Vladimir Passos de FreitasFormer Chief Judge of Federal Court of Appeal 4th. District;

Professor PhD of Environmental Law

ASIAN REGIONAL SYMPOSIUMASIAN REGIONAL SYMPOSIUM

ENVIRONMENTAL LAW AND ENVIRONMENTAL LAW AND ENFORCEMENT IN BRAZILENFORCEMENT IN BRAZIL

Manila, PhillipinesManila, Phillipines, 27-28, July, 27-28, July, , 20102010

BRAZIL: BRAZIL: FEDERAL STATE = 26 STATES FEDERAL STATE = 26 STATES

8,511,965 KM8,511,965 KM22 - 190,000,000 INHABITANTS - 190,000,000 INHABITANTS

BRAZILBRAZILEN ENVIRONMENTAL PROTECTION EN ENVIRONMENTAL PROTECTION

LEGISLATION 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.

Brazil – Brazil – Judiciary PowerJudiciary 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 ofSome examples of

Important Judicial Important Judicial

decisionsdecisions

First environmental decision in First environmental decision in BrazilBrazil20032003

In 1973, in a popular action, Judge Rabello In 1973, in a popular action, Judge Rabello decided a case about a building, constructed decided a case about a building, constructed without sanitary treatment, that discharged without sanitary treatment, that discharged sewage into the sea. Judge Rabello prohibited sewage into the sea. Judge Rabello prohibited the building to be handed to the owners. But the building to be handed to the owners. But later, the Court of Appeal reversed this pioneer later, the Court of Appeal reversed this pioneer decision.decision.

(Itanhaém, SP, State District Court, suit nº (Itanhaém, SP, State District Court, suit nº 1.700/73, in 15/4/1974)1.700/73, in 15/4/1974)

PET BOTTLES – FEDERAL JUSTICE, MARÍLIA, SP PET BOTTLES – FEDERAL JUSTICE, MARÍLIA, SP PROC. 20-02.61.11.001467-2, 31.1.2003PROC. 20-02.61.11.001467-2, 31.1.2003JUDGE ALEXANDRE SORMANIJUDGE ALEXANDRE SORMANI

INJUNCTION IN CLASS INJUNCTION IN CLASS ACTION PROPOSED BY ACTION PROPOSED BY PROSECUTORS, ORDERING PROSECUTORS, ORDERING THE MINISTRY OF THE MINISTRY OF AGRICULTURE TO SUBMIT AGRICULTURE TO SUBMIT THE REGISTER OF BEER IN THE REGISTER OF BEER IN POLYETHYLENE POLYETHYLENE TEREPHTHALAT TEREPHTHALAT (PET) (PET) BOTTLES TO BOTTLES TO Environmental Environmental Study Impact.Study Impact.

BRAZIL 4th CONSUMER OF BRAZIL 4th CONSUMER OF BEER IN THE WORLD: 8.45 BEER IN THE WORLD: 8.45 BILLIONS OF BOTTLES A BILLIONS OF BOTTLES A YEAR. THE JUDICIAL YEAR. THE JUDICIAL DECISION AVOIDED THAT DECISION AVOIDED THAT BILLIONS OF PET BOTTLES BILLIONS OF PET BOTTLES PER YEAR WENT TO THE PER YEAR WENT TO THE SANITARY LANDFILLSANITARY LANDFILL

PUBLIC POLICIESPUBLIC POLICIESSEWAGE SYSTEM SEWAGE SYSTEM

ADMINISTRATIVE AND CONSTITUTIONAL. ADMINISTRATIVE AND CONSTITUTIONAL. PUBLIC POLICIES ON ENVIRONMENT AND PUBLIC POLICIES ON ENVIRONMENT AND HEALTH . SEWAGE TREATMENT. HEALTH . SEWAGE TREATMENT. OMISSION.OMISSION.

Being proved the unjustifiable omission of the Being proved the unjustifiable omission of the public powers in the implementation of public public powers in the implementation of public policies to grant a clean environment and public policies to grant a clean environment and public health, it is mandatory a specific performance health, it is mandatory a specific performance conviction, consisting in the implantation of conviction, consisting in the implantation of appropriate sewage treatment system.appropriate sewage treatment system.

