Environment

Last verified on Tuesday 20th March 2018

Brazil

Márcio Pereira
BMA – Barbosa, Müssnich, Aragão
  1. 1.

    Are there any environmental rights or protections included in your Constitution? If so, please describe the provisions and their implications.

  2. The Brazilian Constitution enacted in 1988 sets out the general principles upon which the country’s entire environmental protection legal and regulatory systems are based by assimilating the width and breadth of legal concepts embedded in the United Nations Convention on the Human Environment held in Stockholm in June 1972. 

    Brazilian legislators chose to address a chapter for environmental regulation within the title reserved for social order, alongside with social welfare; education, culture and sports; science and technology; social communication; family, children, adolescents, young people and the elderly; and indigenous poeples. In addition, in 2003, Constitutional Amendment 42 added environmental protection as one of the general principles of the economic activity as set in article 170.

    According to article 225 of the Constitution, an ecologically balanced environment is a collective and diffuse right. The concepts regarding environmental protection adopted by the Brazilian Constitution also provide for pollution control and management tools such as environmental impact assessments and environmentally protected areas that were already very well developed and modern by the time of its enactment in 1988. The Constitution also gave a constitutional reputation to environmental permitting, whose instruments were initially delineated by the law that created the National Environmental Policy (Federal Law 6,938 of 1981). 

    Paragraph 3 of article 225 also ratifies the three independent regimes for environmental liability – civil, administrative, and criminal – as set by the National Environmental Policy. Individuals and legal entities that commit environmental crimes or administrative offences are subject to criminal and administrative sanctions, and also to repair any damage caused to the environment or to third parties.

  3. 2.

    What is the environmental statutory and regulatory framework? Are environmental requirements imposed by sector or on a general basis? Please identify the primary environmental statutes and regulations and the agencies with responsibility for environmental regulation and enforcement.

  4. Brazilian ordinary laws incorporated the fundamental principles of the environmental legal protection, namely, the principles of prevention, precaution, repair, information and the participation to enhance the operational structure of the local legal system, strengthening environmental management processes and procedures. Brazilian Constitution sets that the three federating units – federal union, states and municipalities – have the power to legislate on environmental matters as well as responsible for the protection of the environment, inspecting potentially polluting activities and preserving forests, fauna and flora.      

    Apart from those already mentioned, the Brazilian environmental legal system is composed of the following main statutes:

    • Federal Law 6,938/1981, which creates the National Environmental Policy and establishes the Environmental Permitting Process and the Civil Liability system for environmental damage;
    • Federal Law 7,347/1985, provides that environmental damages are subject to Public Civil Suits;
    • Federal Law 9,433/1997, the National Policy on Water Resources, which regulates water use;
    • Federal Law 9,605/1998 and Decree 6,514/2008, which establish criminal sanctions and provides for administrative offences against the environment;
    • Federal Law 9,985/2000, which establishes the National System for Environmental Protected  Areas, the main code on biodiversity preservation enforcement tools;
    • Federal Law 11,105/2005 regulates bio safety of genetically modified organisms (GMOs);
    • Federal Law 12,187/2009 represents Brazil’s commitment to addressing greenhouse gas emissions and states the National Program of Climate Change;
    • Federal Law 12,305/2010 establishes the National Policy for Solid Waste, being the main legal framework regulating obligations on the generation, transport, management and destination of solid waste;
    • Complementary Federal Law 140/2011 disciplines the enforcement rights of authorities at all levels of administration;
    • Federal Law 12,651/2012, the Brazilian Forestry Code, which regulates the protection of Legal Forestry Reserves and the Permanent Protected Areas;
    • Decree 8,124/2013, the National Contingency Programme for oil pollution in Brazilian waters; and
    • Federal Law 13,123/2013 and Decree 8,772/2016, which provide for access to genetic resources, the protection and access to associated traditional knowledge and the sharing of benefits for conservation and sustainable use of country’s biodiversity.

