Amnesty for Polluters

Posted by on Mar 7, 2013 in Americas, Environment, Human Rights | No Comments

By Caroline Medeiros Rocha
Human Rights Generation

In Brazil the right to a balanced environment is a constitutional one, in fact there is a chapter dedicated to its protection called “Of The Environment” (article 225). It states that “the conducts considered harmful to the environment will subject the perpetrators, being those people or legal entities, to sanctions, both administrative and criminal, without prejudice of their obligation to repair the damage caused”.

In an exercise of – what is my opinion – legislative willful thinking, Congress passed a Bill Law n. 12.651/2012 to substitute the outdated 1965 Forest Code. The “New Forest Code” created a loophole in witch the agribusiness’ tractors can roll right into. It has been established an amnesty based on the Program for Environmental Regularization – PER. The Government, both federal and local, has up to two years to establish such program, during this period and after adhesion to the PER, land owners or people in possession of rural real estates can not be fined for infraction committed before July 22nd 2008, in relation to the cut down of vegetation in Specially Protected Areas. After the proprietors signed agreements within PER to recuperate the damaged areas, their previous fines will be suspended and eventually nullified after the completion of all obligations stipulated by the program.

 

Jurisprudence

In a recent decision by the Federal Appellate Court (STJ in Portuguese), whose competence is to correct distortions between judicial decision and federal laws, a land owner seeked the annulment of his fine in view of this new legislation, the Justices decided that even with the publication of Law n. 12.651/12, the infraction notices and its fines issued based on the previous law remain valid.

Justice Herman Benjamin noted that to justify the suspension of the fines, that are a complete and perfect act in the time they were issued, the proprietor should first enter the PER, then enroll in the Rural and Environmental Registry and finally sign an agreement to recuperate the damage by acknowledging it and their unlawful conduct.

In this case, Justice Benjamin went above his competence and created new criteria for the enforcement of an unconstitutional Law, in doing so he weights the importance of protecting the environment against the right of property of several owners who can become overwhelmed by a cascade of environmental laws that can ultimately cost them their freedom. In an exercise of pure judicial control, without declaring it, the Federal Appellate Court upheld the Constitution and respected basic principles of law, such as the right to property.

 

Proper Judicial Control

 In January 18th 2013, the Attorney General, in hopes of augmenting its chances of success, filled three separate appeals before the Supreme Court (ADI 4901, 4902 and 4903) arguing that several articles of Law n. 12.651 are unconstitutional, including the one about the amnesty period between the regulation of the PER, and its actual enforcement.

The Attorney General stated that although the Government’s initiative of constructing a national program for environmental recuperation is a praisable one, there are several practical impediments that were left unattended by the Law and in consequence cause it to be unconstitutional, such as the lack of a minimum of previously established criteria that could guarantee its effectiveness and it also empties governmental oversight system, since it takes away its power to inflict penalties to transgressors.

Closing arguments include the allegation that the “New Forest Code” awards land owner that were in violation of Federal Law at the time, and by doing so it creates an unbalance between law abiding proprietor, that at the time went to great lengths to follow the Old Code, and the others, who have now received a free pass for their past transgressions.

 

The Fight

There was a long congressional fight between environmentalists and the agribusiness industry’s Senate and House representatives, that culminated in the passing of the discussed Bill that was a perceived as political defeat to the Government, and later it sustained several presidential vetoes, leaving wholes in the text of the Law, that were regulated by a Provisional Measure – a sort of emergency procedure of limited validity – issued by the President, and then turned into Law itself.

Because it was the object of such heated discussions, the final draft presented many potential inconsistencies with the constitutional text, specially when article 225, paragraph 1, subsection III, is observed, as it states: “It is the Public Power’s duty to determined in all units of the Federation, territorial spaces and their components to be Specially Protected Areas, and the modification and suppression of those can only be allowed by law, prohibited any use that compromises the integrity of the attributes that justify its protection”.

 The challenge presented before the Justices of the Supreme Court of Brazil is to interpret if the article is in relation to the Legal Institute of Specially Protected Areas, and if it is conclude that it is, a more difficult exercise begins, that is to define what is means to “compromise the integrity of the attributes that justify the protection of those areas”. In this opportunity, a set of criteria must be defined as to justify judicial decision making one way or the other.

I cited above that Law n. 12.615/12 was an exercise in legislative wishful thinking, because to my understanding, the New Forest Code permits the perpetration of a destructive behavior, and a leniency with past transgressions, that aim to cause the invalidation of not only future penalties, but past ones as well. This was an invalid attempt of a full pardon, since, as Benjamin stated, the infraction issued based on the old law, was not nullified or even suspended by a new one.

Now the country faces a period of insecurity, and until the Justices define exactly what is valid and what isn’t, land owners all across the country will live in a state of alarm, unsure about its rights in the face of the new law. Reminding a important truth when dealing with a state of uncertainty, is that abuses from both sides are to be expected.

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