(TRF4, Ap. Cível 2004.72.00.0(TRF4, Ap. Cível 2004.72.00.017675-8/SC, 4th. 17675-8/SC, 4th. Panel, Judge Marga Tessler, j. 26.8.2009)Panel, Judge Marga Tessler, j. 26.8.2009)

INEXISTENCE OF PRESCRIPTION INEXISTENCE OF PRESCRIPTION OF THE ENVIRONMENTAL OF THE ENVIRONMENTAL

DAMAGEDAMAGE Civil appeal. Public civil action. Environmental law. Non Civil appeal. Public civil action. Environmental law. Non

prescriptible. Appeal granted. prescriptible. Appeal granted. 1. Prescription is the temporal institution that limits the 1. Prescription is the temporal institution that limits the

creditor’s right to perform his intention, so that the debtor creditor’s right to perform his intention, so that the debtor won’t be won’t be ad aeternumad aeternum subject to charge. subject to charge. 2. However, 2. However, environmental rights, due to their transcendental environmental rights, due to their transcendental importance for the future generations, aren’t importance for the future generations, aren’t prescriptible. prescriptible. 3. Appeal received and sustained to revoke 3. Appeal received and sustained to revoke the prescription indictment.the prescription indictment.

(Minas Gerais State Court, Apel. (Minas Gerais State Court, Apel. Cível 1.0188.07.063974-Cível 1.0188.07.063974-8/001, 2nd. Civil Panel, Judge Caetano Levi Lopes, j. 8/001, 2nd. Civil Panel, Judge Caetano Levi Lopes, j. 22/09/2009)22/09/2009)

First criminal judgement of First criminal judgement of a corporation in Latin a corporation in Latin America America

CRIMINAL APPEAL 2001.72.04.002225-0/SC, FEDERAL CRIMINAL APPEAL 2001.72.04.002225-0/SC, FEDERAL REGIONAL COURT 4th CIRCUIT, JUDGE PINHEIRO DE REGIONAL COURT 4th CIRCUIT, JUDGE PINHEIRO DE CASTRO, J. 06.08.2003 (www.trf4.gov.br)CASTRO, J. 06.08.2003 (www.trf4.gov.br)

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

EVIDENCES: EVIDENCES:

The evidences will be more and more The evidences will be more and more technologic.technologic.

A)A) Filming pollution and handing a CD to the judge Filming pollution and handing a CD to the judge is a great way of demonstrating the is a great way of demonstrating the environmental damageenvironmental damage

B)B) Wire tapping, with judicial authorization, is an Wire tapping, with judicial authorization, is an efficient way to find out environmental crimes. It efficient way to find out environmental crimes. It has been used in cases of gangs of endangered has been used in cases of gangs of endangered species.species.

C)C) Photos by satellitePhotos by satellite

JUDICIAL ACTIVISM: FEDERAL ENVIRONMENTAL COURT JUDICIAL ACTIVISM: FEDERAL ENVIRONMENTAL COURT OF CURITIBA, PARANÁ STATE OF CURITIBA, PARANÁ STATE

PROC. 2001.70.00.032368-3, VISIT TO SANITARY PROC. 2001.70.00.032368-3, VISIT TO SANITARY LANDFILL, 19.7.2006LANDFILL, 19.7.2006

NGONGO AMAR AND ASSOCIAÇÃO ATMOSFERA X AMAR AND ASSOCIAÇÃO ATMOSFERA X MUNICIPALITY OF CURITIBA AND FEDERAL ENVIRONMENT MUNICIPALITY OF CURITIBA AND FEDERAL ENVIRONMENT AGENCYAGENCY

  

AT PRESENT IN BRAZIL JUDGES TEND TO AT PRESENT IN BRAZIL JUDGES TEND TO CONCILIATIONCONCILIATION

Articles 125, IV, 331 Articles 125, IV, 331 and 447 of and 447 of Procedimental Code Procedimental Code state that judges must state that judges must try conciliation.try conciliation.

So, now conciliation is So, now conciliation is mandatory .mandatory .

