Appendix: Relevant Judgements in Comparative Law

• Author: Ricardo Luis Lorenzetti/Pablo Lorenzetti
• Pages: 309-400

309

Appendix

Relevant Judgements in

Comparative Law

Numerous interesting cases in Comparative Law may be found in

the databases.1 is Appendix contains a selection of rulings that

have introduced developments that are important in the study of the

changes occurring in environmental law.

Brazil

Ecological Function of Property

Brazilian Superior Court of Justice2

Special Appeal 948,921; 2005

In this case, the appellant sought to prevent the rules of Brazil’s Forest Code

from being applied to land they had purchased despite the land being clas-

sied as an area of permanent protection according to the Forest Code. e

appellant argued that la nd which, de facto and historically, has been used to

grow sugar cane, and that the appellant acquired without any forest cover,

can hardly be given a di erent use.

In the ruling, Minister Hermam Benjamin pointed out in his vote that,

“Areas of permanent protection and legal reserve give substance to and clar-

ify the ecological function of the property. ey are presented as generic

impositions, originating directly from the law. However, despite this focus,

without intrinsic assumptions or internal limits of the right to property a nd

possession. Consequently, the obligations arising therefrom are obligations

propter rem (clearly real), i.e., they adhere to the holder of the right in rem

and accompany the new owners and possessors to in nity, regardless of their

expression of will, explicit or tacit.”

He also points out that, “Decades of unlawf ul use of rural property does

not give the owner or possessor permission to continue engaging in prohib-

1. See, e.g., Ecolex.

2. Available at http://amazonia.ibam.org.br/jurisprudencia/download/VQD8u&&7C&&7CmfEBQ

CKyjBJjPtqUITY6Dalk6ODxEnZrIIKYc&&3D.

310 Global Environmental Law

ited acts nor does it make practices prohibited by the legislator legal, above

all, within the scope of ina lienable rights, that everyone enjoys, harmless

future generations.”

Special Appeal 1,240,122; 20113

Specically, with respect to ora, Art icle 1 of the 1965 Forest Code states

that forests within national territory and other forms of vegetation, recog-

nised for their usefulness to the land, are goods of common interest to all

inhabitants of the country, and property rights are exercised with the limita-

tions established by the general and specia l legislation of this countr y. is is

one of the most demonstrative examples of the densication of Brazil’s legal

system, of t he ecologic al fu nction of proper ty and the principle of intragen-

erational and intergenerationa l solidarity.

Protection of Wildlife: Activism Emanates From the Law, Not Judges

Special Appeal 650,728; 20034

In his vote, Antonio Benjamin commented on the importance of caring for

mangrove wildlife: “Destroying mangroves, above all during epidemics, was

a favour granted to individuals and a duty of the State, an idea simultane-

ously incorporated into the sentiments of the people and the healthcare laws

created at various levels of the Government. In that spirit, the enemy of the

mangrove became a modernising benefac tor, encouraged by the Administra-

tion and with the State’s blessing.. .. Destroying mangroves thus beca me

a recovery from and a cure for an anomaly of natu re. . . . As a result of

evolving scientic knowledge and changes in the ethical position of human

beings vis-à-vis nature, we now recognise t hat mangroves have many func-

tions: a)ecological, as seabed, a central piece in t he reproductive processes of

a large number of species, a biological lter that retains nutrients, sediments

and even pollutants, a buer zone for storms and a coasta l erosion barrier;

b)economic (a source of food and traditional act ivities, such as artisanal sh-

ing); c)social (a vital environment for traditional communities, whose sur-

vival depends on the exploitation of existing crus taceans, molluscs and sh).”

In the same ruling, he said: “Judges do not create obligations to protect

the environment. ey stem from the law after having passed through the

3. Available at http://amazonia.ibam.org.br/jurisprudencia/download/j87xxlzGNZS9g&&7C&&7C

v9ZgbjvVaK62SjBNb2GLIl6M3wIng&&3D.

4. Available at https://stj.jusbrasil.com.br/jurisprudencia/8637993/recurso-especial-resp-

650728-sc-2003-0221786-0/inteiro-teor-13682613?ref=juris-tabs.

Appendix: Relevant Judgements In Comparative Law 311

sieve of the legislative power. Hence, we do not need activist judges, since

activism is part of the law a nd the text of the constitution. Unlike other

countries, our judiciary is not submerged in an ocea n of loopholes or in a

festival of half-baked legal terms. If a loophole exists, it is not due to lack of

legislation, or to the law’s shortcomings, but due to the absence or deciency

of the administrative or judicial implementation of the unequivocal environ-

mental obligations established by the legislator.”

The Constitution Protects Ecological Processes

Special Appeal 176,753; 20095

Minister Benjamin high lighted in his vote: “e federal constitution protects

the essential ecological proce sses, including the areas of permanent preserva-

tion of gallery forests. eir essentia lity arises from the ecological functions

they perform, especially in soil a nd water conservation. Among these fu nc-

tions it is worth noting that they: a) protect water availability and quality,

thus facilitating both in ltration and storage in the phreatic layer and the

safeguarding of the physiochemical integrity of bodies of water from the

mouth to the source, as a plug and lter, and above all by impeding ero-

sion and sedimentation and containing pollutants and debris, and b)main-

tenance of the habitat for fauna and the formation of biological corridors,

increasingly valuable in view of the fragmentation of territory adjacent to

human occ upation.”

Imprescriptibility of the Action

Special Appeal 647,493; 20076

With respect to statutes of limitations, regarding claims that seek t he recov-

ery of a degraded environment, collective action is essentia l. In this connec-

tion it is important to transcribe the doctrine of Hugo Nigro Mazzalli: “A

fundamental, una lienable right, common to all mankind, cannot be sub-

jected to a statute of limitations, because one generation cannot impose on

the followi ng generations the et ernal burden of should ering behaviours c apa-

ble of destroying the very habitat of human beings. In addition, continuous

destructive activity is not subject to a statute of limitations: the permanence

of the cause of the damage a lso challenges t he statute of limitations, since

past damage increa ses current damage (La Defensa de los Intereses Difusos en

5. Available at http://www.mpgo.mp.br/portalweb/hp/9/docs/resp_176753-sc.pdf.

6. Available at http://www.planetaverde.org/arquivos/biblioteca/arquivo_20131-125214112_7037.pdf.