Green Access Discussion Paper

DP-2015-004

Public Civil Action: Accessto Environmental Justice in Brazil

Tatiana Barreto Serra
2015/3/3

3-1-03 tatiana

International Workshop on "Participation Principle Indicators
under the Environmental Law: Towards Establishing
International Collaboration in Pursuit of Environmental Justice"
at 9th-10th March 2015
Organizers: GREEN ACCESS PROJECT II “Review of Legal Indicators for theParticipation Principle in Environmental Matters - Promotion of an International Cooperation
towards Strengthening the Environmental Democracy” (JSPS Grant-in-Aid), OSAKAUNIVERSITY, PROJECT TIGER “Policy decision-making and public participation onenergy, chemicals and water management: an international comparative study” (Global
Initiative Program), and MITSUI & CO., LTD., ENVIRONMENT FUND – Project“Proposing an Asian Version of the Aarhus Convention – Constitution of anInternational Cooperation for Implementing the Environmental Justice”

GREEN ACCESS PROJECT II
Osaka University

Public Civil Action: Access to Environmental Justice in Brazil
Tatiana Barreto Serra

Abstract: This paper aims to trace an overview about the role of the State Public
Prosecution Office in the protection of the environment, notably through public civil
action. Thus, it is important to note that in alignment with the evolution of theInternational Environmental Law, Brazil experienced, especially from the 80’s, a major
boost to the environmental legislation. At the same extent, the legislative improvement
was followed by both the equipping and independence of the Public Prosecution Office,which became a fundamental entity for environmental protection. In this regard, the1985 Public Civil Action Law and the 1988 Federal Constitution are key milestones forthe preservation of this common heritage of mankind. Accordingly, important
instruments for collective environmental protection have been assigned to the Parquet,as the public civil action, the civil investigation and the conduct adjustment agreement.
In addition, concepts of pollution civil liability were expanded, fixing accountability
objective, propter rem and integral. These concepts are analyzed in this paper. Finally,
several parts of the text expose the path taken by the Brazilian jurisprudence towards theconsolidation of these principles for environmental protection.

1. Initial Considerations.
This article aims at presenting a brief analysis of the Brazilian Public
Prosecution Office actions in environmental issues, notably through the environmental
public civil action.
The legislative and jurisprudential evolution in Brazil granted both autonomy
and independence to the Brazilian Public Prosecution Office, which has ceased to act as
an arm of the Government to take a prominent role in defense of society-, and instrengthening the environmental legislation - which have gained prominence and statusof constitutional provision, preventing attempts of retrogression and safeguarding theenvironment. [1]1

From the conjunction of these two scenarios, the attainment of legitimacy by the
Public Prosecution Office, allowing the promotion of public civil action on
environmental issues, has enhanced environmental protection, in particular if we
consider this institution is responsible for the highest number of public civil actions in
Brazilian history when compared to other legitimate authors.

