Environmental Law in Brazil
Introduction
Environmental law in Brazil (Direito Ambiental) is among the most developed in the developing world, reflecting the country’s unique position as home to the Amazon rainforest, the Pantanal wetlands, and the Atlantic Forest. The 1988 Federal Constitution dedicates an entire chapter to the environment (Article 225), recognizing the right to an ecologically balanced environment as a fundamental right. Brazil has a comprehensive statutory framework that includes the Forest Code (Law 12.651/2012), the National Environmental Policy (Law 6.938/1981), and the Environmental Crimes Law (Law 9.605/1998).
Constitutional Foundation
Article 225 of the Federal Constitution establishes that everyone has the right to an ecologically balanced environment, which is a public good for the people’s common use and essential to a healthy quality of life. The provision imposes a duty on both the government and the community to defend and preserve it for present and future generations.
The Constitution establishes specific obligations: (i) preserving and restoring essential ecological processes; (ii) preserving genetic diversity; (iii) defining protected areas; (iv) requiring environmental impact assessments (estudo prévio de impacto ambiental) for potentially damaging activities; (v) controlling environmentally harmful technologies; and (vi) promoting environmental education.
Institutional Framework
National Environmental System (SISNAMA)
The National Environmental System (Sistema Nacional do Meio Ambiente, SISNAMA), created by Law 6.938/1981, comprises federal, state, and municipal environmental agencies:
- National Environmental Council (CONAMA): The highest deliberative body, responsible for issuing environmental standards and resolutions
- Ministry of Environment and Climate Change (MMA): The central coordinating body
- Brazilian Institute of Environment and Renewable Natural Resources (IBAMA): The federal enforcement agency
- Chico Mendes Institute for Biodiversity Conservation (ICMBio): Manages federal protected areas
National Environmental Policy
Law 6.938/1981 established the National Environmental Policy (Política Nacional do Meio Ambiente), which introduced key instruments including: (i) environmental licensing; (ii) environmental quality standards; (iii) environmental zoning; (iv) environmental impact assessment; (v) the Environmental Damage Liability regime; and (vi) the Environmental Information System.
Environmental Licensing
Law 6.938/1981 and CONAMA Resolution 1/1986, updated by Resolution 237/1997 and Complementary Law 140/2011, establish the environmental licensing system. Potentially polluting activities require prior environmental licensing (licenciamento ambiental prévio) before installation, installation license (licença de instalação), and operation license (licença de operação).
Complementary Law 140/2011 divided administrative competence for licensing among federal, state, and municipal agencies based on the scope and location of the environmental impact.
Forest Code
The Forest Code (Law 12.651/2012, replacing the 1965 Code) regulates the protection of native vegetation. Its key institutions include:
- Permanent Preservation Areas (Áreas de Preservação Permanente, APPs): Protected areas along watercourses, hilltops, and steep slopes
- Legal Reserves (Reserva Legal): A percentage of rural property (80% in the Amazon, 35% in the Cerrado, 20% elsewhere) that must be maintained as native vegetation
- Rural Environmental Registry (Cadastro Ambiental Rural, CAR): A mandatory electronic registry of rural properties
The Forest Code has been controversial, with debates about the amnesty for pre-2008 illegal deforestation and the consolidation of agricultural areas.
Protection of the Amazon
Brazil has developed a specialized legal framework for Amazon protection. Decree 6.514/2008 provides for administrative sanctions for environmental infractions, while Operation Arco de Fogo and related enforcement measures combat illegal logging and deforestation. The Amazon Fund (Fundo Amazônia), created by Decree 6.527/2008, finances conservation and sustainable development projects.
The STF has addressed Amazon protection in ADPF 708 (2022), which required the federal government to implement the Amazon Fund and adopt measures to prevent deforestation, affirming that the constitutional duty to protect the environment imposes positive obligations on the state.
Climate Change Law
Law 12.187/2009 established the National Policy on Climate Change (Política Nacional sobre Mudança do Clima, PNMC), which sets voluntary reduction targets and creates instruments for adaptation. Brazil has submitted Nationally Determined Contributions (NDCs) under the Paris Agreement, pledging to reduce greenhouse gas emissions.
Environmental Liability
Administrative Liability
Environmental infractions under Law 9.605/1998 may result in warnings, fines (up to R$50 million per infraction), seizure of products, embargo of activities, and restrictions on credit.
Civil Liability
Brazil adopts strict liability (responsabilidade objetiva) for environmental damage (Article 14, §1, Law 6.938/1981). The Public Prosecutor’s Office (Ministério Público) may bring public civil actions (ação civil pública) to enforce environmental liability.
Criminal Liability
Law 9.605/1998 (the Environmental Crimes Law) criminalizes conduct against flora, fauna, natural resources, cultural heritage, and public administration. Legal entities may be held criminally liable, and courts may order reparation of damage (reparação do dano) as a condition of plea agreements.
Conclusion
Brazilian environmental law represents a comprehensive and legally sophisticated framework for environmental protection. The constitutional elevation of environmental rights, the institutional structure of SISNAMA, and the strict liability regime for environmental damage provide strong tools for environmental protection. Implementation challenges persist, however, including enforcement capacity, illegal deforestation, and the balance between environmental protection and economic development.