KLA Newsletter - February

Author:Koury Lopes Advogados
Profession:Koury Lopes Advogados

Environmental Law

Superior Court of Justice publicizes 11 consolidated understandings on Environmental Law

The Superior Court of Justice ("STJ") published 11 settled case law based on its rulings about environmental damage. Such consolidated case-law deals with issues varying from the liability of the polluter for the environmental damage up to cases of payment of compensations for moral damages, as briefly mentioned below.

1) The liability for environmental damages is strict, based on the theory of integral risk, which prevents the polluter (or its successor) of allege civil liability exclusion to prevent their obligation to indemnify. (Understanding judged under Article 543-C of Code of Civil Procedure of 1973 – Themes No. 681 and 707, "a")

2) Who deforest, occupy, exploit or prevent the regeneration of the Permanent Preservation Area causes unequivocal ecological damage, giving rise to a obligation (propter rem) to fully restore and indemnify the degraded environment and third parties affected under the strict civil liability regime.

3) The recognition of the strict liability for environmental damages does not release of the demonstration of the causation between the conduct of the and the result.

4) The allegation of a third party exclusive fault for an accident, as a liability exclusion, must be rejected, based in the integral risk theory and the strict liability applicable to the environmental damage (Article 225, Paragraph 3rd of Brazilian Federal Constitution and Article 14, Paragraph 1st of Law No. 6,938/1981), being the the polluter responsible due to the polluter-payer principle. (Understanding judged under the provisions of Article 543-C of Code of Civil Procedure of 1973 - Item No. 438)

5) There is no statute of limitation for a reparatory claim for damages caused to the environment. KLA Note: The imprescriptibility of such reparatory claim (not subject to a statute of limitation) was recognized by the Brazilian Supreme Court as a matter of general repercussion. This means that the judgment of the leading case (RE 654833) will be considered as a Precedent and shall, therefore, be applied for all identical cases.

6) The initial term for the application of interest is the date of the damaging event for reparation of moral and material damages resulting from an environmental accident.

7) The reversal of the burden of proof applies to environmental damages actions. (STJ's Precedent No. 618)

8)The theory of accomplished fact is not applicable in the Environmental Law. (STJ's Precedent No. 613)

9) There is no vested right for the continuity of situations that causes damage to the environment.

10) The professional fisherman is a legitimate party to apply for compensation due to environmental damage that caused the reduction of fishing in the affected area, using his professional registration, even if granted after the...

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