2. A brief account on the development of the environmental legislation in Brazil
The end of the 2nd World War, marked by the explosions of atomic weapons
dropped on the cities of Hiroshima and Nagasaki, emerged the need to respondefficiently to human rights’ attacks, preserving the humanity. In this context, at the endof the 60´s, the international environmental law arises from the concept of "common
heritage of humanity".
In emblematic image, ODUM and BARRET describe that the first pictures ofEarth from space indicated, for the first time in human history, how lonely and fragile
the planet hangs in the universe, fostering a worldwide movement of environmental
awareness along the years 1968 to 1970. [2]Under the aegis of this international movement, the Decree nº 83.540, of June
4th, 1979, foresaw the filing by prosecutors of civil liability action for damage causedby oil pollution. [3]
In 1981, the Law 6.938, complementing the old Forest Code of 1961 (Law
4,771/61), established the National Environmental Policy which “aims at thepreservation, enhancement and restoration of environmental quality conducive to life, toensure, in the country, conditions for developments in socio-economic areas, in national
security and in the protection of the dignity of human life” (art. 1).
In its article 14, §1º, Law 6.938/81 ensures legitimacy for the Public Prosecution
Office to propose lawsuit for civil liability for environmental damage, in order to oblige
the polluter to indemnify or repair the damage done to the environment and to third
parties affected by their activity, regardless of the existence of guilt [4]Therefore, under the pillar of this legal provision, in 1984, it was proposed byprosecutors the first legal action which culminated in the polluter’s conviction forenvironmental damage, and resulted in an agreement between the prosecution office andthe convicted party during the execution phase, setting the payment of multiple
installments, with statutory interest and monetary correction. [5] This case was2internationally known as "Passarinhada of Embu", when the Mayor of the Embu city, in
the São Paulo State, promoted a social event with political purposes, where the invitees
were a barbecue prepared with thousands of birds of the local wildlife. [6]This was the first successful story ever known - even before the Public Civil
Action law enacted only in 1985 – as a civil lawsuit filed by the Brazilian Public
Prosecution Office for Environmental Protection in favor of a whole collectivity.
PASSOS DE FREITAS recalls:"The action in question, which was called ‘action of civil liability fordamage caused to the environment’ was, in fact, a kind of public civil
action under the Federal Supplementary Law nº 40, of 14.12.1981, theold Organic Law of the National Prosecution Service, that presented,
among institutional functions of the Parquet, the promotion of 'public
civil action'". [7]Shortly after, in 1985, Law 7.347 expressly assigned the Brazilian Public
Prosecution Office – which had emerged in the Criminal Procedures Code of 1832 withattributions restricted to criminal actions -, to promote civil inquiry and public civil
legal actions, with the purpose of holding accountable the agents of environmental
damages, the consumers, the assets and rights of artistic, aesthetic, historical, and scenic
value, goals later expanded through legislative modifications.
In this context, in 1988, the Brazilian constitutional system incorporates theconcept of environment as an asset of common use and essential to healthy quality oflife, imposing to the public administration and to the collectivity the obligation toprotect and preserve it for the present and future generations (art. 225). In addition,
among the institutional functions of the Public Prosecution Office, it highlights thefunction of promoting civil inquiry and public civil action for the protection of the
public and social heritage, the environment and other diffuse and collective interests (art.
129, III). This is the first time that a Constitution is concerned with the environment,
dedicating a Chapter for its protection in specific and global ways. [8]It is because of the modern text of the 1988 Federal Constitution that the Public
Prosecution Office is elevated to the status of a permanent and independent institution,
essential to the jurisdictional function of the State, with the task of protecting the legal
order, the democratic regime and the unavailable social and individual interests (art.
127).
3In 1990, the Consumer Protection Code (Law 8.078/90) integrates, with the Law
7.347/85 and the 1973 Civil Procedures Codeand subsequent amendments, theprotection system of collective rights, forming a true micro-system of collective
protection of collective interests. Important to note that Law 8.078/90 not only
established standards for consumer protection, it also introduced systematic proceduresfor the collective judicial guardianship of any kind of collective right, which includes
the environment.

3. Constitutional bases of environmental protection: some concepts
In an innovative way, the Brazilian Constitutional Law, Chapter VI of theFederal Constitution, details provisions on the protection of the environment in article
225, in verbis:“Art. 225. Everyone is entitled to an ecologically balanced environment, a goodfor common use by the people and essential to a healthy quality of life, imposing
to the Government and to the collectivity the obligation to defend and preserve it
for present and future generations.
§1 - To ensure the effectiveness of this law, it is for the public authorities:
I – preserve and restore essential ecological processes and provide ecologicalmanagement of species and ecosystems;
II - preserve the diversity and integrity of the genetic patrimony of the country andinspect entities dedicated to research and manipulation of genetic material;
III - set, in all units of the Federation, territorial spaces and its components to be
especially protected, being amendment and deletion only allowed by law,prohibited any use that compromises the integrity of the attributes which justify
their protection;
IV – demand, in the form of the law, for the installation of facilities and activities
potentially causing a significant degradation of the environment, a preliminary
study of environmental impact, which will be largely communicated;V - control production, commercialization and use of techniques, methods andsubstances entailing risk to life, quality of life and the environment;
VI - promote environmental education at all levels of education and publicawareness for the preservation of the environment;
VII - protect the flora and fauna, prohibiting, in the form of the law, practices that
endanger their ecological function, causing the extinction of species or subjecting
animals to cruelty.
§2 - The one who explores mineral resources is required to recover the degradedenvironment, according to technical solution required by the competent public
entity in the form of law.

4§3 - The procedures and activities detrimental to the environment subject theviolators, individuals or legal entities, to administrative and criminal penalties,
regardless of the obligation to repair the damage done.
§4 - The Brazilian Amazon rainforest, the Atlantic forest, the Serra do Mar, thePantanal and the Coastal Zone are national patrimonies, and their use shall be in
the form of the law, in conditions which ensure the preservation of theenvironment, including the use of natural resources.
§5 - Are unavailable vacant lands and those collected by the States, fordiscriminatory actions, necessary for the protection of natural ecosystems.
§6 - Power plants that operate on nuclear reactors must have its location set infederal law, without which they cannot be installed.”
As it turns out, the Federal Constitution foresaw from the broad concept ofenvironment, as a common heritage of the people, to minutiae as environmental
education, licensing and activities potentially responsible for significant environmental
degradation, all assignments of the public authorities.
Besides, supporting and reinforcing the rule carved in the Law of National
Environmental Policy (Law 6.938/81, art. 14, § 1), the Federal Constitution reinforced,
in paragraph 3 of the aforementioned article, the concept of strict liability of the polluterin repairing the environmental damage.
Therefore, it is enough the simple confirmation of the harmful event andevidence of the connection to direct or indirect action by the accused to entail repairing
obligations, as well as the responsibility to indemnify proved irreparable unlawful acts
[9]