    The main environmental agencies at federal level are the Brazilian Institute for Environment and Renewable Resources (IBAMA), in charge of enforcing environmental statutes and regulations and performing the environmental permitting of activities located in strategic areas and those with regional impacts, besides nuclear-related activities; Chico Mendes Institute for Preservation of the Environment and Biodiversity (ICMBio), which is in charge of management and enforcement of environmental policies in federal protected areas; the National Environmental Council (CONAMA), which creates the directives aimed at nationwide application; the Genetic Heritage Management National Council (CGEN) collegiate body of deliberative, legislative, advisory and appellate character, responsible for coordinating the development and implementation of policies for the management of access to genetic resources and associated traditional knowledge and benefit sharing, formed by local representative bodies and federal management entities.

    At state levels, the São Paulo Environmental Agency (CETESB) is the most structured and well-equipped body and plays a significant role in establishing a model for other state environmental agencies throughout the country. Other agencies monitor and follow CETESB’s guidance on environmental protection enforcement and regulatory activity.

  5. 3.

    Please identify major environmental treaties and conventions that your jurisdiction has ratified or to which it is otherwise subject? 

  6. Brazil has significantly increased its role as an international player while creating its own environmental laws and regulations as of the Stockholm Convention, in 1972, and had its notorious point when hosting the United Nations Conference on Environment and Development, held in 1992, in Rio de Janeiro.

    The Rio Declaration on Environment and Development and its Agenda 21 have been a worldwide recognised instrument to international cooperation on environment, which was reaffirmed by the Johannesburg Declaration on Sustainable Development and into the commitment signed during the Rio+20 Conference on Sustainable Development: “The Future We Want”.

    The Brazilian Constitution also represented a significant turning point in the Brazilian enforcement actions over environment, indigenous and tribal peoples’ rights. ILO Convention No. 169, ratified in Brazil through Decree 5,051/2004, ensures the exclusive right of enjoyment over ancestral lands and natural resources to the indigenous community that have traditionally occupied it before.

    Brazil has also signed and ratified important treaties and conventions such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); Ramsar Convention on Wetlands of International Importance; United Nations Convention on the Law of the Sea (UNCLOS), Vienna Convention for the Protection of the Ozone Layer and The Montreal Protocol on Substances that Deplete the Ozone Layer; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade and the Stockholm Convention on Persistent Organic Pollutants.

    During the 21st Conference of the Parties (COP-21) of the United Nations Framework Convention on Climate Change, Brazil’s played an important role in articulating consensus among the signatories of the Paris Agreement in the adoption of measures to address climate change. The Paris Agreement has been internalized by Brazilian government and Congress by Federal Decree 9,073/2017.

  7. 4.

    What is the environmental permitting process in your jurisdiction? Are separate permits required for air, water and waste? Are permits required as a condition to commencing construction of a facility? What is the average timeline for a facility to obtain environmental permits?

  8. National Environmental Policy stated by Federal Law 6.938/1981 requires the previous environmental permit for construction, installation, expansion and operation of any potentially pollutant activity or any kind of use of natural resources that may cause environmental damage. Pursuant to CONAMA Resolution 237/97, ordinarily there are three consecutive environmental permits that must be requested:

    • Preliminary Permit (LP) – granted at the preliminary stages of the enterprise or activity, approving its location and conception, certifying its environmental feasibility and establishing basic requirements and conditions to be met at the next stages of its implementation. At this stage, an environmental impact assessment and its corresponding report may be required, as well as other environmental studies, according to the potential pollution level of the activity;
    • Installation Permit (LI) – authorises the construction or expansion of a facility or activity in accordance with the specifications contained in the approved plans, programmes and projects, including environmental control measures and other conditions; and
    • Operation Permit (LO) – authorises the operation of the activity, facilities or enterprise subsequently to the verification of effective compliance with the requirements set forth in the previous permits (LP and LI).

