The Role of the Department of Public Prosecutions in Protecting the Environment Under Brazilian Law: the Case of "favelas" in the City of Rio De Janeiro

• Citation: Vol. 24 No. 3
• Publication year: 2010

Georgia State University Law Review

Volume 24 , ,

Article 4

Issue 3 Spring 2008

3-21-2012

The Role of the Department of Public Prosecutions in Protecting the Environment Under Brazilian Law: The Case of'Favelas" in the City of Rio De Janeiro

Humberto Dalla Bernardina de Pinho

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Recommended Citation

Bernardina de Pinho, Humberto Dalla (2007) "The Role of the Department of Public Prosecutions in Protecting the Environment Under Brazilian Law: The Case of "Favelas" in the City of Rio De Janeiro," Georgia State University Law Review: Vol. 24: Iss. 3, Article 4. Available at: http://digitalarchive.gsu.edu/gsulr/vol24/iss3/4

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THE ROLE OF THE DEPARTMENT OF PUBLIC PROSECUTIONS IN PROTECTING THE ENVIRONMENT UNDER BRAZILIAN LAW: THE CASE OF "FAVELAS" IN THE CITY OF RIO DE JANEIRO

Humberto Dalla Bernardina de Pinho*

Introduction

The objective of this paper is to analyze the role of the Department of Public Prosecutions of Rio de Janeiro in protecting the environment against the fast and disorganized growth of the "favelas"¹ in the city. A brand new case,² still being adjudicated,³ appears to create a conflict between at least two major principles: the right to a place to live in⁴ and the right to a healthy environment.⁵ The dilemma created by this case is so intense that, at a certain point,

* Public Prosecutor in the State of Rio de Janeiro, Brazil. Doctor in Law and Assistant Professor in Civil Procedure at the Rio de Janeiro State University. This paper is dedicated to Mariana Suzuki Sell, a known defender of the environment, not only in Brazil, but all over the world; and a close friend. She was killed on July 17, 2007, due to Brazilian authorities' irresponsibility in ensuring the security of passengers of air companies.

1. As far as we are concerned, there is no correspondent in English to the term "favela." A "favela" is a small community, generally over the hills. Due to the geography of the city of Rio de Janeiro, the hills are everywhere, from the suburbs to downtown, and some of them are just in front of the beaches. It is common to find drug dealers, former convicts, and thieves among its residents. That is why the word has a pejorative meaning and is offensive to the many dwellers that have nothing to do with unlawful activities.

2. T.J.R.J., Pro. No. 2006.001.139217-4. 4th State Public Treasury Bench, Rio de Janeiro State Court (Brazil). For more information, see Tribunal de Justica do Estado do Rio De Janiero Homepage, http://www.tj.rj.gov.br.

3. Many thanks to Rosani da Cunha Gomes, prosecutor in charge of the process that inspired this piece, for all the information received and mainly for the wonderful job she is doing. I would also like to thank Leila Trierveiler, responsible for the survey used in this article about the historical background of Brazilian environmental law.

4. Another explanation must be given here. As a general rule, only poor people live in the "favelas." The first "favelas" were created to receive former slaves set free by Princess Isabel in 1888, by a Federal Act known as "Lei Aurea." Since then, the descendants of the slaves and other less fortunate persons coming from far regions of the country have been concentrating in these areas. This is the origin of the argument based on the right to a place to live.

5. Many "favelas" are getting bigger and bigger. The growth of the "favelas" is getting out of control. They have exceeded their original locations and have invaded the environmental protection areas near them. That is the reason why a conflict between these two principles exists.

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it caused a division between the groups of prosecutors involved in the case. In order to promote a broad debate over this question, namely the conflict between the right to live and the right to a healthy environment, we are going to present the general aspects of Brazilian environmental law. Then, we will establish the outlines of the Brazilian civil public action system and, after that, the Public Ministry's legislation. At the end, we shall present an overview of the case and some considerations in order to initiate a discussion about it.

