ASIAN REGIONAL SYMPOSIUM. ENVIRONMENTAL LAW AND ENFORCEMENT IN BRAZIL Manila, Phillipines, 27

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1 ASIAN REGIONAL SYMPOSIUM ENVIRONMENTAL LAW AND ENFORCEMENT IN BRAZIL Manila, Phillipines, 27, 27-28, 28, July, 2010 Vladimir Passos de Freitas Former Chief Judge of Federal Court of Appeal 4th. District; Professor PhD of Environmental Law

2 BRAZIL: FEDERAL STATE = 26 STATES 8,511,965 KM 2-190,000,000 INHABITANTS

3 VPF1 BRAZIL EN ENVIRONMENTAL PROTECTION LEGISLATION Administrative penalties are ruled by federal and state laws (sometimes by municipal laws). E.g.: if someone pollutes a river, he must pay between US$ 2,500 and US$ 25,000,000 (depending on the effects). Civil penalties. The responsibility is objective. The convicted person has to repair the damage and pay damages to a Fund of Environmental Protection. We have thousands of precedents. Criminal penalties. Law 9.605, More serious crimes, such as pollution (prison between 1 and 5 years), can result in prison. Corporations are convicted by environmental crimes.

4 Slide 3 VPF1 vladimir, 23/11/2008

5 Brazil Judiciary Power Brazil doesn t have Administrative Justice as in France, so all the environmental problems go to the Judiciary Power. The Judiciary Power has administrative and financial autonomy (Constitution, clause 99). We have around 15,000 judges. They receive good salaries and have guarantees, such as lifelong function and can t be removed from their local of work. Brazil is a Federal State and has federal and state judges (like US, Australia, Argentina, etc.)

6 Some examples of Important Judicial decisions

7 First environmental decision in Brazil 2003 In 1973, in a popular action, Judge Rabello decided a case about a building, constructed without sanitary treatment, that discharged sewage into the sea. Judge Rabello prohibited the building to be handed to the owners. But later, the Court of Appeal reversed this pioneer decision. (Itanhaém, SP, State District Court, suit nº n 1.700/73, in 15/4/1974)

PET BOTTLES FEDERAL JUSTICE, MARÍLIA, SP PROC. 20-02.61.

ORDERING THE MINISTRY OF AGRICULTURE TO SUBMIT THE REGISTER OF BEER IN POLYETHYLENE TEREPHTHALAT (PET) BOTTLES TO

8 PET BOTTLES FEDERAL JUSTICE, MARÍLIA, SP PROC , 2, JUDGE ALEXANDRE SORMANI INJUNCTION IN CLASS ACTION PROPOSED BY PROSECUTORS, ORDERING THE MINISTRY OF AGRICULTURE TO SUBMIT THE REGISTER OF BEER IN POLYETHYLENE TEREPHTHALAT (PET) BOTTLES TO Environmental Study Impact. BRAZIL 4th CONSUMER OF BEER IN THE WORLD: 8.45 BILLIONS OF BOTTLES A YEAR. THE JUDICIAL DECISION AVOIDED THAT BILLIONS OF PET BOTTLES PER YEAR WENT TO THE SANITARY LANDFILL

9 PUBLIC POLICIES SEWAGE SYSTEM ADMINISTRATIVE AND CONSTITUTIONAL. PUBLIC POLICIES ON ENVIRONMENT AND HEALTH. SEWAGE TREATMENT. OMISSION. Being proved the unjustifiable omission of the public powers in the implementation of public policies to grant a clean environment and public health, it is mandatory a specific performance conviction, consisting in the implantation of appropriate sewage treatment system. (TRF4, Ap. Cível C /SC, 4th. Panel, Judge Marga Tessler, j )

10 INEXISTENCE OF PRESCRIPTION OF THE ENVIRONMENTAL DAMAGE Civil appeal. Public civil action. Environmental law. Non prescriptible. Appeal granted. 1. Prescription is the temporal institution that limits the creditor s s right to perform his intention, so that the debtor won t t be ad aeternum subject to charge. 2. However, environmental rights, due to their transcendental importance for the future generations, aren t t prescriptible. 3. Appeal received and sustained to revoke the prescription indictment. (Minas Gerais State Court, Apel. Cível /001, 8/001, 2nd. Civil Panel, Judge Caetano Levi Lopes, j. 22/09/2009)