ECONOMIC IMPACTSECONOMIC IMPACTS

In 1993 , the Federal prosecutor filed a kind of In 1993 , the Federal prosecutor filed a kind of class action before the Federal Justice of class action before the Federal Justice of Criciúma against 30 coal enterprises , their Criciúma against 30 coal enterprises , their directors and major directors and major

partners, the State of Santa Catarinapartners, the State of Santa Catarinaand the Federal Union, aiming the and the Federal Union, aiming the recovery of the environmental recovery of the environmental damages caused by the damages caused by the exploitation of mineral coal in exploitation of mineral coal in the south region of the Statethe south region of the State

In May 2007, the Superior Court of Justice In May 2007, the Superior Court of Justice decided an appeal ( 647493/SC, 2nd. decided an appeal ( 647493/SC, 2nd. Chamber, Justice João Otavio de Noronha), Chamber, Justice João Otavio de Noronha), and sentenced that the Union and the State of and sentenced that the Union and the State of Santa Catarina were responsible for the Santa Catarina were responsible for the recovery of the environmental liabilities, due to recovery of the environmental liabilities, due to their omission in their inspection duties. their omission in their inspection duties.

In the same decision the Court has alsoIn the same decision the Court has alsoconvicted the coal enterprises and, in theconvicted the coal enterprises and, in the hypothesis of their insolvency, their hypothesis of their insolvency, their respective partnersrespective partners..

COMPLEXITY OF ENFORCEMENTCOMPLEXITY OF ENFORCEMENT

RECUPERATION OF RECUPERATION OF 6.191,59 hectares of 6.191,59 hectares of damaged areas; - 3 river basins (Araranguá, Tubarão damaged areas; - 3 river basins (Araranguá, Tubarão and Urussanga rivers); - 768 mines abandoned.and Urussanga rivers); - 768 mines abandoned.

FEDERAL JUDGE MARCELO CARDOSO DA FEDERAL JUDGE MARCELO CARDOSO DA SILVA: SILVA:

1)1) MEETINGS WITH EVERYBODY INVOLVED, WITH LECTURES, MEETINGS WITH EVERYBODY INVOLVED, WITH LECTURES, DISCUSSIONS AND VISITS TO PLACES TO BE RECOVERED.DISCUSSIONS AND VISITS TO PLACES TO BE RECOVERED.

2)2) IDENTIFICATION OF EACH DAMAGED AREA , that is, places IDENTIFICATION OF EACH DAMAGED AREA , that is, places that, due to antropic action, have lost some of their physical, that, due to antropic action, have lost some of their physical, chemical and biotic characteristics , enough to impair the chemical and biotic characteristics , enough to impair the balance of the ecosystem and negatively affect its social and balance of the ecosystem and negatively affect its social and economic potential. economic potential.

3)3) Presentation of a recovery project for each damaged area by Presentation of a recovery project for each damaged area by the person(s) in charge: to be presented to the environmental the person(s) in charge: to be presented to the environmental organ for approval. organ for approval.

Site: Site: www.jfsc.jus.br/acpdocarvao.www.jfsc.jus.br/acpdocarvao.

Public hearings and creation of monitoring.Public hearings and creation of monitoring.

Creation of a technical assessment group to the Creation of a technical assessment group to the district court. The discussion becomes technical, district court. The discussion becomes technical, not judicial.not judicial.

This is a successful case in the enforcement of a This is a successful case in the enforcement of a complex environmental judgement.complex environmental judgement.

In 2004, a civil action filed by the Prosecutor’s In 2004, a civil action filed by the Prosecutor’s Office requested the removal of 250 families who Office requested the removal of 250 families who were living in a permanent preservation area, at were living in a permanent preservation area, at the margins of the Billings Reservoir, that supplies the margins of the Billings Reservoir, that supplies water to the city of São Paulo. The families had water to the city of São Paulo. The families had bought areas irregularly sold and were polluting bought areas irregularly sold and were polluting the water. the water.

In 2006, the Superior Court of Justice decided that In 2006, the Superior Court of Justice decided that the families should leave the area,the families should leave the area,

because in the conflict between the because in the conflict between the interests of the families and the possible interests of the families and the possible lack of water in the future for the lack of water in the future for the population, the protection to the millions population, the protection to the millions of inhabitants of São Paulo should prevailof inhabitants of São Paulo should prevail..