    With respect to the average timeline, it may differ according to the complexity of the venture.

    Other authorisations and permits may be required according to each activity, such as authorisation for water use, effluent emissions and chemical product use.

  9. 5.

    Please explain the role of a "social licence to operate" in your jurisdiction.

  10. Social licence to operate is a worldwide concept that matches stakeholders’ demands for legitimacy, participation and transparency in environmental permitting procedures. Its fluid concept is its main characteristic, as there is no legal definition or requirements to be met. As the environmental permitting process provides many opportunities that allow stakeholder engagement, different social demands are raised and must be addressed by companies and the government during its course. Environmental permits conditions and trade-offs are being tailored by the social expectations of stakeholders to the development of businesses throughout the country.

  11. 6.

    Is there private ownership of oil, gas and minerals in your jurisdiction? If not, how are concessions granted and what environmental considerations apply?

  12. According to articles 20 and 176 of the Federal Constitution, all mineral resources located in the Brazilian territory are considered as assets of the Federal Union.

    The concession regime for the exploration of oil, gas and other minerals has been in effect since 1997, pursuant to Law No. 9,478 (the Petroleum Law). The regime is based on the execution of concession contracts awarding oil and natural gas exploration and production rights and obligations in exploration blocks offered through public auctions conducted by the National Petroleum Agency (ANP). Ownership of oil and gas in Brazil is transferred to concessionaires at the metering point of the production facilities, meaning only hydrocarbons effectively produced, not the reserves as such, are considered equity hydrocarbons to such investors.

    Besides the industry regulatory framework, specific environmental regulations are applicable and specific licenses are required for the performance of the activities. Government environmental agencies are responsible for issuing such licences, and federal or state rules may apply depending on the activity to be carried out. Also, Federal Law 9,966/2000 regulates the prevention, control and enforcement of oil pollution and other hazardous substances in Brazilian waters.

    IBAMA and, in the case of downstream activities, the state environmental agencies, are in charge of enforcing safety and environmental regulations within the sector. Also, specific activities pertaining to each of the of oil and gas exploration, appraisal, development and production stages may be subject to environmental licensing. 

  13. 7.

    What is the regulatory environment for renewable and alternative sources of energy and fuels?

  14. At the end of 2017, the Brazilian government has launched a new National Biofuel Policy called RenovaBio, under Federal Law 13,576/2017. RenovaBio will set annual targets for carbon reduction that will be distributed individually for fuel distributors depending on their participation in the fossil fuel market. It will be also implemented a decarbonisation credit system similar to RIN in the US. This trend aims at boosting the biofuels market significantly while contributes for compliance with Brazilian NDC commitments provided in COP21.

    Brazil has also turned its international climate commitments into national law through the National Policy on Climate Changes, Federal Law No. 12,187/2009. One of the main topics of the Brazilian policy is the support and promotion of activities that effectively reduce GHG emissions.

    Federal Law 10,438/2002 launched the Programme of Incentives for Alternative Electricity Sources (PROINFA) that has been amplifying the opportunities regarding alternative sources and allowed, for example, the wind power industry to establish itself in Brazil. Also, CONAMA Resolution No. 462/2014 regulates wind energy projects and creates the possibility of simplified environmental permitting taking low impact as a principle. 

    States have also regulated solar energy. Law 7,122/2015 of the state of the Rio de Janeiro, the State Policy for Supporting Solar Energy, has cut down tax and costs to encourage the use of solar energy in urban and rural areas, following a trend that was initiated by other states such as Mato Grosso, Goiás, Pernambuco and São Paulo.

  15. 8.

    How are environmental laws and regulations enforced in your jurisdiction? Describe the approach to enforcement and the roles of the authorities responsible for enforcement.

  16. Enforcement takes place at the federal, state and local levels and the respective environmental authorities are in charge of regulating technical aspects of relevant environmental matters in their areas of influence, as well as implementing measures to prevent and remediate impacts and punish their perpetrators. 

