Brazilian National Council of Justice creates national environmental policy of the judiciary

The National Council of Justice (“CNJ”) recently established the National Environmental Policy of the Judiciary through Resolution No. 433/2021.

The Resolution is the result of work carried out by the Working Group “Judicial Observatory Committee for the Environment and Climate Change”, whose main objective is to establish guidelines and specific attributions aimed at guiding strategic practices of the Justice system and judges in cases that deal with environmental matters.

Within the guidelines established by the Resolution, there are concepts that have already been observed in national case law, such as:

  1. observance of the “polluter pays” principle and the principles of precaution, prevention and intergenerational solidarity ;
  2. Conduct assessments and establishment of parameters for environmental damage valuation;
  3. use of technological resources, such as remote sensoring and satellite imaging as judicial evidence;
  4. respect for the self-determination of indigenous people and traditional communities, guaranteeing their right to free, prior, and informed consultation on cases that can affect them;
  5. Encouragement of continuous and permanent training of justice agents in environmental matters.

 

The Resolution has also established a series of specific attributions for the Judicial system, such as the creation of centers specialized in environmental issues; the presentation of periodic reports on environmental cases; the drafting of a normative act to regulate the free, prior and informed consultation with indigenous people and traditional communities concerning their rights and opinions regarding actions that may affect them; as well as specific guidelines that Brazilian judges should consider in cases of  environmental damages rulings, as summarized below:

  1. CNJ should provide periodic reports in order to assist in the identification of (a) the time taken to process environmental lawsuits (b) the courts with the highest number  of environmental lawsuits; (c) the regions that require priority attention, such as public land and forests, indigenous reserves, quilombola communities (descendants of enslaved communities that escaped their “masters”), as well as areas occupied by and traditional communities; and (d) the most active litigants in environmental law;
  2. Courts should establish centers specialized in environmental issues, and should also ensure, through their own normative act, the right to prior, free, and informed consultation to indigenous people and traditional communities, in accordance with Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples.
  3. should consider the impacts caused by global climate change and on the respective peoples and communities affected by such impacts, when quantifying indemnification for environmental damages. In addition, judges should guarantee that traditional peoples and communities are ensured the right to prior, free, and informed consultation on lawsuits that address diffuse and collective rights or cases that individually affect them. Furthermore, the judges will be allowed to accept evidence produced exclusively by remote sensoring resources and satellite imaging as evidence in environmental lawsuits.

 

Finally, the application of Resolution 433/2021 can already be observed in Brazilian courts. As an example, a recent decision (which can still be challenged), based on the aforementioned Resolution, has declared the nullity of the environmental licensing process for the installation of a large coal mining project. Such ruling was due to an alleged lack of effective guarantee of the right to prior, free, and informed consultation to an indigenous community affected by the project, and also due to the same community’s exclusion from the project’s environmental impact assessment.

Demarest’s Environmental and Dispute Resolution teams are available to provide  further information on this and other related topics.