Effects of Environmental Crimes and Civil Liability
The present article deals with the civil responsibility of private companies as the face of the environmental damage they cause. To this end, the incident in Maceió, a city in Alagoas (Brazil), was chosen as a case study. Significant repercussions of rock salt extraction - the removal of sodium chloride used in manufacturing caustic soda and PVC plastic - were improperly caused by the multinational Braskem for decades. Such practice destabilized the underground caves in the neighbourhoods. Consequently, the soil started to sink, leading to the seismic tremors that occurred on March 3rd, 2018. As a result, it prompted the appearance or worsening of cracks, fissures and craters in the affected region with soil instability. In general, this crime provoked the sinking of four neighbourhoods in the capital of Alagoas, where more than 50,000 people were affected.
Excavations in Brazil are commonplace and carried out by large and renowned companies. This practice feeds the national and international market with the ore trade and the generation of many jobs. Lately, cases of social and environmental disasters have come to light, such as 'Mariana' and 'Brumadinho' - disasters caused by Dam Breaks - on account of the collective irresponsibility and negligence of the public authorities (state, municipal and federal governments) as well as the companies that exploit the natural resources. Specifically in Maceió, the capital of Alagoas, the second smallest state in the Brazilian Federation, the company Braskem extracted rock salt, having dug exploration wells under the city throughout its operations. This exploration has been generating a continuous disaster in recent years, which will be explained below.
Factual Background
In that respect, the Brazilian Geological Service (SGB/CRPM) - a public company linked to the Ministry of Mines and Energy - characterized the phenomenon in the field with inspections of residences and public roads for the correct mapping of the evidence of the episodes. All these efforts culminated in the elaboration of the terrain's map in stability features - subsequently updated in September 2018 - with evidence of soil deformations. In brief, the emphasis of this study is on the Pinheiro neighbourhood, because it was where the first news of the phenomenon emerged. However, in a short time, other places have shown the same symptoms, namely: Bebedouro, Mutange and, more recently, Bom Parto - all also belonging to the capital of Alagoas (report of SGB/CRPM, 2018). There is evidence proving that deformation in the mining caves had a significant participation in the origin of the phenomena that have been causing - and keeps causing - damage to the studied region. Based on geological and geomorphological aspects of the affected region, the Brazilian Geologist Vanildo Almeida Mendes explains from his technical point of view the following:
The area is inserted within the context of the sedimentary basins of the Brazilian continental margin, more specifically in the Sergipe-Alagoas Basin basin (Alagoas sub-basin), which originated 150 million years ago, due to the separation of the current African and South American continents. African and South American continents and the consequent formation of the Atlantic Ocean. In general, the Sergipe-Alagoas Basin is subdivided into tectonic blocks or compartments, limited by large faults. The rift of the basin, on a regional scale, is located beneath large antithetic bascule block faults, compatible with evolutionary models that assume predominantly distensive movements during the rifting genesis. (Mendes, 2017).
On 5th December 2018, based on the studies in progress and the mapping carried out, the Municipality of Maceió published through the municipal manager, Rui Palmeira, Decree No. 8658/2018, which declared an emergency in the neighbourhood of Pinheiro, one of the areas affected by subsidence and collapse. In sequence, on 28th December 2018, through the Ministry of Regional Development (MDR), the Federal Government recognized the neighbourhood's emergency with publication in the Official Gazette of the Union (DOU). For that reason, the Civil Defense initiated measures to protect the population affected by the phenomenon, such as on 8th January 2019, with the registration of residents of the neighbourhood of Pinheiro.
Nevertheless, on 14 January 2019, it was published in the Official Gazette of the Union (DOU) the Ordinance of the Ministry of Mines and Energy (MME) no. 20/2019, which determined the SGB/CPRM (Brazilian Geological Service) and the National Mining Agency (ANM) that, within the scope of their competencies, prioritize and intensify their actions of diagnosis and monitoring of geological instability the neighbourhood of Pinheiro, in the municipality of Maceió/AL, under monitoring and coordination of the Secretariat of Geology, Mining, and Mineral Transformation - SGM (Ordinance of MME, 2019).
Thus, by the results obtained from soil reports by SGB/CRPM outlined above, it was found that other neighbourhoods of the capital of Alagoas were affected. On 26th March 2019, it was published in the Official Gazette of the Municipality of Maceió the Decree No. 8,699/2019, which declared a State of Public Calamity in the aforementioned neighbourhoods. By May 28th, 2019 it was duly recognized by the Federal Government, through Ordinance No. 1,311.