. As a result, the mentioned responsibility of repairing the environmental degradation

caused does not fall upon the subjective element of the agent, being enough the proof ofthe causal link between the damage and the action or omission of who is being held
accountable for the repairs. Likewise, it is irrelevant, for accountability, the legal
regularity of the activity or the existence of exclusive causes of guilt, such as
unpredictable circumstances, force majeure or third party actions. This is the so-calledobjective responsibility founded on the theories of activity risk and full risk.
With regard to causation, in 1984 the scholarly NERY JUNIOR was alreadywriting: "to fill this requirement, it is sufficient that the damage resulted from theactivity of the polluter, regardless of fault or intent to cause prejudice to theenvironment. It is dispensed, here, the lawfulness of the activity". [10]With this focus, well asserted the bright LEME MACHADO, to portray that:“the objective environmental responsibility means that the one whodamages the environment has the legal duty to fix it, due to thepresence of the binomial damage/repair. Ones do not ask the reason of5degradation so there is duty to indemnify or repair. Responsibility
without fault has incidence on damages or in repairing the damage
caused to the environment and to the third parties affected by theiractivity”. [11]Under these perspectives, the author concluded that:“(...) the Environmental Law encompasses both roles of objective
liability: the preventive function – searching, by effective means,
avoid the damage – and the restorative function – trying to rebuild
and/or indemnify the losses incurred. It's not social and ecologicallysuitable to cease the appreciation of the preventive accountability,
since there is irreversible environmental damage ". [12]As a result, still, of the strict liability, the Environmental Law recognizes the
responsibility propter rem of the owner or possessor of the property, that, simply as aresult of this condition, shall be responsible for repairing the environmental damage on
their property, regardless of causing directly the degradation.
In fact, the owner or possessor of an immovable property appropriates part of thewealth of the State, involving the territory and natural resources and, therefore, pursuant
to article 225 of the Federal Constitution, takes the responsibility of preserving this area
before the society – present and future generations. [13]According to LEMOS, the owner or possessor of a property must exercise hisright of obedience to the social function of property and to the principle contained in theconstitutional text, which reflects the need for maintenance of healthy and ecologicallybalanced environment for this and future generations. We must therefore respect thesocial and environmental functions of the property. If the owner has privileges arisingfrom the individual content of the right to property, he/she also has duties arising fromthe social content of the holders of diffuse interest concerning the environmental
preservation, this interest cannot be individually appropriated and disposed by theowner or possessor of the property. [14]Individual ownership of social and environmental assets generates therefore theobligation to preserve it for present and future generations. It is due to the owner orpossessor the adoption of active and negative behaviors for the preservation of thesocial and environmental assets, which transcends the individual right to use and enjoy
private property. [15] In this way, it does not matter the individual ownership of theproperty; in the case of environmental resources, with diffuse ownership, the legal
6regime of protection affects those who are in possession/ownership of the property,
applying the rule of article 225 of the Federal Constitution.
In this respect, the case law of the Superior Court of Justice:“ENVIRONMENTAL. CIVIL PROCEDURE. OMISSION DOESNOT EXIST. INSTITUTION OF LEGAL RESERVE AREA.
OBLIGATION PROPTER REM AND EX LEGE. SCORESHEET
83/STJ. (...)
2. The jurisprudence of this Court has established that the duties
associated with the Permanent Preservation Areas (APPs) and theLegal Reserve have compelling nature propter rem, i.e. join thedomain title or possession, regardless of whether or not the owner isthe author of environmental degradation. Cases in which there are no
discussion of guilt or causal relationship as determinants of theobligation to recover the permanent preservation area.
3. This Court has understood that the obligation to demarcate, registerand restore legal reserve areas in rural properties configures legal duty
(duty ex lege) which automatically transfers with the change of thedomain, and can therefore be immediately payable by the current
owner”. [16]In that decision, the Minister ELIANA CALMON presented the following vote:“It is possible to impose on the owner or possessor the obligation torecompose the forest cover in the area of legal reserve of theirproperty regardless of having been the author of the environmental
degradation. That is because the obligations associated with the areasof Permanent Preservation and Legal Reserves have character propter
rem and, although cannot be attributed to the fundamental right ofenvironment the characteristic of absolute right, it falls between thevested rights, and accentuate the un-prescribe of repair and its
inalienability, since it comes from right of common use of the people.
Thus, there is no acquired right vis-à-vis the obligation to recompose
the degradation of the environment, being not possible to the current
owner continue to practice acts prohibited or use the property indiscordance with the law ".

