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10/03/2006
POLLUTION OF BRAZILIAN TERRITORIAL WATERS

POLLUTION OF BRAZILIAN TERRITORIAL WATERS THE NEW BRAZILIAN POLLUTION LEGISLATION

I – BACKGROUND
Some thirty years ago Brazil practically had no legislation regarding pollution in general and even more in respect of pollution of territorial waters. Basically, all that existed was an Act that imposed, only in the administrative sphere, quite insignificant fines for pollution caused by ships and terminals (Law 5.357 of 1967). As far as the judicial sphere was concerned neither the Federal Government nor the States had legal structure organised enough to bring systematically before the Courts measures aiming at repressing or redressing violations against the environment.

This whole picture started changing with the new Brazilian Constitution dated 1988, which made the environment a public asset that must be preserved for present and future generations. The Constitution also allowed the Federal Government, as well as States and Municipalities to act and legislate simultaneously in the matter of environment, but attributing to the federal legislation the higher hierarchy of general rules that may be only supplemented by the rules made by the smaller political units of the Federation.

As a result, the nineties saw an increasing development of public actions and policies in respect of the environment all over the country. Federal, State and Municipal governments organised specific offices within the structure of Public Attorney Departments so as to deal with legal aspects of pollution — these are the Public Attorneys for the Environment, which soon began to play a very active role in all pollution incidents throughout the national territory. Furthermore, a number of administrative bodies had their previous structures largely improved and became progressively interconnected, forming a network of public entities dealing with offences against the environment (environmental bodies in federal, state and municipal levels). Last but not least, a very strict federal legislation has been enacted, supplemented by that of the States and municipalities.

II – LEGISLATION NOW IN FORCE

In this context, three important acts were enacted since 1998. These are: Law 9.605, dated 1998, dealing in general with penal and administrative sanctions for conducts
harmful to the environment; Decree 3.179 which regulated in detail Law 9.605; and Law 9.966 dated 2000 on prevention and control of pollution caused by oil or other hazardous or noxious substances in Brazilian territorial waters (the regulation of this Law by a Decree is still pending).

The main features of these three statutes are as follows:

• Pollution incidents may have legal consequences in three different spheres: penal, civil and administrative ones;

• As far as the penal sphere is concerned, in addition to punishment to those who wilfully or recklessly cause pollution (including, if the case, directors of companies), there may also be penal action against legal entities themselves whenever infractions are committed by decision of the entities’ legal representative or management corporate body in the benefit of the company. In this case, punishments against a legal entity may include fines, restriction of rights (suspension/prohibition of activities; or prohibition to enter into contract with public bodies or to obtain subsidies, tax exemptions, etc.) and compulsory services to the particular community affected by a pollution incident (paying for environmental projects or the maintenance of public areas such as hospitals, schools, etc.);

• In civil sphere the governing legal principle is that of polluter – payer, whereby civil liability is strict, deriving solely from the fact of pollution itself, regardless of considerations on fault. Furthermore, it is allowed the piercing of corporate veil so that one can reach the assets of companies’ shareholders (the American “disregard doctrine“) where the existence of a legal entity becomes an obstacle to full compensation of environmental damages;

• In administrative sphere the authorities have the power to impose a wide range of punishments which include fines that may reach up to R$ 50.000.000,00 for each separate infraction (before the Argentinean crisis this amounted to around US$ 25,000,000.00; at present, the crisis has caused this figure to be in the region of US$ 18,500,000.00) and the right to retain vessels which cause pollution incidents until proper security is given to the Brazilian authorities (with the exception of vessels covered by CLC/69, as these are already provided with a compulsory security certificate). Further, the imposition of fines is not subject to any scale between the amount of pollution and the amount of the fine; the penalty must be established by the Navy, after receiving the relevant assessment report from environmental authorities, on the basis of the extent of pollution, the nature of the area affected, particular circumstances of the case and the precedents in relation to the polluter;

• On account of Law 9.966 dated 2000 it is forbidden, as a rule, the dumping of oil, oily mixtures or any other hazardous or noxious substances, including garbage from ships in Brazilian waters, therein included the EEZ (and “dumping” in this legislation encompasses both intentional and unintentional disposal of substances). The few exceptions to this general rule depend first on previous authorisation of environmental authorities so as to be implemented;

• As a result, ports and terminals in Brazilian territory must build facilities to receive and dispose of any and every such substances. These facilities must be built within 3 years from the date when the relevant project is approved by environmental authorities;

• Law 9.966 dated 2000 contains the following further requirements concerning ships:

 Vessels must have a oil logbook according to the requirements of Marpol 73/78 where it must be recorded all operations relating to bunkers, oil as cargo, ballast and oily mixtures, including those that will be delivered in the future to proper facilities in ports and terminals for disposal purposes;

 Vessels carrying hazardous or noxious substances in bulk must have a cargo logbook according to Marpol 73/78 for the purpose of recording such operations as loading, unloading, transfer, ballasting and deballasting of tanks, clean up of tanks and disposal of any kind;

 Vessels carrying hazardous or noxious substances as breakbulk cargo must have a document which specifies and locates these cargoes on board;

• Pollution incidents must be immediately reported to the Brazilian Navy and environmental authorities (and also the National Petroleum Agency in the event of offshore activities).

III – FINAL COMMENTS
As set out above, pollution legislation in Brazil is now severe. This circumstance by itself must be a cause of a new posture on the part of Owners and P&I Clubs operating in Brazilian territorial waters in order to avoid the harsh legal consequences established in the law.

And the risk of facing problems is further increased by a practical circumstance, which is the fact that Brazilian authorities presently are still: 1) becoming acquainted with the new legal procedures; 2) establishing their legal standards in connection with the new regulations. Thus, problems have been occurring sometimes in respect of the correct application of procedural dispositions and also, particularly, concerning the assessment of fines. Concerning the latter, the authorities are still lacking objective criteria to assess the environmental damage, which has been a cause for rather different punishments from area to area, notwithstanding the similarity noted between or among many cases.

Therefore, strict compliance with the new rules on pollution is strongly advisable. Second, depending on the particular circumstances of each case, recourse to legal defence may not be entirely excluded where unlawful application of the legislation takes place. It must be remembered that the application of the law is in its early stages, and, consequently, it may be convenient to avoid unreasonable administrative or court precedents, which may affect negatively a number of cases in the future.

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