Brazilian Environmental and Climate Change Law

Gabriel Wedy is a federal judge and a professor of the Graduate Program and at the School of Law at the Universidade do Vale do Rio dos Sinos(UNISINOS) and at the School of the Federal Judiciary (ESMAFE). He holds Post-Doctoral, Doctoral and Master's degrees in Law. Professor Wedy is a member of the World Commission on Environmental Law (IUCN- WCEL) and European Law Institute (ELI). He is a vice-president of Law for a Green Planet Institute (IDPV), and former president of the Association of Federal Judges of Brazil(AJUFE). He is a former visiting scholar at Columbia Law School (Sabin Center for Climate Change Law) and at Universität Heidelberg (Instituts für deutsches und europäisches Verwaltungsrecht).Rafael Martins Costa Moreira holds a Ph.D. in Law from Pontifical Catholic University of Rio Grande do Sul (PUCRS), completed in 2020 under the guidance of Juarez Freitas, a Master's in Law from PUCRS completed in 2016, and a degree in Legal and Social Sciences from PUCRS obtained in 2002. He is a doctoral student at PUCRS with a visiting research period at Ruprecht Karls Universität Heidelberg, Germany. He serves as a Federal Judge in Caxias do Sul with the Judiciary Section of Rio Grande do Sul, and also teaches at the Superior School of the Federal Judiciary in both Rio Grande do Sul and Santa Catarina, and at the Course Ênfase. He has extensive experience in Law, particularly in Administrative and Environmental Law. His professional experience includes being a professor at the Escola Superior da Magistratura Federal de Santa Catarina (ESMAFESC) since 2017, a lecturer at the Escola Superior da Magistratura Federal no Rio Grande do Sul (ESMAFE) since 2008, and involvement with the Seção Judiciária do Rio Grande do Sul (SJRS) since 2006 with responsibilities allocated under TRF 4.