On April 1st 2019, the State Public Ministry of Alagoas (MP/AL) together with the Public Defender's Office of Alagoas (DPE/AL) filled a request for Precautionary antecedent character of a Public Civil Action (ACP): it required an injunction against the company Braskem for environmental damages allegedly caused by the defendant company in which, among other requests, enquired "[...] the unavailability of Braskem's financial assets and property, in the initial amount of R$ 6,709,440,000.00 (amounting to US$ 12,030,180.00)" (ACP, 2019).
Currently, a relevant portion of the residents of these neighbourhoods is receiving social rent. However, the uncertainty of relocation or the payment of a compensation amount not yet defined has generated a legal battle in which appropriate amounts are blocked and unblocked at the whim of the judiciary and their conflicting arguments.
Liability in the Brazilian Law
Generally speaking, it is impossible to carry out any mining activity without impacting nature. The function of the laws is precisely to minimize these impacts, balancing how profitable the activity can be in the country and the amount of life in the biosphere that can be affected without direct impacts on the population. The director of the Institute of Geosciences at USP (IGc), Caetano Juliani, says:
For a long time, the laws on the way of mining, the use of resources and the disposal of by-products were very weak or non-existent, but nowadays, a series of researches are required to evaluate if the area will be as profitable as possible with the least impact". He adds that there is currently greater pressure to care for the environment at the same time as, in general, minerals of interest are becoming scarcer and in greater demand. (Juliani, 1995).
So, even though in theory there is an effort to contain environmental damage, it is not possible that they will end while society depends on mining. Another relevant point is disposal. When excavating, one looks for a specific ore, but the composition of the lithosphere (rocky part of the planet) is much more complex. It has many other products that are less profitable or profitable for companies. Moreover, they are the ones that, as they are discarded, can contaminate the soil, the water or the life forms in the region. One example, Juliani says:
[...] happens when ploughing some regions in search of iron ore or coal, where drilled rock remains were accumulated in a pile near the mine. This waste contained sulfides which, when in contact with water and oxygen, generate sulfuric acid. The result can be environmental degradation and contribution to acid rain. Although this practice is no longer common, precisely because of the damage to the environment, there is still a reflection of this contamination in cities of Santa Catarina, especially where there is a concentration of coal mining. (Juliani, 1995).
These are the prominent examples of impacts that occur due to mining, contamination by waste, and the need to modify the landscape. The carelessness of companies with the environment leads to accidents that could be avoided.
The purpose of the legal system is to protect what is lawful for the individual and, at the same time, to curb the unlawful. Brazilian author Juliana Morigi explained that the law seeks to support the conduct with the law, morality and good customs as well as refuting the conduct of the one which contradicts it (Morigi, 2017). As placed by Carlos Gonçalves - Brazilian judge and author - in 2017, "[...]the responsibility may result from violating both moral and legal rules, separately or concomitantly. Everything depends on the fact that configures the infraction, which can often be prohibited by moral or religious law or by the law".
For the assessment of what happened in the neighbourhood of Pinheiro, it is of interest the analysis in the legal field, which primarily relies on articles 186, 187, and 927 of the Civil Code in force. In that regard, inferring that Civil Liability consists of the duty to repair the damage by anyone who violates a legal duty through an unlawful act. It will be seen later that lawful acts may also trigger civil liability (Brazilian Civil Code, 2002):
Art. 186. Whoever, by voluntary action or omission, negligence, or imprudence, violates a right and causes damage to another, even if exclusively moral, commits an illicit act.
Art. 187. The holder of a right who, in exercising it, manifestly exceeds the limits imposed by its economic or social purpose, good faith or good customs, also commits an illicit act.
Art. 927. Whoever, through an illicit act (arts. 186 and 187) causes damage to another is obliged to repair it.
In this sense, there must be an obligation to repair the damage - regardless of fault - in cases specified by law or when the activity generally performed by the perpetrator of the damage implies, by its nature, the risk to the rights of others. The need to distinguish between obligation and liability is obvious: as mentioned by Carlos Gonçalves in 2017, "[...] the legal bond that grants the creditor (active subject) the right to require the debtor (passive subject) to comply with a certain provision". Even though the object of the dispute must consist of an economically measurable instalment, the relation constructed is of a transitory, personal nature. There are several sources of obligation which, in the ideal world, should be spontaneously complied with; however, in cases where this does not occur, upon breach, accountability arises. Thus, it should be avoided to imprison the institute of liability in a single concept, explained as "[...] the liability is, therefore, the patrimonial legal consequence of the breach of the obligation relationship" (Gonçalves, 2017).
