REsp 647.493/SC [MPF v. Brazil and mining companies]

REsp 647.493/SC [MPF v. Brazil and mining companies] (22 May 2007):

The federal prosecutor’s office (MPF) brought an ação civil pública against the federal government, mining companies, and the officers or partners of the mining companies for environmental degradation resulting from large scale coal mining activities in the southern part of the State of Santa Catarina.[1]  This complex litigation has resulted in multiple court decisions, numerous technically assisted judicial inspections, several inclusive and informative public hearings, and various innovative mechanisms for informing, negotiating, implementing and enforcing remediation measures.  Accordingly, this case has been highlighted as an exemplification of a judicial technique labeled by some as a structural injunction or structural decision.[2]

Upon appeal, the Superior Tribunal de Justiça [Superior Court of Justice] (STJ)[3] found many defendant mining companies to be strictly liable for the environmental damages and the federal government (the Union) to be jointly (but not strictly) liable for having violated its duty to monitor the mining activities and to effectively exercise its constitutionally established environmental police power-duty.[4]  If the Union fails to carry out its constitutional environmental duties, such a failure implies a duty to compensate.[5]  However, the STJ concluded, the mining companies were directly responsible for and benefited most from the environmental degradation and, therefore, they should pay for the costs of restoration.[6]  The STJ then went further to conclude that “the Union does not have discretion to demand the [responsible companies] to pay for the eventual costs [of environmental restoration], but rather, [the Union has] the duty, since it is the public interest to demand that the environmental harm be compensated first by those who, carrying out a polluting activity, must respond to the risks of their action, especially when they profited from the activity.”[7]   

Regarding the liability of the owners and managers of the mining companies, the STJ explained that the doctrine of disregarding the legal entity exists in Brazilian law and may be applicable when the personalization of the legal entity constitutes an obstacle to the compensation of environmental damages.[8]  Nonetheless, the STJ determined that in this case there was no evidence showing that the legal entities were unable to or otherwise constituting an obstacle to provide the environmental remediation sought.[9]  Despite the joint liability of the legal entity and its owners and managers for environmental damages, the court explained that liability of the owners and managers should be subsidiary or supplemental “because it is only suitable when the legal entity does not possess sufficient assets to satisfy its obligation of environmental remediation.”[10] 

In addition to the STJ’s conclusions regarding liability, this decision is also noteworthy because the STJ decided that the right to bring a collective action lawsuit seeking environmental remediation is not subject to any statutes of limitation as long the environmental harm is continuous.[11]   

 

[1]   STJ.  REsp 647.493/SC, at p.3.

[2] See Luiz Guilherme Marinoni & Sergio Cruz Arenhart, Collective litigation and due process of law: the Brazilian experience, available at:

http://www.marinoni.adv.br/wp-content/uploads/2016/08/Collective-litigation-and-due-process-of-law-the-Brazilian-experience.pdf

[3] The STJ hears appeals from state and federal courts when the case involves a matter of federal law (Article 105 of the Brazilian Constitution), and is not to be confused with the Supremo Tribunal Federal [Federal Supreme Court] (STF), which is the highest court in Brazil and defined as the “guardian of the [Brazilian] Constitution” in Article 102 of the 1988 Brazilian Constitution.  The STJ is the highest court involved in this complex coal mining remediation litigation.

[4] STJ.  RE 647.493/SC, at pp.11-13, 18-19.

[5] Id., at p.12.

[6] Id., at p.14.

[7] Id., at p.14.  Unofficial translation of: “a União não tem a faculdade de exigir dos outros devedores que solvam as quantias eventualmente por ela despendidas, mas sim, o dever, pois há interesse público reclamando que o prejuízo ambiental seja ressarcido primeiro por aqueles que, exercendo atividade poluidora, devem responder pelo risco de sua ação, mormente quando auferiram lucro no negócio explorado.”

[8] Id., at pp.24-25.

[9] Id., at p.25.

[10] Id., at p. 27.  Unofficial translation of: “a responsabilidade dos sócios deve ser subsidiária, porque somente tem cabimento quando a sociedade não possui haveres suficientes ao cumprimento obrigacional de reparação ambiental. Assim, caberá aos sócios honrá-los com seus bens particulares.”

[11] Id., at pp.14-15. 

Date of the Resource: 
2007
Countries and Regions: 
Resource Type: