ENVIRONMENTAL LAW IN BRAZIL AND ENVIRONMENTAL PROTECTION IN MERCOSUR (ENGLISH VERSION)
| Jurisdiction | Derecho Internacional |
(2001)
ENVIRONMENTAL LAW IN BRAZIL AND ENVIRONMENTAL PROTECTION IN MERCOSUR (ENGLISH VERSION)
Castro, Barros, Sobral e G. Gomes, Advogados
Rio de Janeiro, Brazil
Marta Gonçalves da Silva
Castro, Barros, Sobral e G. Gomes, Advogados
Porto Alegre, Brazil
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ERRATUM — PAPER 8B
The expression "Public Ministry" shall be replaced by "Public Prosection Service." Promulgation year of the Brazilian Federal Constitution is 1988, and not 1998.
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1. INTRODUCTION
This paper seeks to trace the development of Environmental Law in Brazil and to draw parallels with environmental protection systems in MERCOSUR.
1.1 History and Evolution of Environmental Law in Brazil
Very little attention was paid to the environment during the period commencing with the "discovery" of Brazil in 1500 up to the beginning of the second half of the 20th century, with the exception of a few isolated regulations, and even these were not primarily environmental protection measures as such. Their focus was narrower. They aimed to ensure the survival of certain precious natural resources which had already been seriously depleted (e.g. pau-brasil wood), or were in effect measures designed to protect public health, a concern underlying some of the earliest legislative provisions regarding the environment.1
Discovery and colonization by Portugal brought Brazil within the scope of the Afonsin Ordinances, the first European legal code which was in force in Portugal at that time. The Afonsin Ordinances sought primarily to safeguard the production of food products and wood which were in short supply in Portugal.
In 1521, Manoelin Ordinances came into force in Brazil. These were almost identical to the Afonsin Ordinances apart from the introduction of more detailed and modern environmental legislation. The hunting of certain animals, for example, was widely prohibited. For the first time, environmental zoning was introduced, to mark out the areas where such hunting was permissible.
The Manoelin Ordinances were followed by the Philipian Ordinances which remained in force in Brazil from 1603 up to the introduction of the Brazilian Civil Code in 1916.
There was no judicial determination of issues relating to the environment during the colonial and republican periods and up until the 1960s, control being exercised by way of occasional decrees issued by the public authorities, concerned more with conservation than long term preservation.
Accelerated economic development in the 1970s and widespread exploitation of natural resources, not only in Brazil, but throughout the world, led to irreversible changes in the ecosystem and nonrenewable resources. New legal measures were introduced during this
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period but they were still concerned with the narrower issues of over-use and depletion of natural resources rather than wider environmental questions.
The Forestry Code (Código Florestal) of 1965; the Hunting, Fishing and Mining Codes of 1967 (Códigos de Caça, de Pesca e de Mineraçço), the Law of Responsibility for Nuclear Damage (Lei de Responsabilidade por Danos Nucleares) of 1977; the Law of Industrial Zoning in Areas of Critical Pollution (Lei de Zoneamento Industrial nas Ãreas Criticas de Poluiçço) of 1980 and the Law of Agrochemical Toxins (Lei de Agrotóxicos) de 1989 all emanate from this period.
The passing of Federal Law n.° 6.938 of 1981 resulted in the establishment of a National Environmental Policy, and the environment was finally afforded meaningful protection by Brazilian legislation. This law not only set out the principles, objectives and instruments of the National Environmental Policy, it also formally adopted the use of an Environmental Impact Study, clearly set out the terms of civil liability for environmental damage, and conferred powers upon the Public Ministry (Ministério Público) to intervene and issue legal proceedings relating to environmental issues.
Finally, 1998 saw the approval of the Law of Crimes against the Environment, which established criminal and administrative penalties relating to the environment.
2. BRAZILIAN ADMINISTRATIVE ORGANIZATION
2.1 Structure, Hierarchy and Function of Each Body
According to the Federal Constitution, environmental protection is the responsibility of individual citizens, non-governmental organizations and the State. Of the latter, the Environmental Public Administrative bodies and the Public Ministry have prominent roles.