    Environmental authorities at all levels are assisted, as required, by a specialised police force and prosecutors in their law enforcement actions. The former gets involved in on-site inspections and implementation of coercive measures to prevent environmental damage or its escalation, whereas the latter represents the public interest in prosecuting those responsible for non-compliance with applicable environmental laws, including to judicially enforcing remediation measures and damages compensation. 

  17. 9.

    What types of administrative, civil and criminal penalties can be imposed for violations of environmental laws?

  18. Offenders (persons or legal entities) are subject to criminal and administrative sanctions, as well as liability for repairing any damage caused to the environment or to third parties. The three types of liability – civil, administrative, and criminal – are independent and can be simultaneously enforced.

    The penalties imposed for administrative offences include: (i) fines of up to 50 million reais, depending on the offender’s capacity to pay, the seriousness of the offence, and the offender’s track record in terms of environmental offences committed, if any; (ii) embargo of construction or activities; (iii) demolition of construction works; and (iv) total or partial suspension of activities.

    Criminal liability requires demonstration of causal link, proof of fault or wrongful intent on the part of the offender. In addition to penalties that involve deprivation of liberty (individuals), there are penalties that involve restriction of rights, such as loss of tax benefits and incentives, suspension or cancellation of permits and prohibitions against contracting with the government (legal entities and individuals).

    Under the civil law, all those who directly or indirectly caused damage to the environment can be held liable, severally or jointly, to repair the damage, regardless of whether fault is proved on the part of the agents (strict liability). 

  19. 10.

    How and under what authority are air emissions regulated in your jurisdiction?

  20. The National Environmental Council – CONAMA Resolution 05/1989 established the National Programme of Air Quality Control (PRONAR) and CONAMA Resolution 08/1990 establishes the maximum limits of emissions for external combustion processes.

    CONAMA Resolution 382/2006 applies to small fixed sources. Owing to the environmental impacts often caused by the frequent installation of new businesses and industries, CONAMA issued Resolution 436/2011, in addition to the Resolutions. 05/1989 and 382/2006, establishing maximum emission limits for stationary air pollution sources or with a request for prior installation license before January 02, 2007. For subsequent licence applications, the applicable resolution remained CONAMA 382/2006. The emission limits for sources not specified in the CONAMA resolution should be established by the environmental agency in charge of permitting.

    With respect to non-fixed sources, most states have their own air quality control systems and regulations. 

  21. 11.

    Who is liable for environmental contamination of soil, surface water and groundwater, and is the liability based on fault or on status? What reporting and notification obligations apply in the event of a spill or release or upon discovery of historical contamination?

  22. The civil liability regime for environmental damage is broad under Brazilian law; it exists regardless of fault (strict liability regime). Offenders, persons or legal entities, may also be held liable under this strict liability regime if they fall within the category of “indirect polluters”: those who contributed by action or omission to the environmental damage.

    Disclosure and self-reporting, besides constituting a clear legal obligation in some cases (oil and gas industry), usually mitigate the risk of increased penalties being imposed against the violation of any environment duties.

  23. 12.

    What is the law governing the remediation of contaminated property? What standards are applied to determine clean up levels? 

  24. At the federal level, CONAMA Resolution 420/09 has established a standard procedure aimed at ensuring the identification, public disclosure and remediation of contaminated sites. The CONAMA regulation sets out the criteria and guiding principles for checking soil quality for the presence of chemicals and establishes guidelines for environmental management of areas contaminated by such substances as a result of human activities.

    At the state level, São Paulo has taken the lead in fully regulating the matter through State Law 13,577/09, State Decree 59.263/2013, and its own environmental agency guidelines, such as CETESB’s Board Ruling 38/2017. Clean up levels are determined according to the acceptable maximum concentration (CMA) of chemical substances defined by CETESB.

  25. 13.

    What is the nature of liability for damage to natural resources and who can enforce and recover for such damages?

