By Gabriel Burjaili de Oliveira
In June we celebrate two important dates for the environmental sector: the World Environment Day, on June 5th, and the Ocean’s Day, on June 8th. Both celebrations were created by the United Nations, the first more than forty years ago, and the second in 2009, and its common focus is to raise global awareness as to the situation of the environment, which is on the verge of collapse, as stated by UNEP (https://www.unenvironment.org/news-and-stories/video/its-time-nature).
Both dates refer to the way we handle plastic pollution and are connected by the Sustainable Development Goals # 12, 13, and 14[i], which drive sustainable consumption and production, climate action and life underwater. These two projects have interesting claims: “Time for Nature” and “Innovation for a Sustainable Ocean”, suggesting we (as Earth’s inhabitants) cannot afford wasting more time on changing some habits to conserve our home, as there is no alternative planet.
Under economic and legal perspectives, actions toward environmental protection are usually deemed as counterproductive to economic activities and use of goods, implying that the protection of the environment could impose unfair limitation of rights and negative consequences to economic activities. But it is critical to understand that there must be a more balanced path to follow, which preserves, at the same time, rights connected to title and ownership (of both movable and immovable goods) and the recommended levels of natural resource protection.
In Brazil, for example, there are laws and regulations which, whether for cultural (v.g., historic buildings or sites), or environmental reasons, impose general duties to any individual who owns or possesses real property, specially in rural areas. Generally, the Brazilian Forest Code (as of 2012) imposes different preservation percentages of native vegetation according to the biome, varying from 80% of preservation rate in the Amazon Forest to the minimum rate of 20% of preservation in other ecosystems, except in the cerrado region where the preservation rate is of 35%. Other preservation duties may apply, usually in areas of relevant environmental interest (as indigenous or ecological reserves) or areas linked to water sources or water courses.
Such preservation rates seem reasonable and allow owners and possessors to develop economical activities within such properties and, at the same time, to preserve a portion of the ecosystems where such properties are located, aiming the so-called sustainable development by balancing production and preservation.
Brazil also has modern regulations concerning reversal logistics of goods and solid wastes that foresee a liability chain involving from consumers to industrials in the process of providing adequate destination to solid wastes after consumption processes, with the clear purpose of reducing and better handling the enormous amount of waste that is daily generated, especially in urban centers. Despite being fully developed for goods that represent significant environmental impact (as motor oils, batteries, tires and agro toxins), and having its core federal legislation dated as of 2010, Brazil's system of reversal logistics is yet to be fully implemented nationwide.
The environmental system is also composed of other federal, state and local laws and regulations, which compose an intricate and complex system of legal duties and torts, ranging from a several liability system in the administrative sphere (fines arisen from administrative assessments) to a wide (and sometimes possibly unfair) strict-liability system for civil torts in connection with fixing damages and recovering environmental harm (in natura). One of the common challenging situations is the transfer of title of real estate (especially rural properties) somehow connected to environmental torts, in which the purchaser becomes liable for any possible environmental damage that the seller (or even previous owners) may have caused to the environment by using such real estate.
This legal system is usually criticized for being too bureaucratic and not easily understood by owners and possessors in general and, also, for placing owners and the public authorities in opposite sides of the discussion, without offering enough legal certainty to the parties. Ultimately, this scenario could create an inefficient system, more focused on enforcement than on education, consequently leading to unsatisfactory levels of environment protection.
Fortunately, recent examples of a different approach by public authorities were shown by the São Paulo State Environmental Agency (CETESB) during the commemorative events of the World Environment Day. As part of a proactive and driven-result agenda for efficient environmental measures, CETESB disclosed relevant information about the numbers of licensed enterprises with proper environmental guidelines, and announced the incorporation of a Conciliatory Chamber for Environmental matters.
This type of behavior by a public agency tends to help entrepreneurs understand what protective measures shall be taken so economic activities may take place in alignment with environmental rules and, in the worst scenario (i.e., if an environmental violation takes place despite precautionary measures), entrepreneurs may evaluate the use of an extrajudicial dispute resolution method, to seek a faster and legally safer solution.
Gabriel Burjaili de Oliveira
Gabriel holds a law degree from the University of São Paulo (USP), with a master's degree (in progress) in Civil Law (Environmental Civil Liability) from the same University. See the profile here.