Strict Liability and Environmental Law
From this perspective, in environmental matters, it is more important to prevent rather than to recompose – or seek compensation for – what cannot be recovered. The ecosystem's wounds are not always measurable and restoring the environment to its pre-damage state is difficult. Consequently, caution and responsibility for the planet inspire the principles of prevention. Furthermore, when it is shown that the activity or conduct is risky and will harm environmental quality, there is no alternative but to avoid it from being carried out. In this aspect, the prevention principle operates (Fiorillo, 2014). Therefore, we briefly discuss the importance of environmental licensing, one of the essential instruments for implementing the principles of prevention, precaution, and sustainable development. Tribuna's paper - an online news vehicle from Alagoas - provided much information on the case. As such, it indicates that Braskem, even though it has been operating mining activities for almost forty years, is extracting more than a ton of rock salt from each mine, enjoying a total of thirty-five without the requirement of the necessary Environmental Impact Study (Tribuna, 2019).
The Environmental Impact Assessment (EIA) is an instrument to prevent environmental damage. The Brazilian legal system establishes that the EIA and the Environmental Impact Report (RIMA) are mandatory instruments for installing any work or activity causing potential environmental degradation. Given the above, the Brazilian Federal Constitution (1988) will be observed initially:
Art. 225. Everyone has the right to an ecologically balanced environment, an asset for common use by the people and essential to a healthy quality of life, imposing on the Public Power and the community the duty to defend and preserve it for present and future generations. § To ensure the effectiveness of this right, it is incumbent upon the Public Power: IV - To require, as provided for by law, for the installation of any work or activity with the potential to cause significant degradation to the environment, a prior environmental impact study, to which publicity shall be given.
Nevertheless, since it is an activity with a high impact on the ecosystem, the Federal Constitution expressly requires that mining companies recover the degraded environment. Triple liability is composed of administrative, civil, and criminal environmental lawsuits. Specifically, it is the application of the activity risk, which does not require the demonstration of guilt and may even arise from lawful activities. The administrative environmental responsibility – as mentioned above – is regulated by Law 9.605/98 in Chapter VI. Article 70: "[...] it is considered an administrative environmental violation any action or omission that violates the legal rules of use, enjoyment, promotion, protection, and recovery of the environment." Moreover, Decree 6514/08 provides for administrative violations and penalties to the environment, whose fines can reach the maximum limit of up to R$50,000,000.00 (equal to US$ 10,026,461.84). However, the core of administrative environmental liability is conduct contrary to a legal rule protecting the environment. As a consequence, it is not damaging those results in the lawsuit of the transgressor, but his infringing omissive or commissive conduct. These actions, in turn, may be imputed to the natural person or legal entity of public or private law, which has occurred in the practice of the act, as stated by the Brazilian Federal Constitution in its article 225, paragraph 3rd: "the conducts and activities considered harmful to the environment shall subject the violators, individuals or legal entities, to criminal and administrative penalties, regardless of the obligation to repair the damage caused" (Federal Constitution,1988).
Concerning legal entities, as explained by Professor Édis Milaré in 2016, it is undeniable that they sustain infringing capacity linked to the volitional emission of their managers. In the case of the incident in the Pinheiro's neighbourhood, administrative environmental responsibility may also be imputed to the state since it failed to require environmental licensing from the EIA or RIMA for Braskem to start its activities, contrary to the environmental protection rules. One of the main points about environmental damage is that its proportions are almost always greater than at first sight. This becomes evident in the case under analysis when one sees, using reports from the SGB/CPRM and Braskem itself, that the territory affected by soil instability has grown exponentially about the time-lapse researched. To illustrate, in almost two years, the so-called Risk Area has also come to encompass the districts of Mutange, Bebedouro and, more recently, Bom Parto - all in the capital of Alagoas. For all the preceding, the concept of environmental civil liability is evolving. However, it must take more extensive steps to encourage preventive measures and give greater agility to the search for compensation for damages that may occur.