  26. Strict, joint and several in the civil arena (obligation to restore the environment and/or indemnify). Administrative and criminal liabilities require fault.

  27. 14.

    How are environmental issues typically addressed in property transfers or mergers and acquisitions? Are there any specific laws that govern environmental aspects of such transactions?

  28. An environmental due diligence prior to real estate transactions and/or mergers and acquisitions is usually carried out in order to help the interested parties identify and quantify, if possible, environmental contingencies and legacy issues. Once identified, these issues are addressed in the contracts by means of representations and warranties, as well as indemnification and other remedies. When highly sensitive issues are identified the parties may delay closing of the transaction to allow for the proper remediation of the contamination, given that liability allocation provisions contractually agreed upon by the relevant parties are not enforceable against third parties. There is no environmental regulation on such matter.

  29. 15.

    What environmental laws apply to the shut down or sale of a facility?

  30. Shutting down requires that a decommissioning procedure is initiated with the environmental agency in charge of the permitting procedure. It may be required to remediate a contaminated site before the agency authorises the shutting-down of an industrial facility.

    As to sale, there is no legislation but, instead, a few recommended steps in order to mitigate exposure to liability for both the seller and the buyer in the transaction. A due diligence prior to acquisition is an example of an important risk mitigation tool, as previously indicated.

  31. 16.

    Does your jurisdiction regulate or provide incentives to conduct environmental audits or assessments? If so, please describe.

  32. At the federal level, there are technical norms that set the guidelines for the carrying out of environmental audits (International Organization for Standardization – NBR ISO 14010, NBR ISO 14011 and NBR ISO 14012). However, at the state level, several states have passed laws with the aim of making the environmental audits mandatory on a recurrent basis for certain ventures, especially those with a higher complexity level and most significant environmental impacts.

    CONAMA Resolution 420/2009 established directives for contamination, shut down and permit renewal procedures. Environmental assessments  are also requested by the environmental bodies at the permitting procedure, or as required by law for the management of contaminated areas.

    The oil and gas industry is one subject to specific audit obligations and periodic reporting to regulatory and environmental enforcement agencies in charge.

  33. 17.

    Are there any requirements for the conduct of environmental assessments or environmental impact assessments, such as a condition to obtaining a permit or in connection with a transfer of real property? If so, describe.

  34. Yes, for permitting purposes, according to CONAMA Resolutions 01/86 and 237/97.

    Brazilian courts long ago established that a property owner has the obligation (of a propter rem nature) to repair environmental damage in his or her land, regardless of fault (strict liability). Civil liability in Brazil “attaches" to the real estate and is inherited, jointly and severally, by any future owner.

    The landowner may, therefore, be deemed liable for repairing environmental degradation that existed before acquisition of property. Although no compensation can be enforced on behalf of a landowner – the reason why due diligence and environmental assessments prior to acquisition are of fundamental importance – the new owner is entitled to exercise its right of recourse against the party that had caused the contamination (former owners). 

  35. 18.

    What is the process and timetable for conducting and receiving approval of environmental impact assessments?

  36. CONAMA Resolution 237/97 sets forth that the environ­mental agency may establish different time frames for reviewing the documentation presented, given the peculiarities of the project, as well as for the formulation of additional requirements. Environmental impact assessments subject to public hearings are usually approved within one year. However, such timeframe can vary according to the environmental agency with jurisdiction on the project (local, state or federal).

  37. 19.

    How are water rights allocated and transferred?

  38. Through water grants issued by the competent water agency (state or federal). The transfer of such rights must be subject to approval by the agency and is, usually, a very common procedure, as long as technical conditions remain the same.

  39. 20.

    What regulatory requirements apply to the discharge of industrial waste water in your jurisdiction?