11 First criminal judgement of a corporation in Latin America CRIMINAL APPEAL /SC, 0/SC, FEDERAL REGIONAL COURT 4th CIRCUIT, JUDGE PINHEIRO DE CASTRO, J ( THE FEDERAL COURT DECIDED THE FIRST APPEAL IN BRAZIL CONVICTING A LEGAL ENTITY - ENGINEERING COMPANY THAT EXTRACTED SAND FROM A RIVER WITHOUT THE LICENSE OF THE COMPETENT ORGAN, DESTROYING THE LOCAL VEGETATION. THE COMPANY DIDN T T STOP ITS ACTIVITIES EVEN AFTER BEING NOTIFIED. AT LAST IT WAS SENTENCED TO PAY AROUND US$ AS MONETARY PENALTY, WHICH WAS MEANT TO REPAIR THE DAMAGE. THE DIRECTOR OF THE COMPANY WAS ALSO CONVICTED. HIS PENALTY WAS 1 YEAR IN PRISON, CONVERTED TO COMUNITARY WORK

12 EVIDENCES: The evidences will be more and more technologic. A) Filming pollution and handing a CD to the judge is a great way of demonstrating the environmental damage B) Wire tapping, with judicial authorization, is an efficient way to find out environmental crimes. It has been used in cases of gangs of endangered species. C) Photos by satellite

JUDICIAL ACTIVISM: FEDERAL ENVIRONMENTAL COURT OF CURITIBA, PARANÁ STATE PROC. 2001

13 JUDICIAL ACTIVISM: FEDERAL ENVIRONMENTAL COURT OF CURITIBA, PARANÁ STATE PROC , 3, VISIT TO SANITARY LANDFILL, NGO AMAR AND ASSOCIAÇÃO ATMOSFERA X MUNICIPALITY OF CURITIBA AND FEDERAL ENVIRONMENT AGENCY

14 AT PRESENT IN BRAZIL JUDGES TEND TO CONCILIATION Articles 125, IV, 331 and 447 of Procedimental Code state that judges must try conciliation. So, now conciliation is mandatory.

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

15 ECONOMIC IMPACTS In 1993, the Federal prosecutor filed a kind of class action before the Federal Justice of Criciúma against 30 coal enterprises, their directors and major partners, the State of Santa Catarina and the Federal Union, aiming the recovery of the environmental damages caused by the exploitation of mineral coal in the south region of the State

In May 2007, the Superior Court of Justice decided an appeal ( 647493/SC, 2nd.

16 In May 2007, the Superior Court of Justice decided an appeal ( /SC, 2nd. Chamber, Justice João Otavio de Noronha), and sentenced that the Union and the State of Santa Catarina were responsible for the recovery of the environmental liabilities, due to their omission in their inspection duties. In the same decision the Court has also convicted the coal enterprises and, in the hypothesis of their insolvency, their respective partners.

17 COMPLEXITY OF ENFORCEMENT RECUPERATION OF 6.191,59 hectares of damaged areas; - 3 river basins (Araranguá,, Tubarão and Urussanga rivers); mines abandoned. FEDERAL JUDGE MARCELO CARDOSO DA SILVA: 1) MEETINGS WITH EVERYBODY INVOLVED, WITH LECTURES, DISCUSSIONS AND VISITS TO PLACES TO BE RECOVERED. 2) IDENTIFICATION OF EACH DAMAGED AREA, that is, places that, due to antropic action, have lost some of their physical, chemical and biotic characteristics, enough to impair the balance of the ecosystem and negatively affect its social and economic potential. 3) Presentation of a recovery project for each damaged area by the person(s) in charge: to be presented to the environmental organ for approval.

18 Site: Public hearings and creation of monitoring. Creation of a technical assessment group to the district court. The discussion becomes technical, not judicial. This is a successful case in the enforcement of a complex environmental judgement.

SUPERIOR COURT OF JUSTICE, RESP 403.190/SP, SEC. 2ND CHAMBER, JUSTICE JOÃO NORONHA, J. 27.6.

margins of the Billings Reservoir, that supplies water to the city of São Paulo. The families had bought areas irregularly sold and were polluting the water.

20 SUPERIOR COURT OF JUSTICE, RESP /SP, SEC. 2ND CHAMBER, JUSTICE JOÃO NORONHA, J (SOCIAL X ENVIRONMENT) In 2004, a civil action filed by the Prosecutor s Office requested the removal of 250 families who were living in a permanent preservation area, at the margins of the Billings Reservoir, that supplies water to the city of São Paulo. The families had bought areas irregularly sold and were polluting the water. In 2006, the Superior Court of Justice decided that the families should leave the area, because in the conflict between the interests of the families and the possible lack of water in the future for the population, the protection to the millions of inhabitants of São Paulo should prevail.

21 But: a) there are 250 families in the area and it s s very difficult to move them out; b) the legal decision hasn t been complied with up to the moment.

22 ENVIRONMENTAL COURTS SWEDEN Environmental Court of Appeal, Stockholm (more 5 Enviromental District Courts)

23 BRAZIL FIRST ENVIRONMENTAL DISTRICT COURT CUIABÁ,, MATO GROSSO STATE, PANTANAL REGION THE COURT OF APPEALS OF MATO GROSSO STATE SPECIALIZED A DISTRICT COURT IN ENVIRONMENTAL CASES, IN CIVIL AND CRIMINAL COMPETENCE INCLUDES THE CAPITAL CITY AND SOME CITIES NEARBY. THE DISTRICT COURT HAS A BOAT AND EVERY MONTH THE JUDGE, 15 OFFICIALS, THE PROSECUTOR, THE ENVIRONMENTAL ORGAN STAFF AND THE JUDICIAL POWER STAFF, EXPERTS, AND POLICE GO AROUND THE REGION.

24 STATE COURTS OF APPEAL SÃO PAULO, SÃO PAULO STATE THE COURT OF APPEALS OF SP (PERHAPS THE BIGGEST IN THE WORLD, WITH 360 JUDGES) CREATED IN 2005 A SPECIALIZED ENVIRONMENTAL BOARD. IT DECIDES ONLY CIVIL DAMAGES CASES. THE DECISIONS ARE TAKEN IN A SHORT TIME, WITH A GOOD TECHNICAL QUALITY.

25 FEDERAL JUSTICE (SOUTH OF BRAZIL) DISTRICT ENVIRONMENTAL COURTS WERE CREATED IN 2005 IN THE CAPITAL CITIES OF THE 3 SOUTHERN STATES: CURITIBA, FLORIANÓPOLIS AND PORTO ALEGRE COMPETENCE: ENVIRONMENTAL, RURAL AND REMAINING CASES ADMINISTRATIVE, CIVIL AND CRIMINAL COMPETENCE EXCELLENT RESULTS

26 Federal Environmental Courts This year 4 Federal Environmental District Courts were created by the Federal Council of Justice in the Amazon Region, in different States. This is a real change of mentality.

27 But,... The population don't like the inspections, because it means less money in the city Satellite monitoring is increasing, but they cut smaller trees hidden below the taller ones, so that the satellites can t t capture the images of the damage State judges have big problems in distant cities

28 Buried timber to avoid inspection Rondonia State

29 ITINERANT JUSTICE, AMAPÁ STATE

30 OTHER MEASURES TO IMPROVE ENVIRONMENTAL LAW 1) To include Environmental Law in the program of public exams for judges and organize capacity building courses for them. Besides the judges, also for the servants of the Judicial Power, because (in Brazil) they help the judges in their decisions.

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

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

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

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

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

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

37 Many thanks to the ADB, UNEP and to the organization for inviting me. Vladimir Passos de Freitas

AN ACT TO REPEAL AND REPLACE CHAPTER 53 OF THE EXECUTIVE LAW OF 1972

AN ACT TO REPEAL AND REPLACE CHAPTER 53 OF THE EXECUTIVE LAW OF 1972 TABLE OF CONTENTS PART 1 INTRODUCTION 3 53.1 Purpose of this chapter 3 53.2 Interpretation 3 PART 2 THE GENERAL AUDITING COMMISSION