liability flows from the “integral risk theory”.
119 Yet, the government is also to be
held liable when it acts with fault, i.e. by omitting itself to undertake action to
prevent environmental damage, in situations in which the omissive conduct can be
proved.
Hence, in the case of an oilfield accident, the Federal Government must respond if
it has omitted to supervise the operations of a specific oil company. Such a provision
in line with the Art. 44 of the National Energy Policy, according to which the
contract conceding exploratory rights to private companies shall stipulate that the
concessionaire is responsible and liable for the acts of its representatives, and is to
compensate any damage arising from both exploration and exploitation. The interested oil company and its partners must, thus, plan how to dispose waste material
from the exploitation site; to assist the injured; to prevent oil from reaching the coast;
to stop the leak; to capture oil which has already leaked, among other measures.
Finally, Brazilian norms on environmental liability impose the duty to repair
damages to the environment on the polluter. Those who degrade the natural environment may be held liable for doing so. Liability of the polluter is also to be found
in the Brazilian Civil Code, according to which “the person who, by an unlawful act,
causes harm to another, is obliged to repair the damage”.
120 Within Brazilian
jurisdiction, environmental liability is essentially strict, as clarified by Art. 14 (1),
Act no. 6.938/1981:
Without prejudice to the application of the penalties provided for in this article, the polluter
is obliged, regardless of the existence of fault, to indemnify or repair the damages caused to
the environment and to third parties affected by their activity. The Public Prosecutor’s Office
of the Union and States shall have the right to file civil and criminal liability charges for
damages inflicted onto the environment.
121
Not only the concessionaire company, but also the natural persons responsible for
the operation and related companies may respond administratively, as stated in Art.
25 (1) of the Brazilian Oil Act. Moreover, environmental liability is the focus of
domestic Act no. 9.605/1998, on crimes against the environment, whose Art.
2 confirms that individuals and private companies may be held liable for environmental crimes.
122 In fact, companies may also be held criminally liable under Art.
3 of that same diploma. In case of offshore oil discharges, thus, in addition to
119 Legal support to the strict liability regime is to be found in the Brazilian Constitution, Art.
225 (3), as well as in Act. No. 6.938/1981, Art. 14 (1). Internally, Brazilian courts have thoroughly
embraced the “integral risk theory”, so as to recognize the objective liability of public and private
entities involved in environmental degradation incidents. For more on that theory, see Rodrigues
(2016), p. 381.
120 Art. 927, Act no. 10.406/2002, Civil Code.
121 Art. 14 (1), Act no. 6.938/198. Free translation.
122 Art. 2, Act no. 9.605/1998: “Who, in any way, contributes to the practice of the crimes listed in
this Act, is subject to the penalties to which they are committed, to the extent of their culpability, as
well as the director, the administrator, the member of the council and of the technical organ, the
manager, the agent or agent of a legal person, who, knowing of the criminal conduct of another,
ceases to impede the malpractice, when he/she could have acted to prevent it”. Free translation.
336
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
119 Yet, the government is also to be
held liable when it acts with fault, i.e. by omitting itself to undertake action to
prevent environmental damage, in situations in which the omissive conduct can be
proved.
Hence, in the case of an oilfield accident, the Federal Government must respond if
it has omitted to supervise the operations of a specific oil company. Such a provision
in line with the Art. 44 of the National Energy Policy, according to which the
contract conceding exploratory rights to private companies shall stipulate that the
concessionaire is responsible and liable for the acts of its representatives, and is to
compensate any damage arising from both exploration and exploitation. The interested oil company and its partners must, thus, plan how to dispose waste material
from the exploitation site; to assist the injured; to prevent oil from reaching the coast;
to stop the leak; to capture oil which has already leaked, among other measures.
Finally, Brazilian norms on environmental liability impose the duty to repair
damages to the environment on the polluter. Those who degrade the natural environment may be held liable for doing so. Liability of the polluter is also to be found
in the Brazilian Civil Code, according to which “the person who, by an unlawful act,
causes harm to another, is obliged to repair the damage”.
120 Within Brazilian
jurisdiction, environmental liability is essentially strict, as clarified by Art. 14 (1),
Act no. 6.938/1981:
Without prejudice to the application of the penalties provided for in this article, the polluter
is obliged, regardless of the existence of fault, to indemnify or repair the damages caused to
the environment and to third parties affected by their activity. The Public Prosecutor’s Office
of the Union and States shall have the right to file civil and criminal liability charges for
damages inflicted onto the environment.
121
Not only the concessionaire company, but also the natural persons responsible for
the operation and related companies may respond administratively, as stated in Art.
25 (1) of the Brazilian Oil Act. Moreover, environmental liability is the focus of
domestic Act no. 9.605/1998, on crimes against the environment, whose Art.
2 confirms that individuals and private companies may be held liable for environmental crimes.
122 In fact, companies may also be held criminally liable under Art.
3 of that same diploma. In case of offshore oil discharges, thus, in addition to
119 Legal support to the strict liability regime is to be found in the Brazilian Constitution, Art.
225 (3), as well as in Act. No. 6.938/1981, Art. 14 (1). Internally, Brazilian courts have thoroughly
embraced the “integral risk theory”, so as to recognize the objective liability of public and private
entities involved in environmental degradation incidents. For more on that theory, see Rodrigues
(2016), p. 381.
120 Art. 927, Act no. 10.406/2002, Civil Code.
121 Art. 14 (1), Act no. 6.938/198. Free translation.
122 Art. 2, Act no. 9.605/1998: “Who, in any way, contributes to the practice of the crimes listed in
this Act, is subject to the penalties to which they are committed, to the extent of their culpability, as
well as the director, the administrator, the member of the council and of the technical organ, the
manager, the agent or agent of a legal person, who, knowing of the criminal conduct of another,
ceases to impede the malpractice, when he/she could have acted to prevent it”. Free translation.
336
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...