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Doing Business in Brazil
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administrators, on behalf of the legal person’s interests or benefit.
Law No. 9,605/1998 shall be further approached on topic 3 (Environmental Liabilities).
2. Environmental liabilities
In Brazilian law, environmental liability is divided into three categories: civil, administrative and criminal liability, and environmental damage may trigger legal sanctions in of the three spheres.
Under Brazilian law, the environmental civil liability is strict, which shows that the subjective conduct of the author, in other words the element of fault, is not analyzed, but the occurrence of the damage, meaning if there is damage caused
to the environment, the author will
be objectively responsible for it. Also, environmental civil liability consists of joint liability, meaning that all parties involved in the activity will be held responsible for the damages caused.
As for the administrative and criminal environmental responsibilities, it is
required that the State proves the polluter’s fault in order to hold it accountable for the damage.
Naturally, administrative sanctions are applied by the Public Administration bodies, while criminal sanctions can only be imposed by the Judiciary.
In both the administrative and the judicial/criminal spheres, the respondent has the right to a due process of law, which must make it able to defend itself from the allegations it faces.
Nevertheless, it is important to state that the subjective nature of the environmental administrative liability is a result of a change in the panorama, considering recent decisions issued by the Brazilian Superior Court of Justice about the subject. The transformation of the scenario, of controversial nature, should gradually influence the lower court decisions, as well as the administrative bodies, considering the new understanding that the proof of intent or guilt is necessary for the application of administrative penalties.