  40. At federal level, discharge of industrial waste water is subject to the standards and proceedings established by CONAMA through Resolutions No. 430/2011 and 357/2005. All waste water must be previously treated and the discharge levels must be in compliance with the standards established for the recovery of the water bodies affected. In addition, Companies must obtain a specific effluent discharge authorisation for surface water. The National Council of Water Resources (CNRH) established the criteria for the issuance of the effluents discharge grant through the Resolution No. 140/2012. States can also enforce environmental protection over this matter, as seen in São Paulo State Law No. 8,468/1976. Articles 17 and 18 establish the criteria for the discharge of effluents in water bodies within the limits of the state.

  41. 21.

    Are there any laws or regulations in your jurisdiction addressing climate change in your jurisdiction, such as regulation of greenhouse gas emissions? If so, describe the regulatory regime.

  42. The regulatory regime is the National Policy on Climate Change (Law 12,187/2009), the Law on the Protection of Native Forests (Law 12,651/2012, hereinafter referred as the Forest Code), the Law on the National System of Conservation Units (Law 9,985/2000), related legislation, instruments and planning processes.

  43. 22.

    Are there any chemicals or products that are subject to special environmental requirements in your jurisdiction, such as asbestos or PCBs?

  44. Brazil is a signatory party to international agreements that govern dangerous substances such as the Vienna Convention and the Montreal Protocol; the Basel Convention; the Rotterdam Convention and the Stockholm Convention.

    Federal Law No. 10,357/2001 sets forth that those who manufacture, store, handle, use and distribute chemical substances that could be employed in the manufacture of narcotics or psychotropic substances are subject to control by the Federal Police Department. To be allowed to perform such activities, two main legal authorisations are required: a registration certificate, and a licence certificate, which must be periodically renewed.

    In parallel, civil police at state level grant licences for use, storage, marketing, importation and exportation of certain chemical products.

    Finally, disposal of certain hazardous waste such as batteries, construction/demolition and medical waste are governed by the National Solid Waste Policy.

    Asbestos (Federal Law No. 9,055/1995), PCBs (forbidden by Inter-ministerial Ordinance MIC/MI/MME No. 19 of 1982), chlorine (Federal Law No. 9,976/2000), mercury (Decree 97,507/1989 and CONAMA Resolution No. 357/2005) and benzene (Forbidden by Inter-ministerial Ordinance No. 3 of 1982) are also good examples of CONAMA Resolution No. 307/2002, which sets forth that civil construction waste contaminated with asbestos is classified as hazardous waste, and must be properly handled and sent for adequate disposal.

  45. 23.

    What legal protections are afforded to patrimony or cultural heritage and environmentally sensitive areas?

  46. Under Brazilian environmental legislation, the use of environmental resources in certain areas is limited, and must be authorised in advance. The most important of these areas are (i) the Legal Amazon; (ii) permanent preservation areas; (iii) conservation units, and (iv) the legal reserve. The Forest Code defines the Legal Amazon as “the States of Acre, Pará, Amazonas, Roraima, Rondônia, Amapá and Mato Grosso and the regions situated north of the 13th parallel south in the States of Tocantins and Goiás, and west of the 44th meridian west in the State of Maranhão”.

    Permanent Preservation Areas (APP) are protected areas, which may or may not be covered by native vegetation, that have the environmental function of preserving water resources, the landscape, geological stability and biodiversity, facilitating the gene flow of flora and fauna, protecting the soil and ensuring the well-being of human populations. Destruction or damage to forests and other natural vegetation in APPs, or violation of rules and regulations for protection of APPs, without the authorisation of the appropriate government agency, or contrary to the authorisation granted, subjects the offender to fines of up to 50,000 reais per hectare (or fraction thereof).

    Federal Law 9985/2000 defines a conservation unit (UC) as a “territorial space and its environmental resources, including jurisdictional waters, that has significant natural features, legally established by the government, with defined borders and conservation objectives and subject to a special management regime which includes adequate guarantees of protection”.

