The government recently enacted the Biodiversity Law, which establishes rules on access to genetic heritage and associated traditional knowledge, and on benefit sharing for the conservation and sustainable use of biodiversity. Among other things, it provides that foreign individuals cannot access genetic resources or associated traditional knowledge.
Given Brazil's strict liability regime, special care must be taken when evaluating environmental liabilities in relation to mergers and acquisitions. The strict liability regime applies to any environmental damage, meaning that the owner of polluted land is subject to environmental civil liability. As such, a new landowner can be held jointly liable for repairing environmental damage caused by the polluter.
Unbridled global consumption of manufactured products has generated significant waste and created major problems related to environmentally appropriate disposal and post-consumer waste management. In light of this, the Superior Court of Justice recently recognised the post-consumer liability of potentially polluting product manufacturers for the first time.
The Public Attorney's Office has brought a claim against the introduction of fracking on the basis that there is a lack of legislation regarding its environmental impact. For example, no regulations establish a procedure for the grant of environmental permits or outline the required environmental studies. Several Brazilian states have issued preliminary injunctions in support of the Public Attorney's Office.
The southeastern region of Brazil is facing a major water crisis due to one of the worst droughts in decades, which has triggered an unprecedented environmental conflict between Rio de Janeiro, Sao Paulo and Minas Gerais – the three most prosperous states and those worst affected by the water shortage. The conflict represents the first serious climate crisis in Brazil in the 21st century – one with the potential to affect millions of lives.
The National Solid Waste Policy's main goal is to decrease the total volume of waste produced nationally and increase the sustainability of solid waste management. To do so, the policy establishes important instruments to deal with economic, social and environmental issues related to inappropriate waste management. However, there are many concerns regarding its implementation as it calls on states to expand local plans.
Environmental agencies have recently been imposing strict social and environmental regulations on the construction of new hydropower plants. One of the main controversies is which type of hydropower plant should be adopted in the Amazon Basin – the 'run-of-river' plant or the traditional 'big reservoir' plant.
The Central Bank is preparing to enact a bill of resolution that sets out the social and environmental obligations that must be fulfilled by banks and other authorised financial institutions. Under the bill, each institution must implement a social-environmental responsibility policy that, among other things, sets out the environmental goals to be pursued and proposes directives to guide financial operations.
Following the opening of a bidding round for onshore blocks of potential natural gas areas, Brazil has found itself in the midst of a controversial debate on the technical criteria and environmental rules that should govern the exploitation of shale gas. Particular emphasis has been placed on the environmental impact and potential risks associated with fracking.
Thirteen years after the introduction of the law that formalised the control and oversight of marine pollution in national waters and the required precautions, the government has finally enacted the National Oil Spill Contingency Plan. According to the plan, polluters – deemed as those that directly or indirectly contribute to oil leaks (eg, operators and service providers) – must comply with several obligations.
Once an environmental impact assessment required for environmental permitting has been accepted by the relevant environmental agency, it is subject to a hearing at which the project will be presented to the public. In addition, all individuals are granted access to any document or administrative procedure regarding environmental matters held by all agencies that form part of the national environmental system.
Those who perform activities and projects involving genetically modified organisms (GMOs) in Brazil must comply with the relevant federal law. Organisations interested in support research involving GMOs must hold a bio-security trust certificate. The Constitution also protects the integrity of genetic heritage – accessing such information without a proper permit is considered an environmental violation.
Brazilian law details 12 different types of environmentally protected area, divided into two groups – areas of sustainable use and areas of full protection. In the former, the exploitation of natural resources must be performed in a renewable manner, in order to maintain biodiversity. In the latter, ecosystems must remain free from human interference; their natural resources can be used only indirectly.
The discharge of any waste substances into watercourses - whether liquid or gaseous - with the purpose of dilution, transport or disposal is subject to a grant. Granting of the right to use water for industrial discharge will be given in relation to the amount of water needed to dilute the pollutant load, which can vary over the timetable of the grant, and will be based on the standards of water quality at the receiving watercourse.
Regulations governing environmental audits apply at both federal and state level in Brazil. Most such assessments are performed at the request of environmental bodies during the permitting procedure, or whenever necessary for the remediation of contaminated natural resources. However, for some activities (eg, oil and gas exploitation), the legislation establishes specific obligations regarding periodic audits.
Given the strict liability regime set out in Brazil's legal system, special care must be taken when evaluating mergers and acquisitions for environmental liability. Most cases of environmental liability from such operations stem from environmental permits held by the previous owner. Liability may also arise in connection with the shutdown or sale of facilities, while protecting private land and during the development of dams.
All environmental damage in Brazil is subject to a strict liability regime, meaning that no guilt need be proven against a polluter before the obligation to provide environmental recovery can be enforced. As liability is based on the status of the contaminated resource, but not on the fault of the landowner, a landowner may be deemed liable for repairing environmental damage that already existed at the time at which it acquired the land.
The National Programme of Air Quality Control is one of the main instruments of environmental management, aiming to protect public health and increase human development. In addition, most of Brazil's metropolises rely on specific air pollution standards, which may indicate areas of atmospheric saturation where the installation of new point sources may not be possible without mechanisms for lowering emissions.
In Brazil, the breach of environmental laws may result in civil, administrative and criminal liability. Fines for administrative infractions may reach R50 million, depending on the extent of environmental damage and measures taken by the polluter to protect and remediate the affected area. Penalties for criminal action may consist of fines, restraint, community service or even prison.
A preliminary environmental permit must be obtained before the construction, installation, expansion and operation of any potential polluting activity, or before any kind of use of natural resources that may cause environmental damage commences. Thereafter, an installation permit and an operation permit must also be obtained. Other authorisations and permits may be required depending on the activity being undertaken.