On December 6, 2021, the Superior Court of Justice (STJ) published Precedent 652, establishing the court's understanding on civil liability of the Public Administration for environmental damage in the event of omission ("civil liability of the Public Administration for damages to the environment, resulting from omission in observing its duty of supervision, is of a joint nature, but of subsidiary execution").[1]

Precedents summarize the understandings that have been consolidated in the decisions rendered by STJ and serve as guidelines for the legal community and for the standardization of interpretation of federal laws.

According to the National Environmental Policy Law, established by Federal Law n. 6.938/81, civil environmental liability is strict, therefore does not depend on the existence of fault to be triggered. In order to hold a party liable for an obligation to redress the environment, the causal nexus between the damage and the activity developed by a party must be demonstrated. Article 225[2] of the Federal Constitution also establishes the obligation to redress any damage caused to the environment, regardless of the enforcement of other penalties.

The Federal Union, the states, the Federal District and the municipalities have a concurrent competence to supervise and license potentially polluting activities or activities employ natural resources (Article 23, item VI, of the Federal Constitution). Complementary Law 140/11 regulates the exercise of such competences, setting forth licensing hypotheses by federal, state or municipal entities - it should be highlighted that environmental licensing must be carried out before a single entity – in its Article 13. Thus, the Public Power, as well as private individuals, must observe certain duties and obligations related to the defense and conservancy of the environment. In theory, it is possible to hold public authorities responsible for occasional environmental damage, especially in cases that it should have acted to prevent the occurrence of a result, but omitted from its supervisory duty.

Environmental legislation also provides for joint and several liability amongst polluters.[3] This means that the victim of the occurrence of an environmental damage, or whoever the law authorizes, is not required to sue all polluters in the same lawsuit, being able to choose one amongst all polluters.

Bearing in mind the context of environmental civil liability, we return to the theme of Precedent 652, which was substantiated on some decisions, amongst which we highlight:

"[...] DAMAGE TO THE ENVIRONMENT. CIVIL LIABILITY OF THE STATE BY OMISSION. ARTICLES 3rd, IV, COMBINED WITH 14, § 1, OF LAW 6.938/81. DUTY OF CONTROL AND SUPERVISION. [...] The prevailing understanding in the STJ provides for, in the field of environmental protection, civil liability of the State when failure to adequately comply with its duty to supervise is decisive for the occurrence or intensification of the damage caused by its direct causative agent. It is, however, a subsidiary liability, the execution of which may be enforced if the direct polluting agent does not comply with the obligation, 'either by total or partial depletion of its assets or insolvency, or due to impossibility or incapacity, for any reason, including technical, of compliance with the judicially imposed obligation,[4] guaranteed, always, the right of recourse (art. 934 of the Civil Code), with the disregard of legal personality, as provided for in Article 50 of the Civil Code." (REsp 1,071,741/SP, 2nd T., Min. Herman Benjamin, DJe of 16/12/2010)."[5]

"[...] ENVIRONMENTAL DAMAGE. JOINT AND SEVERAL LIABILITY OF SUBSIDIARY EXECUTION. [...] The State's responsibility for damages to the environment arising from its omission in the duty of supervision is of solidary nature, but of subsidiary execution, in the condition of a subsidiary debtor.[6] Precedents."[7]

The concern of the Supreme Court to hold the main causative agent of the damage in the execution process responsible is visible, in order to avoid the indiscriminate imposition of responsibility to the State for omission, which would harm society as a whole. This is what is extracted, for example, from the following excerpt from one of the rulings:

"does not fall within the aspirations of joint and several liability and subsidiary execution of the State – at the risk of doubly burdening society, severing the equation of the polluter-pays principle and preventing the internalization of negative environmental externalities –[8] to replace, mitigate, postpone or hinder the duty, to which the actual or main polluter is entitled,[9] of redressing the affected environment and compensating for whichever damages have been caused".[10]

Therefore, even though the public authorities have contributed to the occurrence of damage by omission in the exercise of its duty of supervision and prevention, the STJ understands that the burden arising from its redressing should not be equally divided between public and private entities.

It is also interesting to mention the decision rendered by the STJ in the Appeal 1.612.887-PR,[11] which established that a misjudgment by the government in granting an environmental license does not exclude the company’s liability for the occurrence of an environmental damage. In the referred decision, it was acknowledged that the company under discussion had built a gas station accordingly to a valid environmental licenses, issued by environmental agencies. Still, the company was sentenced to pay a compensation for the damage caused to the Atlantic Rainforest vegetation.

Precedent 652 of the STJ consolidates the court's understanding that, even in the event of joint and several liability, the duty to redress environmental damages must be enforced primarily upon the direct polluter. The burden of reparation can only be attributed to public authorities in the event of impossibility of the actual causative agent to repair the damage. Although it is possible to jointly and severally condemn the State for omission and lack of compliance with its supervisory duty, the obligation to execute redressing and/or compensation related measures arising from environmental damage will only be required from public authorities when the possibility of requiring redressing measures/indemnification from the party who effectively caused the environmental damage is exhausted.

 

[1] Summary 652, First Section, judged on 02/12/2021, DJe 06/12/2021.

[2] "Art. 225. All have the right to an ecologically-balanced environment, which is a good for the common use of the people and essential to a healthy quality of life; the government and the collectivity have the duty to defend the environment and to preserve it for present and future generations”.

(...)

  • 2 - The person who exploits mineral resources is obliged to recover the degraded environment, according to technical solution required by the competent public agency, in the form of the law.
  • 3 - Actions and activities considered harmful to the environment shall subject offenders, individuals or legal entities to criminal and administrative penalties, regardless of the obligation to repair the damage caused."

[3] Federal Law No. 6,938/1981 defines polluter as "a natural or legal person, organized under public or private law, that is responsible directly or indirectly, for activities that cause environmental degradation". In this sense, courts have established the understanding that the polluter is the party "who performs and action, who refrains from acting when they should, who allows others to do it, who does not care about others doing, who finances the action, and who benefits from others’ doing".

[4] Emphasis added.

[5] AGRESP 1001780 PR, rel. Minister Teori Albino Zavascki, First Section, judged on 09/27/2011, DJe 04/10/2011

[6] Emphasis added.

[7] AIRESP 1362234 MS, rel. Minister Og Fernandes, Second Class, judged on 05/11/2019, DJe 11/11/2019

[8] Emphasis added.

[9] Emphasis added.

[10] RESP 1071741 SP, rel. Minister Herman Benjamin, Second Class, judged on 03/24/2009, DJe 12/16/2010

[11] STJ, 3ª T. REsp 1.612.887/PR, rel. Min. Nancy Andrighi, judged on 04/28/2020, DJe 05/07/2020