SUPERIOR COURT OF JUSTICE, RESP 403.190/SP, SUPERIOR COURT OF JUSTICE, RESP 403.190/SP, SEC. 2ND CHAMBER, JUSTICE JOÃO NORONHASEC. 2ND CHAMBER, JUSTICE JOÃO NORONHA, , J. J.

27.6.200627.6.2006(SOCIAL X ENVIRONMENT)(SOCIAL X ENVIRONMENT)

But: a) there are 250 families in the area and But: a) there are 250 families in the area and it´s very difficult to move them out; b) the it´s very difficult to move them out; b) the legal decision hasn’t legal decision hasn’t been complied with up to been complied with up to the momentthe moment..

ENVIRONMENTAL ENVIRONMENTAL COURTSCOURTS

SWEDENSWEDEN

Environmental Environmental Court of Appeal, Court of Appeal, StockholmStockholm

(more 5 (more 5 Enviromental Enviromental District Courts)District Courts)

BRAZIL - 1997BRAZIL - 1997 FIRST ENVIRONMENTAL DISTRICT COURTFIRST ENVIRONMENTAL DISTRICT COURT CUIABÁ, MATO GROSSO STATE, PANTANAL CUIABÁ, MATO GROSSO STATE, PANTANAL

REGIONREGION

THE COURT OF APPEALS OF MATO GROSSO STATE THE COURT OF APPEALS OF MATO GROSSO STATE SPECIALIZED A DISTRICT COURT IN ENVIRONMENTAL CASES, SPECIALIZED A DISTRICT COURT IN ENVIRONMENTAL CASES, IN 26.8.1996.IN 26.8.1996.

CIVIL AND CRIMINAL COMPETENCE INCLUDES THE CAPITAL CIVIL AND CRIMINAL COMPETENCE INCLUDES THE CAPITAL CITY AND SOME CITIES NEARBY.CITY AND SOME CITIES NEARBY.

THE DISTRICT COURT HAS A BOAT AND EVERY MONTH THE THE DISTRICT COURT HAS A BOAT AND EVERY MONTH THE JUDGE, 15 OFFICIALS, THE PROSECUTOR, THE JUDGE, 15 OFFICIALS, THE PROSECUTOR, THE ENVIRONMENTAL ORGAN STAFF AND THE JUDICIAL POWER ENVIRONMENTAL ORGAN STAFF AND THE JUDICIAL POWER STAFF, EXPERTS, AND POLICE GO AROUND THE REGION.STAFF, EXPERTS, AND POLICE GO AROUND THE REGION.

STATE COURTS OF APPEALSTATE COURTS OF APPEAL

SÃO PAULO, SÃO PAULO STATESÃO PAULO, SÃO PAULO STATE

THE COURT OF APPEALS OF SP (PERHAPS THE THE COURT OF APPEALS OF SP (PERHAPS THE BIGGEST IN THE WORLD, WITH 360 JUDGES) BIGGEST IN THE WORLD, WITH 360 JUDGES) CREATED IN 2005 A SPECIALIZED ENVIRONMENTAL CREATED IN 2005 A SPECIALIZED ENVIRONMENTAL BOARD.BOARD.

IT DECIDES ONLY CIVIL DAMAGES CASES.IT DECIDES ONLY CIVIL DAMAGES CASES. THE DECISIONS ARE TAKEN IN A SHORT TIME, THE DECISIONS ARE TAKEN IN A SHORT TIME,

WITH A GOOD TECHNICAL QUALITY. WITH A GOOD TECHNICAL QUALITY.

FEDERAL JUSTICE (SOUTH OF FEDERAL JUSTICE (SOUTH OF BRAZIL)BRAZIL)

DISTRICT ENVIRONMENTAL COURTS WERE DISTRICT ENVIRONMENTAL COURTS WERE CREATED IN 2005 IN THE CAPITAL CITIES OF CREATED IN 2005 IN THE CAPITAL CITIES OF THE 3 SOUTHERN STATES: CURITIBA, THE 3 SOUTHERN STATES: CURITIBA, FLORIANÓPOLIS AND PORTO ALEGREFLORIANÓPOLIS AND PORTO ALEGRE

COMPETENCE: ENVIRONMENTAL, RURAL COMPETENCE: ENVIRONMENTAL, RURAL AND REMAINING CASESAND REMAINING CASES

ADMINISTRATIVE, CIVIL AND CRIMINAL ADMINISTRATIVE, CIVIL AND CRIMINAL COMPETENCECOMPETENCE

EXCELLENT RESULTSEXCELLENT RESULTS

Federal Environmental Federal Environmental Courts - 2010Courts - 2010

TThis year 4 Federal Environmental his year 4 Federal Environmental District Courts were created by the District Courts were created by the Federal Council of Justice in the Amazon Federal Council of Justice in the Amazon Region, in different States.Region, in different States.