7

It is thus important to state that the strict liability for compensating
environmental damage is also solidary, so that the public civil action can be filed
against the direct, indirect or both agent of the damage. [17]These are the principles that, applied through the important tool of public civil
action, allow the Prosecution Office to act in the protection of the environment,
safeguarding the interests of the whole collectivity.

4. The Civil Inquiry
Law 7.347/85, reaffirmed in the Federal Constitution of 1988, not only instituted
the public civil action for the collective protection of collective interests, but also
guaranteed the Prosecutors a powerful tool, pre-trial and with investigative character,named “civil inquiry”. [18]This is a tool available to the members of the Public Prosecution Office, whichallows administrative investigation prior to the occurrence – similar to the police
investigation in the criminal sphere. In this regard, it aims at gathering conviction
elements to enable the proposition of a public civil action, through the observation ofdiligences, interviews with the agent or witnesses, documents, expert examinations orinspections etc. Alternatively, also serves to: a) subsidize the signing of conduct
adjustment agreements to fully compensate the environment damage; b) substantiate theexpression of recommendations; c) hold public hearings for the protection of thesafeguarded collective rights. In case it is proven the absence of environmental damage
after several demarches, it serves to justify its own archiving.
It is important to state that, although it is a fundamental document for datacollection, the civil investigation is not mandatory for filing the public civil action. Thatis, if the Prosecutor has sufficient evidence for filing the demand, they can do soregardless the institution of pre-trial discovery procedure.
Noting also that, in the case of investigative administrative procedure, theabsence of an adversarial part in the civil inquiry will not invalidate the public civil
action subsequently initiated.
MAZZILLI is emphatic: “in principle, nullities or vices of the civilian inquiry
will have no reflection in the lawsuit. Such irregularities do not go beyond overshadow
the inquiry's own value: that is the principle of indemnity of separable”. But caveat:
8

“However, the acts that effectively are dependent on illicit evidence, even judicial acts,
will be contaminated by those (this is the theory of the fruits of the poisonous tree)”. [19]In any case, closed the investigation and without the basis for filing the public
civil action, the hypothesis is archiving the civil inquiry, which necessarily will be thesubject of review by the Council of the Public Prosecution Office [20] in the case ofStates (subnational level); in the Federal Public Prosecution Office this mentioned
review is an attribution of the Board of Coordination and Review[21] .
Highlighting the content of the Summary nº12 of the Superior Council of the
Public Prosecution Office of the State of São Paulo:"Summary No. 12. Subjected to the approval of the Board ofGovernors any promotion to archive a civil inquiry or pieces of
information, as well as the refusal of representation which contains
pieces of information alluding to the defense of diffuse interests,
collective or individual homogeneous.
Background: the federal law No. 7,347/85 stablishes that the Board ofGovernors of the Public Prosecution Office - CSMP[22] - will review
any archiving procedure of civil proceedings or of information pieces,to prevent the filing of public civil action by the organ of theprosecution service (art. 9 and § 1 of law No. 7,347/85).
If the respective collegial body decides not to be the case of archiving, it may
determine a new diligence, or when considered to have sufficient evidence, designate
another Member of the Parquet for filing the public civil action. [23]It is important to note that the archiving of the civil investigation will notcompromise the criminal investigations, since the principles of criminal and civil
liabilities are different. [24] Eventually, however, the civil investigation might serve as
an element of conviction for offering criminal complaint, since the police investigation
is dispensable for the filing of criminal action. [25]In summary, the civil investigation established to determine the occurrence ofenvironmental damage may result in three possible solutions: a) the filing of a public
civil action for holding the polluter accountable; b) the signature of a conduct
adjustment agreement for full environmental damage compensation; c) archiving theprocedure due to the absence of environmental degradation to be repaired.

9

5. Some peculiarities of Public Environmental Civil Action and the role of the
Public Prosecution Office in Brazil
The Public Prosecution Office, along the Public Defender's Office, the federate
entities, local authorities, public corporations, foundations and institutions of mixed
economy, and civil associations[26], is the legitimized institution for filing of public civil
actions related to environmental issues (legitimatio ad cause). In addition, if it is not theauthor of the demand, the Parquet must obligatorily intervene in the process as custos
legis (law nº 7,347/85, art. 5, § 1).
MIRRA summarizes, with accuracy, the role of the Public Prosecution Office inenvironmental public civil actions:“The representativeness of the Public Prosecution Office, as‘guardian’ of the collective interests in the legal defense of theenvironment, stems from the Federal Constitution (art. 127) and theorganic laws of the Public Prosecution Offices of the Union and States,that erected it as permanent institution essential to the jurisdictional
function of the State, and to which was attributed the defense of thelegal order and of the democratic regime, and of the vested rights of
the individuals and of the collectivity, ensured the independence of its
members in the performance of their duties.

