The Brazilian Constitution (“CF/88”) establishes that everyone has the right to an ecologically balanced environment, imposing on the Public Power and the community the duty to defend and preserve it for present and future generations. (art. 225 of CF/88)
Furthermore, anyone who exploits natural resources or causes damage to the environment is obliged to repair it, subject to the applicable criminal and administrative sanctions (art. 225, §2nd and §3).
Therefore, all direct or indirect polluters, individuals or legal entities have civil responsibility for environmental liability caused by their activities. (art. 3, item V, of Law 6938/81).
Based on such provisions, the Brazilian legal system provides for the environmental civil liability of a polluter for damages caused to the environment and to third parties affected by their conduct/activity.
Environmental civil liability is defined as objective and joint and several liability by applying the full risk theory to the polluter/payer (art. 14, §1 of Law 6.938/81).
This means that the responsibility for repairing the damage arises only from the finding of causation between the activity conducted and the damage caused to the environment, regardless of the existence of negligence or willful misconduct, that is, the entrepreneur accepts the risky consequences of their activity.
Regarding joint and several liability, upon the occurrence of an environmental damage, if there are two or more parties causing the damage or several agents who have benefited from the activity that resulted in the environmental damage, all shall be jointly and severally liable. If the damage is repaired by one of the offenders, the latter may have recourse against the others.
Also on the subject, the Brazilian Superior Court1 has understood that, upon determining the causation in an environmental damage, the responsible are the following: “The one who does it, the one who does do when should do, the one who other to do it, the who does not care what other do, the one who funds other to do, and the one who benefits when others do it”.
In this regard, it is worth highlighting the events in which the partners and management of companies have civil liability for environmental damages under Brazilian law.
In the first event, the partners and management have civil joint and several liability with the company, being directly and jointly liable with the company, in case the damage has a causation with their management and administration actions, that is, when it is proven that the conduct/decisions of partners, directors, officers, managers contributed to the occurrence of such environmental damage. The legal entity is jointly and several liable with the natural person causing the damage for the acts performed by the latter on behalf of the former.
In the second event, the civil liability of the partners occurs on a subsidiary basis to that of the legal entity, to the extent of the company’s inability to pay for the damages caused by it, with disregard of the corporate veil. In other words, when the liability of a legal entity is proven to be an obstacle to compensation of damages to the environment, the corporate veil may be disregarded, and the partners shall have to pay for the repair.
In the Brazilian case law and jurisprudence prevail the understanding that the disregard of the corporate veil, upon the occurrence of environmental damage, is applicable to the mere insolvency of the legal entity to fulfill its obligation to repair.
The procedural means used for assignment of liability for environmental damage are class action and public civil action, being usual, at the end of such lawsuits, if proven the occurrence of the damage, the entering into of an Instrument of Commitment of Conduct aiming to repair the damages.
Finally, it is worth mentioning that in Brazil this strong and wide system of accountability of individuals and legal entities in environmental matters is mainly guided by the principles of entire repair by the polluter-payer, and the prioritization of damage restoration, with a focus in the actual restoration of environmental liabilities, as well as derivative damage resulting from environmental degradation.
Finally, it is worth noting that recently, in April 2020, the STF (Federal Supreme Court) decided that environmental damage is not subject to statutes of limitation. In other words, those responsible for pollution may be sued at any time to repair the environmental damage caused, resulting in an important risk analysis factor in business succession processes.
1 – STJ (Superior Court of Justice), 2nd Panel, Interlocutory Appeal of Special Appeal 277.167/MG, Reporting Justice Og Fernandes, trial: 14/03/2017, DJe 20/03/2017
Authors: Pedro Szajnferber de Franco Carneiro and Paula Alice Barroso Cruz Thompson.
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