managers, employees who are absent, companies can be charged with crimes defined
both within Act no. 9.605/1998 and the Brazilian Criminal Code.
Hence, the three-fold constitutionally mandated environmental liability system
encompasses the activities of oil extraction in the high seas, aiming to minimize and
indemnify society for the damages caused by oil spills. Brazilian legislation in this
regard is in consonance with UNCLOS, namely Art. 235, which calls upon states to
ensure compliance with their international obligations relating to the protection and
preservation of the marine environment. In addition to that, states are required to
ensure through their domestic law the means of redress for obtaining prompt and
adequate compensation damage caused by pollution to the marine environment by
natural or legal persons under their jurisdiction.
123
In order to exemplify such framework, it is indispensable to bring some of the
most iconic case law within Brazilian courts and tribunals to the fore of this
discussion. For instance, in 2007, the Brazilian Superior Court of Justice found
that the Brazilian state’s liability in case of omission is subjective (non-strict), even
in cases of damage to the environment, since the illegality in omissive behavior is
assessed from the perspective that the state should have acted as prescribed by law.
The Court also decided that the Union has the duty to supervise activities related to
mineral extraction, so that these activities abide by environmental conservation
norms.
124
With respect to the coastal state’s powers over continental shelf activities, a major
incident in Brazil has rendered a pertinent legal discussion for the purposes of this
work. In 2011, an oil leak off the coast of Rio de Janeiro caused by Chevron
125
denoted the need for reforms in the Brazilian legal framework on marine pollution.
126 The incident happened in the context of expansion of the Brazilian oil and
gas industry, upon the then still recent discovery of deep-sea oil fields. Such
expansion, as the oil leak showed, met no equivalent enhancement of environmental
standards for offshore oil and gas exploration in the country.
The Federal Public Prosecutor’s Office filed two lawsuits against Chevron and
the two companies responsible for the rig’s operation and contingency plan:
Transocean and Halliburton. The first suit was for civil damages, while the second
one sought criminal sanction, claiming US$10 billion in damages and the arrest of
the seventeen Chevron employees responsible for the faults that lead to disaster.
Initially, the case was filed before the Federal Court in Rio, but the court declined
jurisdiction on the case, as the exploitation site laid beyond the Brazilian territorial
sea. According to the federal justices, Brazil would have no enforcement jurisdiction
123 Art. 235, paragraph 2 UNCLOS.
124 Superior Court of Justice, Special Appeal no. 647493, Justice João Otávio De Noronha, decision
from 22 May 2007, judgment’s entry.
125 In November 2011, an offshore oil well operated by Chevron leaked approx. 3700 barrels of oil
into the sea.
126 Marcelo Varella identified the need to redesign the current oil and gas framework in Brazil, so as
to increase possibilities of prevention and damage compensation. See Varella (2015), p. 242.
10.2 How Far Has Brazil Gone?
337
both within Act no. 9.605/1998 and the Brazilian Criminal Code.
Hence, the three-fold constitutionally mandated environmental liability system
encompasses the activities of oil extraction in the high seas, aiming to minimize and
indemnify society for the damages caused by oil spills. Brazilian legislation in this
regard is in consonance with UNCLOS, namely Art. 235, which calls upon states to
ensure compliance with their international obligations relating to the protection and
preservation of the marine environment. In addition to that, states are required to
ensure through their domestic law the means of redress for obtaining prompt and
adequate compensation damage caused by pollution to the marine environment by
natural or legal persons under their jurisdiction.
123
In order to exemplify such framework, it is indispensable to bring some of the
most iconic case law within Brazilian courts and tribunals to the fore of this
discussion. For instance, in 2007, the Brazilian Superior Court of Justice found
that the Brazilian state’s liability in case of omission is subjective (non-strict), even
in cases of damage to the environment, since the illegality in omissive behavior is
assessed from the perspective that the state should have acted as prescribed by law.
The Court also decided that the Union has the duty to supervise activities related to
mineral extraction, so that these activities abide by environmental conservation
norms.
124
With respect to the coastal state’s powers over continental shelf activities, a major
incident in Brazil has rendered a pertinent legal discussion for the purposes of this
work. In 2011, an oil leak off the coast of Rio de Janeiro caused by Chevron
125
denoted the need for reforms in the Brazilian legal framework on marine pollution.
126 The incident happened in the context of expansion of the Brazilian oil and
gas industry, upon the then still recent discovery of deep-sea oil fields. Such
expansion, as the oil leak showed, met no equivalent enhancement of environmental
standards for offshore oil and gas exploration in the country.
The Federal Public Prosecutor’s Office filed two lawsuits against Chevron and
the two companies responsible for the rig’s operation and contingency plan:
Transocean and Halliburton. The first suit was for civil damages, while the second
one sought criminal sanction, claiming US$10 billion in damages and the arrest of
the seventeen Chevron employees responsible for the faults that lead to disaster.
Initially, the case was filed before the Federal Court in Rio, but the court declined
jurisdiction on the case, as the exploitation site laid beyond the Brazilian territorial
sea. According to the federal justices, Brazil would have no enforcement jurisdiction
123 Art. 235, paragraph 2 UNCLOS.
124 Superior Court of Justice, Special Appeal no. 647493, Justice João Otávio De Noronha, decision
from 22 May 2007, judgment’s entry.
125 In November 2011, an offshore oil well operated by Chevron leaked approx. 3700 barrels of oil
into the sea.
126 Marcelo Varella identified the need to redesign the current oil and gas framework in Brazil, so as
to increase possibilities of prevention and damage compensation. See Varella (2015), p. 242.
10.2 How Far Has Brazil Gone?
337