Law n.° 6.938/81 established, in Article 6°, the National Environmental System (Sistema Nacional do Meio Ambiente) — SISNAMA, consisting of a series of bodies and groups at national, state and municipal level which are responsible for environmental protection and for implementing the national Environmental Policy.
The constituent members of SISNAMA, together with their respective functions, as set out in Law n.° 6.938/81 are:
a) Highest Authority: The Government Council (Conselho do Governo) — which forms part of the Presidency of the Republic, its function being to advise and assist the President on environmental issues;
b) Consultative and Decision-Making Body: National Environmental Council (Conselho Nacional do Meio Ambiente) — CONAMA. Analyzes proposes and advises the Government Council on directives and policies for the environment and natural resources and to determine, within the scope of its jurisdiction, standards and norms which are compatible with an ecologically-balanced environment.
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c) Central Authority: The Ministry of the Environment, Hydro-resources and the Amazon (Ministério do Meio Ambiente, dos Recursos Hídricos e da Amazônia Legal) — this federal authority plans, coordinates, supervises and controls the National Environmental Policy2 ;
d) Executive Authority: Brazilian Institute of the Environment and Renewable Natural Resources (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis) — IBAMA — established by Law n.° 7.735, of 22.02.89, it is linked to the Ministry of the Environment. Its role is to advise the Ministry on the formation and coordination of policy as well as executing and enforcing compliance with the National Environmental Policy, and the preservation, conservation and rational use, inspection, control and development of natural resources;
e) Sector Authorities — these are federal bodies responsible for direct or indírect administration relating to environmental protection;
f) Sectional Authorities — these are state bodies which are responsible for the implementation of operations and/or programs and for the control and inspection of activities which are a potential risk to the environment;
g) Local Authorities — these are the municipal environmental control bodies. They are only to be found in the more prosperous municipalities which can support and equip them.
3. ENVIRONMENTAL PROTECTION
3.1 Environmental Protection and the Federal Constitution — Article 225
The 1998 Federal Constitution (FC) made the environment a constitutional issue for the first time. The core provision regarding environmental protection in Brazil is to be found in Article 225 of the Federal Constitution, which provides that "an ecologically balanced environment for common use by the people, essential for healthy quality of life, is the right of all citizens, and the Public Authorities and the collective have the duty of protecting and preserving it for present and future generations."
3.2 Scope of Authority of Federal Bodies in The Environmental Field
3.2.1 Authority to Protect the Environment
Article 23 of the Federal Constitution establishes common authority of Federal, State and Municipal authorities in respect of protection of the environment, combat of pollution in any of its forms and the preservation of forests, fauna and flora. Common authority means administrative cooperation between the different levels (federal, state and municipal) with a view to protecting the environment. Thus, all levels are authorized to protect the
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environment, but, as shall be seen below, there are differences in their power to legislate in this field.
3.2.2 Power to Legislate in Respect of the Environment
Article 24 of the Federal Constitution confers concurrent powers on the Union (Federal government), States and the Federal District (Distrito Federal) to legislate on environmental protection, pollution control and liability for damage to the environment. However, the Federal government's power to legislate in respect of the environment is restricted to establishing general norms ('fundamental' norms/principles or directives) to be followed by the other members of the Federation, i.e. the States, the Federal District and the Municipalities. States are empowered to legislate on the basis of the general norms, in other words introduce concrete measures, specific norms and directives relating to the application in practice of the principles of environmental protection.
In the absence of any federal law issuing general norms, the States have, where relevant, full legislative powers, based on the common authority, to issue measures which meet their specific needs.
The States and Municipalities are further authorized to introduce supplementary legislation based on the general federal norms. States and Municipalities can, provided they observe the terms of the general norms, issue their own environmental norms, thereby creating state environmental protection systems.
It should be noted that whilst municipalities have powers to legislate, such powers are considerably more limited in scope than those of the state or federal authorities. Municipal authorities may issue legislation which is supplemental to that issued at state or federal level where there is a particular local need. Municipal authorities may not abolish or disregard state or federal...
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