International Workshop
Osaka University
Public Civil Action: Access to Environmental Justice inBrazil
TATIANA BARRETO SERRA
Prosecutor – BRAZIL
tatianaserra@mpsp.mp.br

OSAKA - 09/03/2015

PUBLICCIVILACTIONCIVILINQUIRYCONDUCT
ADJUSTMENTAGREEMENTEnvironmental Legislation in Brazil Decree 83.540, of June 4th, 1979
 Law 6.938/1981: National Environmental Policy

Article 14, §1º: ensures legitimacy for the Public Prosecution Office to propose
lawsuit for civil liability for environmental damage, in order to oblige thepolluter to indemnify or repair the damage done to the environment and to
third parties affected by their activity, regardless of the existence of guilt.
• Law 7.441/1985: Public Civil Action Law

civil inquiry and public civil legal actions
 1988 Federal Constitution

 Consumer Protection Code (Law 8.078/90)
 1973 Civil Procedures Code

“Passarinhada de Embu”
First Public Civil Action - 1984
The conviction of a polluter for environmental
damage resulted in an agreement between theprosecution office and the convicted party during
the execution phase, setting the payment ofmultiple installments, with statutory interest andmonetary correction

1988 Federal Constitution• Concept of environment• Strict liability of thepolluter in repairing theenvironmental damage
 Public Prosecution Office: permanent and independent institution, essential
to the jurisdictional function of the State, with thetask of protecting the legal order, the democratic
regime and the inseparable social and individualinterests (art. 127);
 function of promoting civil inquiry and public civil
action for the protection of the environment andother diffuse and collective interests (art. 129, III).

Civil Inquiry
Characters:
1. pre-trial
2. Investigative (administrative investigation)

a)
b)
c)
d)
e)

Objectives:
gathering conviction elements to enable the proposition of a public
civil action;
subsidize the signing of conduct adjustment agreements to fullycompensate the environment damage;substantiate the expression of recommendations;hold public hearings for the protection of the safeguarded
collective rights
to justify its own archiving

Civil Inquiry
Three possible solutions:a) the filing of a public civil action for holding thepolluter accountableb) the signature of a conduct adjustment agreement for

full environmental damage compensationc) archiving the procedure due to the absence ofenvironmental degradation to be repaired

Civil Inquiry
Archiving the procedure: No basis for filing the public civil action
 Review by the Council of the Public Prosecution Office Do not compromise the criminal investigations

Environmental Public Civil Action
Legitimation
1. Public Prosecution Office
2. Public Defender's Office
3. Federate entities
4. Local authorities
5. Public corporations
6. Foundations and institutions of mixed economy,and civil associations(Law nº 7,347/85, art. 5, § 1)

Environmental Public Civil Action
Fundaments of Liability

Environmental Liability:
 Objective
 Propter rem Solidary Integral

Environmental Strict Liability
1. Damage2. Action or omission of whom is being held accountable for therepairs
3. Causal link

It is irrelevant for accountability:- subjective element of the agent- legal regularity of the activity- exclusive causes of guilt, such as unpredictable circumstances,
force majeure or third party actions

Objective liability founded on the theories of activity
risk and full risk.

Liability propter rem
The owner or possessor of the property, that,
simply as a result of this condition, shall be
responsible for repairing the environmental damage
in their property, regardless of causing directly thedegradation.

Solidary Liability

Direct,indirect,or both agents of the damage.

Integral Liability
Environmental damage includes: injury to natural,artificial and cultural elements
 Repairing the environmental damage:o the injury itself
o all other damages (current, emerging,intercurrent, and moral damages).
Principle of integral environmental damage
reparability

Conduct Adjustment Agreement
Concept:
extrajudicial enforcement in favor of the victim group
Object:full compensation of the environmental degradation:
Obligations to-do;
Obligations don'ts;
Obligation to compensate;
Obligation to indemnify;
Convictions in money => compensation will revert to a Fund

Conduct Adjustment Agreement

Important:• daily find (astreinte)• Internal control.

Conclusion

Thank you !
Tatiana Barreto Serra
tatiserra@uol.com.br