An Introduction to Brazilian Environmental Law

Article excerpt

Brazil plays a leading role in environmental issues. From Rio de Janeiro in 1992 to Bali in 2008, no major international discussion on the environment has occurred without Brazilian participation. Two decades ago, Brazil was on the defensive on this critical front. Since then, a number of structural changes - linked to redemocratization and the growing involvement of civil society in the policy debate - have led us to address environmental challenges in a proactive and transparent way, both domestically and abroad.

In the international arena, the fact that Brazil has actively helped to negotiate and adhered to all multilateral instruments designed to ensure sustainable development speaks volumes about my country's commitment to the responsible use of the environment. At home, a story we are proud of is that of the development and consolidation of a modern environmental legislation.

The initiative taken by the George Washington International Law Review to promote a focused exercise on the new directions in Latin American environmental law is a timely one. In the case of Brazil, there is much to be said. This brief essay, based on material put together by Brazilian legal experts, describes the building process and the general framework of Brazilian domestic legislation in this central area.

BACKGROUND

Three stages can be identified in the development of Brazilian attitudes to environmental issues from a legal perspective: a stage of unruly exploitation, a fragmentary stage, and a holistic stage.

The first stage, the stage of unruly exploitation, which lasted from the so-called discovery of Brazil in 1500 until the early 1950s, was characterized by few environmental concerns. There were only a few unrelated laws, rules, and regulations, and their primary goals were either to safeguard human health or to ensure the survival of valuable natural resources, such as the pau-brasil (brazilwood) . The Brazilian Forest Code and Waters Code date from that period, as does the law that establishes measures providing economic assistance to Brazilian natural rubber producers.

The second stage, the fragmentary stage, demonstrated lawmakers' concern with categories of natural resources, but not with the environment as a whole. In ethical terms, imposing controls on exploration and extraction activities was utilitarian in nature - legal protection was only granted when economic interest was at stake.

The third stage, the holistic stage, began with the National Environmental Policy Law,1 which was the first Brazilian statute to include a legal definition of the environment, as follows: "the set of physical, chemical and/or biological conditions, laws, influences and interactions that facilitates, shelters and governs life in all of its forms."2 That model was characterized by an attempt to protect the environment as a whole. The environment was no longer dealt with in terms of a waters law, a forest law, or a biodiversity law, but rather as a field of law that, while not disregarding the specificities of each topic, seeks to interconnect them as legal mechanisms providing for preservation and restoration. This new field of law also seeks to create a system for collecting information, monitoring adherence, and encouraging participation.

One can state that, during the third stage, environmental law increasingly became a "crosscutting" topic because it incorporated elements from almost every field of law into its framework. With the approval of the Environmental Crimes Law,3 the legal regulation of the environment became all encompassing, given that it was to be enforced through administrative, civil, and criminal law. In institutional terms, the National Environmental Policy Law created the National System for the Environment and the National Council on the Environment. In 1990, the Environmental Secretariat of the Office of the Brazilian President was created, which in 1992 was transformed into the Ministry of the Environment. …