Aside that, by its

performance over the years in defense of collective and diffuse
interests overall, the Public Prosecution Office has been noticed as atrue defender of the people, as per the line maintained with social
demands in this respect, legitimized in practice too, in political terms,
as a representative institution of society”. [27]Pursuant to article nº3 of Law 7347/85, the public civil action may set theconviction to financial payment or to the fulfillment of obligation, and do or not do.
Those are cumulative or alternative applications, not exclusive. In the event ofconviction in money, "compensation for the damage caused will revert to a fundmanaged by a Federal Council or by State Councils in which will participate necessarily
prosecutors and representatives of the community, being the resources used for thereconstruction of damaged assets" (art. 13, law No. 7,347/85).
LEITE classifies the environmental damage, as to its extent, in equity (property
injured) and environmental morality (sensation of pain or injury not supported bycollective heritage due to the injury to the environmental property). [28]10The concept of environmental damage includes injury to natural, artificial andcultural elements, defined as properties of common use by legally protected people, as
well as the violation of the right of the whole collectivity to an ecologically balanced
environment, fundamental human right, of diffuse nature. [29]Defined such premises, it is clear that, in accordance with the Federal
Constitution of 1988 (art. 225, § 1), repairing the environmental damage must be aimed
at repairing the injury itself and all other damages associated with it, such as current,
emerging, intercurrent, and moral damages as well. That is, the repair of the damage tothe environment must be integral.
It is the recognition by the national order, of the principle of integral
environmental damage reparability, which, according to Minister Antonio Herman de
Vasconcelos e Benjamin, prevents all the "forms and formulas, statutory or
constitutional, of exclusion, modification or limitation of environmental repair, whichmust always be integral, ensuring effective protection to the ecologically balanced
environment". [30]
According to MIRRA, "one do not admit any limitation to the complete
reparability of the damage, the characteristics of the medium or the environmental
property. In view of the unavailability of the protected right, no law, no agreement
between litigants and no court decision tending to limit the extent of the repair ofenvironmental damage can be considered legitimate. " [31]The jurisprudence of the Superior Court of Justice walks in direction of theconsolidation of the principle of integral environmental damage reparability and,within the framework of lawsuit, the consolidation of the possibility of overlapping, inthe midst of the public environmental civil proceedings, the demands for repairing in
natura and compensation payment. The admission of this possibility of accumulating
demands aims at the effective application of that principle. See, by the way:
"ADMINISTRATIVE.
ACTION.

ENVIRONMENTAL.

DEFORESTATION(CERRADO)WITHOUTENVIRONMENTAL

OF

THE

AUTHORITY.

PUBLICNATIVEVEGETATIONPERMISSIONDAMAGE

CIVIL

OF
TO

THE
BIOTA.

INTERPRETATION OF ARTS. 4, VII, and 14, §1, of law 6,938/1981,
and of ART. 3 of law 7,347/85. PRINCIPLES OF FULLCOMPENSATION,

POLLUTER-PAYS

AND

USER-PAYS

PRINCIPLE. POSSIBILITY OF CUMULATION OF OBLIGATION
11

TO DO (REPAIR THE DEGRADED AREA) AND TO PAY A
CERTAINSUM(COMPENSATION).

REDUCTIONADPRISTINUM STATUM. DAMAGE
INTERMEDIATECOLLECTIVEENVIRONMENTAL,

MORALITY.

ART.5

of

AND
the

RESIDUAL
CIVIL

CODE

INTRODUCTORY LAW. INTERPRETATION IN DUBIO PRO
NATURA ENVIRONMENTAL STANDARD. (...)
3.