This is a real change of mentalityThis is a real change of mentality..

But, ...But, ...

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

Satellite monitoring is increasing, but they cut Satellite monitoring is increasing, but they cut smaller trees hidden below the taller ones, so smaller trees hidden below the taller ones, so that the satellites can´t capture the images of that the satellites can´t capture the images of the damagethe damage

State judges have big problems in distant citiesState judges have big problems in distant cities

Buried timber to avoid Buried timber to avoid inspection – Rondonia Stateinspection – Rondonia State

ITINERANT JUSTICE, AMAPÁ STATEITINERANT JUSTICE, AMAPÁ STATE

OTHER MEASURES TO IMPROVE OTHER MEASURES TO IMPROVE ENVIRONMENTAL LAWENVIRONMENTAL LAW

1)1) To include Environmental Law in the To include Environmental Law in the program of public exams for judges and program of public exams for judges and organize capacity building courses for organize capacity building courses for them. them.

Besides the judges, also for the servants Besides the judges, also for the servants of the Judicial Power, because (in Brazil) of the Judicial Power, because (in Brazil) they help the judges in their decisions.they help the judges in their decisions.

2) To reconstruct the story of the 2) To reconstruct the story of the Environmental Law, by interviewing Environmental Law, by interviewing judges who gave the first decisions and judges who gave the first decisions and paying tribute to them. The initiative could paying tribute to them. The initiative could be taken by environmental agencies, be taken by environmental agencies, UNEP, NGOs and environmental UNEP, NGOs and environmental foundations, universities or corporationsfoundations, universities or corporations..

3) To organize essay contests for 3) To organize essay contests for judges on Environmental Law. It is a judges on Environmental Law. It is a wonderful way to motivate judges to wonderful way to motivate judges to study Environmental Law. The prizes study Environmental Law. The prizes may be the participation in international may be the participation in international congressescongresses

4) To invite the stakeholders of the 4) To invite the stakeholders of the Judiciary Power and the leadership of Judiciary Power and the leadership of judges to participate in some activities judges to participate in some activities (e.g. to be examiners in essays contests (e.g. to be examiners in essays contests or to chair panels in congresses), so that or to chair panels in congresses), so that they would be introduced into they would be introduced into Environmental Law and would be able to Environmental Law and would be able to evaluate its importance. evaluate its importance.

5) To encourage the extensive application 5) To encourage the extensive application of International Agreements for crimes of of International Agreements for crimes of “money laundry”, namely “Palermo “money laundry”, namely “Palermo Convention”, to environmental crimes Convention”, to environmental crimes whose effects, directly or indirectly, cross whose effects, directly or indirectly, cross the borders and affect people of other the borders and affect people of other countries. It meanscountries. It means responsibility of responsibility of corporations, confiscation of assets, corporations, confiscation of assets, extradition and mutual judicial assistance extradition and mutual judicial assistance and simplified gathering of evidence. and simplified gathering of evidence. 

  

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

CONCLUSIONCONCLUSION

“ “ In the Phillipines, land of the leading case In the Phillipines, land of the leading case about environmental protection for the future about environmental protection for the future generations (A. Oposa x Factoran, 1993) I generations (A. Oposa x Factoran, 1993) I wish I had left the hope in the power of the wish I had left the hope in the power of the Law to change the devastation.”Law to change the devastation.”

Many thanks to the ADB, UNEPMany thanks to the ADB, UNEP

and to the organization for and to the organization for

inviting me.inviting me.

Vladimir Passos de Freitas Vladimir Passos de Freitas

(vladimir.freitas@terra.com.br)(vladimir.freitas@terra.com.br)