The Environment in Brazil’s Federal Constitution

It may seem otherwise, but Brazil has very strong and comprehensive environmental policies, some of which are even models internationally. Though these policies encounter severe difficulty in being implemented and surveilled, they provide a good framework for environmental analysis in various sectors (water resources, forestries and waste management, for instance).

Since last year I studied such policies in depth, I thought I’d bring them to the blog.

So before we take a look at Brazil’s national environmental policies, I think it’s good to familiarize ourselves with the environment status in Brazil’s Federal Constitution.

Brazil is one of the few countries to have included specific environmental devices in its Constitution. This may be due to the fact that it’s a relatively young document, dating from 1988 — thus, after important environmental milestones such as 1972’s Stockholm Conference, 1987’s Brundtland Report and the country’s own National Environmental Policy edited in 1981. Therefore, some environmental awareness had already sprouted when this constitution was made.

Below are the main articles pertaining to environmental management in Brazil’s Constitution along with some of my comments (emphasis in bold and italic are mine).

Article 225. all have the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations.

This is the Constitution’s main space for the environment (Chapter VI), making access to an ecologically balanced environment a right of all and the environment itself an asset of common use, meaning it can’t belong to anybody as private property. The government, for instance, is a manager for the environment, but it doesn’t own it. Also, we can see 1. the influence of the concept of sustainable development in the passage “(…) preserve it for present and future generations” and 2. that this device attributes to both the government and the community — not only citizens — the responsibility to defend and preserve the environment. Listed below are art.225’s paragraphs and items — each very important for many subsequent laws and acts.

Paragraph 1. in order to ensure the effectiveness of this right, it is incumbent upon the Government to:

I – preserve and restore the essential ecological processes and provide for the ecological treatment of species and ecosystems;

II – preserve the diversity and integrity of the genetic patrimony of the country and to control entities engaged in research and manipulation of genetic material;

III – define, in all units of the Federation, territorial spaces and their components which are to receive special protection, any alterations and suppressions being allowed only by means of law, and any use which may harm the integrity of the attributes which justify their protection being forbidden;

This is the constitutional device that opened the way for Brazil’s Conservation Units System and permanent preservation areas, for instance.

IV – demand, in the manner prescribed by law, for the installation of works and activities which may potentially cause significant degradation of the environment, a prior environmental impact study, which shall be made public;

The famous Environmental Impact Assessment (EIA) and its report (EIA-RIMA, in Portuguese) have its roots in this device. The EIA is a thorough technical document and the RIMA (don’t know if there’s an English acronym for it) is a report that is written in understandable terms for the population.

V – control the production, sale and use of techniques, methods or substances which represent a risk to life, the quality of life and the environment;

VI – promote environment education in all school levels and public awareness of the need to preserve the environment;

VII – protect the fauna and the flora, with prohibition, in the manner prescribed by law, of all practices which represent a risk to their ecological function, cause the extinction of species or subject animals to cruelty.

Paragraph2. those who exploit mineral resources shall be required to restore the degraded environment, in accordance with the technical solutions demanded by the competent public agency, as provided by law.

Thumbs up for whoever thought of this.

Paragraph3. procedures and activities considered as harmful to the environment shall subject the infractors, be they individuals or legal entities, to penal and administrative sanctions, without prejudice to the obligation to repair the damages caused.

This is a device pertaining to environmental crimes (also the object of a specific Brazilian law), and it makes it clear that being penalized criminally or administratively for environmental harm does not mean you get away with repairing the damages.

Paragraph 4. The Brazilian Amazonian Forest, the Atlantic Forest, the Serra do Mar, the Pantanal Mato-Grossense and the coastal zone are part of the national patrimony, and they shall be used, as provided by law, under conditions which ensure the preservation of the environment, therein included the use of mineral resources.

Having these biomes as 1. constitutionally addressed and 2. part of the national patrimony means that they are endowed with more legal protection compared to regular laws, acts or policies.

Paragraph 5. The unoccupied lands or lands seized by the states through discriminatory actions which are necessary to protect the natural ecosystems are inalienable.

This is a very interesting legal device: it states that if Brazil needs to seize lands to protect natural ecosystems, they cannot be sold. Though I’m not sure of its real applicability, I found it very advanced for its period.

Paragraph 6. power plants operated by nuclear reactor shall have their location defined in federal law and may not otherwise be installed.

This is also interesting, for it makes nuclear reactors very difficult to be built, once they have to first go through the process of having a federal law made specifically for the reactor in question, meaning it’s a bill that would have to pass through both houses of Congress.

Now we’re going to take a look at some other constitutional articles that touch upon environmental matters:

Article 5. all persons are equal before the law, without any distinction whatsoever,Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms:

LXXIII – any citizen is a legitimate party to file a people’s legal action with a view to nullifying an act injurious to the public property or to the property of an entity in which the state participates, to the administrative morality, to the environment, and to the historic and cultural heritage, and the author shall, save in the case of proven bad faith, be exempt from judicial costs and from the burden of defeat;

People’s legal action is a processual mechanism that aims to protect collective rights. It can be utilized by any citizen and it’s free of charge (except in case of bad faith); however, it’s necessary to hire a lawyer. This mechanism is essential for actualizing both Article 225 [(…) and the community shall have the duty (…)] and to guarantee people’s right to question the government, thus being actively involved in it.

Article 23. the union, the states, the federal district and the municipalities, in common, have the power: (CA No. 53, 2006)

III – to protect the documents, works and other assets of historical, artistic or cultural value, the monuments, the remarkable landscapes and the archaeological sites;

VI – to protect the environment and to fight pollution in any of its forms;

VII – to preserve the forests, fauna and flora;

Power here was translated from the Portuguese competência, which means more that just an ability to do something: it implies a responsibility to do so.

Article 170. the economic order, founded on the appreciation of the value of human work and on free enterprise, is intended to ensure everyone a life with dignity, in accordance with the dictates of social justice, with due regard for the following principles: (CA No. 6, 1995; CA No. 42, 2003)

VI– environment protection, which may include differentiated treatment in accordance with the environmental impact of goods and services and of their respective production and delivery processes;

This was definitely a nod to sustainable development and being a green economy principle, I also found it advanced for its time.

So, these are the most important constitutional mechanisms in Brazil’s Federal Constitution regarding the environment. There are more articles, paragraphs and items that touch on subjects that relate to this (such as which federal entity can or cannot make laws for what), but they address more specifically legal hierarchy levels than the environment itself. I still think it’s worth checking it out though. So if you have the time, take a look at articles 20, 21, 22, 26, 176, 177 and 200 item VIII.

You can access Brazil’s Federal Constitution in English here.

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