- When administrative and regulatory actions prove insufficient, civil and penal law provide mechanisms for addressing environmental damage through the judicial system.
- In Peru, Ecuador, and Bolivia, civil and criminal codes include environmental crimes, while other countries have created specific codes covering forests, water, contamination, etc.
- In Brazil, prosecutors have been able to use civil law to bring about changes in state and federal government environmental policies.
All the Pan Amazon nations have legal systems based on Civil (Napoleonic) Law, where courts follow rules established by ‘codes’, which are statutory rulebooks that describe specific infractions and their corresponding penalties. Each country has a ‘penal code’ where the state assumes the role of the plaintiff and prosecutes a criminal case against a defendant, as well as ‘civil code’ that adjudicates disputes between parties, which may include the state as a plaintiff, a defendant or neither. There are also specialized codes with a specific focus that are referred to as ‘administrative law,’ because they govern the regulatory functions of the state.
Bolivia, Peru and Ecuador have incorporated environmental crimes into their civil and penal codes, while the other countries have created specialized codes dealing with environmental infractions that are organized by theme: forest, water, contamination, etc. In each case, the codes provide guidance for defining the nature of the infraction, but also the severity of the penalties associated with each crime, which may be instructive (repair damages), monetary (pay compensation) or penal (go to prison).
Administrative and regulatory actions (e.g., fines) represent the first line of legal enforcement of environmental law, but in situations where political influence supersedes regulatory authority or where perpetrators brazenly ignore both the law and the regulator, then civil and penal law provide mechanisms for addressing environmental damage through the judicial system.
Civil law provides citizens, NGOs and public prosecutors numerous avenues for holding individuals and institutions, both public and private, accountable for violations of environmental regulations. In Brazil, public prosecutors employed civil law to force a change in state and federal government policy. In 2012, the Ministério Público Federal (MPF) obtained a court order suspending the state macro-zoning plan (ZEE) of Mato Grosso, which had been approved by the State Assembly. Lawyers argued that the approved version, which was materially different from the technical document prepared by civil servants, was incompatible with the Forest Code and Constitution because it failed to provide legal status for fourteen Indigenous territories.
In another case, the MPF sued INCRA in 2010 for the inappropriate (illegal) distribution of land in Acre, where settlement areas had been created without demarcating communal forest reserves mandated by the Forest Code. INCRA’s failure to comply with these regulations increased deforestation and inadvertently compromised the legal status of settlers’ landholdings. The court ordered INCRA to review its settlement programme and initiate environmental licensing applications within sixty days or pay a R$ 200,000 fine for each case of non-compliance.
Penal law takes judicial action a step further, although this typically requires the intervention of a public prosecutor and is limited to individuals, since criminal conduct is typically codified as a personal act. Penal law serves as a crucial component in the fight against deforestation by providing criminal sanctions for environmental offences. The Environmental Crimes Law (Law No. 9,605/1998) establishes the legal framework for penalizing those who engage in activities such as unauthorized logging, burning and land clearing. Brazilian law classifies various forms of deforestation and environmental degradation as crimes, subject to penalties including confiscation of assets used in illegal activities and imprisonment.
Banner image:Timber is sorted for transport in Uruará in the state of Pará, Brazil. Drug trafficking frequently uses the same smuggling routes as timber. This piggybacking of criminal activity in the Amazon has driven an increase in conflicts and violence. Image © Marizilda Cruppe/Greenpeace.
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