Brazil does not have a strong reputation for the enforcement of its laws. Lesley K. McAllister stated that “The paradox of environmental enforcement in Brazil is that environmental laws are strong but environmental agencies are weak.” (McAllister paraphrasing Aragão and Bunker,
1998, in Making Law Matter: Environmental Protection & Legal Institutions in Brazil, 2008, p. 20). Most would likely agree that the Brazilian occupational health and safety authority, the Workplace Inspection Secretariat, is weak as well.
Recent Enforcement Examples
One of the main real deterrents against environmental, health, and safety violations has been damage award
s sought in the court system or agency courts, rather than fines applied by agencies for infractions. For example, in November 2011 a ruling by the Superior Labor Court (TST) upheld damages awarded to an employee for asbestos exposure. Damages awarded in the value of approximately US$ 410,000, plus monthly pension payments were upheld.
In addition to the court system, according to McAllister, environmental enforcement has become more effective in Brazil in large part because of the Public Ministry (somewhat of a hybrid between Attorney Generals in the US and public interest lawyers, but funded with tax payer reais).
Another instrument of enforcement available is the Environmental Military Police, which recently fined a meat processing facility one million reais (approximately US$573,000) for a gas leak that resulted in 4 deaths and 19 serious injuries. In this particular case, the facility had all applicable environmental licenses, but this does not protect them from liability for the leak. Damage awards for damage to the employees’ health and to the environment are also likely to be applied.
The truth about Brazilian agencies is perhaps more complicated. Since 2004, agency enforcement of environmental laws has become much more robust. Perhaps one of the clearest examples of stronger agency enforcement can be traced to the reduced rate of deforestation in the Amazon, largely owed to the implementation of satellite imaging which began the trend, but also due to a spreading culture of enforcement, increased revenue, and possibly declining corruption throughout the government. Surely, economic, political, and corruption-related challenges remain, but overall, there has been a clear trend towards increased agency enforcement in Brazil, not only by the Environmental Institute (IBAMA), but by other agencies as well.
One example of a strong agency reaction came recently (November 2011) when IBAMA reported that it fined an oil company its maximum oil law amount (approximately US$ 28 million) for the oil spill at Campo de Frade, in the Campos Basin, in the State of Rio de Janeiro. Additional fines could be imposed by both the federal government, and the State of Rio de Janeiro government for environmental infractions. The fines and potential additional fines demonstrate Brazil’s increasing ability and dedication to enforcing its laws. Furthermore, on 26 January, O Estado de São Paulo, a major newspaper in Brazil, reported that a public prosecutor intends to pursue criminal charges against the company for the spill. The Economist, recently published a story arguing that enforcement of Brazil’s Oil Law against the company for its spill in November 2011 was “exaggerated” and “is cause for alarm.” Regardless of The Economist’s point of view on the spill, enforcement has increased, and the tendency is for it to continue to do so.
These kinds of enforcement actions are likely to become more probable not only at the Federal level, but at the State level, as well. For example, in September 2011, Technicians of the Contaminated Areas Department of the Sao Paulo State Environmental Company (CETESB) inspected Shopping Center Norte, closed the site and applied a daily fine of R$ 17,450 (approximately US$ 9,635) for exceeding flammability limits and finding a risk of explosion.
Brazilian agencies at the federal level, and in some states and municipalities may finally be in a position to enforce the law of the land more consistently.
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– Daniel Sotelino, Brazilian EHS Regulatory Consultant