Braskem avoids objective civil environmental lawsuits by claiming there is no causal connection between mining activity and soil instability. Even with reports, such as those coming from the SGB/CPMR, which deal with a high probability that the extraction of rock salt is the leading cause of environmental damage affecting the neighbourhoods of Maceió. The company dodges the issue by stating that further studies on the subject are necessary (Executive Summary of CPMR, 2019). Thus, it is needed to build adequate legislation in Brazil with effective enforcement mechanisms to punish those responsible for the disaster mentioned above. Those who pay the final bill are the residents whom the Brazilian Public Power has neglected.
Conclusion
For the Brazilian legal system, the chain of causation – even in the strict liability theory – is essential for the imputation of the civil institute. In several cases, the environmental harm is not easily ascertained, and sometimes not even its causes are immediately identified. For that reason, the understanding of its imprescriptibility by the Superior Court – when not strictly individual – is correct. Indeed, as demonstrated, environmental damage may arise even from lawful activities, invoking the approach of the Theory of Integral Risk and the Theory of Created Risk. According to the first theory, the agent who caused the damage must repair it to all its extent, creating barriers even for the admission of causes excluding civil liability. Although, based on the second theory, any activity, whether economic or not, generates risks. That said, the agent puts himself at risk just by exercising the activity, and he will be obliged to indemnify just by exposing himself to the damage.
With absolute clarity, it was demonstrated that the legislation itself offers grounds for adopting environmental civil liability, based on the strict liability of the agent and especially about the activity performed by him being in progress in a risky society. Even though, it is also necessary to go hand in hand with preventive practices and alternative methods of conflict resolution aimed at improving responses to the needs of contemporary society and future generations in search of sustainable development and a balanced environment.
Finally, despite the increase in complaints and conflicts in Brazil caused by foreign mining companies, the diplomatic consequences on them remain non-existent. Even with the involvement of transnational mining companies in environmental disasters in Brazil, the legal repercussions are restricted to financial reparations to those affected, without sanctions and, in some cases, with investigations not concluded on other activities carried out by these companies on national soil. The ideal scenario would be to strengthen the legal consequences for these companies by expanding inspection and creating effective methods for enforcing legal provisions.
Bibliographical References
Articles 1st e 2nd, Ordinance nº 20 de 11 January 2019. Official Gazette of the Union. Available at: https://www.gov.br/mme/pt-br/acesso-a-informacao/legislacao/portarias/2019/portaria-n-20-2019.pdf
Brazilian Civil Code, 2002. Law n. 10/406/2002/ Available at: https://www.planalto.gov.br/ccivil_03/leis/2002/l10406compilada.htm
Brazilian Constitution, 1988. Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm
Brazil, Federal Justice in Alagoas. Public Civil Lawsuit (ACP - Class Action) nº 0803836-61.2019.4.05.8000. Id. 4593606 p. 27.
Fiorillo, Celso Antônio Pacheco. Environmental Brazilian Law Course. 15 ed. São Paulo: Saraiva, 2014. p. 379.
Gonçalves, Carlos Roberto. Brazilian Civil Law. Civil Liability 2017. p. 12.
Juliani, Caetano et al. Guarulhos gold deposits and the methods of its mining in the colonial period. Geologia. Technical Science, n. 13, p. 8-25, 1995. Available at: https://repositorio.usp.br/directbitstream/3f9600df-7a3b-426e-b8cb-f0be272d4f64/0892633.pdf
Mendes, V.A.; Ferrer, D.; Lima, A,B. de; Lira Brito, M. de F. Geology of State of Alagoas, 2017. CPRM. Recife.
Milaré, Édis. Legal Reaction to Environmental Damages: Contribution to the delineation of a microsystem of responsibility. São Paulo, 2016. Doctoral Thesis - Catholic University of São Paulo. P. 128-131.
Morigi, Juliana. Liability of social networks, 2017. Available at: https://jus.com.br/artigos/57644/responsabilidade-civil-das-redes-sociais
SGB/CPRM – Brazilian Geological Service. 2º Executive Summary – Updated Work Plan of the SGB/CPRM. Available at http://www.cprm.gov.br/publique/Gestao-Territorial/Acoes-Especiais/Apresentacao-dos-Resultados---Estudos-sobre-a-Instabilidade-do-Terreno-nos-Bairros-Pinheiro%2C-Mutange-e-Bebedouro%2C-Maceio-%28AL%29-5669.html
Tribuna. Braskem acted without inspection. Maceió, 2019. Available at: https://tribunahoje.com/noticias/cidades/2019/11/05/74073-pinheiro-moradores-se-preparam-para-audiencia-em-brasilia
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