• Introduction.- 1 Environmental Law in Brazil: Historical Path and Current Outlook.- 1 Historical Evolution of Environmental Law in Brazil.- 2 Principles of Environmental Law.- 2.1 Principle of Sustainability or Sustainable Development.- 2.2 Principle of the Socio-Environmental Function of Property.- 2.3 Polluter Pays Principle.- 2.4 Prevention and Precautionary Principle.- 2.5 Principle of Publicity, Transparency or Access to Information in Environmental Matters.- 2.6 Principle of Public Participation.- 2.7 Principle of Non-Regression.- 2.8 Principle of “In Dubio Pro Natura”.- 3 Environmental Constitutionalism in Brazil.- 4 Legal Regime of Environmental Assets in Brazilian Law.- 5 Animal Protection and Animal Rights.- 6 Environmental Federalism.- 6.1 Material or Administrative Competence.- 6.1.1 Exclusive Administrative Competence of the Federal Government.- 6.1.2 Remaining or Residual State Authority.- 6.1.3 Administrative Competence of Municipalities.- 6.1.4 Federative Cooperation and the Supplementary Law N. 140/2011.- 6.2 Legislative Competence.- 6.2.1 Exclusive Legislative Competence of the National Congress (Federal Government).- 6.2.2 Remaining or Residual Legislative Competence of the States.- 6.2.3 Concurrent Legislative Competence.- 6.2.4 Supplementary Legislative Competence of Municipalities.- 7 National Environmental Policy and National Environmental System.- 7.1 National Environmental System (SISNAMA).- 7.1.1 The National Council for the Environment (CONAMA).- 7.2 Executing, Sectional and Local Agencies.- 7.3 The Role of Other Public Administrative Bodies and Regulatory Agencies.- 8 Administrative Tools for Environmental Regulation.- 8.1 Administrative Enforcement of Environmental Law: Administrative Violations and Penalties.- 8.1.1 Legal Regime of Administrative Liability.- 8.1.2 The Principle of Legality.- 8.1.3 Liable Party.- 8.1.4 Enforcement Authorities.- 8.1.5 Duty of Surveillance by the Public Authorities.- 8.1.6 Administrative Penalties Against Environmental Violations.- 8.1.7 Due Administrative Process, Time Limitations and Judicial Review.- 8.2 Environmental Licensing and Environmental Impact Assessment.- 8.2.1 Activities Subject to Environmental Licensing.- 8.2.2 Federative Competence for Environmental Licensing.- 8.2.2.1 Common Jurisdiction and Cooperative Federalism.- 8.2.2.2 Authority Allocation According to Supplementary Law N. 140/11.- 8.2.3 Types of Environmental Licenses.- 8.2.4 License Expiration Lengths and Deadlines for License Application Decisions.- 8.2.5 License Amendment and Withdrawal.- 8.2.6 Environmental Studies and Environmental Impact Assessment.- 8.2.6.1 Cases in Which the Environmental Impact Assessment Must be Prepared.- 8.2.6.2 Publicity of the Environmental Impact Assessment and the Environmental Impact Report.- 8.2.6.3 Public Hearings.- 8.3 Land Use Regulation and Environmental Zoning.- 9 Environmental Civil Liability.- 9.1 Legal Regime of Environmental Civil Liability.- 9.2 Requirements for Recognizing Civil Liability for Environmental Harm.- 9.2.1 Health and Environmental Risk Activity.- 9.2.2 Cause and Effect Correlation.- 9.2.3 Environmental Risk and Harm.- 9.2.4 Damages for Collective Nonpecuniary Loss.- 9.2.5 Destination of the Indemnification Amount.- 9.2.6 State Liability for Environmental Damage.- 10 Environmental Criminal Liability.- 11 Environmental Law in Court.- 11.1 Main Features of the Brazilian Judicial System.- 11.2 Environmental Courts.- 11.3 Class Actions and Public Interest Litigation in Brazil.- 11.1 Legal Lawsuits for Environmental Protection.- 11.1.1 Public Civil Suit.- 11.1.2 People’s Legal Suit.- 11.1.3 Constitutional Suits.- 11.2 Judicial Deference and the Scope of Judicial Review.- 12 Specially Protected Areas.- 12.1 Nature Conservation Units’ System.- 12.2 Forest Protection Code.- 12.2.1 Main Features of the 2012 Forest Protection Code.- 12.2.2 Permanent Preservation Areas.- 12.2.3 Rural Property Preservation Area.- 12.2.4 Regulating the Use of Fire in Farming Activities.- 12.2.5 Regularization of Non-Compliant Activities.- 13 Climate Change Law and Climate Change Litigation.- 13.1 The Awakening to a New Crisis: The Greenhouse Effect.- 13.2 The International Response to the Climate Crisis.- 13.3 Brazilian Law on Climate Change.- 13.4 Climate Litigation in Brazil.- 14 National Water Resources Policy.- 14.1 Constitutional and Legal Protection of Water Resources.- 14.2 Administrative and Legislative Competence.- 14.3 National Policy on Water Resources.- 14.4 Allocation of Water Resources.- 14.5 Charging for the Use of Water Resources.- 14.6 Water Resource Use Regulation.- Conclusion.- List of Acronyms.- Bibliography.

EndorsementsThis handbook is a must-read for everyone who wishes to get a better understanding of environmental and climate change law in Brazil. Judges Gabriel Wedy and Rafael Martis Costa Moreira deliver with this book a comprehensive tool in English for those who are eager to immerse themselves into one of the most pressing issues of our time, in one the most critical countries. The various reasons for Brazil’s importance for environmental and climate change law are carefully explained in the publication. These advantages and challenges make this book not only key to analysing environmental and climate change law in Brazil; but also as a valuable guide for other jurisdictions.Prof. Dr. Christina Voigt, Chair, IUCN World Commission on Environmental LawThe book, authored by Federal Judges Gabriel Wedy and Rafael Moreira, constitutes a groundbreaking contribution to the legal analysis of environmental and climate law within the framework of the Brazilian legal system. It offers a thorough and technical examination of the constitutional, legislative, and doctrinal dimensions of environmental and climate disputes adjudicated by the Brazilian Superior Court of Justice and the Supreme Federal Court. Engaging with this publication is essential for acquiring a comprehensive and nuanced understanding of this critical subject within the scope of Brazilian jurisprudence. This becomes particularly pressing given the escalating importance of environmental and climate issues in the context of the ongoing climate emergency and recurrent environmental disasters.Justice Paulo Sérgio Domingues (Superior Court of Justice)