By declaring civil responsible the environment offender, onemust not confuse environmental priority of recovery in naturadegraded properties, with impossibility of simultaneous accumulationof duties of reverting to natural (obligation to do), environmental
compensation and indemnity in money (obligation to give), andabstention from use and new lesion (obligation not to do). (...)
5. The environmental demands, by virtue of the principles polluterpays and compensation in integrum, admit the conviction of the
defendant, simultaneously and in aggregate, in obligation to do, do not
and indemnify. That is the typical cumulative or conjunctive
obligation. Thus, in the interpretation of arts. 4, VII, and 14, §1, of thelaw of National Environmental Policy (Law 6,938/81), and art. 3 oflaw 7,347/85, the conjunction ' or ' has additive value, does not
introduce alternative exclusionary. This judicial position takes into
account that the environmental damage is spacious (ethical, temporal,
ecological and patrimonially speaking, still sensitive to the diversity ofthe vast universe of victims, ranging from isolated individuals tocollectivity, future generations and the ecological processes inthemselves considered).
6. If the damaged property is completely and immediately restored tothe status quo ante (reductio ad pristinum statum, i.e. restoration tooriginal condition), there is no discussion, ordinarily, in compensation.
However, the technical possibility, in the future (= provision byprospective Court), of restoration in natura is not always enough torevert or recover fully, in the field of civil liability, the various
dimensions of the environmental damage caused; that is the reason it

12does not invalidate the duties associated with the principles ofpolluter-pays and compensation in integrum.
7. Refusal of application or partial application of the principles ofpolluter-pays and repair in integrum overhang the harmful impression
that, moral and socially, the environment delict does reallycompensate. Hence the administrative and judicial responses be justacceptable and manageable - risk or cost of business - , leading to theweakening of the dissuasive character of legal protection, real
stimulus for others, inspired by the example of impunity as a matter offact, even if not supported in law, of the offender rewarded, imitate or
repeat their deleterious behavior.
8. Environmental liability must be understood as widely as possible,
so that the condemnation of restoring the damaged area does not
exclude the obligation to indemnify – retrospective and prospective
judgments.
9. the bis in idem accumulation of obligation to-do, don´t-do and pay
is not configured, since the compensation, instead of considering thespecific injury already ecologically restored or to be restored, focus on
the portion of the damage that, although caused by the same agent,
still represents deleterious effects hereafter, irreparable or intangible.
10. This transitional degradation, remnant or reflex of the environment
encompasses: a) the ecological damage that mediates, temporally, theinstant of action or harmful omission and the complete restoration or
recovery of the biota, that is to say, the hiatus of total or partial
deterioration, in the empowerment of the right to use by the common
people (= interim damage or intermediate), something always present
in the hypothesis, e.g. in which the judicial command, restrictively, issatisfied with the single natural regeneration and lost sighting of theflora illegally suppressed, b) the environmental ruin still exists or lasts,
despite all the efforts of restoration (= residual or permanent damage),and c) the collective moral damage. Must also be reimbursed to the
public heritage and the collectivity the economic advantage of theagent with the activity or degrader venture, the ecological added-value
which was received illegally (e.g., timber or ore removed irregularly
13from the degraded area, or the benefits resulting from its spurious use
in activities like agriculture, kettle rising, tourism , commercial). (...)
14. Special recourse partially provided to recognize the possibility, intheory, of overlapping pecuniary indemnity with obligations to-do anddon'ts related to recomposing in natura the aggrieved property,
returning the case back to the Court of origin to verify if, in the
hypothesis, there is damage compensation and to secure possible
quantum debeatur". [32]

6. The Conduct Adjustment Agreement
In those terms, the §6º of article 113 of the Consumer Protection Code – whose
procedural discipline applies to collective protection of any collectivity rights - provides
that “the legitimate public agencies may take commitment from stakeholder of conduct
adjustment to the legal requirements, upon agreement with the defaulter, with efficacyof extrajudicial enforcement order”.
Therefore, closed the investigations of civil investigation and with evidence ofthe environmental damage, it is possible for the Prosecutor to seek out-of-court
composition of the dispute by signing with the polluter aconduct adjustment
agreement[33], extrajudicial enforcement in favor of the victim group. [34]This agreement will have as object the full compensation of the environmental
degradation, and may foresee, alternative or cumulatively, obligations to-do, don'ts,
compensate or indemnify the environmental damage. In the case of convictions inmoney of public civil actions, the compensation for the damage caused will revert to afund managed by a Federal Council or by State Councils, and its resources used forrestauration of damaged assets (art. 13, law No. 7,347/85).
It is extremely important to estimate, in the agreement, that the breach ofobligations will subject the infringer to the payment of daily fines until the effective
fulfillment of their obligations. The mentioned fine (astreinte) will have comminatory
character, and not compensatory, since for the environmental protection what mattersmost is the commitment to comply with to-do or not-to-do by the polluter, rather thanthe corresponding funds. Possible payment value, corresponding to the daily fine, will
compose as wellthe Diffuse Rights Protection Fund and will revert to the reconstitutionof damaged assets.
14

Important to point out that, given the diffuse nature of the interests involved inenvironmental protection – right that belongs to the entire community, current andfuture generations - the member of the State Public Prosecution Office is not allowed to
deploy on its content when signing the adjustment with the degrader. Therefore, thenegotiation intrinsic to the agreement can’t ever discuss about the substantive law
tutored; any provisions may occur only with respect to the deadline for compliance.
After signing the Conduct Adjustment Agreement, this must be submitted to theinternal control by the Council of the Public Prosecution Office, in case of States, or by
one of the Chambers of Coordination and Review, of the Federal Public Prosecution
Office in case of the Union. These internal organs may disagree and determine newarrangements or the filing of a public civil action, in case of misconceptions in theagreements. On the other hand, when agreed, it shall be determined the monitoring of
the agreement by the respective institution.
It is, in short, an important tool placed at the disposal of the public prosecutor forthe effective environmental protection.