    The legal reserve is a percentage of each rural property, which varies from region to region, in which native vegetation must be preserved. The location must be approved by the state environmental agency and it must be registered with the Environmental Register of Rural Properties – CAR.

    Brazil’s most important ecosystems, such as the Amazon and Mata Atlântica, are regulated and protected under Federal Law 5,197/1967, the Fauna Protection Law and Federal Law 11,428/2006.

  47. 24.

    What constraints are there on availability of landfills for disposal of waste?

  48. According to the Ministry of Environment, the implementation of the National Solid Waste Policy, established by Federal Law No. 12,305/2010 and regulated by Decree No. 7,404/2010, has increased the number landfills for waste disposal according to the legal requirements. The amount of municipalities with this infrastructure jumped from 1,092 to 2,200 in four years (from 2010 to 2014).

    The States of São Paulo and Rio de Janeiro currently hold important programs aiming at the development of their landfills within their municipalities, based on the Final Solid Waste Destination Quality Index (IQDR).

    Despite of the progress achieved so far, the lack of control and infrastructure on landfills is an unresolved matter and as such, remains a major issue of concern for the Brazilian government to tackle.  

  49. 25.

    What regulations or government initiatives are there in your jurisdiction relating to extended producer responsibility or to sustainability?

  50. The National Solid Waste Policy sets up to manufacturers, importers, distributors and traders the obligation to implement independent reverse logistic systems for the return of waste generated after the consumption of their specific products.

    This system is enforceable for agrochemicals – including their waste and packaging, as well as other products whose package, after use, is considered a potential hazardous waste, for batteries, tyres, lubricant oil with its respective packaging and waste materials, fluorescent lamps of sodium vapour and mercury, electronic products and their components.

  51. 26.

    Describe the laws in your jurisdiction regarding public access to information filed with environmental agencies and any protection from its disclosure to third parties. What right does the public have to access documents and reports filed with regulatory authorities? Describe the nature of and process for securing any protections for confidential business information or trade secrets.

  52. According to Federal Law 10,650/2003, Brazilian governmental agencies must allow the public unrestricted access to environmental documents and procedures, unless they are protected by intellectual property rights. Such data may include information regarding environmental quality, policies, inspections, audits, accidents, emissions, toxic and dangerous substances, biological diversity and genetically modified organisms. Federal Law 12,527/2011 extended such safeguard to all public institutions, setting specific deadlines to disclosure the information for the public when required, except when the disclosure of information may jeopardise national defence, life, the safety and health of the population, the stability of the monetary system and other situations related to the national interest.

  53. 27.

    What are the rights of the public or NGOs/environmental groups to participate in environmental permitting or enforcement of environmental laws? Is such participation typical?

  54. The participation of such stakeholders can be regarded as typical these days in Brazil. They are entitled to take part in public hearings carried out during the permitting procedures and, as per Federal Laws 4717/1965 and 7347/1985, citizens and interested groups such as NGOs and other associations, respectively are entitled to enforce their rights in court.  

  55. 28.

    What are the most significant current trends or issues in environmental policy, regulation and enforcement in your jurisdiction?

  56. Anything related to access and sharing of the country’s biodiversity and alternative sources of energy is currently at the centre of the regulation and enforcement efforts in Brazil. Also, in view of the recent major incidents in oil and gas, chemicals and mining exploration facilities, governments, regulators, environmental, health and safety authorities and their respective agencies are under a huge amount of pressure to tighten procedures for issuance licences and authorisations. All procedures related to environmental permitting and operational safety are under revision.  

  57. 29.

    Identify and describe the significance of any noteworthy court litigation or other disputes or controversies in your jurisdiction regarding the environment.

  58. All litigation related to the Samarco dam collapse in the state of Minas Gerais, as well as the litigation related to the 2001 sinking of oil platform on Roncador Oil Field, located in Campos Bay, in the cost of Rio de Janeiro, operated by Petrobras.

  59. 30.

    What important features of your jurisdiction’s environmental laws are not covered by the previous questions?

