Better Representing the 'Diffuse and Collective Interests': Reducing Legalism in Brazil's Ministerio Publico to Improve Environmental Enforcement.

• Author: Clark, Shannon

1. INTRODUCTION II. THE MINISTERIO PUBLICO III. THE PROBLEM OF RIGID LEGALISM WITHIN THE MINISTERIO PUBLICO IV. CREATING THE COMMUNITY RESPONSE DIVISION V. CRITIQUES OF THE COMMUNITY RESPONSE DIVISION VI. CONCLUSION I. INTRODUCTION

   Brazil's Ministerio Publico ("MP"), or prosecuting agency, is a unique institution. Unlike public prosecution entities in other countries, such as federal prosecutors in the united States, the MP is the primary enforcer of Brazil's environmental laws and initiates the vast majority of environmental public civil actions. (1) In the United States, most environmental suits are citizen suits filed by private actors, but in Brazil, the MP files almost 96 percent of those same cases. (2) These actions have improved compliance with environmental laws and helped contribute to the MP's reputation as an independent body, separate from the corruption known to plague other governmental bodies in Brazil. (3) While the MP's lawsuits have proven effective, they are adversarial in nature and preclude more cooperative means of regulation. Additionally, prosecutors within the MP feel as if they must respond to every complaint they receive, which keeps them from prioritizing the largest environmental harms. (4) As scholars like Robert Kagan, John Scholz, and John Braithwaite have noted: a rigid, punitive style of enforcement may not be appropriate in all situations with all regulated actors. (5) This legalistic manner of enforcement creates tension between the MP, the regulated actors, and environmental agencies; slows the enforcement process; and strains the MP's limited resources. (6)

   This paper proposes creating a second branch of the MP's offices: a more mediative style of enforcement for less culpable actors, in line with actions that certain members of the MP's office have already begun to take. (7) Prosecutors within this mediative branch would go beyond judicial remedies and would collaborate with environmental agencies, government bodies, and community members to solve challenging environmental problems. This plan is already within the range of autonomy given to the MP and would allow the MP to retain its reputation as an independent, un-corruptible enforcer, while also remedying some of the problems and inefficiencies that result from the current rigid, legalistic enforcement style.

2. THE MINISTERIO PUBLICO

   The beginnings of the MP can be traced back to the early sixteenth century, when its purpose was the enforcement of criminal laws on behalf of the royal family during Brazil's colonization. (8) The modern MP's power has broadened considerably. (9) The 1988 Constitution expanded the MP's authority beyond criminal matters to also include civil matters, specifically, protecting the "diffuse and collective interests" of the public at large. (10) These "interests" are just as broad as they sound: They encompass environmental protections, consumer rights, minority rights, and many others. (11) Further, the MP can direct its enforcement powers at all levels of government. It can file a lawsuit instructing a local government to provide services for the homeless, or sue to dispute an action taken by an agency or other governmental body. (12) Should a government agency fail to provide the MP with documents or technical support regarding a particular matter, the MP can file criminal charges against the agency. (13)

   In addition, the 1988 Constitution gave the MP functional and administrative autonomy. (14) All prosecutors in the MP are given the same insulation from outside pressures as the judiciary lifelong tenure. (15) For for these reasons, the MP is often referred to as a fourth branch of government. (16) However, the amount of independence and resources available to a particular MP office to prosecute environmental harm varies depending on the state in which it is located. (17) For example, the MP office in the state of Para has found protective environmental practices difficult due to the state government's control over the Para MP's budget and its ability to appoint the attorney general, the Para MP's regional head. (18)

   The MP has been successful at increasing compliance with environmental laws as well as increasing environmental agencies' enforcement of environmental laws. In Sao Paulo, the number of environmental investigations conducted by the MP rose from 3 investigations in 1984 to 5,890 in 2004. (19) Although many cases resulting from the MP's investigations are settled out of court, the MP has still been able to use the threat of litigation to force violators to mitigate the environmental effects of their activities--for example, by installing pollution reduction technology. In one high-profile case, the Sao Paulo MP filed a civil action against twenty-four national and multinational companies in Cubatao, Brazil's largest industrial district. (20) By pursuing this case, the MP forced all twenty-four companies to install pollution control mechanisms. (21)

   Additionally, the MP has been successful at holding environmental agencies accountable. Because prosecutors may request information and explanations about agency decisions, agency officials answer to prosecutors for lax enforcement or industry favoritism. (22) The prosecutor's watchful eye has helped reduce corruption in environmental agencies and created a culture where rules are more often followed. (23) Finally, and perhaps most importantly, the MP's enforcement practices have given the public the sense that crimes committed by powerful interests in Brazilian society--environmental or otherwise--will not be ignored. (24) By filing cases against powerful industries and governmental entities, the MP has gained a reputation as above and distant from the corruption associated with all levels of the Brazilian government, and has gained legitimacy in the eyes of the public. (25)

3. THE PROBLEM OF RIGID LEGALISM WITHIN THE MINISTERIO PUBLICO

   The MP's success in enforcing environmental laws against some of the most powerful interests in Brazil is due in part to its inflexible application of the letter of the law. While this legalistic approach may be beneficial when dealing with large deviations from the law or with government officials who improperly discharge their duties, it is not beneficial in all situations, such as with minor violators who lack the resources or capacity to comply with environmental laws. (26) Additionally, despite the broad manner in which the MP's authority is defined in Brazil's constitution, most attorneys working for the MP do not view themselves as having a great deal of discretion in how they approach violations. (27) This idea is termed the "principle of obligation": a prosecutor has the obligation to respond to all allegations that come to her desk and to...