BRAZIL

I.  Introduction

Brazil’s environmental regime has several salient features that bear noting in an overview. First, the environmental regulatory system is quite decentralized. In contrast to the strong federal presence in Venezuela or Mexico, the Brazilian scheme relies heavily on the various state environmental agencies both to set local standards and to enforce national and state legislation. In several aspects, Brazil’s decentralization resembles the American model: large countries with a strong sense of federation where states and their agencies play an active role in legislation and regulation of industry. The federal regulations are generally only the baseline. States can and often do regulate more stringently to account for local concerns.

The second noticeable feature is the fragmented nature of Brazil’s environmental laws. Unlike Mexico, Brazil does not have a true framework law. Instead, Brazil’s federal standards are dispersed throughout countless different volumes of laws, non-environmental codes (e.g., the Water Code and Forestry Code), contradictory resolutions and decrees, and even the 1988 federal Constitution. And despite the proliferation of federal legislation, several important topics, such as hazardous waste, have thus far fallen through the cracks of federal law.¹ A proposed consolidation of environmental law that the federal legislature and the MMA have been working on for the last few years would remedy the situation.² Until that project has been successfully implemented, industry in Brazil is left to cope with the confusion.

Finally, a source in Brazil should be aware of two strong legal deterrents to non-compliance. First, certain non-governmental agencies (NGO’s) and state or municipal prosecutors can bring civil suits against a private entity seeking civil damages. The scheme provides for strict liability for acts or omissions that threaten the environment. There have been major cases and some large damage awards in the balance. (For details see below under “Civil Suits Against Alleged Polluters”) Second, the 1998 Environmental Crimes Law (Lei de Crimes Ambientais, see below) calls for stiff jail sentences and fines. For the first time, criminal liability spreads to the corporation and the individual managers, auditors, and directors. (See “Sanctions” below)

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