Environmental Improbity

Many years ago, while still a Director of the Brazilian Association of Environmental Public Prosecutors – ABRAMPA and a Public Prosecutor in the Specialized Prosecutor's Office for the Defense of the Environment in Porto Alegre/RS, I defended the thesis of so-called “environmental improbity”, which came to be endorsed in the Brazilian Public Prosecution Service and used with enormous frequency to combat public mismanagement in the environmental area. It is not just a matter of combating serious dishonesty in environmental licensing or inspection, but also of confronting the chronic problem of endemic inefficiency in this sector, in light of Law 8,429/92, which provides, beyond reimbursement of material and moral damages, for suspension of political rights and other sanctions against public agents and private parties. One of the instruments proposed, in a work I published, was the provision of personal liability of public agents in terms of adjustment of conduct, to ensure their effective implementation.

More than 10 (ten) years after the period in which I served as a Public Prosecutor in the environmental area, and today as a lawyer, I see that the case law, especially of the STJ, has accepted the thesis of environmental improbity, and public managers need to adopt ever greater precautions, in the field of prevention, to avoid the application of Law 8,429/92, the Administrative Improbity Law, as a result of irregular acts or omissions in the area of the natural or urban environment. The rigor of the authorities and oversight institutions in the area of environmental protection is ever greater, and I am speaking not only of the Public Prosecution Service but of the Courts of Accounts and other bodies, including non-governmental organizations, which is positive for Brazilian society.

Note, for example, that public-law entities — of any sphere — may be brought into the defendant's side of a public civil action for improbity, alongside public and private agents, in the establishment of irregular subdivisions in environmentally protected areas or areas for the protection of water sources, whether by action, when the City Hall issues a permit authorizing the subdivision without first obtaining authorization from the competent environmental protection bodies, or by omission in the oversight and monitoring of the implementation of subdivisions. This type of paradigm applies to the field of environmental licensing in general. The case law of the Superior Court of Justice is oriented toward recognizing the standing to be sued of a public-law legal entity in an action seeking accountability for damage caused to the environment as a result of its omissive conduct regarding the duty to oversee. Likewise, this form of accountability is consistent with the constitutional text, which provides, in its art. 23, VI, for the common competence of the Union, the States, the Federal District, and the Municipalities with regard to the protection of the environment and the fight against pollution in any of its forms, which reinforces the rigor of the sanctioning normative system. And, further, it is necessary to recall art. 225, caput, also of the Federal Constitution, which provides for everyone's right to an ecologically balanced environment and imposes on the Public Authorities and the community the duty to defend and preserve it for present and future generations, increasing the demands on oversight institutions. The competence of the Municipality, in environmental matters, as in everything else, is limited to activities and works of “local interest” whose impacts on the biota are also strictly local. The municipal authority that takes upon itself the power to license, exclusively, what, under the constitutional text, is also an obligation of the State and even of the Union, attracts to itself civil and criminal liability, as well as liability for administrative improbity, for the excesses it commits, subject to the rules on the duties of public officials.

It is true that a civil action for environmental improbity may give rise to a later reclassification of the facts, leaving only (but it is not little) liability for reimbursement of damages, whose legal regime likewise cannot be strict, in the case of personal liability of public agents or private parties, in matters of administrative sanctioning law. The STJ held that, once a public civil action for an act of administrative improbity is admitted, the later recognition of limitation of the action as to the claim for conviction does not prevent the suit from continuing as to the claim for reparation of damages. The discussion that arises is whether the reparation of damages is subject to a sanctioning regime or to mere civil liability. What is certain is that new public managers must be attentive to environmental issues, since it is possible to inherit liabilities and assume responsibilities of third parties. New paradigms, with greater complexity, of legality, in addition to a tangle of legislation, denote the need for high technical preparation to face the challenges that emerge in the environmental field.

(*) Fábio Medina Osório is a lawyer, holds a doctorate in administrative law from the Complutense University of Madrid, and is president of the International Institute of State Law Studies