economic zone—belong to the Union.
115 Offshore oil and gas activities, such as
exploration, exploitation and maritime transportation, are to be legally executed on a
monopolist manner by the Union, which can further delegate the activities to private
parties, pursuant to Art. 17 of the Federal Constitution. In fact, those activities are to
be regulated and audited by the Union, but may be exercised by companies incorporated under Brazilian law, with headquarters and administration in the country.
116
That very same Act created the Brazilian National Petroleum Agency (ANP). It is
important to notice, though, that ANP consists of a regulatory agency which aims
primarily at regulating, contracting and inspecting the economic activities that are
part of the oil, natural gas and biofuels industry. On a secondary basis, the Agency
also has the mandate to enforce best practices for the conservation and rational use of
oil, natural gas, their by-products and biofuels, as well as for the preservation of the
environment.
117 Such a mandate is compatible with the international obligations set
out in Arts. 145 and 146 UNCLOS, to which Brazil is bound.
The Agency attempts at reconciling safety and security standards with environmental conservation measures, so as to prevent the loss of lives and marine fauna and
flora due to oil spills and other sorts of incidents. In fulfilling that mission, the Oil
Agency counts on the work of national and regional environmental councils. At the
national level, the National Council for the Environment (CONAMA) assumes the
most relevant role of establishing general standards and principles, while state-level
environmental agencies issue specific licenses and exercise environmental control
and inspection.
118 By fostering such am complementary interaction between the
ANP and environmental agencies, the Brazilian legal framework signals how relevant it is for environmental conservation norms to permeate all economic sectors.
One of the results of such interaction is the requirement for oil companies to obtain
environmental licenses in connection with authorizations and concessions issued by
the Agency. Finally, the Agency defines responsibilities and operational clauses in
case of offshore oil spills.
In case prevention of oil pollution does not work and an incident occurs, the
Brazilian legislator has taken steps towards incorporating internationally negotiated
standards into the Brazilian marine environmental framework. In so doing, Brazil
has adopted a rigorous system of liability. Pursuant to Art. 37 (6) of the Federal
Constitution, the public administration—be it federal, state, or municipal—has strict
liability whenever offshore oil pollution incidents take place. In Brazil, such a strict
115 Art. 3, Act no. 9.478/1997. This work has previously shown the degree to which Brazilian
scholars and legislators wrongly consider the continental shelf and the EEZ to be part of the
Brazilian territory. That understanding is not in accordance with UNCLOS, nor international law.
116 Art. 5, idem.
117 Art. 8 (IX), idem, on the mandate of the National Petroleum Agency.
118 That division of labor is regulated by the previously mentioned Constitutional Complementary
Act no. 140/2011, which specified the prescriptive and enforcement competences of federal, statelevel, and local environmental agencies.
10.2 How Far Has Brazil Gone?
335
115 Offshore oil and gas activities, such as
exploration, exploitation and maritime transportation, are to be legally executed on a
monopolist manner by the Union, which can further delegate the activities to private
parties, pursuant to Art. 17 of the Federal Constitution. In fact, those activities are to
be regulated and audited by the Union, but may be exercised by companies incorporated under Brazilian law, with headquarters and administration in the country.
116
That very same Act created the Brazilian National Petroleum Agency (ANP). It is
important to notice, though, that ANP consists of a regulatory agency which aims
primarily at regulating, contracting and inspecting the economic activities that are
part of the oil, natural gas and biofuels industry. On a secondary basis, the Agency
also has the mandate to enforce best practices for the conservation and rational use of
oil, natural gas, their by-products and biofuels, as well as for the preservation of the
environment.
117 Such a mandate is compatible with the international obligations set
out in Arts. 145 and 146 UNCLOS, to which Brazil is bound.
The Agency attempts at reconciling safety and security standards with environmental conservation measures, so as to prevent the loss of lives and marine fauna and
flora due to oil spills and other sorts of incidents. In fulfilling that mission, the Oil
Agency counts on the work of national and regional environmental councils. At the
national level, the National Council for the Environment (CONAMA) assumes the
most relevant role of establishing general standards and principles, while state-level
environmental agencies issue specific licenses and exercise environmental control
and inspection.
118 By fostering such am complementary interaction between the
ANP and environmental agencies, the Brazilian legal framework signals how relevant it is for environmental conservation norms to permeate all economic sectors.
One of the results of such interaction is the requirement for oil companies to obtain
environmental licenses in connection with authorizations and concessions issued by
the Agency. Finally, the Agency defines responsibilities and operational clauses in
case of offshore oil spills.
In case prevention of oil pollution does not work and an incident occurs, the
Brazilian legislator has taken steps towards incorporating internationally negotiated
standards into the Brazilian marine environmental framework. In so doing, Brazil
has adopted a rigorous system of liability. Pursuant to Art. 37 (6) of the Federal
Constitution, the public administration—be it federal, state, or municipal—has strict
liability whenever offshore oil pollution incidents take place. In Brazil, such a strict
115 Art. 3, Act no. 9.478/1997. This work has previously shown the degree to which Brazilian
scholars and legislators wrongly consider the continental shelf and the EEZ to be part of the
Brazilian territory. That understanding is not in accordance with UNCLOS, nor international law.
116 Art. 5, idem.
117 Art. 8 (IX), idem, on the mandate of the National Petroleum Agency.
118 That division of labor is regulated by the previously mentioned Constitutional Complementary
Act no. 140/2011, which specified the prescriptive and enforcement competences of federal, statelevel, and local environmental agencies.
10.2 How Far Has Brazil Gone?
335