Brazilian Supreme Court (STF) Rules Environmental Damages Remediation Claims Have no Time Limitation

The STF has judged, in a virtual session, the Extraordinary Appeal  No. 654,833/AC (“Appeal”), through which, by a majority vote of STF’s Ministers (6-3), it was ruled that “the claim for civil remediation for environmental damage is not barred by time limitation”.

In 1996,  the Federal Public Prosecutor´s Office filed a public civil action in the lower court, against individuals involved in illegal logging and removal of timber between 1981 and 1987, located on indigenous land (Kampa do Rio Amônia), in the State of Acre. The court established BRL 10 million as indemnification.

Brazil’s highest court for non-constitutional issues, the Superior Court of Justice (STJ), sentenced the loggers to indemnify indigenous people and to pay for the forest restoration of affected areas, also ruling that the “right to claim for environmental damages, within the hermeneutic logic, is protected by the lack of time limitation”. Such decision was further challenged by the defense.

By Appeal to the Brazilian Supreme Court, the defense argued: (i) STJ’s impossibility to replace the twenty-year statute of limitation by the bar of time to claim environmental damages remediation, violating the principle of the prohibition on reformatio in peius (aggravation of the penalty in the appeal filed by the defense); and (ii) harmful conduct occurring from the years 1981 to 1987, which should not be governed by provisions of the current Brazilian Federal Constitution (1988).

In August 2018, the Federal Public Prosecutor’s Office  requested the rejection of the defense’s Appeal to STF, arguing that STJ’s decision should be upheld, maintaining that: (i) the Appeal involves a subsidiary request, referring to the  limitation for claiming civil remediation of environmental damage; and (ii) the lack of statutory limitation for environmental damages, although exceptional, is applicable for environmental damages remediation, arising not from the current Constitution, but from the fundamental nature of the interests involved and therefore does not depend on express legal provision.

Subsequently, still in 2018, by majority vote, the STF confirmed the general repercussions of the matter regarding the lack of statutory limitation for environmental damages remediation, related to such Appeal (Theme 999 – general repercussions).

Through recognition of the matter’s general repercussion, the Appeal to the STF was ruled on,  establishing the understanding that environmental damages remediation claims are not subject to time limitations.

Although environmental legislation does not expressly provide for the time limitation in the case of environmental damages, such understanding is already largely accepted by doctrine and the courts, considering that environmental damages often extend over time or that they can be verified only many years after the agent’s action or inaction.