7. Conclusions
In consensus with the developments of the International Environmental Law,
Brazil experienced, especially from the early 80´s, a major boost to its environmental
legislation. Indeed, the 1985 Public Civil Action Law and the 1988 Federal Constitution
gave to the Public Prosecution Office, raised to the status of independent body,important instruments for environmental protection. In the exercise of this, the public
civil action, the civil investigation and the conduct adjustment agreement consolidate
the work of the Parquet, active representative of society in Brazilian domestic law,aiming not only to maintain but also to improve the healthy and ecologically balanced
environment for present and future generations.

[1]

The principle of reverse environmental seal, insert in article 225, the Brazilian
Federal Constitution, often is ignored by the Brazilian Legislature, following theexample of the current Law 12.651/12, which amended the old forest code, reducing
their environmental protection and is the subject of three direct action of
Unconstitutionality by the Supreme Court of the country.
[2]
ODUM, Eugene p.; BARRET, Gary w. Fundamentals of Ecology. 5th ed.
Translation: Pegasus systems and solutions. São Paulo: Cengage Learning, 2013, p. 3.

15

[3]

MAZZILLI, Hugo Nigro. The diffuse interests in mind. Environment, consumer,
cultural heritage, public assets and other interests. 24th ed. Rev., ampl. and current.
São Paulo: Saraiva, 2011, p. 155.
[4]
Law No. 6.938/61, art. 14, §1-Without prevent the application of the penalties
foreseen in this article, is the polluter thanks, regardless of the existence of fault, tocompensate or repair the damage done to the environment and to third parties affectedby their activities. The Public Ministry of the Union and the States will have legitimacy
to propose action for civil and criminal liability for damages caused to the environment.
[5]
FREITAS, Vladimir steps (Coord.). Historical Judgments of environmental law.
Campinas: ed. Millennium, 2010, p. 44.
[6]
Menu of the judgment: "compensation. Third-party liability – damage caused to theenvironment by reason of the extermination of small birds used in barbecue promoted in
the municipality of Embu – effective ecological damage Proof – joint and several
liability of the Mayor and of the codefendant recognized – Indemnification dueprovided Resource ". (Court of Justice of São Paulo, civil appeal 70,393-1, Itapecerica
da Serra, Rapporteur Márcio Bonilha j. 25.6.1986. In Revista de jurisprudence of the
Court of Justice of São Paulo (RJTJESP), São Paulo: LEX, 21 year, March and April
1987, volume 105, pp. 134-137).
[7]
Idem.
[8]
BRAZIL, 1988 Federal Constitution, chapter VI, "the environment". DF, 2015.
Availableat
http://www.planalto.gov.br/ccivil_03/constituicao/constituicaocompilado.htm . Accessto 1/18/2015.
[9]
FINK, Daniel Roberto. Environmental liability. In practical handbook of the District
Attorney's Office of the environment. São Paulo: Press Officer of the State of São Paulo,
Ministério Público do Estado de São Paulo, 2005, v. 1, p. 206/207.
[10]
NERY JR, Nelson. Civil liability for ecological damage and public civil action.In
Justittia, Sao Paulo, 40 year, vol. 126, Jul.-set. 1984, p. 174.
[11]
MACHADO, Paulo Affonso Helm. Brazilian Environmental Law. São Paulo:
Editora Malheiros, 19th ed., 2011, p. 369.
[12]
Ibid., p. 374.
[13]
LEMOS, Patricia Faga Iglecias. Environment and civil liability of the owner.
Analysis of the causal relationship. São Paulo: Revista dos tribunals, 1st ed., 2008, p. 99.
[14]
Ibid., p. 100.
[15]
Ibid., p. 100.
[16]
Superior Court of Justice (STJ),AgRg in REsp 1367968/SP,2nd Class, Rapporteur
Minister
Humberto
Martins,v.u.,
DJe:
3/12/2014.
Availableathttps://ww2.stj.jus.br/processo/revista/inteiroteor/?num_registro=201200049293&dt_pu
blicacao=12/03/2014 . Access to 1/26/2015.
[17]
In this sense: Superior Court of Justice (STJ), 2nd Class, Special Feature (REsp)
37,354 -9/SP, Rapporteur Minister Antonio de Padua Ribeiro, v.u., Journal ofenvironmental law, v. 15, p. 246.
[18]
MAZZILLI, Hugo Nigro. The diffuse interests in mind. Environment, consumer,
cultural heritage, public assets and other interests. 24th ed. Rev., ampl. and current. São
Paulo: Saraiva, 2011, p. 156.
[19]
Ibidem, p. 476.
[20]
The Board of Governors of the Public Ministry is the implementing body and theupper management of the Public Ministry which has, among its duties, approvals of
promotions of civil investigations archive. See Law No. 7,347/85, art. 9, §§ 1st and 3rd:"Art. 9. If the governing body of the Public Ministry, exhausted all the steps, you cantell yourself that there is no basis for the filing of civil action, promote the archiving ofrecords of the civil investigation or informative parts, causing it to inform. §1 The autos
16

