Environmental Law is a legal area made up of a set of laws and principles that is represented by an Environmental Lawyer, for the protection of the environment in general, the preservation of species and the quality of life for all.
Environmental issues are factors that daily gain even more attention from the public and authorities.
Therefore, the presence of an environmental lawyer in the market and within any company is essential, so that they can pay specific attention to the impacts caused to the environment.
Lawyers specializing in environmental law enable companies to develop in a clean and sustainable way by following the guidelines they instruct.
The legal instruments of environmental law deal with ecological, economic and social aspects, which influence individual, governmental and corporate relations with the ecosystem.
In addition, Environmental Law does not have a single code or legislation in Brazil, in the same way as other areas of law.
However, over the years, environmental laws have developed and improved, so the Brazilian legal system currently has several sparse laws regulating the issue.
In this article, the Monteiro Verdasca law firm will show you more details about this area, how and where an environmental lawyer can work and much more.
Read on to check it out and enjoy:
- Environmental Law in Brazil;
- Principles of Environmental Law;
- Areas of practice of an environmental lawyer;
- The importance of a specialist lawyer.
Environmental law in Brazil
In Brazil, Environmental Law establishes new rules of conduct, based on the National Environmental Policy(Law No. 6.938/81). This law establishes definitions for the environment, qualifies the actions of modifying agents and provides mechanisms to ensure environmental protection.
Law 6.938 is regulated by Decree 99.274 of 1990, which also establishes the National Environmental System (SISNAMA).
This system is made up of bodies and entities of the Federal Government, the states, the Federal District, municipalities and foundations set up by the public authorities, which are responsible for protecting and improving environmental quality, according to the structure below:
- Higher body: government council;
- Advisory and deliberative body: National Environment Council (CONAMA);
- Central body: Ministry of the Environment (MMA);
- Executing body: Brazilian Institute for the Environment and Renewable Resources (IBAMA);
- Sectional bodies: state bodies or entities that are responsible for carrying out programs, projects, control and inspection of activities that are capable of promoting environmental degradation;
- Local bodies: bodies or entities of the municipalities, which are responsible for controlling and supervising activities in their respective jurisdictions.
SISNAMA acts through the coordinated coordination of its constituent bodies and entities, observing public access to information on environmental aggression and actions that protect the environment, as established by CONAMA.
States, the Federal District and municipalities are responsible for regionalizing the measures issued by SISNAMA, which draws up supplementary and complementary norms and standards.
Principles of Environmental Law
In order to protect the environment, Environmental Law has a number of principles that are spread across various laws.
There are 6 principles that are considered the most important and best known, see below for each one:
- Precautionary principle
This principle precedes the principle of prevention, as it aims to avoid any risk of damage to the environment.
There are some cases, for example, in which a business activity is known to cause environmental damage, so in these cases the principle of prevention comes into play.
However, when there is no certainty about the risks and damage that a certain conduct or activity may cause, the precautionary principle may apply.
Thus, in situations of uncertainty regarding the occurrence of environmental damage, the principle is used to avoid risks and prevent these actions from taking place.
- Principle of prevention
Although this principle generates some doubts when compared to the precautionary principle, the two have differences and are implemented at different times.
This idea of prevention is related to the idea of caution and actions that must be taken to prevent damage from occurring in situations that are foreseeable.
Broadly speaking, all environmental destruction is considered irreversible, difficult or impossible to repair, and this demonstrates the importance of prevention so that it can be avoided.
This principle is laid down in the Brazilian Federal Constitution and seeks to protect and preserve the ecological balance for present and future generations.
- Polluter pays principle
This principle, on the other hand, has a preventive nature, where its role is to attribute to the polluter or driver of the polluting economic activity, the appropriate costs of preventing this pollution, in addition to the costs of environmental remediation that was not avoided.
In this way, the polluter has the material and financial responsibility for environmental protection, which must be carried out through prevention, elimination or financial compensation for the environmental destruction caused.
- Principle of responsibility
The principle of responsibility is linked to the polluter pays principle. This states that if environmental damage occurs, the person who causes it is responsible for repairing it, and has a legal obligation to make amends.
This principle is laid down in the Federal Constitution and aims to assign civil, administrative and criminal liability to individuals or legal entities that carry out actions that damage the environment.
- Principle of balance
This principle refers to the need to foresee the consequences of certain actions on the environment.
In order to weigh up whether these actions will be useful for the collective, as well as whether they will cause excessive damage to the ecosystem and human life.
Through this principle, it must be assessed whether interventions in the environment will produce positive results for the whole world, as well as analyzing the environmental, economic and social implications.
In this way, as the name implies, the principle will achieve a balance in the relationship between human beings and the environment.
- Democratic principle
This principle, also laid down in the Federal Constitution, concerns the right of every citizen to participate in shaping public policies related to the environment.
