interlocutory appeal of the record against the denial decision, the rapporteur minister acknowledged and determined its conversion to a Special Appeal, considering that the circumstances involved in the dispute, according to her understanding, require a better verification of the subject matter.

When the appropriation was proposed, Helena Costa affirmed that research on STG found more than 50 appellate decisions on that matter since October 2012 – months as of the effectiveness of the current Forest Code – in addition to hundreds of decisions by trial courts. Furthermore, according to the minister, the matter was duly pre-questioned in both appeals appropriated, and she understood that there is no need for rechecking evidence, since the acknowledgement or non-acknowledgement of the standards of the Forest Code is an exclusively legal issue.

Thus, since the process was appropriated as representing a repeated controversy by the First Section, and the collective body determined the suspension throughout Brazil of the progress of the pending processes, whether individual or joint, covering a converted issue of law, one should wait for an understanding of the ministers in the trial of the repeated subject, which, accordingly, will have the same solution applied to the other processes suspended in the origin.

The discussion appropriation to establish the "possibility of acknowledging the retroactivity of standards not expressly retroactive of Federal Law 12.651/2012 (the new Forest Code) for achieving situations consolidated according to the former law", in addition to other legal resistance regarding the application of the Forest Code, is especially relevant for its effective implementation.

One expects that, upon this understanding, the STJ will be able to take the solution for asymmetric situations, such as that evidenced by events in which, once judicialised or resolved upon commitments taken in the past, but still under the commitment phase, the observance of the Forest Code of 1965 was required, and that hypotheses where the commitment of the requirements of the forest law will occur during the effectiveness of the Forest Code of 2012.

Milaré Advogados

Rua Clodomiro Amazonas N° 1099, 12th floor
Rooms # 124 to 127
São Paulo, CEP – 04537 – 012
Brazil

+55 11 3046 7470

+55 11 3046 7405

milare@milare.adv.br www.milare.adv.br
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Law and Practice

Authors



Milaré Advogados is a boutique law firm located in São Paulo and dedicated solely to environmental advocacy, due to the high expertise of its 18 professionals. It has four departments that deal with environmental law related to specific activities and sectors: (i) agribusiness, forestry and paper, ports and airports infrastructure, real estate and natural resources; (ii) energy and mining; (iii) solid waste; and (iv) criminal environmental law. The team provides preventative and litigation advice, makes normative instruments for state authorities and offers opinions that lead to important decisions. Milaré Advogados directs business negotiations by participating in auctions (eg, solar power), deciding what practices should be adopted in environmental licensing (eg, UHE Belo Monte) and advising on the application of environmental rules to projects. It has extensive experience in obtaining environmental licences for infrastructure and forestry projects, and authorisation to access genetic resources as well as administrative and court processes related to environmental law.

Trends and Development

Authors



Milaré Advogados is a boutique law firm located in São Paulo and dedicated solely to environmental advocacy, due to the high expertise of its 18 professionals. It has four departments that deal with environmental law related to specific activities and sectors: (i) agribusiness, forestry and paper, ports and airports infrastructure, real estate and natural resources; (ii) energy and mining; (iii) solid waste; and (iv) criminal environmental law. The team provides preventative and litigation advice, makes normative instruments for state authorities and offers opinions that lead to important decisions. Milaré Advogados directs business negotiations by participating in auctions (eg, solar power), deciding what practices should be adopted in environmental licensing (eg, UHE Belo Monte) and advising on the application of environmental rules to projects. It has extensive experience in obtaining environmental licences for infrastructure and forestry projects, and authorisation to access genetic resources as well as administrative and court processes related to environmental law.

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