The environmental issue has gained legislative attention in recent times, both in the constitutional sphere and in the ordinary sphere, given the recent bills that address the issue.
Environmental damage has certain complexities, such as the difficulty of reversing it, which contributes greatly to the worsening of disasters. Another complex issue is the volume of financial resources needed to rehabilitate the environment and compensate potential victims.
Once environmental damage has been established, it must be repaired. However, this repair is not always easy to achieve or solve immediately.
Two recent bills in the pipeline aim to regulate the issue of environmental repair in order to meet civil society's concerns about environmental protection.
Bill 2,257/23 provides in its article 2 that "the economic activity of the company responsible for the occurrence or imminent risk of an accident or disaster may be suspended for as long as there is no full repair for the economic, social, cultural, and environmental damage produced or for as long as the situation of imminent risk that has led to the forced displacement of people persists.”
This proposal, however, could have a practical effect opposite to what is expected. This is because the act has a direct impact on the company's financial capacity and may even make it impossible to fulfill the obligation to repair the environmental damage.
Bill 740/23, in turn, proposes suspending the payment of profits to shareholders of corporations involved in environmental disasters.
This suspension violates article 202 of the Brazilian Corporations Law (Law 6,604/76), which gives shareholders the right to receive as a mandatory dividend the portion of profits established in the bylaws. It also violates fundamental principles such as due process of law and free enterprise, which must be preserved because they have constitutional protection.
It is easy to see that bills with a simplistic approach, without a definition of environmental damage, the dimensions and establishment thereof, and without observing the principle of due process of law, which guides all the other principles of the constitutional order, can generate inefficiency in terms of their applicability, as they violate basic principles enshrined in the Federal Constitution (FC) and in laws that have already been regulated.
Suspending a company's activities, even temporarily, has an impact on the performance of its economic activities. Ceasing payments to the shareholders of corporations involved in environmental disasters violates fundamental principles such as free enterprise (article 170 of the Federal Constitution).
It should be remembered that there are already laws in our legal system that deal with protection of the environment and affected communities, such as Law 6,938/81, which systematized environmental law by creating the National Environmental Policy, Law 9,605/98, which regulates environmental crimes and consequent punishments, including criminal liability for legal entities, and Law 12,334/10, which establishes the National Dam Safety Policy, among others.
Therefore, in addition to taking into account the basic principles of the Federal Constitution, the bills in progress must be careful not to conflict with rules already in place.