I. Fundamentals of Environmental Law in Brazil

A. Legislative Evolution

Environmental Law is the science that studies environmental problems and their interconnection with humans, pursuing protection of the environment to improve the conditions of life as a whole.⁶ In Brazil, Law No. 6,902 was promulgated on April 27, 1981, addressing the setting-up of ecological stations and Environmental Protection Areas (APAs).⁷ On August 31, 1981 came Law No. 6,938/81, a historic landmark in the development of environmental

6. See Adriana Lieders, Note, A New Chapter in Brazil's Oil Industry: Opening the Market While Protecting the Environment, 13 geo. Int*L Envtl. L. Rev. 781, 783 (2001). Ms. Lieders states:

Brazil does not have a long history of protecting the environment. In its first attempt to regulate oil pollution, Brazil adopted Law No. 5.357 in 1967, which established penalties for sea or river vessels and terminals that discharged refuse or oil into Brazilian waters. Only during the 1980s did Brazil begin to make a serious attempt to protect its environment. In 1981, Brazil enacted Law No. 6.938 in an effort to develop its national environmental policy. This law integrates various environmental objectives and economic development policies. Law No. 6.938 stated the objectives and procedures for the development and implementation of a national environmental policy, created the National Environmental Council, and instituted the Federal Technical Register of Environmental Defense Means and Activities. Under 6.938, Brazil made the compatibility of socioeconomic development and preservation of environmental quality and ecologic equilibrium one of its main objectives. Other noteworthy objectives are found in Article 4, Section VII, which aims to preserve and restore environmental resources while taking into account rational use and permanent availability; and Article 4, Section III, which seeks to establish environmental quality criteria, standards, and regulations for use and development of environmental resources. In 1988, Brazil wrote a new Constitution, of which a whole chapter was dedicated to the protection of the environment. Id. at 783 (citations omitted).

7. See Lei No. 6.902, de 27 de abril de 1981, D.O.U. de 28.04.1981.

2008) THE CASE OF "FAVELAS" 737

law, which established the basic definitions concerning the

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environment and its national policy. A protectionist stance was taken, setting responsibilities for whoever directly or indirectly caused environmental degradation, whether a legal entity or natural person, under public or private law. The principle adopted was that of the paying polluter, who must answer, regardless of fault, adopting for this case the theory of strict liability, in which it is engaging in an unreasonably dangerous activity which determines the duty to answer for damage.

Law No. 6,938/81 adopted the following definitions:

I - environment: the set of conditions, laws, influences and interactions of a physical, chemical and biological order, that permits, shelters and governs life in all its forms;

II - degradation of environmental quality: the adverse change of the characteristics of the environment;

III - pollution: the degradation of environmental quality resulting from activities that directly or indirectly harm the health, safety and well-being of the population, create conditions adverse to social and economic activities, affect the biota unfavorably, affect the aesthetic or health conditions of the environment, or release matter or energy in a manner non-compliant with the environmental standards set;

IV - polluter: the natural person or legal entity, under public or private law, directly or indirectly responsible for an activity that causes environmental degradation;

V - environmental resources: the atmosphere, inland waters, both surface and underground, estuaries, territorial sea waters, the soil, subsoil, the elements of the biosphere, fauna and flora.⁹

The aim of the National Environmental Policy is the preservation, improvement, and recovery of environmental quality suited to life,

8. See Lei No. 6.938, de 31 deagostode 1981, D.O.U. de 31.08.1981.

9. Id.

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seeking to ensure in the country conditions for socio-economic development, the interests of national security and protection of the dignity of human life. Its principal instruments of control are stated in Article 9 of the Law.

This law was recognized by the 1988 Federal Constitution, article 225,¹⁰ which sets forth the overall principles in relation to the atmosphere, its third paragraph stating, "conducts and activities harmful to the environment will subject those in breach, whether natural persons or legal entities, to criminal and administrative

10. Constituicao da Republics Federativa do Brasil [C.F.] art. 225 (1988), stating:

All are entitled to an ecologically-balanced environment, an asset for the common use of the people, and essential to the healthy quality of life, imposing on the Public Power and society the duty to defend it and preserve it for the present and future generations. 1st Paragraph—To ensure the effectiveness of this right, it behooves the Public Power:

I— to preserve and restore the essential ecological processes and promote the ecological handling of the species and ecosystems;

II— to preserve the biodiversity and integrity of the genetic heritage...