To be part of this right, people can use different instruments, such as plebiscite, popular initiative, referendum, right of petition, public civil action, among other mechanisms.
Thus, through them, citizens can act in a preventive way, by participating in the drafting of these laws, or also in a reactive way, when environmental damage has already been consolidated, and use public civil action, for example.
Areas of practice of an environmental lawyer
An environmental lawyer can work in various areas of environmental law, acting for individuals, companies or public bodies.
Below are some of the areas in which Monteiro Verdasca’s environmental lawyer can help you:
Environmental litigation
It can act in judicial and administrative litigation, based on the application of strategies designed according to the singularities of each case.
The actions are firm and attentive to the details of the case, increasing the chances of success.
This means that the legal arguments and convictions are made in detail, with documentary analysis of all the environmental and scientific aspects that permeate the claim.
Civil litigation
In civil litigation, the services include proposing, monitoring and contesting collective, civil, public and popular actions, filing and defending urgent procedural steps, and obligations to do or not to do.
In addition to actions to annul notices issued by environmental agencies and the environmental police, they are also taking action in the higher courts.
Administrative litigation
In the area of administrative litigation, the activities cover the presentation of defenses and appeals against warning notices, fines, embargoes and demolitions before environmental agencies.
In addition to monitoring expert opinions by the competent environmental body, drafting and negotiating terms of conduct adjustment (TAC), interfacing with environmental bodies and working on environmental licensing processes.
Environmental investigations
With the aim of managing risks and avoiding the judicialization of environmental issues, the lawyer specializing in environmental law represents the client in administrative investigative procedures, as well as in civil and criminal environmental inquiries, at state or federal level.
Therefore, an environmental lawyer is important in order to best serve the interests of clients, as well as working to ensure constitutional guarantees.
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Oral arguments
One of the specialties of the environmental lawyer is representing the client in oral arguments before state or federal courts, as well as the Supreme Court.
Legal action in environmental disasters
Environmental disasters have a profound impact on society due to the damage and risks they cause, and it is essential for the competent authorities to take early action or, if this is not possible, to respond efficiently.
In the case of events with serious consequences that require a specialized legal service, in order to determine the prevention, regularization or responsibilities inherent in the case.
In this way, the environmental lawyer’s judicial or administrative practice is in matters relating to prevention, response, compensation and reconstruction in the face of environmental disasters.
Whether in industry, such as explosions, contamination and fires, or by nature, such as floods and landslides. In this way, it guarantees a high-quality service, building the best legal solutions according to the particularities of the cases.
Environmental consultant
The environmental lawyer acting as an environmental consultant can provide legal advice and technical consultancy in the administrative processes of environmental licensing, authorization for environmental intervention and granting.
He can also advise on administrative environmental compensation processes, as well as acting as a legal consultant when reviewing environmental studies. He can also accompany technical meetings, surveys and public hearings.
This professional can provide legal advice to individuals and companies in order to comply with environmental legislation and reduce the risk of environmental fines and penalties.
It can also act in the management of legal techniques, in compliance with various legal and regulatory requirements that are explicit or implicit in the environmental license.
In addition to drafting, reviewing and analyzing contracts that minimize the possibility of environmental liabilities and administrative sanctions with civil and criminal liability. As well as accompanying civil investigations before the Public Prosecutor’s Office or police investigations before the Judicial Police.
Environmental clearance
Law No. 9.605 categorizes environmental crimes into 5 types:
Crimes against fauna
Fauna is a group of animals in a country or region, so crimes against fauna are all those that affect animals in some way.
Articles 29 to 37 of the Environmental Crimes Law consider the following as crimes against fauna: fishing, hunting, transportation and commercialization, mistreatment, emission of effluents that cause the death of species, activities that cause pain and suffering to the animal, among others.
Crimes against flora
Crimes against flora are those that cause destruction or damage to vegetation. In other words, any human action that can cause damage to native forests and woodlands.
Some of the main practices could be:
- destruction of forest that is considered permanent preservation, even if it is still in formation.
- Destruction of primary or secondary vegetation, whether at a medium or advanced stage of regeneration in the Atlantic Forest biome.
- Cutting down trees in forests; making, selling or transporting balloons that cause fires and other actions.
Pollution and other environmental crimes
This includes human activities that produce pollutants, such as garbage, waste, etc. Those who can cause pollution of any kind, or extract mineral resources without authorization.
In addition to producing, processing, exporting or marketing toxic substances that are dangerous or harmful to human health without authorization. Spreading diseases or pests that cause damage to agriculture, livestock, fauna, flora and ecosystems.
Crimes against urban planning and cultural heritage
The main environmental crimes are offenses against urban planning and cultural heritage, which can result in sanctions for people who are caught causing alterations or damage to facilities that are protected by law, public property, constructions in unbuildable places or graffiti on urban monuments.
