STJ publishes ten more theses on Environmental Law

In a recent publication by the Superior Court of Justice (STJ), ten theses on environmental law were presented that have implications for agriculture and environmental management in Brazil. These theses address issues such as the State's responsibility for environmental damage, the right to access environmental information and compensation for environmental damage. Some of these theses are binding.

A first thesis establishes that the civil liability of the Public Administration for damage to the environment, resulting from its failure to perform inspection duties, is of a joint nature, but of subsidiary execution (according to Precedent 652, STJ). This means that, if the State does not adequately fulfill its oversight role, it may be held responsible for environmental damage. However, in practice, you will only have the duty to compensate if the other responsible parties do not do so.

A second thesis goes further and states that the State's responsibility for environmental damage resulting from its failure to fulfill its duty to control and supervise is objective, joint and unlimited. This idea arises from art. 14, § 1, of Law 6.938/1981. There it is determining that "the polluter is obliged, regardless of the existence of fault, to compensate or repair the damage caused to the environment and to third parties affected by his activity". It is clear that there is an express provision for liability even in the absence of fault. Furthermore, it should be noted that the same law considers a polluter to be a natural or legal person, under public or private law, responsible, directly or indirectly, for an activity that causes environmental degradation.

A third thesis states that environmental protection is the duty of all spheres of government, in accordance with the principle of environmental cooperative federalism. This means that all spheres of government - federal, state and municipal - have a responsibility to protect the environment. The interpretation arises from the provisions of Complementary Law 140/01, whose basis of validity is art. 23, III, VI, VII and sole paragraph, of the Federal Constitution.

A fourth thesis highlights that all federative entities have the duty-power of environmental police, which includes the competence of inspection and licensing. Inspection powers are governed by the principle of sharing powers. In turn, in licensing competence, the principle of mitigated concentration of attribution prevails (the original competence can be attributed to other entities in some cases).

A farm thesis addresses the non-buildable extension in the Permanent Preservation Areas of any water course, in stretches characterized as consolidated urban areas, according to the Forest Code. This means that, even in consolidated urban areas, there must be permanent preservation areas along watercourses that cannot be built on. The extension of these areas follows the rules of art. 4th, I, of Law 12.651/12, which can vary from 30 to 500 meters.

A sixth thesis deals with the right of access to environmental information, which includes the duty to publish on the internet environmental documents held by the Administration that are not subject to secrecy. The State has a duty to make the environmental information it possesses public ("active transparency"), unless this information is classified as confidential. Furthermore, there is the right to request the production of environmental information not available to the Administration ("reactive transparency"). And finally, any person or entity can request access to specific unpublished environmental information ("passive transparency").

A seventh thesis presumes the State's obligation in favor of environmental transparency, with the Administration's burden being to justify its non-compliance. This means that the State has an obligation to be transparent in relation to environmental issues and that it must justify any failure to fulfill this obligation. These justifications vary depending on the “type”. In active transparency, you must demonstrate adequate administrative reasons for choosing not to publish. In the passive case, you need to prove that the information fits into legal and strict confidentiality reasons. Finally, in reactive environmental transparency, it is necessary to explain the unreasonableness of the claim to produce non-existent information.

A octave thesis states that the Brazilian registration regime allows the registration of optional information of interest to the property, including environmental information. This means that relevant environmental information can be recorded in the property registry, providing greater transparency and access to information.

A nona thesis concerns compensation for moral damages in cases of environmental damage. It establishes that, in view of the specific circumstances and the homogeneity of the effects of environmental damage, compensation for moral damages is justified.

Finally, the tenth Thesis establishes that material damage is only compensable upon effective proof of its occurrence, with no mention of compensation for loss of profits dissociated from the damage actually demonstrated. This means that, in order to obtain compensation for material damage, it is necessary to prove that the damage actually occurred and that it resulted in lost profits.