  60. None.

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Questions

  1. 1.

    Are there any environmental rights or protections included in your Constitution? If so, please describe the provisions and their implications.


  2. 2.

    What is the environmental statutory and regulatory framework? Are environmental requirements imposed by sector or on a general basis? Please identify the primary environmental statutes and regulations and the agencies with responsibility for environmental regulation and enforcement.


  3. 3.

    Please identify major environmental treaties and conventions that your jurisdiction has ratified or to which it is otherwise subject? 


  4. 4.

    What is the environmental permitting process in your jurisdiction? Are separate permits required for air, water and waste? Are permits required as a condition to commencing construction of a facility? What is the average timeline for a facility to obtain environmental permits?


  5. 5.

    Please explain the role of a "social licence to operate" in your jurisdiction.


  6. 6.

    Is there private ownership of oil, gas and minerals in your jurisdiction? If not, how are concessions granted and what environmental considerations apply?


  7. 7.

    What is the regulatory environment for renewable and alternative sources of energy and fuels?


  8. 8.

    How are environmental laws and regulations enforced in your jurisdiction? Describe the approach to enforcement and the roles of the authorities responsible for enforcement.


  9. 9.

    What types of administrative, civil and criminal penalties can be imposed for violations of environmental laws?


  10. 10.

    How and under what authority are air emissions regulated in your jurisdiction?


  11. 11.

    Who is liable for environmental contamination of soil, surface water and groundwater, and is the liability based on fault or on status? What reporting and notification obligations apply in the event of a spill or release or upon discovery of historical contamination?


  12. 12.

    What is the law governing the remediation of contaminated property? What standards are applied to determine clean up levels? 


  13. 13.

    What is the nature of liability for damage to natural resources and who can enforce and recover for such damages?


  14. 14.

    How are environmental issues typically addressed in property transfers or mergers and acquisitions? Are there any specific laws that govern environmental aspects of such transactions?


  15. 15.

    What environmental laws apply to the shut down or sale of a facility?


  16. 16.

    Does your jurisdiction regulate or provide incentives to conduct environmental audits or assessments? If so, please describe.


  17. 17.

    Are there any requirements for the conduct of environmental assessments or environmental impact assessments, such as a condition to obtaining a permit or in connection with a transfer of real property? If so, describe.


  18. 18.

    What is the process and timetable for conducting and receiving approval of environmental impact assessments?


  19. 19.

    How are water rights allocated and transferred?


  20. 20.

    What regulatory requirements apply to the discharge of industrial waste water in your jurisdiction?


  21. 21.

    Are there any laws or regulations in your jurisdiction addressing climate change in your jurisdiction, such as regulation of greenhouse gas emissions? If so, describe the regulatory regime.


  22. 22.

    Are there any chemicals or products that are subject to special environmental requirements in your jurisdiction, such as asbestos or PCBs?


  23. 23.

    What legal protections are afforded to patrimony or cultural heritage and environmentally sensitive areas?


  24. 24.

    What constraints are there on availability of landfills for disposal of waste?


  25. 25.

    What regulations or government initiatives are there in your jurisdiction relating to extended producer responsibility or to sustainability?


  26. 26.

    Describe the laws in your jurisdiction regarding public access to information filed with environmental agencies and any protection from its disclosure to third parties. What right does the public have to access documents and reports filed with regulatory authorities? Describe the nature of and process for securing any protections for confidential business information or trade secrets.


  27. 27.

    What are the rights of the public or NGOs/environmental groups to participate in environmental permitting or enforcement of environmental laws? Is such participation typical?


  28. 28.

    What are the most significant current trends or issues in environmental policy, regulation and enforcement in your jurisdiction?


  29. 29.

    Identify and describe the significance of any noteworthy court litigation or other disputes or controversies in your jurisdiction regarding the environment.


  30. 30.

    What important features of your jurisdiction’s environmental laws are not covered by the previous questions?


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