of the civil investigation or parts of archived information will be sent, under penalty of
incurring serious misconduct, within 3 (three) days, the Board of Governors of the
Public Ministry.(...) § 3 the promotion of archiving will be subject to examination anddeliberation of the Board of Governors of the Public Ministry, as has his regiment ".
[21]
complementary law No. 75/93, arts. 62, IV, and 171, IV.
[22]
the Superior Council of the Public Ministry.
[23]
law No. 7,347/85, Art. 9, paragraph 4: "Leaving the Board of Governors to approve
the promotion of archiving, shall appoint, from the outset, another organ of theprosecution service for the filing of the action".
[24]
about it, check out the Summary paragraph 5 of the High Council of the Public
Ministry of the State of São Paulo: "DOCKET No. 5. Environmental damage repaired
and there is no basis for the proposition of public civil action, the civil investigation
should be filed, without prejudice to any criminal proceedings that the case now.
Bedding: If the environmental damage has been repaired and, simultaneously, there isno basis for the proposition of any public civil action, the case is filing a civil inquiry orparts, except information required any criminal aspects ".
[25]
MAZZILLI, Hugo Nigro. OB. cit., p. 480.
[26]
Law nº 7,347/85, Art. #5: Have legitimacy to propose the main action and theprecautionary action: (...) V-the Association that, concomitantly: a) is constituted atleast 1 (one) year under the civil law; b) includes, among its institutional purposes,
protection (...) to the environment (...) or the artistic heritage, aesthetic, historical,
tourist and scenic ".
[27]
MYRRH, Álvaro Luiz Valery. Public civil action and the repair of damage to theenvironment. São Paulo: Juarez de Oliveira, 2nd ed. current., 2004, p. 197.
[28]
milk, José Rubens Morato. Environmental damage: the individual to the collective
off-balance sheet item. 2nd ed. São Paulo: Revista dos Tribunals 2003, p. 97.
[29]
MYRRH, Álvaro Luiz Valery. Op. cit., p. 85.
[30]
BENJAMIN, Antonio Herman de Vasconcelos e. civil liability for environmental
damage, environmental law Magazine, São Paulo, year 3, no. 9, Jan./mar. 1998, p. 5-52.
[31]
MYRRH, Álvaro Luiz Valery. Civil liability for environmental damage and theprinciple of full compensation of the damage.In Journal of environmental law. São
Paulo: Revista dos tribunals, nº 32, Oct./dez. 2003, p. 81-82.
[32]
Superior Court of Justice (STJ),REsp 1198727/MG,2nd Class, Rapporteur Minister
Benjamin Herman, v.u., DJe: 5/9/2013,RIP vol. 79 p. 279. Available athttps://ww2.stj.jus.br/processo/revista/inteiroteor/?num_registro=201001113499&dt_pu
blicacao=09/05/2013. Access to 1/26/2015.
[33]
Organic law of the Public Ministry of the State of São Paulo, complementary law No.
734, of November 26, 1993, "Article 112.The organ of the prosecution, civil
investigations that have introduced and since the fact is properly clarified, you canformalize upon term in autos, commitment of responsible as to the fulfilment of theobligations necessary for full compensation for the damage. Sole paragraph. The
effectiveness of the undertaking will be subject to the approval of the promotion ofarchiving a civil inquiry by the Board of Governors of the public prosecution service ".
Availableat
http://www.al.sp.gov.br/repositorio/legislacao/lei.complementar/1993/compilacaolei.complementar-734-26.11.1993.html . Access to 1/15/2015.
[34]
MAZZILLI, Hugo Nigro. OB. cit., p. 432.

17