Crimes against environmental administration and administrative infractions
The law also extends to crimes against environmental administration, which can be determined as infractions committed by public or private officials, such as false statements, the granting of licenses or permits by public officials in disagreement with environmental regulations, etc.
In other words, a lawyer specializing in environmental law can act in all these environmental clearance situations, representing individuals, companies or public bodies.
Legal defense
Lawyers specializing in environmental law provide legal defense services in criminal cases involving environmental crimes.
Or it can act preventively to avoid the risks of certain actions that constitute environmental crimes.
In situations subject to criminal liability, an analysis is made of the criminal imputation and the type applied to the case, as well as paying attention to the work of examining and legally translating the expert evidence involved.
In this way, a consistent and technically grounded defense is built, in order to guarantee the full defense rights of the firm’s clients, as is done at Monteiro Verdasca.
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Administrative defense
Environmental lawyers can also act in administrative defense before the Environmental Public Administration and in all instances and federal units.
Thus, they act from the client’s defense against the environmental agency, such as IBAMA, ICMBio, FEPAM, SEMA, Environmental Military Police, etc. to possible lawsuits aimed at annulling the infraction notice and administrative sanctions when there are illegalities.
Consulting
Environmental lawyers can help companies comply with current regulations and act preventively to avoid damaging the environment.
Environmental disputes
A specialist in environmental law is a professional who acts when an issue is brought to court, for example, when the issues are environmental disasters. In these situations, they can act in defense of both the company and the victims.
Environmental certification
Environmental lawyers can work to identify, update or monitor the legal requirements of the main certifications in this area and can work as part of a multidisciplinary team.
In this situation, it is recommended that legal advice be provided on an ongoing basis, as the legal verification audits that validate the certificates are regular.
Environmental license
One of the biggest centers for monitoring compliance with environmental legislation in Brazil has been environmental licensing.
Having the presence of this body in the enterprise is always a reason for the company’s management to be concerned, as it can simply indicate that there is permanent uncertainty as to whether environmental legislation is being complied with.
One of the biggest challenges is the realization that this document is actually dynamic and does not express all the environmental obligations fulfilled on its own.
However, it also depends on a number of factors to make up the establishment’s environmental regularity.
It is important to understand the environmental license as part of a process of environmental compliance and not just as the sole objective of this compliance, it is one of the first steps.
In addition, it is essential that, in order to make assertive decisions, the company’s management has the support of a professional specializing in environmental law, who is able to identify which rules apply and make the size of the implementation costs feasible, so that the decisions made are more assertive.
The Monteiro Verdasca law firm can offer this quality support, as it will have a professional to monitor and access the information, as well as being permanently focused on understanding the nuances of environmental negotiations.
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Land regularization
Basically, land regularization is a legal, urban, environmental and social process.
The aim of this process is to incorporate irregular settlements into the legal framework of the cities, with titling and real estate registration actions.
It also aims to promote the right to housing, reduce inequalities, protect the environment and guarantee the social function of property and the municipality.
Infraction notices
Prevention is essential in order to make assertive decisions, but on the other hand, environmental infraction notices can be unavoidable.
Prevention does not necessarily mean that these notices do not exist, but that they can deal with the results of non-compliance with environmental rules, which may or may not be expected for an enterprise.
Infringement notices are a very important issue for a company, as they represent the environmental agency’s finding that it has irregularities that
must be remedied immediately.
It also has a set of penalties that can range from small or large fines to embargoes or suspension of the company’s operations.
Thus, an environmental lawyer is essential for internal decisions when receiving an infraction notice.
Because in addition to defending the infraction notice within the legal deadline, an infraction notice can almost always indicate changes that need to be made in the organization and in the relationship with the environmental agency.
So the defense is very important in this environmental regularization process, as it is the first opportunity for the company to present its position on the irregularities presented by the inspector.
The importance of a specialist lawyer
Brazil is a country of great territorial extension and nature, so there is constant pressure to supervise and regulate environmental exploitation. That’s why Environmental Law is one of the most important areas for the country.
Ensuring that forests, rivers, fauna and flora are preserved without affecting the country’s economic development is a major challenge, which is why the work of a professional specializing in this area is essential.
Furthermore, when talking about the environment, we are not just referring to the ecological form, but to any physical space that interacts with it.
Because it is a specific area, it is very important to choose a specialist in environmental law who has good experience and excellent prospects in this field.
This lawyer takes responsibility for both companies and public bodies, in order to guarantee excellent, quality, serious and ethical representation.
Environmental lawyers can also investigate the criminal and civil liability of legal entities and their representatives in different areas of activity.
For all this, the Monteiro Verdasca law firm is highly prepared to offer the necessary advice on the issues that Brazilian environmental legislation permeates within the administrative, criminal and civil segments.
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